Kamps v. Fried, Frank, Harris, Shriver & Jacobson L.L.P.

274 F.R.D. 115, 2011 U.S. Dist. LEXIS 46301, 2011 WL 1641552
CourtDistrict Court, S.D. New York
DecidedApril 28, 2011
DocketNo. 09 Civ. 10392 (RMB)(KNF)
StatusPublished
Cited by6 cases

This text of 274 F.R.D. 115 (Kamps v. Fried, Frank, Harris, Shriver & Jacobson L.L.P.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kamps v. Fried, Frank, Harris, Shriver & Jacobson L.L.P., 274 F.R.D. 115, 2011 U.S. Dist. LEXIS 46301, 2011 WL 1641552 (S.D.N.Y. 2011).

Opinion

MEMORANDUM AND ORDER

KEVIN NATHANIEL FOX, United States Magistrate Judge.

BACKGROUND

In July 2010, the plaintiff served timely notices of deposition on defendants Valerie Jacob (“Jacob”) and Justin Spendlove (“Spendlove”), but the defendants refused to appear for their depositions. The Court denied the defendants’ September 15, 2010 motion for a protective order, which sought to bar the plaintiff from deposing Jacob and Spendlove. The Court found that the motion was untimely and directed the plaintiff to file a motion for reasonable expenses, including attorney’s fees, pursuant to Fed.R.Civ.P. 37(a)(5). Before the Court is the plaintiffs motion for reasonable expenses, including attorney’s fees, made pursuant to Rule 37(d) of the Federal Rules of Civil Procedure.

The plaintiff contends she offered to withdraw the deposition notices to the two defendants in exchange for a corporate designee who would speak for the defendant law firm, but the defendants rejected her proposal and failed to file timely for a protective order. She argues the defendants’ failure to appear for their depositions stymied her discovery efforts for several months. The plaintiff seeks $10,421.50 in reasonable expenses, including attorney’s fees. The plaintiffs law firm consists of two partners, Daryl Davis (“Davis”) and Latiff Doman (“Doman”). In support of her motion, the plaintiff submitted a declaration by Davis, stating that both partners specialize in representing plaintiffs in employment-discrimination cases, and each [117]*117charges an hourly rate of $585 for his services. According to Davis’s deposition, Davis and Doman worked for seventeen and one-half hours in connection with the defendants’ refusal to attend their depositions, at a cost to the plaintiff of $10,237.50 and spent $184 for travel.

The defendants contend that their refusal to appear for depositions was “substantially justified because reasonable attorneys could disagree about the justification for deposing a firm’s two highest-ranking executives simply by virtue of their being named as individual defendants.” According to the defendants, requiring them to pay the plaintiff’s expenses would be unjust because “Plaintiff has not been prejudiced by moving to compel the depositions of Spendlove and Jacob,” and they “have incurred significant costs litigating Plaintiffs discovery failures.” Moreover, the plaintiffs motion should be limited substantially because “it fails to provide any supporting documentation for the fees and expenses that Plaintiff allegedly incurred as a result of Spendlove’s and Jacob’s failure to appear for their depositions.” According to the defendants, the plaintiff failed to attach to her motion her “retainer agreement with Doman Davis LLP, which purportedly specifies a billable rate of $585/hour for their services,” or “any supporting documentation in the form of billing records or invoices for services or disbursements.” Moreover, Davis “fails to explain how he has personal knowledge regarding Mr. Doman’s billable time and expenses.”

In her reply, the plaintiff submitted a copy of the relevant retainer agreement, which confirms that each partner’s hourly rate is $585. The plaintiff also submitted travel receipts generated in connection with Spend-love’s deposition. She argues that “Davis’s affidavit suffices as a proper record of the time he and his partner spent on the ease.” According to the plaintiff, both Davis and Doman “have years of experience and expertise in employment law” and, according to “the Laffey Matrix” exhibit, submitted in reply, to “which courts regularly look ... to determine what hourly rate is reasonable ... an hourly rate of $589” is indicated for attorneys with comparable years of experience. As for the travel expenses, the plaintiff contends, she scheduled initially “all of the depositions to occur back to back in a single week,” and Doman “went to New York and took all depositions except Spendlove’s and JacobE’s]. He had to return to New York last month to take Spendlove’s deposition as Mr. Davis was not available. That was not a cost Plaintiff would have incurred but for DefendantsE’] failure to appear at the validly noticed deposition.”

RULE 37(d) LEGAL STANDARD

Although the Court, at its discretion, directed the plaintiff to file a motion for reasonable expenses, including attorney’s fees, incurred in opposing the defendants’ motion for a protective order, pursuant to Rule 37(a)(5), the plaintiff elected to file a motion under Rule 37(d), based on the defendants’ failure to attend their own depositions. Unlike Rule 37(a)(5), which provides for reasonable expenses incurred in opposing the defendants’ motion for a protective order, see Fed.R.Civ.P. 26(c)(3) and Fed.R.Civ.P. 37(a)(5), Rule 37(d) provides that, where a party, after being served with proper notice, fails to appear for its own deposition, “the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(d)(3). A party’s failure to attend its own deposition “is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).” Fed. R.Civ.P. 37(d)(2). The disobedient party has the burden of “showing that his failure is justified or that special circumstances make an award of expenses unjust.” Novak v. Wolpoff & Abramson LLP, 536 F.3d 175, 178 (2d Cir.2008) (citation omitted).

APPLICATION OF THE RULE 37(d) LEGAL STANDARD

Whether Failure to Act Was Substantially Justified

Although the plaintiffs motion for reasonable expenses is based on the defen[118]*118dants’ failure to appear for their depositions, pursuant to Fed.R.Civ.P. 37(d), the defendants’ argue that the “ ‘substantial justification’ exception to Rule 37(a)(5) is met when a party demonstrates that the dispute about the matter was ‘genuine’, meaning that ‘reasonable lawyers could disagree about the appropriateness of the disputed position.’ ” The defendants are correct that the test for avoiding the imposition of reasonable expenses, including attorney’s fees, for resisting discovery is whether the resistance was “substantially justified” and that the burden of the disobedient party opposing a motion for expenses is “satisfied if there is a ‘genuine dispute,’ or ‘if reasonable people could differ as to [the appropriateness of the contested action].’” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988) (internal citations omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
274 F.R.D. 115, 2011 U.S. Dist. LEXIS 46301, 2011 WL 1641552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kamps-v-fried-frank-harris-shriver-jacobson-llp-nysd-2011.