Cardwell v. Davis Polk and Wardwell LLP

Background

This opinion addressed a discrete issue arising from the defendants’ successful motion to compel discovery. On January 13, 2021, the court granted that motion nearly in its entirety after identifying deficiencies in Kaloma Cardwell’s discovery production. The court cited failures to answer some interrogatories, overly broad general objections, failure to say whether documents were being withheld because of objections, production of electronic documents in a non-native format, and production of incomplete documents.

Federal Rule of Civil Procedure 37(a)(5)(A) generally requires a court that grants a motion to compel to require the party or attorney whose conduct caused the motion to pay the movant’s reasonable expenses, including attorney’s fees. The rule contains exceptions when the moving party did not first try in good faith to resolve the dispute, the opposing party’s position was substantially justified, or other circumstances make an award unfair.

Parties’ positions

The defendants sought reimbursement for work performed in addressing the discovery deficiencies and litigating the motion to compel. Their submission stated that the core team spent 102 hours and that the defendants were billed $99,565.20. The submission did not include contemporaneous time records; instead, counsel provided an approximate itemization by team members and billing rates.

Cardwell argued that his discovery positions were substantially justified. He also argued that an award would be unfair because his counsel represented him without payment, because Cardwell’s ability to pay should be considered, because an award could cause serious financial harm, and because the defendants had not specifically requested reimbursement in their motion. He further argued that the requested fees were excessive and that the supporting declaration lacked enough detail.

Court’s analysis

The court found that Cardwell’s positions were not substantially justified under the objective reasonableness standard. It concluded that the use of generalized objections, failure to identify withheld documents, refusal to respond fully to some requests, production of electronic documents in a non-native format, and production of document fragments were inconsistent with established discovery rules.

The court also rejected the argument that applying Rule 37 was unfair because Cardwell’s counsel worked without payment or primarily practiced criminal law rather than federal civil litigation. The court stated that those circumstances could be considered when determining the amount of an award, but did not exempt counsel from the rule. It likewise stated that an award’s adverse economic effect did not by itself make the award unfair. The defendants also were not required to make a separate fee request because, in the court’s view, Rule 37 required the court to address expenses after granting the motion to compel and allowing the parties an opportunity to be heard.

Ruling and next steps

The court held that it could not determine the appropriate fee amount from the materials submitted. Under the fee-calculation method discussed in the opinion, the court needed billing records showing the date, time spent, and nature of the work so it could assess the reasonable expenses incurred in making the motion to compel.

The court therefore directed the defendants to submit the relevant billing records by July 15, 2021. It also permitted the defendants, by the same date, to file a substantive reply limited to the reasonableness of their fees. The opinion does not state a final fee amount or expressly describe the fee motion as granted or denied. The Clerk was directed to terminate the motion pending at Dkt. No. 43.