Wager v. G4S Secure Integration, LLC

Background

Ashly Wager and G4S Secure Integration, LLC filed cross-motions to compel discovery. G4S sought personnel files from Wager’s current and former employers and three years of her income tax returns. Wager sought documents and electronically stored information concerning commissions and her termination, a forensic copy of “Ron’s iPhone” or terms for a forensic review, an updated privilege log, limits on certain nonparty subpoenas, and expenses under Federal Rule of Civil Procedure 37.

Magistrate Judge Kevin N. Fox granted Wager’s discovery motion in part and denied it in part. He ordered G4S to provide Project Financials and documents concerning commission calculations, produce a forensic copy of “Ron’s iPhone,” and limit the categories of subpoenas that could be served on nonparties. He denied Wager’s request for an updated privilege log as moot after ordering production of certain documents and electronically stored information. Fox declined to consider Wager’s request for attorneys’ fees and costs, reasoning that she had not made the request properly in her opening motion and had raised supporting arguments only in her reply.

District Court Review

Wager objected to that part of Fox’s order. The district court reviewed the discovery ruling under the standard applicable to a magistrate judge’s nondispositive order: reversal is proper if the ruling is clearly erroneous or contrary to law. Discovery matters are generally nondispositive, meaning they do not finally resolve the litigation.

The court concluded that Wager had expressly requested costs and fees in her notice of motion and had requested them four times in her supporting brief. The court also concluded that Rule 37(a)(5)(A) generally makes an award of reasonable expenses mandatory when a motion to compel is granted, unless one of three exceptions applies: the movant did not try in good faith to obtain discovery without court action, the opposing party’s nondisclosure or objection was substantially justified, or an award would be unjust.

Because Wager’s motion was largely granted, the court held that Rule 37(a)(5)(A), rather than the rule governing motions granted in part and denied in part, applied to her expense request. The court further held that Wager was not required to provide a fully developed fee argument in her opening brief to preserve the request. Instead, G4S, as the party seeking to avoid the usual expense award, bore the burden of showing that one of the rule’s exceptions applied. The district court found that Fox had improperly shifted that burden to Wager.

Disposition

The court SUSTAINED Wager’s objection, VACATED the prior order in part insofar as Fox declined to consider her request for expenses, and REMANDED the request for further consideration consistent with the opinion and Rule 37. Judge Vyskocil expressly declined to decide whether any of the three exceptions applied. The opinion therefore did not award a specific amount of fees or costs and did not determine that Wager was ultimately entitled to payment.