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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CYNTHIA BAKER et al.,

Plaintiffs,

v.

JOHN WALTERS, et al.,

Defendants.

No. 3:22-cv-552-M

MEMORANDUM OPINION AND ORDER

Background

Plaintiffs Cynthia and Christopher Baker (the “Bakers”) filed a Motion to 

Compel, see Dkt. No. 26 (the “MTC”), which United States District Judge Barbara M. 

G. Lynn referred to the undersigned United States magistrate judge for a hearing, if 

necessary, and determination under 28 U.S.C. § 636(b), see Dkt. No. 27.

The Court granted the MTC and explained that

Federal Rule of Civil Procedure 37(a)(5)(A) requires the Court to order 

payment of the movant’s reasonable expenses in making a motion to 

compel, including payment of attorneys’ fees, when a motion to compel 

is granted. See FED. R. CIV. P. 37(a)(5)(A).

But Rule 37(a)(5)(A) also requires the Court must give 

Defendants an opportunity to be heard as to an award of fees and 

expenses and provides three exceptions under which the Court must not 

order payment of the movant’s fees and expenses. See FED. R. CIV. P. 

37(a)(5)(A)(i)-(iii).

The Court finds that the Bakers filed their MTC motions only 

after attempting to obtain the responses to their discovery requests 

without court action, as the MTC and its supporting exhibits show. See

Dkt. No. 26 at 2-3.

But the Court will grant Defendants John Walters, as trustee of 

the Camellia Trust, ETA, and Tyler Seguin an opportunity to, by 

Thursday, February 16, 2023, file a response describing why the 

Court should not award expenses under Rule 37(a)(5)(A) – specifically, 

requiring Defendants’ and/or their counsel pay the Bakers their 

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reasonable attorneys’ fees and costs incurred in preparing and filing 

their MTC and reply and appendices in support – by fully discussing 

whether either of the other two exceptions applies or, specifically, 

whether Defendants’ failures to timely and properly respond and object 

to the Bakers’ requests for production were “substantially justified” or 

whether other circumstances make an award of expenses under Rule 

37(a)(5)(A) unjust.

If Defendants file a response, the Bakers may, by Thursday,

March 2, 2023, file a reply in support of an award under Rule 

37(a)(5)(A), which reply must be limited to addressing whether any 

exception under 37(a)(5)(A)(i)-(iii) should preclude an award of 

expenses.

The reply need not and should not include any affidavits or 

declarations supporting a lodestar determination for a fee award. If, 

based on this response and reply, the Court determines to award 

expenses, the Court will issue a separate order directing the filing of 

materials to determine the amount of any award.

....

For the reasons and to the extent explained above, the Court 

grants Plaintiffs Cynthia and Christopher Baker’s Motion to Compel 

[Dkt. No. 26] and orders Defendants John Walters, as trustee of the 

Camellia Trust, ETA, and Tyler Seguin to, by Thursday, February 9, 

2023, serve on Plaintiffs Cynthia and Christopher Baker’s counsel 

complete written responses – without objections – to Plaintiffs’ First Set 

of Requests for Production to Defendants and produce all unproduced, 

non-privileged documents and electronically stored information that are 

responsive to Plaintiffs’ First Set of Requests for Production to 

Defendants and that are in Defendant’s possession, custody, or control, 

in compliance with Federal Rule of Civil Procedure 34(b)’s requirements, 

as explained above and laid out in VeroBlue, 2021 WL 5176839, at *6-

*9, and Lopez, 327 F.R.D. at 575-79.

Dkt. No. 26 at 1, 27-29.

In their response, Defendants John Walters, as trustee of the Camellia Trust 

ETA, and Tyler Seguin oppose the award of fees, arguing that “[t]here is not one 

document Defendants have refused to produce because of either an objection asserted 

against the Requests for Production or under any theory of privilege” and that 

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“Defendants have produced every responsive document in their possession, custody, 

and control, and ... Defendants were substantially justified in their response to 

Plaintiffs’ Requests for Production and an award of expenses would be unjust.” Dkt. 

No. 31 at 2. In support, Defendants argue:

i. Defendants Timely Produced Documents Pursuant to 

Agreement With Plaintiffs’ Counsel

On December 6, 2022, Defendants counsel committed to 

producing the majority, if not all of the responsive documents by the 

following week. In response, Plaintiffs’ agreed to extend the deadline to 

produce documents to December 15, 2022. Before the day ended on 

December 15, 2022, Plaintiffs’ counsel filed Plaintiffs’ Motion to Compel.

Defendants’ counsel immediately responded and stated he had 

been out of the office all week with health issues and apologized for the 

delay in the production of documents, which was caused by counsel’s 

bronchitis and related symptoms.

Counsel for Plaintiffs and Defendants spoke on the phone the 

following day, December 16, 2022, and agreed to extend the deadline for 

Defendants to produce documents to the following week. On Tuesday, 

December 20, 2022, Defendants produced to Plaintiffs a link to 

Defendants’ Document Production JWTS 000001-000224.

ii. Defendants Did Not Withhold The Production of Any 

Documents

Following the production of documents on December 22, 2022, 

counsel for Plaintiffs and Defendants conferred on the phone regarding 

the document production.

On this call, Defendants’ counsel confirmed that there were no 

documents being withheld, through either objection or privilege. 

Defendants’ counsel confirmed that Defendants undertook a diligent 

effort to identify and compile documents responsive to all Requests for 

Production and provided these documents to Defendants’ counsel.

During the December 22, 2022 conference call, Defendants’ 

counsel invited Plaintiffs’ counsel to provide a list of specific documents 

Plaintiffs believed were missing from Defendants’ production, but 

Plaintiffs’ counsel declined to do so, and instead referred Defendants’ 

counsel back to the complete Requests for Production.

Defendants confirmed in their January 5, 2023 Response to 

Plaintiffs’ Motion to Compel that “there are no documents being 

withheld, either based on discovery objections or privilege.”

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Dkt. No. 31 at 2-3 (cleaned up).

Defendants further explain that, after entry of the Court’s order granting the 

MTC, Defendants supplemented their document production on February 13, 2023:

In Plaintiffs’ Reply in Support of Their Motion to Compel, 

Plaintiffs charge that Defendants are “unquestionably withholding a 

wide swath of material”. As an example, Plaintiffs specifically identified 

an instrument filed in the Dallas County deed records dated September 

13, 2016. Based, in part, on Plaintiffs’ assertions in their Reply that 

Defendants were withholding documents, the Court, in its 

Memorandum Opinion and Order stated that Plaintiffs have

“persuasively shown, including through the documents that have been 

produced or that Defendants have previously referenced in connection 

with this matter, that additional responsive materials exist that 

Defendants have not produced.”

Defendants re-doubled their efforts to find any responsive 

documents that had not been previously produced pursuant to their duty 

to supplement their document production. See, e.g., Brennan’s Inc. v. 

Dickie Brennan & Co., 376 F.3d 356, 374-75 (5th Cir. 2004) (“Rule 26(e)

imposes ‘a duty to supplement or correct [a] disclosure or response to 

include information thereafter acquired’”). Defendants specifically 

searched for any deed records in their possession, custody, or control in 

which the Camellia Trust was a grantor or grantee because such

documents were specifically identified in Plaintiffs’ Reply Brief and the 

Court’s Memorandum Opinion and Order. This search was unfruitful 

however, as no additional deed records were discovered by Defendants. 

Undeterred by their supplemental search, Defendants took the 

additional step of searching the deed records of the Dallas County Clerk 

Recording Division for any recorded documents relating to the Camellia 

Trust and purchasing those documents from Dallas County.

Therefore, Defendants not only satisfied their duty under the 

Federal Rules of Civil Procedure in responding to Plaintiff’s Requests 

for Production, but actually searched for and purchased responsive 

documents that Plaintiffs’ alleged Defendants were “unquestionably

withholding” and that were publicly available.

All told, Defendants purchased 15 instruments recorded in Dallas 

County and included these instruments in a supplemental document 

production to Plaintiffs on February 13, 2023. [The parties agreed to 

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extend Defendants’ deadline to produce documents to February 13,

2023.]

iv. Defendants’ Supplemented Their Document Production on 

February 16, 2023

Defendants not only reviewed their own emails, cell phones, and 

paper records for responsive documents, but also requested third parties 

to provide documents – specifically Rampart Insurance Services 

(“Rampart”). Following Defendants’ February 13, 2023 document

production, Defendants received documents from Rampart. These 

documents were compiled, reviewed, Bates labeled and produced on 

February 16, 2023 as JWTS 000428-000439. Included in this production 

is the homeowner’s insurance application dated September 6, 2016 

submitted to procure the AIG insurance policy at issue in this litigation.

Plaintiffs’ counsel and Defendants’ counsel conferred on February 

15, 2023 regarding Defendants’ February 13, 2023 supplemental 

document production. During this call, Defendants realized for the first 

time that an email from John Walters to AIG, which Defendants thought 

was included within Defendants’ previous production, was not 

previously produced. It was inadvertently omitted from Defendants’ 

previous production – not withheld. This is not a “new” email to 

Plaintiffs. Plaintiffs obtained this document from AIG and quoted 

directly from the email in their August 15, 2022 First Amended Original 

Complaint. This document was included in the February 16, 2023 

supplemental document production.

v. Defendants Will Stipulate to Authenticity of Documents 

Plaintiff Has Obtained Through Its Non-Party Discovery

Plaintiffs are in possession of email communications between 

Defendants’ counsel and AIG, which Plaintiffs obtained directly from 

AIG. Plaintiffs insisted during the February 15, 2023 conference call 

that Defendants need to produce these documents, which Plaintiffs 

already have, in order to authenticate these documents. First, under the 

Federal Rules, “production in response to a discovery request is not a 

basis for self-authentication.” Second, these emails were sent while the 

undersigned worked at a different law firm. Defendants’ counsel does 

not have reasonable access to these archived emails from 2019 sent from 

an email account at the undersigned’s previous firm. As Plaintiffs have 

already obtained these emails from AIG, and seemingly want 

Defendants’ to produce in order to authenticate these documents, 

Defendants will stipulate to the authenticity of any email between 

Defendants and AIG that Plaintiffs currently have or possess in the 

future.

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Dkt. No. 31 at 3-6 (cleaned up).

“Defendants respectfully request that the Court decline to award fees and costs 

under Rule 37(a)(5)(A) because Defendants’ actions were substantially justified 

and/or an award of fees and costs would be unjust,” explaining that:

• “Defendants do not seek to obstruct discovery”;

• “Plaintiffs’ counsel and Defendants’ counsel have continually worked together 

in good faith, and Defendants’ counsel have repeatedly stated they will work 

to produce any document Plaintiffs’ counsel requests to the extent the 

document is in Defendants’ possession, custody, or control”;

• “Defendants’ counsel has produced all responsive documents they have 

received from Defendants’ and are not withholding any documents based on 

discovery objections or privilege”; and

• “Defendants, in good faith, have diligently searched for documents responsive 

to Plaintiff’s Requests for Production, have produced documents in response to 

Plaintiffs’ Requests for Production, have confirmed that they do not have any 

documents in their possession, custody or control that have not been produced, 

and have incurred expenses over and above their duties under the Federal 

Rules of Civil Procedure in an attempt to provide Plaintiffs the documents they 

seek.”

Dkt. No. 31 at 6.

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In reply, the Bakers “respectfully request that the Court award fees and costs

under Rule 37(a)(5)(A) because Defendants’ actions were not substantially justified 

and/or an award of fees and costs would be unjust,” arguing that,

[b]y their Brief in Opposition [Doc. 31], Defendants fail to provide any 

compelling evidence or explanation as to why their refusal to respond to 

written discovery was substantially justified or that the award of 

expenses would be unjust. Instead, Defendants simply state (once again) 

that: (1) “there is not one document Defendants have refused to produce 

because of either an objection asserted against the Requests for 

Production or under any theory of privilege” and (2) “Defendants have 

produced every responsive document in their possession, custody, and

control.” Not only are these representations inaccurate, they only 

address actions that Defendants took after the Bakers filed their Motion 

to Compel [Doc. 26] (the “Motion”).

As noted in the Motion, the Bakers served written discovery on 

Defendants on October 20, 2022 (the “Requests”). Thus, Federal Rule of 

Civil Procedure 34 required Defendants to respond to the Requests on 

or before November 21. However, Defendants failed to respond to the 

Requests or produce documents responsive thereto. In an effort to

resolve this discovery dispute, the Bakers contacted Defendants via 

electronic mail regarding the status of their responses/production on

November 28 and 29, as well as on December 1 and 5. In these 

correspondences, the Bakers requested that Defendants commit to 

producing responsive documents on a date certain. On December 5, 

Defendants indicated that they “should be able to produce the majority, 

if not all, of the documents by early to mid-week [the week of December 

12].” Once again, in an effort to resolve this discovery dispute, the 

Bakers responded that they would “wait until close of business on 

Thursday, December 15,” but noted that if they did “not receive a 

complete production by then, [they would] be forced to file a motion.” 

Unfortunately, Defendants did not respond, and the Bakers filed their 

motion at 6:43 pm. Only after filing did Defendants acknowledge their 

failure (once again) to produce responsive materials.

The following day, Defendants contacted the Bakers and asked 

whether Defendants could produce responsive documents on December 

15, 2022. The Bakers agreed but noted that they would not withdraw 

their Motion before seeing Defendants’ production. On December 15,

Defendants made their initial production of documents (the “Initial 

Production”). As noted in prior briefing, however, the Initial Production 

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was woefully inadequate. Thus, on December 22, 2022, the Bakers and 

Defendants (collectively, the “Parties”) participated in a conference call

– during which the Bakers outlined several glaring deficiencies 

associated with the Initial Production (the “First Conference”). In 

response, Defendants indicated that they would revisit the Initial

Production and supplement the same, if necessary. Once again, the 

Bakers noted that they would not withdraw their Motion before seeing 

Defendants’ supplemental production.

In lieu of supplementing their Initial Production, however, 

Defendants filed a response to the Bakers’ Motion in which they claimed 

that – after being served with the Motion – they: (1) “undertook a 

diligent effort to identify and compile documents responsive to the 

[R]equests” and (2) “produced all documents responsive to [the 

Requests] that [were] within Defendant’s possession, custody, or 

control.” Thus, the Bakers were forced to file a Reply in support of their

Motion that addressed many of the deficiencies that they raised with 

Defendants in the First Conference.

On January 26, 2023, the Court entered an Order that (in 

relevant part) required Defendants to “produce all unproduced, nonprivileged documents and electronically stored information that are 

responsive to [Requests] that are in Defendant’s possession, custody, or 

control” on or before February 9, 2023. Since this time, Defendants have 

supplemented their production twice – on February 13 and 15, 

respectively. In both instances, however, Defendants’ supplemental

productions failed to include materials explicitly referenced in prior 

briefing, as well as the Court’s Order. In an effort to resolve these 

deficiencies, the Parties have held conferences on February 15/22 and 

March 2. Based on these conferences, it is the Bakers’ understanding 

that Defendants are still working with third-party custodians (within 

Defendants’ custody/control) to provide a complete production.

While the Bakers are hopeful that the Parties will be able to 

resolve these issues without further judicial intervention, Defendants’ 

representation that they “have produced every responsive document in 

their possession, custody, and control” is inaccurate.

Dkt. No. 32 at 1-4 (cleaned up).

But, according to the Bakers, “[e]ven if it were accurate, ... Defendants’ Brief 

in Opposition provides no explanation as to why a complete production was not timely 

made during the Winter of 2022.” Id. at 4.

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Legal Standards and Analysis

“The United States Supreme Court has defined ‘substantially justified’ to mean 

justified in substance or in the main – that is, justified to a degree that could satisfy 

a reasonable person. ‘Substantial justification’ entails a reasonable basis in both law 

and fact, such that there is a genuine dispute ... or if reasonable people could differ 

as to the appropriateness of the contested action.” Samsung Elecs. Am., Inc. v. Chung, 

321 F.R.D. 250, 286 (N.D. Tex. 2017) (cleaned up).

The undersigned has authority to enter a nondispositive order granting 

attorneys’ fees under Federal Rule of Civil Procedure 37(a). See 28 U.S.C. § 636(b); 

Merritt v. Int’l Bhd. of Boilermakers, 649 F.2d 1013, 1016-17 (5th Cir. Unit A June 

1981) (per curiam) (a magistrate judge has authority to enter a nondispositive order 

granting attorneys’ fees as a sanction under Federal Rule of Civil Procedure 37).

The Court appreciates Defendants’ counsel’s ongoing efforts to fully comply 

with Defendants’ obligations in responding to the Bakers’ discovery requests. But 

Rule 37(a)(5)(A) requires the Court to order “the party ... whose conduct necessitated 

the [MTC], the party or attorney advising that conduct, or both to pay” the Bakers 

the “reasonable expenses [that they] incurred in making the [MTC], including 

attorney[s’] fees” if the MTC “is granted” or “if the ... requested discovery is provided 

after the [MTC] was filed” – unless Defendants’ “nondisclosure, response, or objection 

was substantially justified” or “other circumstances make an award of expenses 

unjust.” FED. R. CIV. P. 37(a)(5)(A).

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As the Court previously explained in granting the MTC, 

• Defendants’ explanation for its late-served objections based on their counsel’s 

illness only accounts for the last half of the 29-day period in which their 

responses and objections were overdue;

• even had Defendants timely asserted their objections, Defendants’ objections 

to all 59 requests in Plaintiffs’ First Set of Requests for Production to 

Defendants are unsupported boilerplate and are invalid based on Defendants’

failing to make the objections with specificity and to explain and support their 

objections;

• Defendants then failed to reurge their (untimely) objections in the face of the 

Bakers’ MTC and did not produce evidence in support of the objections; and,

• other than as to privilege or work product, Defendants’ objections are still 

improper even if – and are improper for the additional reason that –

Defendants’ response to the MTC reports that Defendants are not withholding 

any documents based on those objections.

Defendants’ explanations in its brief in opposition to an award of expenses do

not justify these failures to timely and then properly object and respond to all of the 

Bakers’ requests, which required the Bakers to file a reply in support of their MTC.

The Court finds that Defendants’ failures to timely and properly respond and 

object to the Bakers’ requests for production were not “substantially justified” and 

that no other circumstances make an award of expenses under Rule 37(a)(5)(A) 

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unjust.

The Court will award expenses under Rule 37(a)(5)(A) by requiring 

Defendants’ counsel to pay the Bakers their reasonable attorneys’ fees and costs 

incurred in preparing and filing their MTC and reply and appendices in support as 

well as their Brief in Support of an Award of Fees and Expenses [Dkt. No. 32].

The Bakers’ counsel and Defendants’ counsel are directed to confer by 

telephone or videoconference or in person about the reasonable amount of these 

attorneys’ fees to be awarded under Rule 37(a)(5)(A), as specified above. By no later

than Friday, April 14, 2023, the parties must file a joint report notifying the Court 

of the results of the conference.

If all disputed issues as to the amount of attorneys' fees to be awarded to the 

Bakers have been resolved, the Bakers’ counsel must also send an agreed proposed 

order to the Court at Horan_Orders@txnd.uscourts.gov by Friday, April 14, 2023.

If the parties do not reach an agreement as to the amount of attorneys' fees to 

be awarded, the Bakers’ counsel must, by no later than Friday, April 28, 2023, file 

an application for attorneys’ fees that is accompanied by supporting evidence 

establishing the amount of the reasonable attorneys’ fees (as described above) to be 

awarded under Rules 37(a)(5)(A). The fee application must be supported by 

documentation evidencing the “lodestar” calculation, including affidavits and 

detailed billing records, and citations to relevant authorities and must set forth the 

itemized number of hours expended in connection with the recoverable attorneys' fees 

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described above as well as the reasonable rate(s) requested. See Tollett v. City of 

Kemah, 285 F.3d 357, 367 (5th Cir. 2002). The application may also include a request 

for recovery of the fees incurred in preparing and filing this fee application itself. See 

Liberty Ins. Underwriters Inc. v. First Mercury Ins. Co., No. 3:17-cv-3029-M, 2019 WL 

7900687, at *5 (N.D. Tex. Mar. 11, 2019) (noting that Rule 37(a)(5) can include “fees 

on fees” for the time expended in filing a motion for attorneys' fees).

If an application is filed, Defendants must file a response by Friday, May 19, 

2023, and the Bakers must file any reply by Friday, June 2, 2023.

SO ORDERED.

DATED: March 31, 2023

_________________________________________

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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