United States District Court, W.D. Virginia, Charlottesville Division
ROGER G. HARRISON, et al., Plaintiffs,
CARRINGTON MORTGAGE, SERVICES, LLC, et al, Defendants.
Glen E. Conrad Chief United States District Judge.
Roger and Karla Harrison filed the instant action under the
Fair Credit Reporting Act, 15 U.S.C. § 1681 et
seq. against defendants Carrington Mortgage
Services, LLC and Equifax Information Services, LLC. The case
is presently before the court on the plaintiffs' motion
for attorney's fees pursuant to Rule 37(a)(5) of the
Federal Rules of Civil Procedure. For the reasons stated, the
motion will be denied.
filed certain discovery requests on defendant Carrington
Mortgage Services, LLC ("Carrington"), including
seventeen interrogatories. Carrington objected to each
interrogatory, asserting that the interrogatories were vague
and ambiguous, overbroad, unduly burdensome, irrelevant,
sought documents easily accessible to plaintiffs, not
reasonably calculated to lead to the discovery of admissible
documents, and sought privileged or otherwise exempt
information. Carrington then proceeded to answer many of the
interrogatories by referring to documents produced in
discovery. These answers included references to documents
that consisted of between two and three hundred pages. In
responding to one of plaintiffs' interrogatories seeking
the identification of certain individuals likely to have
discoverable information, Carrington stated that the specific
individuals were "to be determined." See
Carrington's Resp. to Pis.' Interrogs., Docket No.
39-1. Carrington also failed to respond to certain
interrogatories altogether. Plaintiffs believed these
responses to be inadequate and attempted to resolve the issue
with Carrington. Despite this effort, the parties could not
informally resolve the discovery dispute, and plaintiffs
subsequently filed a motion to compel.
court conducted a hearing on the motion to compel on March 1,
2017. Earlier that day, Carrington provided amended
interrogatory answers, which the court used as the basis of
its rulings. Ruling on the objections in lieu of an in-depth
evaluation of the sufficiency of the existing responses, the
court overruled defendant's objections as to eight of
plaintiffs' interrogatories; sustained in part and
overruled in part defendant's objections in regards to
four of the interrogatories; and sustained defendant's
objections as to four of plaintiffs' interrogatories. The
court did not address plaintiffs' interrogatory number
seventeen. In short, the court granted in part and denied in
part plaintiffs' motion to compel. Thereafter, Carrington
filed supplemental responses. The plaintiffs have now filed
the instant motion seeking attorney's fees pursuant to
Federal Rule of Civil Procedure 37(a)(5). The matter has been
fully briefed and the parties have advised that they do not
require a hearing. It is ripe for review.
Rule of Civil Procedure 37(a)(5) governs the payment of
attorney's fees and expenses in discovery disputes. When
the court grants the motion to compel, an award is mandatory
unless one of three enumerated exceptions applies: (1) the
movant filed a motion to compel prior to attempting in good
faith to obtain the discovery without court intervention, (2)
the nondisclosure or objection was substantially justified,
or (3) other circumstances make an award of expenses unjust.
See Fed.R.Civ.P. 37(a)(5)(A). If one of the three
exceptions is present, the court "must not" award
expenses and fees. Id. If the motion is granted in
part and denied in part, Rule 37(a)(5)(C) allows the court to
apportion reasonable expenses at its discretion. Id;
Barlow v. Herman. No. 2:I3CVOOO33, 2015 U.S. Dist.
LEXIS 25707, at *8-9 (D. Nev. Feb. 26, 2015) ("The
primary difference between Rule 37(a)(5)(A) and Rule
37(a)(5)(C) is that an award is discretionary under Rule
37(a)(5)(C)."). In the instant matter, the court granted
in part and denied in part plaintiffs' motion to compel.
The plaintiffs prevailed on some of the interrogatories, the
court sustained some of the defendant's objections, and
the court overruled in part and sustained in part other
objections. Accordingly, Rule 37(a)(5)(C) applies, and it is
within the court's discretion whether to apportion
expenses. In determining whether an award of attorney's
fees is appropriate, the court considers the purpose of Rule
37: "to allow the district courts to punish deliberate
noncompliance with the federal rules of discovery and to
deter such conduct in the future." Zornes v.
Specialty Indus.. 166 F.3d 1212, 1998 U.S. App. LEXIS
31686, at *29 (4th Cir. 1998) (unpublished).
analysis under Rule 37(a)(5)(C) contemplates the exceptions
enumerated in 37(a)(5)(A). Stephenson v. Pfizer
Inc.. 2014 U.S. Dist. LEXIS 92859, at *5-6 (M.D. N.C.
July 9, 2014) ("Rule 37(a)(5)(C) effectively
incorporates the substantive standards of Rule
37(a)(5)(A)."). Therefore, the expenses of a discovery
motion may be imposed upon a party ordered to produce
discovery where that party's conduct necessitated the
motion unless one of the three exceptions applies. See
Fed.R.Civ.P. 37(a)(5)(A). Here, the parties do not dispute
that plaintiffs attempted to obtain the discovery without the
intervention of the court. Instead, Carrington argues that
their failure to provide the requested discovery was
substantially justified or an award of expenses would be
party satisfies the 'substantially justified'
standard 'if there is a genuine dispute as to proper
resolution or if a reasonable person could think that the
failure to produce discovery is correct, that is, if it has a
reasonable basis in law and fact." Sky Cable, LLC v.
Coley, No. 5:11CVOOO48, 2015 U.S. Dist. LEXIS 106393, at
*8 (W.D. Va. Aug. 12, 2015). "Courts have concluded that
'substantial justification' could include making
meritorious objections to requested discovery, or even
engaging in a legitimate dispute over the sequence of
discovery." Kemp v. Harris. 263 F.R.D. 293,
296-97 (D. Md. 2009). Similarly, when determining whether an
award of attorney's fees would be unjust, the court looks
to four factors: "(1) whether the non-complying party
acted in bad faith, (2) the amount of prejudice that
noncompliance caused the adversary, (3) the need for
deterrence of the particular sort of non-compliance, and (4)
whether less drastic sanctions would be more effective."
Anderson v. Found, for Advancement, Educ. &
Emplov't of Am. Indians, 155 F.3d 500, 504 (4th Cir.
Rule of Civil Procedure 33(d) provides that a party may
produce business records in lieu of responding to
interrogatories when the answer may be ascertained from such
records. See Fed.R.Civ.P. 33(d). Nonetheless, Rule
33 requires that "[a] specification shall be in
sufficient detail to permit the interrogating party to locate
and to identify, as readily as can the party served, the
records for which the answer may be ascertained." See
Hillyard Enters., Inc. v. Warren Oil Co., No.
5:O2CV329, 2003 U.S. Dist. LEXIS 27922, at *4 (E.D. N.C. Jan.
31, 2003). The specificity requirement in 33(d)(1) is
designed to limit the practice of "directing the
interrogating party to a mass of business records . . .
." Fed.R.Civ.P. 33 Advisory Committee's Note.
Accordingly, the responding party "has the duty to
specify, by category and location, the records from which
answers to interrogatories can be derived." Hillyard
Enters., Inc., 2003 U.S. Dist. LEXIS 27922, at *4. It
may not simply direct the opposing party "to an
undifferentiated mass of records." See id (quoting
Fed.R.Civ.P. 33 advisory committee's notes). Therefore, a
dump of thousands of documents in an unorganized manner is
not sufficient. See Minter v. Wells Fargo Bank.
N.A.. 286 F.R.D. 273, 278-79 (D. Md. 2012).
instant matter, Carrington argues that it was substantially
justified because it reasonably believed that it satisfied
the requirements of Rule 33(d). Carrington also argues that
it reasonably believed that it properly invoked Rule 33(d) in
responding to plaintiffs' interrogatories because the
interrogatories "made broad inquires" requiring
many documents to "be consulted to ascertain facts, such
as identities, quantities, data, action, tests,
results." SEC v. Elfmdepan. 206 F.R.D. 574, 577
(M.D. N.C. 2002). Similarly, when Carrington did not
reference responsive documents or did not respond to the
interrogatory, Carrington asserts that reasonable persons
could differ as to the merits of its objections.
their motion to compel, plaintiffs did not assert that
Carrington's reliance on Rule 33(d) was improper.
Instead, plaintiffs argued (1) that Carrington's
objections were inappropriately boilerplate, (2) that
Carrington's implementation of Rule 33(d) was
insufficient in that Carrington dumped hundreds of pages of
documents instead of specifying where in the documents the
answers could be found, and (3) that for some
interrogatories, Carrington did not provide references to
responsive documents or did not answer altogether.
review of Carrington's initial responses, it appears that
Carrington provided plaintiffs with categories of documents
and the locations of those documents. For example, Carrington
directed plaintiffs to roughly seventy-five pages of
"Servicing Notes, " the two-page "Transaction
History, " and over one hundred pages of the
"Origination File." The court observes that, in
some responses, the number of pages referenced is significant
in comparison to the total numbers of documents produced. In
some cases, however, Carrington referred to between just two
and a dozen pages. The court does not believe these responses
to be the egregious sort of "document dump" that
Rule 33(d) attempts to prevent. See, e.g.,
Graske v. Auto-Owners Inc. Co.. 647 F.Supp.2d 1105,
1108 (D. Neb. 2009) (production of 7, 000 documents was not
sufficient under 33(d)); In re Ethicon. Inc.. No.
2327, 2013 U.S. Dist. LEXIS 188235, at *2394 (S.D. W.Va. July
26, 2013) (noting that production of over 9 million pages did
not satisfy the specificity requirement of Rule 33(d)).
upon review of the supplemental responses, does the court
find that there is a significant difference in the page
ranges provided in Carrington's initial responses and its
supplemental responses. Instead, the manner in which the
information is presented has been substantially changed, with
Carrington providing actual responses instead of referring to
the documents produced for many of the interrogatories. See
Carrington's Supplemental Resps., Docket No. 54. These
supplemental responses are consistent with the court's
rulings on Carrington's objections. Furthermore, to the
extent the court ordered Carrington to respond when it did
not reference responsive documents, the court believes that
reasonable, diligent attorneys could have come to different
conclusions as to the merits of the objection. For example,
Carrington did not provide a response for information that it
believed to be ...