Opinion
WD-21-016
11-19-2021
Darryle Koski d/b/a Koski Trucking Appellant v. Thunder Struck Transportation, LLC Appellee
Konrad Kuczak, for appellant. Timothy P. Roth, Jennifer L. Gardner, and Sarah V. Beaubien, for appellee.
Trial Court No. 2019 CV 0543
Konrad Kuczak, for appellant.
Timothy P. Roth, Jennifer L. Gardner, and Sarah V. Beaubien, for appellee.
DECISION AND JUDGMENT
MAYLE, J.
{¶ 1} Plaintiff-appellant, Darryle Koski, d/b/a Koski Trucking, appeals the February 3, 2021 judgment of the Wood County Court of Common Pleas, compelling 1 discovery and awarding attorney fees to defendant-appellee, Thunder Struck Transportation, LLC. For the following reasons, we reverse the trial court judgment.
I. Background
{¶ 2} On May 2, 2019, Darryle Koski, d/b/a Koski Trucking entered into an independent contractor agreement with Thunder Struck Transportation, LLC, pursuant to which Koski agreed to furnish Thunder Struck with a tractor-trailer and a driver to be used in Thunder Struck's business as an "interstate for hire common or contract [c]arrier." On July 17, 2019, the driver supplied by Koski was involved in a collision while using the equipment leased to Thunder Struck under the independent contractor agreement, exposing it to potential liability to a third-party. Thunder Struck maintains that that collision occurred as the result of a steering malfunction.
{¶ 3} In a letter dated October 4, 2019, counsel for Thunder Struck sent a formal tender letter to Koski, demanding that Koski defend and indemnify it for any claims arising out of the July 17, 2019 accident. In response, Koski filed a complaint for declaratory judgment in the Wood County Court of Common Pleas, alleging-and seeking a declaration-that the agreement does not require it to defend or indemnify Thunder Struck for liability claims or judgments of third parties.
{¶ 4} Thunderstruck answered and counterclaimed. It alleged that under the agreement, Koski agreed "to name Thunder Struck as an 'Additional Insured' under its policy of insurance" and "to indemnify, release, and hold harmless Thunder Struck from 2 claims arising out of the repair, maintenance, and service of the Equipment"-i.e., the tractor trailer. Thunder Struck claimed that two days before the accident, the equipment was repaired and serviced, at which time the tractor's steering box was removed and replaced. It described that the subject accident occurred because the driver of the tractor-trailer "lost all ability to steer the tractor, and as a result, collided head-on with another tractor-trailer in the opposing lanes of travel." Thunder Struck sought a declaration from the court that "pursuant to the clear and plain language of the Agreement," Koski is obligated to defend and indemnify it against any third-party claims arising out of the accident.
{¶ 5} Koski replied to Thunder Struck's counterclaim, and on the same day, moved for summary judgment on its complaint. It argued that the agreement does not contain the word "defend." And, it claimed that its duty to indemnify is limited to: (1) the costs of "gasoline, diesel fuel, oil, antifreeze, tires, tubes, filter[s] or any other services or materials" purchased on Thunder Struck's credit and "the full amount of said special or extra equipment, plus installation charges"; (2) any loss or claim for loss of or damage to the Equipment, "including, but not limited to, collision, upset, fire, and theft"; and (3) liability incurred at Thunder Struck's facilities.
{¶ 6} Koski insisted that in addition to the plain language of the agreement, indemnity is contrary to public policy because 49 CFR 1057.12 requires that any lease entered into by an Interstate Commerce Commission-licensed carrier must contain a 3 provision stating that "the authorized carrier maintain 'exclusive possession, control, and use of the equipment for the duration of the lease,' and 'assume complete responsibility for the operation of the equipment for the duration of the lease.'" Moreover, it argued, contract provisions requiring indemnification for one's own negligence are strictly construed.
{¶ 7} Thunder Struck moved under Civ.R. 56(F) to continue summary-judgment proceedings and for a reasonable amount of time to engage in "limited discovery." It claimed that "neither party is in a position to determine whether the Agreement entitles either of the parties to the relief it sought." Thunder Struck insisted that it needed to propound interrogatories and requests for production of documents-to include requests for copies of insurance policies, endorsements, and the certificate of insurance demonstrating that Koski added Thunder Struck as an additional insured-and it needed to depose Darryle Koski, who executed the agreement on Koski's behalf.
{¶ 8} Koski opposed Thunder Struck's motion, but the trial court granted it and allowed a 90-day period of discovery. During this period of discovery, Thunder Struck served interrogatories and requests for production of documents, seeking, inter alia, the following documents and information:
. Names and contact information of agents, employees, third-parties, entities, or businesses relating to "repair, maintenance, and/or service of the tractor and trailer involved in the July 17, 2019, accident * * *."4
. Documents "concerning the tractor and trailer, as it relates to Koski Trucking's ownership, purchase, financing, leasing, registration, and those documents relating to the inspection, repair, maintenance, and/or service of the tractor and trailer."
. "[Documents or records, including invoices, work orders, estimates, or receipts for any repair, maintenance, and/or service that was performed, undertaken, or directed by Koski Trucking or on [its] behalf * * * by any agents, employees, third-parties, entities, or businesses * * *."
. "[Certificates of insurance and all complete insurance agreements, including all endorsements, including but not limited to, commercial general liability insurance, non-trucking (bobtail) insurance, liability insurance, excess insurance coverage, reinsurance treaties, omnibus and/or umbrella policies."
. Names and contact information for "every person, agent, broker, or representative known to Koski Trucking to have personal knowledge of the facts surrounding the procurement of any and all types of insurance issued to Koski Trucking * * *" and anyone known to have personal knowledge or have had communications "regarding adding Thunder Struck as an 'Additional Insured' * * *," along with copies of communications with those persons or businesses.5
. "[R]ecords of repair, maintenance, service, installation, or modification for the (10) years preceding the accident, in any way relating to the tractor and trailer owned and/or occupied by Koski Trucking on the date of the subject accident."
. "All annual inspection reports for the tractor and trailer * * *."
. "The truck's original equipment manufacturer's operator's manual for the tractor and trailer."
{¶ 9} In response to these and other similar discovery requests, Koski lodged the following objection:
Instant action for declaratory judgment is limited to construction of the Plaintiffs lease with Thunder Struck Transportation, LLC, dated May 2, 2019. The construction of a written contract is a matter of law for a trial court. Alexander v. Buckeye Pipe Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1978), paragraph one of the syllabus. Accordingly, the response to this interrogatory [or documents produced in response to this request] cannot be reasonably calculated to produce or lead to the discovery of admissible evidence. Moreover the expectation that Plaintiff should be required to respond to the foregoing request is unduly burdensome.
{¶ 10} Counsel for Thunder Struck wrote a letter to Koski's attorney, informing him that he believed Koski's discovery responses were deficient and his objections 6 specious. He contended that "the information and documents pertaining to the formation, intent, material terms, and those documents that are specifically referred to and incorporated into the Independent Contractor Agreement are not only relevant, but admissible in this action." He asked that the discovery responses be supplemented and warned that he would file a motion to compel if Koski did not supplement (or commit to supplement) his responses by January 16, 2020.
{¶ 11} The day after receiving Thunder Struck's letter, counsel for Koski responded, contending that Koski's objections were asserted in good faith, and countering that "[documents which pertain to the formation, intent, material terms, and those which are specifically mention[ed] in the Independent Contractor Agreement would be relevant and admissible in an action to enforce a duty of Mr. Koski to defend and indemnify Thunder Struck, LLC," but not to a suit merely seeking a declaration whether or not he owes such a duty. (Emphasis added.) Counsel invited a response from Thunder Struck, explaining how the discovery could lead to admissible evidence.
{¶ 12} Instead of responding to counsel's letter, Thunder Struck filed a motion to compel discovery and for attorneys fees. Although it had not offered to do so in its pre-motion correspondence with Koski's attorney, Thunder Struck narrowed the scope of its discovery requests to the following categories of information, which it claimed were "discrete areas of discovery about which there is no genuine dispute as to their discoverability": 7
1. Copies of any and all communications * * * or documents (verbal, written, or otherwise) of every person, agent, broker, or representative known to Koski to have personal knowledge of the facts surrounding the procurement of any and all insurance issued to Koski;
2. Copies of each and every insuring agreement and insurance contract * * * that were in effect on the date of the subject accident;
3. Copies of each and every certificate of insurance for any policy that was in effect on the date of the subject accident;
4. Copies of any and all records of ownership, including but not limited to copies [of] the titles, registrations, lease agreements, rental agreements, and/or financing agreements, for the tractor and trailer owned by Koski on the date of the subject answer; and,
5. Copies of any and all communications * * * or documents (verbal, written, or otherwise) with any insurance persons, agents, brokers, or representatives regarding adding Thunder Struck as an "Additional Insured" on Koski's polic(ies) of insurance pursuant to the terms of the Agreement.
{¶ 13} Thunder Struck maintained that it was entitled to attorneys fees because Koski failed to provide full answers and responsive documents and failed to offer an explanation for his inaction, and Thunder Struck suffered prejudice and incurred needless 8 expense. Thunder Struck insisted that it had attempted to obtain Koski's cooperation but those efforts had not been fruitful.
{¶ 14} Koski opposed Thunder Struck's motion. He maintained that Thunder Struck's discovery requests were not relevant to the simple issue presented in the complaint and counterclaim: "whether or not the plain language of the * * * Independent Contactor Agreement * * * requires Koski, the lessor of a tractor trailer combination, to defend from [sic] and indemnify Thunderstruck for potential damages arising out of an accident involving the tractor trailer which occurred on July 17, 2019." Koski contended that construction of the written contract was a matter of law and parol evidence could not be used to explain the unambiguous agreement. He acknowledged that the materials Thunder Struck sought could become relevant and discoverable if the court finds that the agreement requires him to defend and indemnify Thunder Struck and Koski thereafter refuses to do so, but he insisted that they are not relevant or admissible in the current proceedings. Finally, Koski emphasized that Thunder Struck had made no attempt to demonstrate how the documents it sought may lead to admissible evidence and failed to certify that it had conferred or attempted to confer toward a resolution of the discovery dispute before filing its motion to compel, as required by Civ.R. 37(D)(1)(b).
{¶ 15} In a judgment dated March 20, 2020, the trial court granted Thunder Struck's motion to compel discovery. Relying on section 10 of the parties' agreement, which addressed insurance coverage, it found that information regarding Koski's 9 insurance was relevant and reasonably calculated to lead to the discovery of admissible evidence, and the requests were not unduly burdensome. The court found that Thunder Struck satisfied the certification requirement by attaching a copy of its letter to Koski's counsel and had made a good faith attempt to resolve the dispute before filing its motion. The court further concluded that Thunder Struck was entitled to attorneys fees incurred in bringing the motion. It allowed for briefing as to the reasonable expenses incurred in preparing the motion to compel.
{¶ 16} Ultimately, in a judgment dated February 3, 2021, the trial court awarded Thunder Struck attorneys fees of $2,095.50. It concluded that Koski's evasive and incomplete responses should be treated as a failure to respond to discovery, Koski was not substantially justified in opposing the motion to compel, Thunder Struck made a good faith effort to contact Koski before filing its motion, and the discovery was "relevant to the current dispute as the insurance requirements were specifically referenced and incorporated into the Independent Contractor Agreement entered into by the parties."
{¶ 17} Despite these findings, the court eventually went on to grant summary judgment to Koski on his complaint for declaratory judgment and denied Thunder Struck's counterclaim. It concluded that the agreement "unambiguously" required Thunder Struck to "'procure and maintain in full force and effect public liability, property damage and cargo insurance coverage as concerns shippers and the general public in at least the minimum amounts required by all federal and state laws and regulations.'" It 10 found that additional language-requiring Koski to reimburse Thunder Struck for $1,000 of the deductible amount of cargo insurance for any loss to the cargo or equipment while in the control of Koski-did not alter Thunder Struck's responsibility to have public liability, property damage and cargo insurance. And it determined that Koski's responsibility to carry public liability and property damage insurance was limited to when the tractor and trailer were not being operated by Thunder Struck or used in the performance of a trip.
{¶ 18} The court observed that the agreement required Koski to name Thunder Struck as an "Additional Insured"-which Koski failed to do-but it found that his failure to do so was irrelevant to the declaratory judgment action because Koski's insurance was to cover public liability and property damage for accidents when not used in the performance of a trip. Because the undisputed facts demonstrated that the July 17, 2019 accident occurred while being used in the performance of a trip, the court determined that Thunder Struck was responsible for the public insurance, property damage and cargo insurance applicable to the accident.
{¶ 19} Finally, the court found that Koski owed no duty to defend Thunder Struck. And it concluded that Koski's duty to release, indemnify, or hold Thunder Struck harmless was limited to the circumstances set forth in paragraph 8 of the agreement (where Thunder Struck furnishes services, materials or equipment or provides its repair facilities on behalf of Koski), and the second section of paragraph 10 (for 11 "comprehensive loss of, or damage to, the Equipment, including, but not limited to, collision, upset, fire, and theft").
{¶ 20} Koski appealed the trial court's February 3, 2021 judgment granting
attorneys fees to Thunder Struck. He assigns the following error for our review: After appellant made timely objections to interrogatories and requests for production of documents, the trial court abused its discretion by ordering the payment of attorney fees simultaneously with ordering the discovery at issue after reviewing the memoranda without a hearing.
II. Law and Analysis
{¶ 21} In his sole assignment of error, Koski challenges the trial court's award of attorneys fees as a sanction for objecting to-and, consequently, failing to provide-answers and responses to interrogatories and requests for production of documents. He argues that he served timely objections, his objections were made in good faith and were substantially justified, the discovery sought was not relevant in determining whether the agreement required Koski to defend and indemnify Thunder Struck, Thunder Struck filed its motion instead of responding to Koski's request that it explain the relevance of the discovery sought, and the court ultimately granted summary judgment to Koski without venturing outside the terms of the agreement. Koski insists that attorneys fees may be awarded only where a party fails to serve answers, objections, or a written response, 12 otherwise a party would be prohibited from interposing good-faith objections to discovery requests and Civ.R. 37(D)(1)(a)(ii) would be rendered meaningless.
{¶ 22} Thunder Struck responds that Koski was not substantially justified in objecting to its discovery requests because the case involved "a dispute about insurance and which party was obligated to purchase coverage," its "discovery requests relat[ed] to insurance policies," therefore, its discovery requests were relevant. It disputes that the trial court's eventual summary-judgment ruling excuses Koski's failure to provide responsive documents, and cautions that this court may not substitute its judgment for the trial court's relevancy determination. Thunder Struck emphasizes that "absent an express finding that the failure to comply was substantially justified or that other circumstances would make an award unjust, the trial court must grant a party's request for reasonable expenses." (Emphasis added.) And it insists that Koski was afforded an opportunity to brief both the motion to compel and the motion for fees, and this constituted an opportunity to be heard as required by Civ.R. 37(A)(5)(a).
{¶ 23} In reply, Koski maintains that no discovery was warranted here because the declaratory judgment action turned on the four corners of the agreement. He insists that insurance or lack thereof was not at issue-the court was asked to determine only whether Koski was obligated under the agreement to defend or indemnify Thunder Struck. Koski points out that the trial court's order actually led to the discovery of information that exceeded the scope of what it had determined was relevant. And he 13 contends that unlike the present case, where Koski responded with timely objections, Thunder Struck cites only cases where parties wholly failed to respond to discovery requests.
{¶ 24} We review a trial court's disposition of discovery issues under an abuse-of-discretion standard. Carpenter v. Reis, 109 Ohio App.3d 499, 507, 672 N.E.2d 702 (6th Dist.1996), citing Toney v. Berkemer, 6 Ohio St.3d 455, 458, 453 N.E.2d 700 (1983). An abuse of discretion connotes that the trial court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). An unreasonable decision is one that lacks sound reasoning to support the decision. Hageman v. Bryan City Schools, 10th Dist. Franklin No. 17AP-742, 2019-Ohio-223, ¶ 13. "An arbitrary decision is one that lacks adequate determining principle and is not governed by any fixed rules or standard." Id., quoting Porter, Wright, Morris & Arthur, LLP v. Frutta del Mondo, Ltd., 10th Dist. No. 08AP-69, 2008-Ohio-3567, 2008 WL 2779511, ¶ 11. And an unconscionable decision is one "that affronts the sense of justice, decency, or reasonableness." Id.
{¶ 25} As an initial matter, the parties cite different subsections of Civ.R. 37 in support of their positions. Koski cites Civ.R. 37(D)(1)(a)(ii) and Thunder Struck cites Civ.R. 37(A)(5)(a).
{¶ 26} Civ.R. 37(D)(1)(a)(ii) addresses sanctions for failing to attend a deposition, serve answers to interrogatories, or respond to a request for inspection and provides that a 14 "court may, on motion, order sanctions if * * * [a] party, after being properly served with interrogatories under Civ.R. 33 or a request for inspection under Civ.R. 34, fails to serve its answers, objections, or written response." Civ.R.37(A)(5)(a), on the other hand, permits a party seeking discovery to move for an order compelling discovery if a party fails to answer an interrogatory or permit inspection of documents, and authorizes an award of attorneys fees if the motion to compel is granted. That rule states:
If the motion is granted, the court shall, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court shall not order this payment if:
(i) The movant filed the motion before attempting in good faith to obtain the discovery without court action;
(ii) The opposing party's response or objection was substantially justified; or
(iii) Other circumstances make an award of expenses unjust.
For purposes of Civ.R. 37(A), "an evasive or incomplete answer or response shall be treated as a failure to answer or respond."
{¶ 27} Here, the trial court awarded fees after granting Thunder Struck's motion to compel. Civ.R. 37(A)(5)(a)-not Civ.R. 37(D)(1)(a)(ii)-applies. Because Civ.R. 15 37(A)(5)(a) applies, the trial court was required to award expenses to Thunder Struck unless Thunder Struck filed its motion before attempting in good faith to obtain the discovery without court intervention, Koski was substantially justified in objecting to the requests, or other circumstances render the award of expenses unjust. An award of expenses is mandatory under the rule unless the court makes one of these findings under Civ.R. 37(A)(5)(a)(i)-(iii). MaCarthy v. Dunfee, 19 Ohio App.3d 68, 69-70, 482 N.E.2d 1291 (9th Dist.1984).
{¶ 28} Federal courts applying the analogous federal rule have relied on the U.S. Supreme Court's interpretation of "substantially justified" in considering whether a movant is entitled to attorneys fees in a discovery dispute. Those courts observe that "substantially justified" means: "justified to a degree that could satisfy a reasonable person." Phoenix Drilling, Inc. v. E. Resources, Inc., N.D.W.Va. No. 1:11CV08, 2012 WL 1038756, *1 (Mar. 27, 2012), quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). They find an individual's conduct to be substantially justified if it is "a response to a 'genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.'" Id., quoting Pierce at 565. See also LightStyles, Ltd. ex rel. Haller v. Marvin Lumber & Cedar Co., M.D.Pa. No. 1:13-CV-1510, 2015 WL 4078826, *4 (July 6, 2015), citing Tolerico v. Home Depot, 205 F.R.D. 169, 175 (M.D.Pa.2002) ("[Substantial justification exists if a reasonable person could conclude that the parties could disagree whether compliance with the discovery 16 request was required."); Pierce at f.n. 2 ("[A] position can be justified even though it is not correct, and we believe it can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact."). Where "there is an absence of controlling authority, and the issue presented is one not free from doubt and could engender a responsible difference of opinion among conscientious, diligent but reasonable advocates," the opposing party's position may be deemed substantially justified. (Internal citations and quotations omitted.) Council for Tribal Emp. Rights v. United States, 110 Fed.Cl. 244, 250 (2013).
{¶ 29} Courts "must consider on a case-by-case basis whether the moving and responding parties' positions were substantially justified and whether certain circumstances may make the imposition of sanctions inappropriate." High Point SARL v. Sprint Nextel Corp., D.Kansas No. 09-2269-CM-DJW, 2011 WL 4008009, *1 (Sept. 9, 2011). "[T]he Court's inquiry should focus on the substantive bases for such objections and not on the ultimate outcome of the objections." Vanderwall v. United Airlines, Inc., S.D.Fla. No. 14-CIV-60256-BLOOM/VALLE, 2014 WL 12495260, *1 (Dec. 16, 2014), citing Neumont v. Monroe Cty. Florida, 225 F.R.D. 266, 268 (S.D. Fla. 2004) (finding that plaintiffs were substantially justified in objecting to defendant's discovery demands even though the court ultimately disagreed with plaintiffs' position and granted defendant's motion to compel). The burden is on the non-prevailing party to avoid 17 assessment of expenses. Wager v. G4S Secure Integration, LLC, S.D.N.Y. No. 1:19-cv-03547-MKV-KNF, 2021 WL 293076, *3 (Jan. 28, 2021).
{¶ 30} Civ.R. 26(B)(1) outlines the scope of discovery and provides that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense * * *." Evid.R. 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Information "need not be admissible in evidence to be discoverable." Civ.R. 26(B)(1).
{¶ 31} "Under Ohio's liberal discovery procedures, the burden is upon the objecting party to clearly show that the information sought is privileged or irrelevant." Sells v. Ohio Historical Ctr, 10th Dist. Franklin No. 82AP-508, 1982 WL 4535, *3 (Nov. 30, 1982). See also Superior Communications v. Earhugger, Inc., 257 F.R.D. 215, 217 (C.D.Cal.2009) ("The party who resists discovery has the burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections."). Parties may not simply assert "conclusory, boilerplate objections that fail to explain the precise grounds that make the request objectionable." (Internal citations and quotations omitted.) Nationwide Mut. Fire Ins. Co. v. Kelt, Inc., M.D.Fla. No. 6:14-cv-749-Orl-41TBS, 2015 WL 1470971, *3 (Mar. 31, 2015).
{¶ 32} Here, Koski did not assert conclusory, boilerplate objections. He provided a detailed rationale for his position that the discovery requested sought information not 18 relevant to the issues raised in the complaint and counterclaim. His position was that the agreement set forth the parties' obligations, his claim and Thunder Struck's counterclaim were premised on the terms of the agreement, and that agreement must be interpreted on its face without resort to parol evidence. He cited case law in support of his position. And he invited a response from Thunder Struck's attorney.
{¶ 33} We have read and reread Thunder Struck's motion to compel. Nowhere in that motion does Thunder Struck explain why the discovery it sought was relevant to the issue of Koski's obligation under the agreement to defend or indemnify it-i.e., it never explained how information responsive to its discovery requests would have the "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable." Moreover, Thunder Struck repeatedly mischaracterized Koski's objections-stating several times that Koski's argument was that the discovery sought was not relevant because the lawsuit was a declaratory judgment, when in fact, Koski's stated position was that the discovery was not relevant because the pertinent issue to be decided in the action for declaratory judgment was "limited to construction of the Plaintiffs lease with Thunder Struck." (Emphasis added.) And while Thunder Struck voluntarily narrowed the scope of its discovery requests in its motion to compel, there is no evidence in the record that Thunder Struck extended this offer to Koski before filing its motion. 19
{¶ 34} Despite Thunder Struck's failure to articulate its own reasons why the information it sought in discovery was relevant, the trial court ultimately found that the discovery requests sought insurance information that was relevant because the agreement required Koski to carry certain insurance. Regardless of whether we agree with the trial court's conclusion, we observe that one category of discovery compelled by the court-information concerning Koski's ownership of the vehicle-was not limited to insurance-related information. Furthermore, while the court found that "Thunder Struck made a good faith attempt to have the responses supplemented by Koski," it did not acknowledge that Thunder Struck made concessions narrowing the scope of the discovery requests in its motion to compel that it failed to make in its pre-motion correspondence with Koski's attorney.
{¶ 35} Although "[a] trial court has broad discretion to impose sanctions against a party who violates the discovery rules," it "has no discretion to award expenses if the responsible party's actions were 'substantially justified or other circumstances make an award of expenses unjust.'" Pippin v. Sanderson, 5th Dist. Fairfield No. 2020 CA 00013, 2020-Ohio-4551, ¶ 46-47. We find that reasonable people could disagree whether compliance with the discovery requests was required here, especially given that the subject matter of those requests extended beyond the insurance-related information that the court deemed to be relevant. See Walden v. Maryland Cas. Co., D.Montana No. CV 13-222-M-DLC, 2015 WL 672279, *3 (Feb. 17, 2015) ("Given the nature of the case at 20 the time Maryland filed the motion, reasonable people could differ as to the extent to which a similarly situated plaintiff would need to respond to the propounded discovery requests."). Accordingly, we conclude that Koski's objections were substantially justified and the trial court lacked discretion to award expenses here.
{¶ 36} We also conclude that Thunder Struck "filed [its] motion before attempting in good faith to obtain the discovery without court action"-Civ.R. 37(A)(5)(a)(i)-given that it wholly ignored Koski's request that it explain how its discovery requests were relevant to the interpretation of the independent contractor agreement and made no attempt to narrow the scope of its requests before filing its motion to compel. Compare Minnesota Min. & Mfg. Co. v. Commercial Union Ins. Co., D.N.J. No. No. 88-325 (MTB), 1989 WL 241716, *1 (Oct. 13, 1989) (noting that "prior to filing its motion to compel discovery * * * plaintiff attempted to negotiate with all defendants * * * to narrow the scope of its discovery requests * * * and reached agreements with all defendants except [one], who was unwilling to negotiate"); Russo v. Lopez, D.Nev. No. 2:11-cv-00284-PMP-GWF2012 WL 1463591, *5 (Apr. 27, 2012) (awarding expenses incurred in filing motion for protective order where defense counsel offered alternative method to resolve dispute, which plaintiffs counsel rejected, and invited plaintiffs counsel to suggest other alternatives, which plaintiffs counsel failed to do, instead insisting on responses to voluminous discovery requests). 21
{¶ 37} Because Koski's objections were substantially justified and Thunder Struck filed its motion before attempting in good faith to obtain the discovery without court action, we find Koski's sole assignment of error well-taken.
III. Conclusion
{¶ 38} Reasonable people could disagree whether compliance with discovery requests was required here. We, therefore, conclude that Koski's objections were substantially justified, and the trial court was without discretion to award expenses incurred by Thunder Struck in obtaining the order compelling discovery. We also conclude that Thunder Struck filed its motion to compel before attempting in good faith to obtain discovery without the court's intervention. We, therefore, find Koski's assignment of error well-taken and reverse the February 3, 2021 judgment of the Wood County Court of Common Pleas. Thunder Struck is ordered to pay the costs of this appeal under App.R. 24.
Judgment reversed. 22
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J., Gene A. Zmuda, P.J., Myron C. Duhart, J. Concur. 23