The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
I previously granted in part and denied in part Plaintiff's Motion to Compel Defendants' Discovery Responses. Plaintiff has now moved for attorneys fees.
When a motion to compel is granted in part and denied in part, the court is obliged to apportion the fees and costs incurred in"relation to the motion among the parties and persons in a just manner." Fed. R. Civ. P. 37 (4)(C). The party compelled can, however, escape liability by establishing that its resistance to the discovery was substantially justified.
Fed. R. Civ. P. 37(4)(A). I have defined the term"substantial justification" as follows:
By substituting"substantial justification" for good faith, Fed. R. Civ. P. 37(a)(4)(A) objectifies the controlling standard by forcing judicial consideration of the state of law when the motion to compel is made and opposed. If 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, then the opposing positions taken by them are substantially justified. Athridge v. Aetna Cas. & Sur. Co., 205 F.R.D. 200, 205 n.1 (D.D.C. 1998).
Whether Amtrak's*fn1 Position was Substantially Justified
The question presented is, therefore, whether the defendant's position was substantially justified, as I have defined that term, as to each issue raised. In my opinion of July 15, 2002, I identified those issues as follows:
a. The duties of Paul Bello, an employee who survived the restructuring that resulted in plaintiff's termination;
b. The consequences, if any, of previous Amtrak restructuring efforts on Amtrak employees who are members of protected classes;
c Amtrak's hiring and firing of other members of protected classes during plaintiff's employment;
d. All other complaints of discrimination, if any, against Amtrak during the period of plaintiff's employment;
e. The availability of information regarding a prior class action filed in this court, in which plaintiff was a class member;
f. Whether certain materials produced by a consultant from Amtrak are protected by the attorney-client or work product privileges;
g. Whether severance agreements with other employees were discoverable;
h. Whether the discovery cutoff date bars any additional discovery;
i. Whether plaintiff should be permitted to take two additional depositions.
I will address each of these issues in turn in order to ascertain whether Amtrak's position as to that issue was substantially justified.
The Consequences of Previous Amtrak Restructurings
In its opposition to plaintiff's motion, Amtrak indicated that, despite its objections, it had provided information about restructuring in 1998, 1999, 2000 and 2001. Defendant's Opposition to Plaintiff's Motion to Compel at 6. Plaintiff replied that she still wanted information as to restructurings"between 1996 and 1999." Plaintiff's Reply in Support of Her Motion to Compel Discovery Responses at 2. She also insisted that she was entitled to"information concerning the current duties performed by Paul Bello, a younger, white, male, non-disabled employee who was not"restructured" out of his job when plaintiff was." Id. Plaintiff wanted to know why Bello was retained when she was not and whether Bello was performing any of her duties. Id.
I concluded that plaintiff was entitled to the information she sought. Mitchell v. Nat'l. R.R. Passenger Corp, 208 F.R.D. 455, 457 (2002). However, in opposition to plaintiff's petition for attorney fees, Amtrak now tells me for the first time that it had produced Bello's file, which contained a job description and that Bello was scheduled for a deposition.
We cannot proceed in this fashion. Parties should not be bringing to my attention significant information bearing on a discovery request after I have ruled upon it. The Supreme Court has admonished judges not to permit the litigation pertaining to attorney fees to take longer than the litigation itself. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). I cannot be faithful to that responsibility if I permit parties to raise, during fee proceedings, factual issues that require a hearing to resolve. These issues should have been raised when I was resolving the discovery dispute itself. I will, therefore, not consider information brought to my attention for the first time after I have ruled on the discovery dispute.
Considering only the information that was before me when I ruled, I must find that Amtrak did not provided any justification in its original documents for its resistance to plaintiff's discovery as to the additional restructurings or Bello's job duties. That being the ...