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Covad Communications Co. v. Revonet

August 17, 2009

COVAD COMMUNICATIONS COMPANY, PLAINTIFF,
v.
REVONET, INC., DEFENDANT.



The opinion of the court was delivered by: John M. Facciola U.S. Magistrate Judge

MEMORANDUM OPINION

This case has been referred to me for discovery disputes. Defendant Revonet filed a Motion to Compel [#44] in September, 2008 seeking more complete responses to some interrogatories and responses generally to requests for production of documents and admissions. I granted that Motion on May 29, 2009 and concurrently directed Covad to show cause why it should not have to reimburse Revonet for the fees and costs it incurred in bringing the motion. See Covad Comm'cns Co. v. Revonet, Inc., - F.R.D. -, No. 06-CV-1892, 2009 WL 1515671, at *8 (D.D.C. May 29, 2009); see also Fed. R. Civ. P. 37(a)(5)(A) (stating that court should permit losing party an opportunity to be heard before imposing sanctions). The issue has now been fully briefed and is ripe for adjudication.

I. Standard

As noted above, the imposition of sanctions arising out of a motion to compel is governed by Rule 37(a), which provides that:

If the motion is granted . . . the court must, after giving an opportunity to be heard, require the party . . . 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 must not order this payment if:

(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;

(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or

(iii) other circumstances make an award of expenses unjust.

Fed. R. Civ. P. 37(a)(5)(A). The Rule was specifically amended in 1970 to encompass a presumption that sanctions should be awarded unless one of the conditions in the Rule is met "to encourage judges to be more alert to abuses occurring in the discovery process." Fed. R. Civ. P. 37, Advisory Committee Notes to 1970 Amendments; see also D.L. v. District of Columbia, 256 F.R.D. 239, 242 (D.D.C. 2009) (noting that attorney's fees were not only warranted but required under the Rule); Cobell v. Norton, 226 F.R.D. 67, 90 (D.D.C. 2005) ("[T]he language of the Rule itself is mandatory, dictating that the Court must award expenses upon granting a motion to compel disclosure unless one of the specified bases for refusing to make such an award is found to exist."). And, while I am entrusted with substantial discretion to determine whether and what sanctions are appropriate for discovery misconduct, Bonds v. District of Columbia, 93 F.3d 801, 803 (D.C. Cir. 1996), cert. denied, 520 U.S. 1274 (1997), I am guided by the purpose of the rule which is "not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent." Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976). Bearing these considerations in mind, I must determine whether one of the three exceptions applies to this case.

II. Analysis

A. Failure to Meet and Confer

In its opposition, Covad argued that Revonet's motion was untimely because Covad had insisted that it would produce the items Revonet sought as soon as Covad received its due. For that reason, Covad argues that the parties never reached an impasse that justified court intervention.

The central theme of Covad's opposition to paying the costs of Revonent's filing of the Motion to Compel [#44] is that in the period between its being filed in September, 2008 and my resolving it by my May 29, 2009 Memorandum Opinion and Order, Covad made substantial efforts to ascertain what Revonet truly considered to still be outstanding discovery demands but was rebuffed in its efforts until May 1, 2009 when counsel for the parties finally met and conferred. Responsive Filing of Plaintiff Covad Communications Company to Court's Order of May 29, 2009 [#103] at 2. Covad portrays this meeting as productive because, having now been finally informed of what Revonet truly wanted, "[m]any of the issues discussed were resolved in short order." Id.

On March 23, 2009, Revonet had filed its Supplemental Motion to Compel Discovery and Request for Sanctions [#78] that I struck. Order of ...


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