Alvarez v. Wallace

107 F.R.D. 658
CourtDistrict Court, W.D. Texas
DecidedAugust 30, 1985
DocketNo. SA-84-CA-2708
StatusPublished
Cited by9 cases

This text of 107 F.R.D. 658 (Alvarez v. Wallace) is published on Counsel Stack Legal Research, covering District Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alvarez v. Wallace, 107 F.R.D. 658 (W.D. Tex. 1985).

Opinion

MEMORANDUM OPINION . AND ORDER

SESSIONS, Chief Judge.

ON THIS DATE came on to be considered the motion of the Plaintiffs, Apolonios Alvarez, et al., for an award of attorney’s fees in accordance with Rule 37(a)(4) of the Federal Rules of Civil Procedure against Defendants James A. Wallace, Terry Wallace and Hugo Real pursuant to this Court’s grant of Plaintiffs’ motion to compel production.

Rule 37(a)(4) of the Federal Rules of Civil Procedure provides that:

Award of Expenses of Motion. If the motion is granted, the Court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

Fed.R.Civ.P. 37(a)(4) (emphasis supplied). Subsection (a)(4) of Rule 37 was amended in 1970 to further the policy of the Federal Rules of Civil Procedure that discovery should proceed between the parties to an action with a bare minimum of judicial involvement. As Professor Wright noted:

A major purpose of the 1970 revision of the discovery rules was to encourage extrajudicial discovery with a minimum of court intervention. One means of accomplishing that was to tighten the judicial sanctions with respect to unjustified insistence upon or objection to discovery. This led the draftsman to place ‘new emphasis on the availability and compulsory nature of an award of expenses.’

8 C. Wright & A. Miller, Federal Practice and Procedure § 2288 (1970 & Supp.1985). With respect to the discovery process, “[cjooperation among counsel is not only helpful, but required, and the court has a duty to insure that cooperation is forthcoming.” Ohio v. Crofters, Inc., 75 F.R.D. 12, 21 (D.Colo.1977), aff'd, 570 F.2d 1370 (10th Cir.1978), cert. denied sub nom, Arthur Andersen & Co. v. Ohio, 439 U.S. 833, 99 S.Ct. 114, 58 L.Ed.2d 129 (1978).

Within this statutory framework, the Court is called upon to determine whether Plaintiffs should be awarded attorney’s fees pursuant to this Court’s July 25, 1985 Order granting Plaintiffs’ motion to compel production. In that Order, the Court directed Defendants to show cause within ten days why Plaintiffs’ claim should not be granted, and further directed Plaintiffs’ attorneys to submit an application in connection with their claim for reasonable attorneys’ fees. The Defendants’ answers, Plaintiffs’ counsel's affidavit, and the Plaintiffs’ reply to Defendants’ responses are now before the Court for consideration.

Plaintiff moved to compel production of a very limited number of Defendants’ business records from 1984, including tax returns and bank statements. Unable to obtain such discovery from Defendants, Plaintiffs’ counsel was forced to turn to [660]*660this Court for assistance. Plaintiffs’ motion to compel production plainly set forth that such documents were critical in determining whether a partnership or joint enterprise existed with respect to liability, and to determine whether the driver of the truck that injured Plaintiffs was employed by the Defendants. In Plaintiffs’ reply to Defendants’ responses, Plaintiffs attached copies of financial records that appear to support their allegation of joint enterprise or partnership. Plaintiffs’ Reply to Defendants’ Responses at 4-7. As the Court stated in its Order granting the motion to compel, “the Court believes that the business records information sought is clearly relevant to contested issues in this case____” Court’s Order Granting Plaintiffs’ Motion to Compel at 4.

Defendants argue that attorney’s fees should not be awarded as their position opposing discovery was substantially justified. Defendants quote Professor Wright who states: “Making a motion or proving a motion is ‘substantially justified’ if the motion raised an issue about which reasonable men could genuinely differ on whether a party was bound to comply with the discovery rule.” Defendant’s Brief in Support of Denial of Attorney’s Fees at 1, quoting with approval, 8 C. Wright & A. Miller, Federal Practice and Procedure § 2288 (1970) (The Court cites to Defendant James and Terry Wallace’s response; Defendant Real’s response is a substantially verbatim copy with the exception of name changes, and accordingly, the Court’s citations hereinafter shall be deemed to be to both the Wallace and Real responses). Defendants rely on the following four factors to support their argument that their opposition to the discovery was “substantially justified”:

1) Plaintiffs had previous knowledge of no existence [sic] of a joint enterprise or partnership and such documents being compelled would serve no useful purpose in the case at bar. Therefore, the documents being compelled were not relevant to the issues before the court.

2) The type of information being compelled is usually presented in aid of a judgment to discover assets.

3) Such information is not relevant to narrow or clarify the basic issues between the parties, or for ascertaining the facts, or information as to the existence or whereabout of facts relative to the issues between the parties.

4) Defendants’ attorney opposed said motion to compel in good faith and not due to any unreasonable, recalcitrant, deliberate, or captious conduct or attitude, and not without substantial justification.

Defendants’ Brief in Support of Denial of Attorneys’ Fees at 2-3.

The Court will address each of Defendants’ arguments that they had “substantial justification” for refusing to allow Plaintiffs’ request for discovery. Defendants’ first argument seems somewhat contradictory on the surface, and the Court is unsure whether there is a typographical error. If Defendants argue that Plaintiffs knew that there was no joint enterprise, the Court rejects such a contention as Plaintiffs have consistently argued that a joint enterprise existed, and the documents that they sought appear to be some evidence that such arguments are meritorious. If, on the other hand, the Defendants are arguing that Plaintiffs had previous knowledge of the existence of a joint enterprise, the Court still believes that Plaintiff would be entitled to such discovery in order to prove its allegation, as there was no stipulation by Defendants of joint enterprise or partnership. In either case, the Court does not agree with Defendants that such discovery was not relevant, as this Court granted an Order to compel because it believed that such discoverable information was relevant in that it would be valuable in helping to establish liability against the Defendants.

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Cite This Page — Counsel Stack

Bluebook (online)
107 F.R.D. 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alvarez-v-wallace-txwd-1985.