PAUL BARBADORO, District Judge.
This case involves claims by plaintiffs that defendants — Jacob S. Ciborowski Family Trust, which owns Phenix Hall in downtown Concord, and Bagel Works, a café that leases space within Phenix Hall — violated Title III of the Americans with Disabilities Act ("ADA") when they renovated Phenix Hall without making the entrance accessible to disabled persons. Magistrate Judge Landya McCafferty awarded plaintiffs attorney's fees they incurred while preparing and filing motions to compel defendants to provide interrogatory answers and objections to defendants' motions for protective orders. Presently before me is defendants' motion to reconsider the Magistrate Judge's decision (Doc. No. 110). Because I conclude that the decision is not clearly erroneous, I deny defendants' motion.
Plaintiffs filed their first amended complaint on September 20, 2011. Doc. No. 3. Bagel Works answered on November 21, 2011, and the Trust answered on November 23, 2011. Doc. Nos. 13, 15. The parties jointly filed a discovery plan on January 3, 2012. Doc. No. 27.
On February 2, 2012, plaintiffs served interrogatories and requests for production on the Trust.
Plaintiffs' motion to compel the Trust to produce discovery covered Interrogatories 26, 28, 29, 30, and 31. Through these interrogatories, plaintiffs sought two categories of information: (1) information about the Trust's communications with the City of Concord regarding use of the city sidewalk to build a handicapped accessible entrance to Phenix Hall, and (2) financial information.
The motion to compel Bagel Works to produce discovery covered Interrogatories 21, 22, 23, and 24 — which are identical to the four financial interrogatories (28, 29, 30, and 31) plaintiffs served on the Trust — and Interrogatories 8, 10, 20, and 30. The latter four interrogatories requested information about Bagel Works' communications with the Trust and the City of Concord regarding access to Phenix Hall and also requested information relating to a 1992 letter the Disability Rights Center apparently sent to Bagel Works. Doc. No. 34-2 at 6-8, 13.
In each motion, plaintiffs provided substantive arguments justifying their discovery requests and explaining the relevance of the subject interrogatories to claims or defenses the parties raised in the pleadings. Plaintiffs also noted in each motion that, even assuming the defendants had a valid basis for objecting to the discovery, defendants had waived those objections because their responses were untimely. Doc. Nos. 33-1 at 6, 8; 34-1 at 26, 10.
Each defendant filed an objection to the motion to compel served on it, addressing the substantive arguments they believed justified their refusal to provide the discovery. Doc. Nos. 35, 37. Neither defendant addressed the fact that its responses were untimely. Plaintiffs filed replies to the objections, and defendants subsequently filed surreplies. Doc. Nos. 46, 47, 66, 70.
In combination with their objections to plaintiffs' motions to compel, each defendant moved for a protective order. Doc. No. 35, 37. Defendants later re-filed their motions for protective orders as independent documents, Doc. Nos. 49, 50, in accordance with Magistrate Judge McCafferty's instructions and local rules. Doc. No. 43.
The Trust's motion for a protective order covered Interrogatories 10, 15, 16, 17, 19, 20, 27, 28, 29, 30, and 31. Doc. No. 50-1 at 2-3. Interrogatories 15-17 requested information about properties the Trust owns other than Phenix Hall.
Magistrate Judge McCafferty granted plaintiffs' motion to compel. She concluded that defendants had waived any viable objections to plaintiffs' discovery requests because their responses were untimely, and they failed to address the untimeliness of their responses, much less provide "good cause" for it, as Fed. R. Civ. P. 33(b)(4) requires.
Magistrate Judge McCafferty denied defendants' motions for protective orders because neither defendant provided "good cause for the court to find that a protective order is necessary . . . to avoid annoyance, embarrassment, oppression, or undue burden or expense" as required by Fed. R. Civ. P. 26(c). Doc. No. 78 at 2. She then ordered the parties to file briefs on the issue of whether an award of attorney's fees in connection with the motions for protective orders would be appropriate.
Under the federal rules, if a motion to compel 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." Fed. R. Civ. P. 37(a)(5)(A). Expenses are not awarded, however, if the opposing party's nondisclosure, response, or objection was substantially justified.
Following the Magistrate Judge's orders, plaintiffs filed a motion for attorney's fees, seeking a total of $17,550 for 89.45 hours of work allegedly performed in connection with the motions to compel and the motions for protective orders. Doc. No. 98 ¶ 14.
Plaintiffs argued that defendants waived any objections to the interrogatories because their responses were untimely, and, therefore, they lacked substantial justification to refuse to provide discovery or to object to the motion to compel.
Defendants addressed the untimeliness of their discovery objections in a cursory manner. They acknowledged receiving a letter from plaintiffs on March 26, Doc. No. 107-1 at 2, 107-2, in which the plaintiffs notified the Trust that it had failed to timely respond to the interrogatories.
Doc. No. 107-2. Defendants provided no further explanation in their opposition brief or any of their previous filings for their untimely responses.
Defendants' March 27 letter suggests that, at the earliest, defendants notified plaintiffs of their difficulty gathering responsive documents in an email to "James" sent the week prior to March 27. There is no indication that that email offered an explanation for the delay, and the email is not in the record. Although defendants thank plaintiffs for their patience and refer to a deadline in plaintiffs' March 26 letter, they neither assert nor offer evidence that, within the initial thirty days after serving the interrogatories, the plaintiffs agreed to extend the deadline for responding to the interrogatories.
Magistrate Judge McCafferty concluded "that defendants have not met their burden to show that their actions were either substantially justified or that unusual circumstances exist which would make an award of fees unjust." Doc. No. 108 at 3. Consistent with this conclusion, she awarded plaintiffs fees in the amount of $11,000 for work related to the motions to compel and motions for protective orders.
Defendants have filed a motion for reconsideration of the Magistrate Judge's order awarding attorney's fees and requiring that counsel pay the fees.
I construe a motion for reconsideration of a magistrate judge's decision imposing discovery sanctions as an appeal from an order deciding a non-dispositive motion.
Here, Magistrate Judge McCafferty concluded that the defendants lacked substantial justification to object to plaintiffs' discovery requests and motions to compel, or to file motions for protective orders. Although she provided extensive analysis supporting her decisions in the orders granting the motions to compel and denying the motions for protective orders, she did not explain in the order awarding fees why she concluded that defendants lacked substantial justification for objecting to plaintiffs' discovery requests. Thus, I review the record with "painstaking care" to determine whether her ruling was clearly erroneous.
To succeed on their motion for reconsideration, defendants must demonstrate that they were substantially justified in concluding that they had not waived their right to object to plaintiffs' interrogatories; only then will the court consider the substance of their objections.
The Federal Rules of Civil Procedure clearly state that the party responding to interrogatories must "serve its answers and any objections within 30 days after being served with the interrogatories" unless the parties stipulate to or the court orders a different deadline. Fed. R. Civ. P. 33(b)(2). Here, neither party has represented either that the parties agreed to extend the deadline or that the court ordered an extension beyond thirty days. Thus, when defendants filed their responses at the end of March 2012, those responses were untimely.
The rules further state that "[a]ny ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure." Fed. R. Civ. P. 33(b)(4). Courts consider a variety of factors in determining whether a party had good cause (or whether there was "excusable neglect") in failing to timely respond to discovery requests.
Defendants acknowledged their untimeliness for the first time in their joint brief objecting to plaintiffs' motion for fees.
Even now, defendants have failed to explain why they were substantially justified in pursuing objections to interrogatories that they had waived by failing to file timely responses. In fact, they do not address the timeliness of their responses at all in their motion for reconsideration.
Defendants also lacked substantial justification for filing motions for protective orders. The only arguments defendants offered in support of their motions were the arguments they were required to assert, if at all, in timely objection to plaintiffs' interrogatories. Defendants may not circumvent Fed. R. Civ. P. 33(b)(5), barring untimely objections to interrogatories, by filing motions for protective orders on the basis of objections it should have timely lodged against properly served interrogatories.
Magistrate Judge McCafferty's conclusion that the defendants lacked substantial justification for objecting to plaintiffs' discovery requests was not clearly erroneous given that defendants waived their objections by failing to respond within thirty days to plaintiffs' interrogatories.
Courts have discretion under Fed. R. Civ. P. 37(a)(5)(A) to determine against whom to assess attorney's fees.
In this case, Magistrate Judge McCafferty concluded that, in light of the circumstances leading to the motions, "it appears that defendants' discovery conduct was based on the advice of counsel." Doc. No. 108 at 9. Defendants made no argument to the contrary in their objection to plaintiffs' motion for fees. Doc. No. 107. In their motion for reconsideration, defendants state only that the record does not affirmatively demonstrate that counsel was the driving force behind defendants' discovery conduct; they do not assert or provide any evidence that the defendants' discovery conduct was not based on the advice of counsel. Plaintiffs take no position on whether counsel or his clients should pay attorney's fees. Discovery decisions are normally strategic decisions made by attorneys and not their clients. Defendants have failed to demonstrate that Magistrate Judge McCafferty's conclusion was "clearly erroneous," and I form no "strong, unyielding belief that a mistake has been made."
I might well have reached a different conclusion in this case if I had reviewed this matter de novo. Viewed with the benefit of hindsight, it is quite clear that this is a trivial dispute that could have been avoided if counsel on both sides had worked cooperatively to solve the problem. While the Magistrate Judge's fee award in this case was not clearly erroneous, the Disability Rights Center is not free from blame. The interrogatories in question sought information with respect to irrelevant defenses and the plaintiffs would have had no need for the information if the parties had acted reasonably and agreed that the defenses could be withdrawn without prejudice. People hire lawyers to resolve disputes, not to exacerbate them. Sadly, this case has not been a shining example of what we expect from members of the New Hampshire bar. The motion to reconsider (Doc. No. 110) is denied.
SO ORDERED.
