Want to Recover Attorney Fees under Rule 37? Be Reasonable!

• Author: Karen L. Stevenson
• Pages: 18-19

large part of my job involves ru ling on discovery

motions. Perhaps it is a side effec t of the pandemic

with few in-pers on hearings and civil trial d ates

continued into 2021, but discover y motion prac-

tice seems to have explode d. With that explo-

sion has come a simila r increase in the number of motions for

attorney fees broug ht under Federal Rule of Civ il Procedure

37 by parties that have preva iled on a motion to compel.

Rule 37’s provision for awarding reason able expenses adds

real “teeth” to the cour t’s ability to hold partie s accountable

for their discover y obligations. But get ting an award of attor-

ney fees after a mot ion to compel is not a foregone conclu-

sion. To successfully recover such fe es, you must meet Rule

37’s evidentiary burden w ith well-supported records.

Are Rule 37(a) Sanctions Man datory or

Discretionary? It Depends

When the cour t grants or denies a motion to compel in its

entirety, Rule 37(a)(5)(A) provides that “the court must,

after givin g an opportun ity to be heard, requ ire the part y

or deponent whose conduct nec essitated the motion , the

party or attor ney advising that conduct, or both to pay the

movant’s reasonable expen ses incurred in making t he motion,

including attorne y’s fees” (emphasis added). Rule 37(a)(5)(B)

includes a simila r provision to recover expenses when a

motion to compel disclosu re is denied in its entirety.

But the court must not order a n award of fees if “the

movant led the motion before at tempting in good faith

to obtain the dis closure or discovery without court act ion;

the opposing par ty’s nondisclosure, r esponse, or object ion

was substantial ly justied; or ot her circumstances make a n

award of expenses unjust .” Id. Thus, under Rule 37(a)(5)(A),

and (B), when the court  nds the opposing party’s nondis-

closure was substant ially unjustied or the motion to com-

pel itself was unjusti ed, an award of reasonable expenses,

including attorne y fees, is mandator y.

More often than not , however, a discovery motion does

not result in total vi ctory for one part y. Instead, motions

are frequently gra nted in part and de nied in part. In such

circumsta nces, under Rule 37(a)(5)(C), the court “may, after

Want to Recover Attorney Fees under

Rule 37? Be Reasonable!

By Hon. Karen L . Stevenson, Litigation Ne ws Associate Editor

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Published in Litigation News Volume 46, Number 2, Wint er 2021. © 2021 by the Americ an Bar Association. Re produced with per mission. All rights res erved. This infor mation or any portio n thereof may not be c opied or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

18 | SEC TION OF LITIGATION

Published in Litigation News Volume 46, Number 2, Wint er 2021. © 2021 by the Americ an Bar Association. Re produced with per mission. All rights res erved. This infor mation or any portio n thereof may not be c opied or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

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