The Lawyers From Monday’s Post Are Okay

On Monday I posted on a case in which Judge Lynn denied the parties’ joint motion to stay this case pending the filing of an application for IPR, noting the case was set for trial in six months. Traumatized readers were anxious to know – what happened next? Well, the case actually settled the very next day, but not for the reason you think – it involves the granting of a motion to compel and something interesting about an award of fees and expenses.

When we left, our heroes were tied to the tracks with a trial setting steaming toward them as a result of Judge Lynn’s order last Wednesday denying their joint motion to stay pending an IPR.

Coincidentally, on Monday afternoon the court issued another order in the case ruling on the plaintiff’s motion to compel the defendant to produce detailed sales data. It was actually that dispute which produced the joint request for a stay, since the plaintiff didn’t have the sales data it wanted for the upcoming trial setting.

The court wrote:

[Plaintiff] Multiquip “requests an order compelling [Defendant] ANA to produce invoice-level sales data, on a monthly basis from January 1, 2019 to the present, showing the following information for generators sold with SmartLoad and generators sold without SmartLoad: 1. the number of units sold broken down by model and month, or at least by quarter; 2. the total revenue received from these sales; 3. the total profits earned from these sales; and 4. the total costs incurred in relation these sales.” Dkt. No. 49 at 8; Dkt. No. 58 at 2.

As Multiquip notes, in ANA’s response [Dkt. No. 53], “ANA offers no response to the substance of Multiquip’s motion”; “does not dispute that the sales data requested by Multiquip is relevant, discoverable, and easy to produce”; and “has provided no basis for withholding the sales data requested by Multiquip.” Dkt. No. 58 at 1.

Docket 62 (electronic order)

ANA’s response was only that the plaintiff’s production was deficient. The court held that it had not provided any basis to sustain any undue burden objection – and the sufficiency of the plaintiff’s production was an issue for another day – so “the Court finds that Multiquip has shown that, without proper objections pressed in response to the motion to compel, ANA is withholding responsive information that is relevant to the claims or defenses in the case and proportional to the needs of the case.”

The hammer fell next:

And Federal Rule of Civil Procedure 37(a)(5)(A) requires the Court to order payment of the movant’s reasonable expenses in making a motion to compel, including payment of attorneys’ fees, when a motion to compel is granted. But Rule 37(a)(5)(A) also requires the Court to give ANA an opportunity to be heard as to an award of fees and expenses and provides three exceptions under which the Court must not order payment of the movant’s fees and expenses. See Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii).

The Court will give ANA an opportunity to, by Tuesday, April 2, 2024, file a response explaining why the Court should not, under Rule 37(a)(5)(A), require ANA to pay Multiquip’s reasonable expenses and attorneys’ fees incurred in having its counsel prepare and file its Motion to Compel Defendant Alliance North America dba ANA to Produce Sales Data for ANA Generators Sold with SmartLoad and Without SmartLoad [Dkt. No. 49] and the appendix and reply [Dkt. No. 58] in support and to fully explain whether any of the exceptions under Rule 37(a)(5)(A)(i)-(iii) applies.

If ANA files this response, Multiquip may, by Tuesday, April 23, 2024, file a reply in support of an award under Rule 37(a)(5)(A), which reply must be limited to addressing whether any exception under 37(a)(5)(A)(i)-(iii) should preclude an award of expenses. The reply need not and should not include any affidavits or declarations supporting a lodestar determination for a fee award. If, based on this response and reply, the Court determines to award expenses, the Court will issue a separate order directing the filing of materials to determine the amount of any award.

Docket 62.

But there would be no production of sales data or award of fees and expenses – because the case was dismissed by joint stipulation the next day. (Docket 63).

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This blog does not constitute legal advice. If you’d like to discuss a related legal matter, please contact Michael C. Smith via email or call 903-938-8900.