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McNamara v. Picken

United States District Court, District Circuit

June 4, 2013

SCOTT A. McNAMARA, M.D., Plaintiff/Counter-Defendant,
CATHERINE A. PICKEN, M.D., et al., Defendants/Counter-Plaintiffs.



In my Memorandum Order of August 29, 2012 I granted in part and denied in part Defendants/Counter-Plaintiffs’ Motion to Compel Plaintiff/Counter-Defendant to Produce Documents and Hard Drives in Response to Defendants/Counter-Plaintiffs’ Rule 34 Request for Production of Documents [#37]. Memorandum Order [#52]. Plaintiff/Counter-Defendant (“Picken”) seeks attorney fees for having filed that motion. Motion for Fees in Accordance with August 29, 2012 Order [#76].


Rule 37(a)(5) of the Federal Rules of Civil Procedure requires a court that has granted a motion to compel discovery to award the moving party’s reasonable expenses, including attorneys’ fees, unless 1) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; 2) the opposing party’s “nondisclosure, response, or objection was substantially justified;” or 3) other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37(a)(5).


In opposing the motion for fees, plaintiff/counter-defendant (“McNamara”) frequently argues that he opposed the discovery and the motion to compel in “good faith.” Opposition to Motion for Fees [#81]. That is, of course, not the standard for objecting to discovery requests, for it would justify objections made with a good heart but an empty head. Instead, the court must be convinced that, viewed objectively, there was legal support for the objection. See Pierce v. Underwood, 487 U.S. 552, 565 (1988) (a party meets the “substantially justified” standard where there is a “genuine dispute” or “if reasonable people could differ” as to the appropriateness of the motion to compel). If there was no legal support given for the objection, then the objection is not justified. Covad Commc’ns Co. v. Revonet, Inc., 262 F.R.D. 1, 4 (D.D.C. 2009).

Moreover, there is another problem with McNamara’s approach to objecting to Picken’s discovery requests: the objections seem to evolve over time. In many instances, McNamara makes one objection at first, but then supplements that objection or adds a new objection in later pleadings. For example, regarding Document Request No. 5, at first McNamara objected on the grounds that disclosing his personal bank account exceeded permissible discovery. Plaintiff/Counter-Defendant’s Response to Request for Production of Documents [#37-3] at 3. In response to the motion to compel, he argued that Picken’s counterclaim did not allege that McNamara received payments from any source other than the Eagle Bank account, and statements from that checking account were already turned over. Plaintiff/Counter-Defendant’s Opposition to Defendant/Counter-Plaintiffs’ Motion to Compel [#41] at 2. Finally, in opposition to the motion for fees, McNamara argues that he “had a good faith belief that his personal bank accounts would not provide any information which would be probative to any issue in this case, and would constitute a gross invasion of his privacy.” [#81] at 1 (emphasis added). It is clear that with each bite at the apple, McNamara tweaked his objection or raised new objections, such as the invasion of privacy argument.

This manner of proceeding is intolerable. Rule 34 requires the producing party to either permit the requesting party to make the requested copies of the documents demanded, or “state an objection to the request, stating the reasons.” Fed.R.Civ.P. 34(b)(2)(C). The requesting party must decide whether to move to compel only on the basis of that objection. It is pernicious and unfair to the requesting party to force it to make a motion to compel on the basis of the actual objection made, and then hold it to the new objections provided later on. The situation only gets worse when the producing party prevails on its motion to compel, only to confront additional reasons for not producing the documents raised for the first time in opposition to a fee petition. When those objections were neither asserted in response to the original document request, nor asserted in opposition to the motion to compel, they cannot be used to defeat an award of reasonable attorneys’ fees. Conversely, when the producing party provides the most fulsome and complete objection initially, the requesting party can make the best judgment possible as to whether to move to compel.

I will not, therefore, condone McNamara’s “making it up as he goes along” approach, but instead will consider only the initial objection made and determine whether it and it alone was substantially justified.

With that understanding, I will now turn to each request and the original objection made. I will then address two categories of objections that apply to multiple document requests.

I. Document Requests and the Corresponding Original Objections

A. Bank Accounts

As noted above, McNamara’s original objection to Picken’s demand that he produce documents relating to his bank accounts was that doing so “exceeds permissible discovery.” [#37-3] at 3.

First, that barely meets the requirement of Rule 34(2)(B) that the responding party state the reasons for its objections. In analogous cases, this Court has persistently held that objections to interrogatories that merely parrot the language of the pertinent rule or claim that a request is “burdensome, ” without a specific explanation why, are insufficient. See, e.g., Tequila Centinela, S.A. de C.V. v. Bacardi & Co, Ltd., 242 F.R.D. 1, 10 (D.D.C. 2007) (“The responding party cannot just merely state in a conclusory fashion that the requests are burdensome” (internal quotations omitted)); Miller v. Holzmann, 240 F.R.D. 1, 3 (D.D.C. 2006) (“I will not consider the objection that an interrogatory is overbroad and burdensome without a showing by affidavit why it is overbroad and burdensome”); Athridge v. Aetna Cas. and Sur. Co., 184 F.R.D. 181, 191 (D.D.C. 1998) (“The party opposing discovery must show specifically how an interrogatory is overly broad, burdensome or oppressive” (internal quotations omitted)). The objection that a particular demand “exceeds the scope of permissible discovery” is not much better. Moreover, as Picken correctly points out, she specifically alleged that McNamara took patient revenues that should have been paid into the account that Picken and ...

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