Opinion
No. CIV S-10-294 WBS KJM.
December 10, 2010
ORDER
The issue of an award under Federal Rule of Civil Procedure 37(a)(5) stands submitted. Upon review of the declaration submitted in connection with the fees incurred by plaintiff on the motion to compel, upon review of the file in this action, and good cause appearing, THE COURT FINDS AS FOLLOWS:
Plaintiff propounded the discovery at issue on June 29, 2010. Five months later, plaintiff still was awaiting substantive responses. Defendants produced a CD containing some of the responsive documents two days prior to the hearing on plaintiff's motion to compel. The documents appear to have been produced only after it became apparent during the course of the parties' preparing the joint statement that the documents were known to exist but were being wrongfully withheld by defendants. Under Federal Rule of Civil Procedure 37(a)(5)(A), the court must award reasonable expenses incurred in making the motion to compel to the prevailing moving party unless the moving party failed in good faith to attempt to obtain the discovery without court action, the opposing party's nondisclosure or objection was substantially justified, or other circumstances make an award of expenses unjust. The court finds plaintiff was diligent in its attempt to obtain the discovery it sought without court intervention. Defendants' objections and failure to produce the relevant discovery are without substantial justification. Considering all of the circumstances presented here, the court declines to find an award of expenses is unjust.
Accordingly, IT IS HEREBY ORDERED that reasonable expenses incurred in connection with the motion to compel are awarded to plaintiff against defendants in the amount of $20,250.00
DATED: December 9, 2010.