Saalfrank v. Town of Alton, et al.

2010 DNH 041

• Court: District Court, D. New Hampshire
• Decided: March 5, 2010
• Docket: CV-08-46-JL
• Status: Published

Opinion

Saalfrank v . Town of Alton, et a l . CV-08-46-JL 3/5/2010 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Kenneth P. Saalfrank

v. Civil N o . 08-cv-46-JL Opinion N o . 2010 DNH 041 Town of Alton et al.

OPINION AND ORDER

A discovery dispute in this civil rights case resulted in

the denial of a motion to compel and now requires the court to

address the question of sanctions under the Federal Rules of

Civil Procedure. See Fed. R. Civ. P. 37(a)(5)(B). Kenneth P.

Saalfrank has sued, among others, the Town of Alton, its police

department, and a number of its current and former officers,

claiming “a prolonged series of unfounded searches, seizures,

arrests, and prosecutions” in violation of his rights under the

federal and state constitutions and at common law. These “Alton

defendants” moved to compel Saalfrank to produce a variety of

information over his objections. In a written order (the

“Order”), this court denied the motion in its entirety, ruling

that all of the information the Alton defendants sought was

privileged, irrelevant, or not within Saalfrank’s possession,

custody, or control.

Saalfrank now moves to recover the reasonable expenses he

incurred in successfully opposing the motion under Rule 37(a)(5)(B) of the Federal Rules of Civil Procedure, which

mandates such an award unless it would be unjust or the motion

was substantially justified. See infra Part I I . This court,

which has subject-matter jurisdiction under 28 U.S.C. §§ 1331

(federal question) and 1367 (supplemental jurisdiction), ordered

written filings from the parties and heard oral argument on this

issue.1 Based on those submissions, the court grants Saalfrank’s

motion and awards him roughly half of the sum he has requested as

his reasonable expenses. The motion to compel was substantially

justified in seeking only one narrow category of the several

broad types of information it sought, and there are no other

circumstances making an award of expenses unjust.

In addition to defending themselves from sanctions on the

merits, the Alton defendants have suggested that the Order

denying the motion to compel exhibits a certain blindness t o , or

at least a lack of awareness o f , “how things are done,” and that

the Order and any sanction award will have a chilling effect on

legitimate discovery practices, at least those employed by

defendants in civil rights cases. Mindful of these concerns, the

1 Defendant Tyler Hackett, an Alton police officer who has retained separate counsel from the Alton defendants, also filed a response to Saalfrank’s request for expenses, even though Hackett did not join in the motion to compel and therefore is not responsible for the payment of expenses under Rule 37(a)(5)(B).

2 court is mindful of those concerns, and addresses them infra at

Parts III.B and IV.

I. Background

The nature of Saalfrank’s claims, insofar as they relate to

the motion to compel, is discussed at length in the Order, 2009

DNH 1 6 2 , 2-7, and need not be repeated here. In short, Saalfrank

alleges that the defendants’ actions “caused [him] severe

emotional distress and damaged his reputation and standing in the

community” and “extensive and lasting damage to his emotional,

physical, and societal well being.” But, as he stated in his

interrogatory answers, Saalfrank makes no claim for loss of

income or future earning capacity, nor did he receive medical

treatment or any benefits (e.g., social security, worker’s

compensation) as a result of the defendants’ alleged conduct.

Nevertheless, following Saalfrank’s deposition, counsel for

the Alton defendants wrote to counsel for Saalfrank asking him to

produce, among other documents: all of his medical records from

January 2002 to present, including those “related to workers’

compensation and assessment or percentage of disability”; all of

his tax returns and related documents, and a list of all job

applications he had made, for the same period; and “all

documentation regarding social security disability claims.”

3 Counsel for the Alton defendants also asked for “authorizations

to obtain the records from” a number of attorneys who had

previously counseled Saalfrank on various matters, including an

attorney who had represented him in a workers’ compensation

appeal, Jerry O’Neil, and the public defender who had represented

him on one of the charges connected to his claims against the

Alton defendants, Melissa Penson.2 Counsel for the Alton

defendants further requested “all probation records.”

Saalfrank’s counsel responded that information as to

Saalfrank’s earnings, employment history, and social security or

workers’ compensation benefits was irrelevant because he was

making no claim for loss of income or that the defendants had

caused him any disability. Saalfrank’s counsel further noted

that, while there was also no claim that the defendants’ actions

had necessitated any medical care, he had already made

Saalfrank’s medical records available to the defendants subject

to a protective order. Saalfrank’s counsel also objected to

producing records from Saalfrank’s former attorneys on grounds of

privilege and relevance.

2 Saalfrank claims that the Alton defendants violated his constitutional right to due process by failing to present him to the state district court within 24 hours of his arrest on this charge in May 2007, even though he was on probation at the time.

4 Counsel for the Alton defendants responded by sending

Saalfrank’s counsel a draft version of the motion to compel,

which persisted in asking for all of the same information.

Counsel for Saalfrank responded with largely the same objections,

offering several times to enter into a “suitable” or

“appropriate” stipulation that Saalfrank was not seeking relief

for physical injury or lost income, reiterating that the medical

records had already been provided, and noting that Saalfrank’s

probation records were held by the Department of Corrections

rather than within his possession, custody, or control. The

Alton defendants nevertheless filed the motion to compel without

withdrawing any of their requests for this information or further

discussing the issue with Saalfrank’s counsel.3

Thus, the motion to compel sought a number of separately

designated categories of information:

1. All of the plaintiff’s medical records from January 1 , 2002 to the present regarding any and all medical or mental health care and treatment;

2. All of the plaintiff’s tax returns and/or W2s and 1099s for any income from January 1 , 2002 to the

3 By the time they filed the motion to compel, the Alton defendants had withdrawn some of their other requests, including for certain information Saalfrank’s counsel had agreed to provide, as well as for the files of two other attorneys who had previously represented Saalfrank (which Saalfrank had also objected to producing on grounds of relevance and privilege).

5 present and a list of all applications submitted by the plaintiff for jobs from January 1 , 2002 to present;

3. A signed authorization to Attorney Jerry O’Neil for release of the plaintiff’s complete worker’s compensation file;

4. All documentation related to any social security disability claim filed by the plaintiff from January 1 , 2002 or a signed authorization to release same;

5. All medical records related to worker’s compensation and/or social security disability and all assessments relating to any disability;

6. A signed authorization for release of all probation records from the New Hampshire Department of Corrections; and

7. A signed authorization to Attorney Melissa Penson and the New Hampshire public defender’s office for the release of the plaintiff’s complete file including all information related to a probation violation and simple assault charge in May 2007.

In violation of Local Rule 37.1, the motion did not attach

any of the requests and responses that had preceded i t ; though

counsel for Saalfrank brought this to the attention of counsel

for the Alton defendants just after the motion had been filed,

they refused to refile or supplement the motion to bring it into

compliance. Saalfrank filed a 14-page objection to the motion,

largely repeating the arguments his counsel had made in response

to the discovery requests, buttressed with citations to

appropriate authority; a reply and a surreply followed. The

court denied the motion in its entirety in the written Order.

6 II. Applicable legal standard

If a motion to compel is denied, the court “must, after

giving an opportunity to be heard, require the movant, the

attorney filing the motion, or both to pay the party . . . who

opposed the motion its reasonable expenses incurred in opposing

the motion, including attorney’s fees. But the court must not

order this payment if the motion was substantially justified or

if other circumstances make an award of expenses unjust.” Fed.

R. Civ. P. 37(a)(5)(B). A court must likewise award reasonable

expenses to a party who succeeds on a motion to compel

necessitated by another party’s discovery objection that was not

substantially justified. See Fed. R. Civ. P. 37(a)(5)(A).

When it comes to motions to compel, then, “[t]he great

operative principle of [Rule 37(a)(5)] is that the loser pays.”

8A Charles Alan Wright et al., Federal Practice & Procedure

§ 2288, at 657-58 (2d ed. 1994). The rule thus serves to “deter

the abuse implicit in carrying or forcing a discovery dispute to

court when no genuine dispute exists.” Fed. R. Civ. P. 37(a)(4)

advisory's committee's note (1970).

As used here and elsewhere in the rules, “[t]he term

“‘substantially justified’ does not mean ‘justified to a high

degree, but only ‘justified in substance or in the main--that i s ,

justified to a degree that could satisfy a reasonable person.’”

7 Sheppard v . River Valley Fitness One, L.P., 428 F.3d 1 , 12 (1st

Cir. 2005) (quoting Pierce v . Underwood, 487 U.S. 5 5 2 , 565

(1988)). The burden of showing substantial justification is on

the party facing the payment of expenses. See 8A Wright, supra,

§ 2288, at 665; Rickels v . City of S . Bend, Ind., 33 F.3d 785,

787 (7th Cir. 1994); c f . Wilson v . Bradlees of New Eng., Inc.,

250 F.3d 1 0 , 20-21 (1st Cir. 2001) (holding that a party facing

sanctions under Rule 37(c)(1) bears the burden of showing its

conduct was substantially justified).

III. Analysis

A. Whether the motion to compel was substantially justified

The court will consider whether the motion was substantially

justified as to each of the categories of information it sought.

1. Medical records

In moving to compel Saalfrank’s medical records, the

defendants Alton relied on his deposition testimony that “he

suffered ill effects as a result of withdrawal from certain

medication during his incarceration” in May 2007, that “the

defendants’ conduct made his symptoms worse,” and that “he spoke

to various doctors . . . about the stress and anxiety caused by

the defendants.” On its face, this argument shows the relevance

of some of Saalfrank’s medical records, i.e., those connected to

8 the defendants’ conduct. But it does not address or even

acknowledge that Saalfrank’s counsel had already (a) provided the

defendants’ counsel with access to his medical records pursuant

to a protective order and (b) offered to stipulate that Saalfrank

was not claiming any damages for physical injury or medical

expenses. Nor does it explain why the medical records, even if

they were relevant, would not be privileged.

In their reply, however, the Alton defendants asserted that

Saalfrank had waived the privilege, based principally on his

deposition testimony as to the serious effects of the defendants’

conduct on his emotional state. Because that account exceeded

“‘garden variety’ emotional distress,” the Alton defendants

argued, Saalfrank had “put the severe nature of his mental

condition at issue” and therefore effected a waiver of the

psychologist-patient privilege under Desclos v . S . N.H. Medical

Center, 153 N.H. 607 (2006). 4

In its Order, this court acknowledged that Desclos--in

delineating claims for “generic mental suffering” that require no

4 It is true, as Saalfrank points out, that this court ordinarily disregards arguments raised for the first time in a reply memorandum. See, e.g., Doe v . Friendfinder Network, Inc., 540 F. Supp. 2d 2 8 8 , 303 n.16 (D.N.H. 2008). Nevertheless, the court extensively considered the Alton defendants’ Desclos-based argument in the Order, and in fairness to the Alton defendants will consider here whether the argument substantially justified the motion in part.

9 expert testimony and therefore do not effect any waiver of the

privilege--explained the phrase in part as “the kind of suffering

that an ordinary person would experience in similar

circumstances.” 2009 DNH 1 6 2 , 17-18 (quotation marks omitted).

But this court rejected the Alton defendants’ argument, reasoning

that, under Desclos, “it is the nature of the defendant’s alleged

conduct, rather than the severity of the plaintiff’s alleged

damages, that determines whether mental suffering is ‘generic’

and thus whether the claim at issue waives any psychotherapist-

patient privilege.” Id. at 18-19.

The Alton defendants’ position, then, had some support in

the literal language of Desclos, and was rejected only after a

close reading of that case in the context of other New Hampshire

Supreme Court decisions on emotional distress damages. See id.

at 17-19. The Alton defendants were substantially justified in

moving to compel Saalfrank to disclose his medical records

despite his claim of privilege--at least insofar as those medical

records reflected treatment for emotional distress connected to

the defendants’ conduct (or a lack of such treatment).5

5 Similarly, as the court noted in the Order, the Alton defendants may have been substantially justified in moving to compel Saalfrank’s medical records insofar as they are relevant to his claim that he suffered withdrawal symptoms when he was deprived of his prescription drugs during his stint in jail in May 2007. But, putting aside the fact that the Alton defendants

10 But the Alton defendants’ motion made a much further-ranging

request for Saalfrank’s medical records: all of them, reflecting

treatment for anything, from the start of 2002 to the present.

The Alton defendants have never explained the relevance o f , or

attempted to overcome the privilege as t o , this broad range of

materials. That omission is particularly glaring in light of the

fact that, before they filed the motion, they had been provided

access to Saalfrank’s medical records, as well as offered a

stipulation that he was not seeking damages for physical injury

or medical expenses. These overtures should have enabled the

Alton defendants to narrow their request significantly o r , at a

minimum, to engage in further discussions with Saalfrank’s

counsel about this issue. See Fed. R. Civ. P. 37(a)(1)

(requiring that a party moving to compel certify to having

conferred in good faith with the adverse party in an effort to

obtain the discovery without court action). The court rules that

the Alton defendants’ motion to compel was substantially

justified in seeking Saalfrank’s medical records, but only

insofar as they reflected treatment for emotional distress

connected to the defendants’ conduct.

did not mention this point until their reply brief (and even that was just a passing reference), it could have justified the motion to compel only to that limited degree.

11 2. Records of employment and disability benefits

In moving to compel Saalfrank’s tax returns, earnings

summaries, job applications, and records of social security

disability or workers’ compensation claims from the start of 2002

to the present, the Alton defendants relied solely on a moment in

Saalfrank’s deposition when, asked if the defendants’ conduct had

impacted his ability to work by making him fearful of leaving his

house, he said, “Try to go get a job with the record they have

given me . . . . Who is going to hire somebody like that?”

Saalfrank testified in the same breath, however, that he is “also

disabled and [he] can’t work on a daily basis” as a result of a

workplace accident in 2003, and had sworn in his interrogatory

answers that “he has no damage claim for loss of income” or for

“loss of future earning capacity.” And, again, when counsel for

the Alton defendants nevertheless asked Saalfrank’s counsel to

produce his income, employment, and benefits information, counsel

offered to stipulate to the absence of such a claim.

In the face of these repeated disavowals of a claim for loss

of income or earning capacity, Saalfrank’s lone statement at his

deposition suggesting the defendants bore some of the blame for

his inability to work did not furnish a substantial justification

for moving to compel this information. Indeed, neither the Alton

defendants’ motion itself nor their reply in support of it even

12 acknowledged the disavowals, let alone offered any argument why

Saalfrank’s prior earnings and benefits were nevertheless

discoverable.6 They plainly were not. See Ellis v . City of

N.Y., 243 F.R.D. 109, 112 (S.D.N.Y. 2007) (ruling that

plaintiff’s tax returns were not discoverable in an action for

malicious prosecution without any claim for lost wages or “other

losses related to his income”); Bagnall v . Freeman Decorating

Co., 196 F.R.D. 329, 331-32 (N.D. Ill. 2000) (ruling that

plaintiff’s social security disability and workers’ compensation

benefits were not discoverable in a suit for job discrimination

on the basis of disability, except insofar as they showed he was

permanently disabled and therefore unqualified for the job at the

time of his discharge, which was relevant to his claim).

Hackett’s filing on the substantial justification issue and

the Alton defendants’ presentation at oral argument, however,

maintained that Saalfrank’s employment, income, and benefit

6 As the court acknowledged at oral argument, the proffered stipulation might have left the Alton defendants concerned that Saalfrank could still use the fact that he does not regularly work as proof of the severity of his emotional distress (as distinguished from proof of a claim for lost earnings). But that was clearly not the basis for the motion to compel which, again, did not so much as acknowledge the proffered stipulation. Moreover, if the Alton defendants were in fact concerned about the scope of the proffered stipulation, they were required to make a good-faith effort at resolving that issue with Saalfrank’s counsel before moving to compel. See Fed. R. Civ. P. 37(a)(1).

13 history was discoverable--despite the lack of a claim for lost

income or disability--because it impacts Saalfrank’s credibility

as a witness in this case. Hackett argues, for example, that

Saalfrank’s tax returns would show “whether his statements under

oath during his deposition were truthful” in claiming that he has

not worked regularly since his on-the-job accident in 2003.

While “[d]iscovery is commonly allowed in which the discovering

party seeks information with which to impeach witnesses for the

opposition,” 8 Wright, supra, § 2015, at 2 0 7 , the sought-after

information would not be admissible to impeach Saalfrank.

“It is well established that a party may not present

extrinsic evidence to impeach a witness on a collateral matter.

A matter is considered collateral if the matter itself is not

relevant to establish a fact of consequence, i.e., not relevant

for a purpose other than the mere contradiction of the in-court

testimony of the witness.” United States v . Catalan-Roman, 585

F.3d 453, 468 (1st Cir. 2009) (quotation marks omitted). Again,

because Saalfrank has no claim for lost income here, whether he

has been working or receiving disability payments since 2003 is

collateral, i.e., irrelevant for any purpose but to impeach his

credibility at trial (as Hackett’s argument concedes).

S o , should Saalfrank testify at trial, as he did at his

deposition, that he has not been working or receiving those

14 benefits since 2003, the defendants could not use his tax filings

or benefit history to disprove that testimony, because that would

amount to the impermissible use of extrinsic evidence to impeach

a witness on a collateral matter.7 See United States v .

Beauchamp, 986 F.2d 1 , 3 (1st Cir. 1993) (quotation marks and

bracketing omitted). It follows that such evidence is not

admissible, and that the Alton defendants’ request for it was

therefore not “reasonably calculated to lead to the discovery of

admissible evidence” under Rule 26(b)(1). 8 The defendants’ post

hoc explanation for moving to compel Saalfrank’s income,

7 Of course, if Saalfrank testifies at trial in a way that “opens the door” to otherwise inadmissible evidence by misleading the jury or creating an unfair advantage, the analysis might be different. But that possibility--and that is all it is at this point, see infra note 8--does not alter or create an exception to the rules of discovery. 8 It should be noted that, even if such evidence were admissible to impeach Saalfrank, the Alton defendants would still have to show that their requests were reasonably calculated to lead to its discovery, i.e., “some factual basis for believing that impeaching evidence [would] be revealed by the discovery sought.” Lemanik, S.A. v . McKinley Allsopp, Inc., 125 F.R.D. 602, 610 (S.D.N.Y. 1989); see also 8 Wright, supra, § 2015, at 209-210. To this point, the Alton defendants have never relied on anything but speculation to suggest that Saalfrank’s income, employment, and benefit history would show that he was lying about not having worked or received benefits. If they have anything to support that notion, they have never shared it with the court, despite a number of invitations to do s o . Rule 26(b)(1) does not permit “the party seeking disclosure to embark on examination of every statement ever made by a witness in the hope of unearthing a falsehood.” Davidson Pipe C o . v . Laventhol & Horwath, 120 F.R.D. 455, 463 (S.D.N.Y. 1988)

15 employment, and benefit history does not furnish a substantial

justification for the motion.

3. Files from Saalfrank’s prior attorneys

The Alton defendants moved to compel the “complete file”

from two of Saalfrank’s former attorneys: Jerry O’Neil, who

represented Saalfrank in workers’ compensation proceedings, and

Melissa Penson, who defended Saalfrank on one of the charges

giving rise to his malicious prosecution claims here. In the

motion, the Alton defendants argued that Saalfrank had waived the

attorney-client privilege as to Penson “by disclosing the

substance of selected conversations with [her] in [sic]

deposition.” In their reply, the Alton defendants ventured the

new argument that Saalfrank had waived the privilege because, at

his deposition, he “claim[ed] that she failed to provide

effective assistance and thereby injected his otherwise

privileged communications with her into this case.” In the

Order, the court rejected both of these arguments, and noted that

the Alton defendants did “not even attempt to demonstrate how

Saalfrank waived the privilege as to his communications with

O’Neill [sic].” Id. at 21 (footnote omitted).

In their filing on the substantial justification issue, the

Alton defendants do not address their request for these

16 privileged materials (except to quote without elaboration from

portions of Saalfrank’s deposition which, as the court ruled in

the Order, did not waive the attorney-client privilege).9

Moreover, at oral argument, the Alton defendants essentially

conceded that they had no substantial justification for moving to

compel these materials. The court agrees, based on the analysis

set forth in the Order. 2009 DNH 1 6 2 , 21-24.

4. Saalfrank’s probation records

As noted above, Saalfrank never objected to producing his

probation records because they were irrelevant, but only because

he did not have them. The Alton defendants did not address that

objection in their motion and, in their reply, devoted just one

sentence to i t : “It appears a court order will be necessary to

obtain that information.” Thus, as the court noted in the Order,

the Alton defendants never identified “any provision of New

9 Hackett suggests that both Penson’s and O’Neil’s files contain non-privileged materials. He gives no clue as to what those materials might b e , however, and as the court noted in the Order, it was incumbent upon the Alton defendants to show a “‘reasonable probability that the file contains [unprotected, relevant] information.’” 2009 DNH 1 6 2 , 21 n.14 (quoting Bennett v . ITT Hartford Group, Inc., 150 N.H. 753, 761-62 (2004)). They never tried to do that (never backing down from their opening demand for the entire contents of both attorneys’ files) and Hackett’s post hoc speculation does not fill that gap. Indeed, he concedes that the nonprivileged materials in O’Neil’s file “will likely not relate to claims being made in this case.”

17 Hampshire law generally exempting ‘probation records’ from the

access to governmental records enjoyed by all citizens” under the

state’s right-to-know law. 2009 DNH 1 6 2 , 28-29 (citing N.H. Rev.

Stat. Ann. § 91-A:4). Nor had they “identified any efforts on

their part to obtain such records from the Department of

Corrections.” Id. at 2 9 . Those shortcomings persist. The Alton

defendants’ filing on the substantial justification issue does

not address their request for Saalfrank’s probation records.

Hackett’s filing, however, explains that asking Saalfrank to

provide an authorization for the release of those records “is

consistent with New Hampshire practice” under which, unlike “the

practice in New York City or other more metropolitan areas,” such

authorizations are routinely provided so as to save opposing

counsel the trouble of preparing and serving a subpoena for

third-party records. But that ignores the court’s observation in

the Order that neither a subpoena nor the requested authorization

was necessary: Saalfrank’s probation records, at least insofar

as they appear to be relevant here, should be publicly available,

either via a right-to-know request to the Department of

Corrections or a simple check of the records of the state

district court where the probation was imposed. Id. at 27-28 &

n.20. The Alton defendants were not substantially justified in

18 moving to compel Saalfrank to provide an authorization for his

probation records.

B. Whether other circumstances make an award of expenses unjust

Rule 37(a)(5)(B) forbids an award of expenses incurred in

responding to a discovery motion that was substantially

justified, as well as where “circumstances make an award of

expenses unjust.” While the Alton defendants do not specifically

invoke this provision, they resist an award of expenses against

them because “the request for the discovery was made in good

faith; was not frivolous, abusive or harassing; and was a

reasonable attempt to represent and defend clients within the

discovery guidelines and ethical obligations to provide diligent,

competent, and meritorious representation to clients” (footnotes

omitted). They made a similar point at oral argument, predicting

that an award of expenses would have a “chilling effect” on the

vigorous defense of civil rights actions in this court--in which,

their counsel asserted, discovery of the kind they moved to

compel here is “usually” sought.

First, the court need not, and does not, find that the Alton

defendants’ motion to compel amounted to a “bad faith” or

19 “abusive or harassing” tactic.10 By its terms, all Rule 37(a)(5)

requires for the payment of the losing party’s reasonable

expenses is that the unsuccessful motion lack a substantial

justification and that other circumstances not render the award

of expenses unjust.

As just discussed at length, the Alton defendants have

failed to show a substantial justification for seeking to compel

all but one narrow category of the material sought by the motion;

indeed, they have not even tried to make that showing as to some

of the material. Whether they nevertheless harbored only the

10 Although the court finds no bad faith in connection with the motion, both the breadth and nature of the information sought by the motion and the tactics that accompanied it invite close judicial scrutiny. The Alton defendants moved to compel all of Saalfrank’s medical records, tax returns, employment records, job applications, and benefits history for the past seven years. And they did so without making any meaningful response to Saalfrank’s counsel’s detailed explanations as to why that information was privileged or irrelevant o r , as noted several times already, his offer to stipulate away any claim for physical injury, medical expenses, or lost income, despite Rule 37(a)(1). “[A]s a general principle, simply reiterating demands for production in a series of e-mails probably does not meet the requirement that the parties confer in good faith about discovery issues before invoking judicial remedies.” Antonis v . Elecs. for Imaging, Inc., N o . 07-163, 2008 WL 169955, at *1 (D.N.H. Jan. 1 6 , 2008). Furthermore, the Alton defendants did not provide any of those explanations to the court or otherwise refer to them in their motion, despite Local Rule 37.1. Rule 37(a)(5) exists to discourage counsel from creating the expense of getting the court involved in resolving discovery disputes that, with a good faith effort, they could have resolved on their own. See Rickels, 33 F.3d at 787.

20 best of intentions when they filed the motion has no bearing on

the fee-shifting analysis. See Green v . Baca, 225 F.R.D. 6 1 2 ,

614 (C.D. Cal. 2005) (citing Marquis v . Chrysler Corp., 577 F.2d

624, 641-42 (9th Cir. 1978)).

Second, diligent representation, and even vigorous advocacy,

must stay within the strictures of the applicable rules. Rule

26(b)(1) limits the scope of discovery to “any nonprivileged

matter that is relevant to any party’s claim or defense.” The

Alton defendants’ position that Saalfrank’s income, employment,

and benefits records are relevant simply cannot be squared with

his repeated disavowals of any claim for lost earnings. Their

refusal even to acknowledge those disavowals in their moving

papers seems to reflect the notion that they, rather than

Saalfrank, get to decide what claims he is making--or privileges

he has waived--based on what discovery they want from him.11

11 Indeed, the impetus for the Alton defendants’ quest for this information seems to have been the fact that they asked him questions about these subjects at his deposition, which he answered--as he was required to d o , since a deponent cannot be instructed not to answer on the basis of irrelevance, see Fed. R. Civ. P. 30(c)(2). Under Rule 26(b)(1), however, the measure of relevance is a party’s claims or defenses (and, if good cause is shown, the subject matter of the action, but the Alton defendants have never attempted to show good cause). It is not the deposition testimony a party gives on unrelated subjects about which opposing counsel nevertheless decides to ask him. Yet the Alton defendants continue to rely on the fact that Saalfrank testified about his medical problems, receipt of a workers’ compensation settlement, and continued unemployment at his

21 That notion is mistaken. Despite the Alton defendants’

insinuations to the contrary, a plaintiff may legitimately choose

to limit the kinds of damages he seeks in order to avoid

producing prejudicial or embarrassing information that would

otherwise be discoverable. See Ipox v . EHC Fin. Servs., LLC, N o .

07-5606, 2008 WL 4534366, at *3 (W.D. Wash. Oct. 7 , 2008)

(observing that if a plaintiff “prefers to keep her mental health

a private matter, she may withdraw her request for emotional

damages” to foreclose discovery into that area).

Likewise, there is nothing in the Federal Rules of Civil

Procedure themselves to prevent a defendant from asking the

plaintiff to produce such information in discovery, in the hopes

that it will simply be turned over without a fight. But if there

is a fight, and the defendant chooses to take it to court by

filing a motion to compel, the lack of a substantial

justification for doing so will result in the defendant’s payment

of the plaintiff’s reasonable expenses in opposing the motion.

In this way, Rule 37(a)(5) exerts a chilling effect, see Fed. R.

Civ. P. 37(a)(4) advisory committee’s note (1970), but only on

unjustified motions to compel, as opposed to unjustified

deposition: their filing on the substantial justification issue consists largely of lengthy excerpts from Saalfrank’s deposition transcript. That reliance is misplaced.

22 discovery requests. There are no circumstances here making an

award of expenses against the Alton defendants unjust.12

C. Calculating Saalfrank’s expenses

In determining the “reasonable expenses incurred” in

opposing an unjustified motion to compel under Rule 37(a)(5)(B),

this court applies the “lodestar method” of calculating

attorneys’ fees: multiplying the hours reasonably spent opposing

the motion by the hourly rate prevailing in the community.

Holder, 2007 DNH 8 9 , 2 (citing Bogan v . City of Boston, 489 F.3d

417, 426 (1st Cir. 2007)); see also Enterasys Networks, Inc. v .

DNPG, LLC, N o . 04-209, 2006 WL 1644598, at *1 (D.N.H. June 1 2 ,

2006) (assessing fees expended in filing a motion to overcome an

unjustified discovery objection). The party seeking the expenses

bears the burden of showing their reasonableness. See Holder,

2007 DNH 8 9 , 2 ; DNPG, 2006 WL 1644598, at * 1 . Under the lodestar

12 Such an award is also consistent with prior decisions of this court which, contrary to the Alton defendants’ suggestion, has assessed expenses against parties for unjustifiably moving to compel on several occasions. See Fritz v . Brown, 2009 WL 425840, at *1 (D.N.H. Feb. 1 8 , 2009) (Muirhead, M . J . ) ; Holder v . Gienapp, 2007 DNH 089, 5 (DiClerico, J . ) ; see also Sheppard v . River Valley Fitness One, L.P., 2004 DNH 0 2 0 , 15-16 (McAuliffe, C.J.) (awarding expenses under Rule 37(a)(5)(B) based on an unjustifiable motion for a protective order), aff’d in relevant part, 428 F.3d 1 (1st Cir. 2005).

23 method, “a court usually should begin with the attorneys’

contemporaneous billing records. The court should then subtract

hours that are duplicative, unproductive or excessive and

multiply the hours billed by the prevailing attorney rate in the

community.” Bogan, 489 F.3d at 426 (citing Gay Officers Action

League v . Puerto Rico, 247 F.3d 2 8 8 , 295 (1st Cir. 2001)).

1. The reasonable number of hours

Saalfrank’s counsel have submitted billing records showing

that they expended a total of 32.5 hours in responding to the

motion to compel, starting with their review of the draft version

of the motion forwarded by counsel for the Alton defendants and

concluding with finalizing and filing a surreply. While the

majority of these hours were reasonably spent, the court finds

some of them duplicative, excessive, or precipitated by the one

part of the motion that was substantially justified.

First, both Robert Carey and Jeffrey Spear, two different

attorneys who are counsel of record to Saalfrank and who practice

at the same firm, spent time reviewing the drafts of both the

Alton defendant’s motion to compel and Saalfrank’s objection to

the version ultimately filed. The vast majority of the work in

responding to the motion to compel, however, was done by Spear

without Carey’s involvement. “[A] court should not hesitate to

24 discount hours if it sees signs that a prevailing party has

overstaffed a case,” particularly where, as here, counsel has not

“persuasively described their division of responsibility and need

for teamwork.” Gay Officers Action League, 247 F.3d at 298-99.

The court therefore finds the following 1.5 hours duplicative:

• Carey’s 0.3 hours reviewing the draft motion;

• Carey’s 0.6 hours reviewing the draft objection;

• Spear’s approximately 0.6 hours conferencing with Carey on August 18 and September 17 (estimated from the aggregated number of hours Spear spent on various tasks in responding to the motion on each of those days).

Second, Spear spent 2.5 hours and 3.2 hours “finalizing and

filing” Saalfrank’s objection and surreply, respectively. But,

beginning with his review and analysis of the motion to compel,

Spear had spent 11.8 hours working on Saalfrank’s objection

before he began “finalizing” it (to say nothing of the additional

5.1 hours he spent reviewing and analyzing the draft motion to

compel, which was in substance nearly identical to the one

eventually filed). Spear likewise spent 8.5 hours working on the

sur-reply in some way before “finalizing” i t . In addition,

filing papers via this court’s electronic filing system is hardly

a time-consuming process. The court therefore finds that the

time Spear expended in finalizing and filing the objection and

the surreply was excessive. C f . Grendel’s Den, Inc v . Larkin,

25 749 F.2d 945, 954 (1st Cir. 1984) (finding time spent to prepare

for oral argument excessive in light of time spent preparing

briefs). The court reduces each of those entries to what it

considers a reasonable time for finalizing and filing a brief,

one hour each, cutting 3.7 hours from the total.

Third, after applying that reduction, Spear spent a total of

11.8 hours working on Saalfrank’s surreply. About half of the

surreply, however, dealt with the argument in the Alton

defendants’ reply that they were entitled to Saalfrank’s medical

records because he had put his emotional state at issue under

Desclos. Because that argument was substantially justified, see

Part II.A.1, Rule 37(a)(5)(B) does not entitle Saalfrank to

recover his expenses in responding to i t . C f . Gay Officers

Action League, 247 F.3d at 298 (“When a plaintiff prevails on

some, but not all, of multiple claims, a fee reduction may be in

order.”). To reflect this, the court will remove half the hours

expended in working on the surreply (after the reduction for the

excessive time spent to finalize and file i t ) , i.e., 5.9 hours,

from the compensable total.

Applying these reductions (1.5 hours for Carey’s time, 3.7

hours for finalizing and filing the memoranda, and 5.9 hours in

responding to the Alton defendants’ one substantially justified

argument) leaves a total of 21.4 hours as the “lodestar.” While

26 the Alton defendants complained at oral argument that the effort

Saalfrank’s counsel spent in responding to their motion was

“excessive,” they did not elaborate, except by producing their

own billing records to show that they spent considerably less

time--only 11.8 hours--working on the motion to compel and their

reply memorandum. In the court’s view, however, that tends to

suggest not that Saalfrank’s counsel spent an unreasonably long

time attending to the motion to compel, but that the Alton

defendants spent an unreasonably short time at that task.

As discussed at length here and in the Order, the motion to

compel simply did not address many of the objections Saalfrank

had made to the discovery requests. This shortcoming, combined

with the breadth of information the Alton defendants elected to

seek, necessitated a relatively lengthy objection responding to a

variety of arguments the motion might have made but did not.

While the Alton defendants’ reply finally attempted to address

most of Saalfrank’s objections, it did so by raising other new

arguments that had not been made in the motion or anticipated by

the objection, necessitating a surreply. See L.R. 7.1(e)(3).

Moreover, the Alton defendants’ failure to serve a formal

document request as contemplated by Rule 3 4 , or to attach or

incorporate their informal requests and Saalfrank’s responses as

required by Local Rule 37.1, caused Saalfrank’s counsel--and the

27 court, for that matter--to spend time responding to those

failures that otherwise would have been unnecessary. With the

exception of the particular reductions just discussed, then, the

court finds that Saalfrank’s counsel spent a reasonable period of

time responding to the Alton defendants’ motion to compel. As

the court of appeals has observed in a similar context, “[a]fter

setting such a [strident] tone and forcing the plaintiff[] to

respond in kind,” the Alton defendants cannot be heard

“to castigate the plaintiff[]” for the “excessive” nature of his

response. Gay Officers Action League, 247 F.3d at 298; see also

DNPG, 2006 WL 1644598, at *2-*5 (awarding $22,116 as a reasonable

fee incurred in compelling plaintiffs’ tax returns, which were

relevant in light of the nature of the action, over their protest

that the sum was “grossly excessive and unreasonable in relation

to the nature of the discovery dispute”).

2. The reasonable hourly rate

Having decided the reasonable number of hours expended in

opposing the motion, the court now turns to fixing the reasonable

hourly rate “according to the prevailing market rates in the

community, that i s , those prevailing in the community for similar

services by lawyers of reasonably comparable skill, experience

and reputation.” Grendel’s Den, 749 F.2d at 955 (internal

28 quotation marks omitted). Saalfrank, who bears the burden of

proof on this issue, see Holder, 2007 DNH 089, 2 , has submitted

an affidavit from Spear stating that, based on his general

familiarity with the rates of attorneys in Concord and

Manchester, the rates charged by his firm “are reasonable and

customary for attorneys with similar experience, background, and

education” to his. Spear, whose hourly rate is $265, attests

that he has practiced law for nearly 25 years. And the Alton

defendants have submitted billing records showing hourly rates of

$180 for one of their counsel and $170 for the other.13

“While an attorney may inform the court’s analysis by

providing evidence of [his] customary billing rate and of

prevailing rates in the community, the court is not obligated to

adopt that rate. Moreover, the court is entitled to rely upon

its own knowledge of attorneys’ fees in its surrounding area

. . . as well as the defense attorneys’ rates.” Andrade v .

Jamestown Hous. Auth., 82 F.3d 1179, 1190 (1st Cir. 1996)

(citations omitted). Based on these factors, the court concludes

13 Though counsel for the Alton defendants did not provide any evidence of their experience and reputation, this court is personally aware that they both have significant experience defending civil rights actions in this court and generally enjoy an excellent reputation. The same is true of Saalfrank’s counsel and their firm, though their work before this court tends to encompass complex business cases rather than civil rights litigation.

29 that an hourly fee of $190 represents the prevailing hourly rate

in this community for similar services by a comparable attorney.

In particular, the court notes that it has regularly found

fees in that range reasonable for litigating civil rights claims

in this forum. See, e.g., Donovan v . Whalen, 2008 DNH 0 8 8 , 12-

1 3 ; , Holder, 2007 DNH 089, 2-3; Brian M . ex rel. Keith M . v .

Litchfield Sch. Dist., 2005 DNH 1 6 2 , 11-17; Hawkins v . Comm'r,

N.H. Dep't of Health & Human Serv., 2005 DNH 085, 19-23; M r . &

Mrs. S . v . Timberlane Reg’l Sch. Dist., 2004 DNH 046, 13-15.

While some of these decisions awarded fees at a slightly higher

rate, the court notes that those awards covered the entirety of

the prevailing attorneys’ work on the case, rather than on a

discrete and relatively minor part of a litigation, such as the

work here in opposing the motion to compel.14 A court may take

the nature of the services into account in determining the

reasonableness of the fee. See Grendel’s Den, 749 F.2d at 956.

The court also notes that, according to a 2004-2005 survey

by the New Hampshire Bar Association of its members, between $151

and $175 was the most typical hourly rate charged by attorneys in

14 For this reason, the court’s determination of the prevailing rate here is limited to the services provided in opposing the motion to compel; should Saalfrank ultimately prevail on any of his claims entitling him to attorneys’ fees, the court will determine the appropriate rate for the services provided over the entirety of the litigation.

30 Merrimack County, as well as by attorneys of Spear’s age. See

N.H. Bar Ass’n, 2006 Statistical Supplement 4 , 11 (2006). This

court has regularly looked to similar Bar Association

compilations to figure reasonable hourly rates. See, e.g.,

Access Group, Inc. v . Federico, 2006 DNH 1 3 1 , 3-4; Silva v . Nat’l

Telewire Corp., 2001 DNH 2 1 8 , 6-7; accord Grendel’s Den, 749 F.2d

at 956 (relying on a similar national publication). And setting

the rate here at $190, just beyond the upper end of the range,

reflects an appropriate upward adjustment for the passage of time

since the survey, see Federico, 2006 DNH 1 3 1 , 3-4, as well as for

the high reputation and significant experience of Spear and his

firm, see note 1 3 , supra. Multiplying the reasonable hourly

rate, $190, by the reasonable number of hours spent opposing the

motion to compel, 21.4, yields an attorneys’ fee award of $4,066.

3. Computer-assisted research charges

Saalfrank’s counsel has provided records showing that they

incurred electronic research charges of $2,714.98, which

represents approximately 16.25 hours of time using Westlaw’s on-

line legal research database t o , among other things, download

some 44 cases. As Saalfrank points out, the court of appeals has

held that “computer-assisted research should be . . . reimbursed

under attorneys’ fees statutes . . . so long as the research time

31 is in fact paid by the firm to a third-party provider and is

customarily charged to its clients as a separate disbursement.”

InvesSys, Inc. v . McGraw-Hill Cos., 369 F.3d 1 6 , 22 (1st Cir.

2004). Spear attests to both. But the court finds that

Saalfrank’s counsel spent an unreasonable amount of time

conducting research on Westlaw in opposition to the motion.

The court recognizes that researching discovery issues can

be time-consuming, given the general paucity of circuit court

opinions on those subjects. Yet Saalfrank’s objection cited a

grand total of 11 cases from courts besides this one, the court

of appeals, or the New Hampshire Supreme Court (and decisions

from those courts can be readily found without paying for

computer-assisted research). His surreply cited only a few

additional extrajurisdictional cases beyond those cited in his

objection or the Alton defendants’ reply. This was appropriate

in light of the fact that, as the court’s Order suggests, the

answers to many of the questions presented by the motion to

compel could be found in existing New Hampshire case law.

Furthermore, based on the court’s experience, Westlaw sessions of

the length of those reported by Saalfrank’s counsel--more than 5

hours on one day, and more than 3 hours on each of two others--

tend to reflect a less-than-optimal use of the resource,

particularly by attorneys as experienced as Saalfrank’s. The

32 court finds the Westlaw charge reasonably incurred due to the

motion to compel to be only one-third of that actually incurred,

$904.99. When that sum is added to the $4,066 in reasonable

attorneys’ fees, the reasonable expenses incurred by Saalfrank in

opposing the motion total $4,970.99.

4. Against whom to assess the award

Finally, Rule 37(a)(5) provides that the award of expenses

may be assessed against “the movant, the attorney filing the

motion, or both.” The parties have not addressed the question of

who should pay the award here. At oral argument, however, lead

counsel for the Alton defendants emphasized that, as the senior

attorney, he was prepared to take full responsibility for the

motion to compel, and, given the nature of the motion, the court

has no reason to believe that it was driven by the Alton

defendants themselves rather than by their counsel. C f . DNPG,

2006 WL 1644598, at *1 (assessing award against plaintiffs who

“were primarily responsible for causing [the] discovery dispute”

by refusing to produce their tax returns). The court assesses

the award against the Alton defendants’ counsel’s law firm.

33 IV. Conclusion

Because the court, gratefully, has little occasion to write

at this length, and in this detail, about discovery disputes and

sanctions, the following additional observations are worth

making. The court takes no pleasure in being called upon to

resolve discovery disputes, even less in imposing sanctions, and

less still in sanctioning counsel personally with monetary

penalties.15 In doing s o , though, the court’s proper role is not

to evaluate or pass judgment on counsel’s general approaches to

discovery, the specific techniques they employ, or their modes of

interaction with adverse counsel, and it does not do so here.

Litigants aggressively inquire and probe, seeking the path of

least resistance to acquiring information helpful to them or

damaging to their adversaries. That is as it should b e . But

recipients of such requests may very well object, which

implicates a host of additional considerations beyond the

potential usefulness of the information at issue.

15 In fact, this court now issues a preliminary pretrial order in all cases requiring that, in the first instance, discovery disputes be resolved through an informal teleconference between the court and counsel, without the filing of a motion to compel and the accompanying threat of fee-shifting. That practice was not in place when the court conducted the preliminary pretrial conference in this case, however.

34 Faced with such an objection, the defendants here invoked

the court’s authority to compel under Rule 3 7 . By claiming the

benefits of that rule, they ran the risk of incurring its

burdens--in this case, the express provision that the court “must

. . . require the movant, the attorney filing the motion, or both

to pay the objecting party’s expenses, including attorney’s fees

unless the motion was substantially justified or other

circumstances make an amount unjust.” Under this standard, an

argument that “this is the way it has always been done,” or

stressing one’s “good faith,” will not d o . The court here does

not question counsel’s good faith, but good faith is not the

standard; the standard is substantial justification. There is a

difference.

So the message here is twofold. First, while the court does

not wish to disturb the robust discovery practices appropriately

employed by skilled counsel, those who choose to test those

practices in court by moving to compel production under the

Federal Rules of Civil Procedure must be prepared to accept Rule

37's burdens, as well as its benefits. And second, counsel who

demonstrate a willingness to live with those burdens by moving to

compel must be prepared to do the following:

• demonstrate that they have made a genuine, good faith effort to confer to obtain the discovery

35 without court action, see Fed. R. Civ. P. 37(a)(1); L.R. 7.1(c);

• provide the court with a verbatim recitation of the subject request and response (or a copy of the subject requests and responses), see L.R. 37.1(a);

• fully disclose to the court any other relevant conduct preceding the motion (such as the full access to medical records provided, and the stipulations offered, by Saalfrank in this case); and

• affirmatively assert the grounds (if not the authority) supporting the request, not waiting until filing a reply brief, or oral argument, to raise new or additional grounds that are not responsive to adverse counsel’s objection, see L.R. 7.1(e)(1).

The motion to compel in this case was deficient in not just one

of these respects, but in all of them. It was the totality of

those deficiencies, more than any judicial reservations about the

Alton defendants’ discovery strategy and tactics, contributed to

the denial of the motion to compel and the resulting sanctions.

Based on the foregoing, the court finds that the Alton

defendants motion to compel was not substantially justified, that

no other circumstances exist making the award of expenses unjust,

that Saalfrank’s reasonable expenses incurred in opposing the

motion were $4,970.99 in attorneys’ fees and Westlaw charges, and

that the award should be imposed against the Alton defendants’

counsel’s law firm. That law firm shall forthwith remit

$4,970.99 to Saalfrank, via his counsel.

36 SO ORDERED.

___ yoZZ2> Joseph N . Laplante United States District Judge

Dated: March 5 , 2010

cc: Jeffrey C Spear, Esq. Robert S . Carey, Esq. Andrew B . Livernois, Esq. Charles P Bauer, Esq. Jeanne P. Herrick, Esq. K. Joshua Scott, Esq. William G Scott, Esq. Catherine . Costanza, Esq. Brian J.S Cullen, Esq. Tara A . Latour, pro se