Fischkoff v. Lion Biotechnologies, Inc.
- Analisa Torres
- 1:17-cv-05041
- U.S. District Court · Southern District of New York
- 1
In Fischkoff v. Lion Biotechnologies, Judge Torres denied defendants’ request for attorney’s fees after opposing Fischkoff’s discovery objections.
The defendants’ request for attorney’s fees was denied; Fischkoff and his counsel were not ordered by this opinion to pay those fees.
What happened
In Fischkoff v. Lion Biotechnologies, the plaintiff objected to an order setting the locations and time limits for two depositions. The court overruled those objections and asked the plaintiff’s lawyers to explain why they should not pay the defendants’ fees for responding.
The defendants sought attorney’s fees under a federal discovery rule. They argued that the plaintiff should pay the costs of opposing his objections. The plaintiff’s position was weak in some respects, but the court found that he had also made several non-frivolous arguments and that reasonable people could disagree about where the depositions should occur.
Judge Analisa Torres denied the defendants’ motion for attorney’s fees. She concluded that the plaintiff’s objections were substantially justified under the rule, even though some arguments were unsupportable.
The detailed version
- Fischkoff v. Lion Biotechnologies, Inc. · No. 1:17-cv-05041
- Analisa Torres
- Jan. 15, 2020
Background
On December 23, 2019, Magistrate Judge Gabriel W. Gorenstein issued an order setting the locations and permitted lengths of two depositions. Steven Fischkoff objected to that order on December 24. The defendants responded on January 2, 2020, and requested attorney’s fees under Federal Rule of Civil Procedure 37(a)(5)(B) for opposing the objections. On January 7, the court overruled Fischkoff’s objections and ordered his counsel to show cause why counsel should not be required to pay attorney’s fees. Counsel responded on January 14.
Legal standard and analysis
Rule 37(a)(5)(B) generally requires a court to order the party who made a denied discovery motion, that party’s lawyer, or both to pay the opposing party’s reasonable expenses, including attorney’s fees. An exception applies when the motion was substantially justified or when other circumstances would make an award unfair. The court explained that substantial justification is not a high bar: a position qualifies when there is a genuine dispute or reasonable people could differ about the challenged action.
The court stated that Fischkoff’s position was not strong and that some arguments were unsupportable. It specifically identified his claim that the defendants had voluntarily chosen to litigate in New York, although they had removed the action from New York state court to federal court, and his suggestion that the magistrate judge acted improperly by telling counsel to avoid personal attacks on opposing counsel. Nevertheless, the court found that Fischkoff had made several non-frivolous arguments and that reasonable people could disagree about applying the multifactor test for determining the proper location of the depositions.
Disposition
Judge Analisa Torres denied the defendants’ motion for attorney’s fees. The order did not award the defendants fees for opposing Fischkoff’s discovery objections.
Read the full 1-page opinion on CourtListener, the free public archive maintained by the Free Law Project.