In Estate of Daniels v. City of Indianapolis, et al., No. 1:20-cv-02280-JRS-MJD (S.D. Ind. Dec. 17, 2021), Indiana Magistrate Judge Mark J. Dinsmore granted the plaintiff’s Motion for Attorney Fees of $2,311.50 in fees incurred by the plaintiff in bringing her motion to compel, rejecting several arguments by defendants, including their argument that the plaintiff served discovery requests via email when the defendants did not consent to receiving discovery electronically, because “Defendants still responded to each discovery request received via email and did so at length”.

Case Background

In this case involving claims of excessive force filed by the Estate of Paul Daniels, who died while in the custody of the Indianapolis Metropolitan Police Department, the Court conducted an informal discovery conference in August 2021 to discuss the plaintiff’s issues with defendants’ responses and objections to certain interrogatories and requests for production and authorized the plaintiff to file a motion to compel, which she did. In October 2021, the motion was granted in part and denied as moot in part, the Court ordered defendants to provide complete and unequivocal responses in accordance with the Order within 14 days, and authorized Plaintiff to bring a motion for attorney fees under Fed. R. Civ. P. 37(a)(5)(A), which she did on November 1, 2021.

However, the defendants filed an Objection to the Order on Plaintiff’s Motion to Compel Discovery Responses, arguing that “the magistrate judge’s order is clearly erroneous and contrary to law in its entirety.” District Judge James R. Sweeney II overruled Defendants’ objection on November 22, 2021, finding that Judge Dinsmore did not “fail to apply or misapply any legal authority.”

In her motion for attorney fees, the plaintiff argued that “awarding fees is appropriate because Defendants have needlessly and continuously engaged in dilatory tactics that have ‘created prejudice for Plaintiff by delaying discovery responses,’ ‘drawn out the discovery dispute,’ and ‘wast[ed] the time of Plaintiff’s Counsel and the Court.’”

Judge’s Ruling

Judge Dinsmore stated: “In their par-for-the-course 35-page response, Defendants oppose Plaintiff’s motion for fees on several grounds.”

With regard to the defendants’ argument that “Plaintiff moved to compel before attempting in good faith to obtain discovery without court action”, Judge Dinsmore stated: “The Court has already rejected this argument and thus will not expend its resources entertaining it once more” – previously finding that “Defendants’ concerns with the validity of the meet and confer are without merit”.

With regard to the defendants’ argument that their “nondisclosure, response, and objections were substantially justified because Plaintiff’s requests for production were improper”, Judge Dinsmore responded: “Defendants then spill excessive ink rehashing the same arguments made in their initial discovery responses and in their opposition to Plaintiff’s motion to compel. The Court has already addressed and rejected each of these arguments, and Judge Sweeney has overruled the same objections”.

With regard to the defendants’ argument that “Defendants’ nondisclosure and response were substantially justified because Plaintiff’s discovery requests were not served on Defendants” (premised on the fact that the plaintiff sent discovery requests via email when defendants did not consent to receiving discovery electronically), Judge Dinsmore stated: “To be sure, Defendants still responded to each discovery request received via email and did so at length.” He also referenced Judge Sweeney’s response to that argument, where he said: “Although Defendants’ response to the motion to compel mentioned that the discovery requests were not properly served,…Defendants did not actually argue that the motion to compel should be denied based on improper service…Thus, they waived that argument and it is too late to raise it now.”

Judge Dinsmore also rejected the defendants’ case citations in support of their argument, while citing a different case where another party argued unsuccessfully that they were not properly served, yet “timely responded to every discovery request in full” and did not object to the manner of service then, or during a subsequent meet and confer. As a result, Judge Dinsmore stated: “none of the arguments raised by Defendants constitute reasons that would make an award of expenses unjust under Fed. R. Civ. P. 37(a)(5)(A)” and he granted the plaintiff’s motion for attorney fees of $2,311.50.

So, what do you think? Do you agree that responding to discovery requests eliminates the ability to object to manner of service downstream?  Please share any comments you might have or if you’d like to know more about a particular topic.

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