litigation controls the later phases unless a good reason is shown to depart from it.”
Tice v. American Airlines, Inc., 373 F.3d 851, 853 (7th Cir. 2004). Brown argues
that the “law of the case” should control and “should not be disturbed. . . .” (Def.’s
Opp’n. 4). To establish what Brown contends is the “law of the case”, Brown cites
three of our previous minute orders in which we denied Mudron’s earlier requests for
Rule 37(a)(4) attorney’s fees and costs. (Def.’s Ex. 2, 3,6). Although we orally
denied earlier motions by Mudron for sanctions, we made no findings as to whether
Brown’s actions in refusing to comply with discovery requests were substantially
justified. Accordingly, Brown’s argument as to the law of the case is misplaced.
Further, Brown’s argument that fees are inappropriate since we previously declined
to make such an award is without merit because Brown’s continued failure to timely
produce the documents, when viewed collectively, displays a calculated level of
“resistance to discovery” in this court and the Seventh Circuit which shows “good

reason” for expenses to be awarded at this juncture. Tice, 373 F.3d at 853.

3. Writ of Mandamus

In order to successfully contest Brown’s writ of mandamus, Mudron was
forced to file a response to the writ of mandamus, as well as a motion to dismiss to
inform the Seventh Circuit that Brown had already turned over the documents.
Based on the Seventh Circuit’s order denying Brown’s writ of mandamus, Brown

argues that Mudron’s request for attorney’s fees and costs “should be denied to the


that Mudron has failed to properly establish that he is entitled to attorney’s fees and
costs in the amount of $2,119.51 that he seeks in those entries. Mudron has also
voluntarily agreed to reduce other expenses objected to by Brown by a total of
$894.46. See Pl.’s Group I Ex.(identified as Slip I.D. #’s 21012, 21050, 21051,
21058, 21530, 21535, 21540, 22321, 22323, 22409, and 21664); Reply 4-5. After
these reductions, Mudron’s remaining expense request entries, from May 6, 2004,
through and including October 22, 2004, total $33,813.71. Bas ed on the record, and
the extent to which Brown has resisted discovery in this matter, we find that
$33,813.71 amount is both reasonable and appropriate under Rule 37(a)(4).
Therefore, pursuant to Rule 37(a)(4), we deny Mudron’s original request for
$36,841.43 in attorney’s fees and costs and we grant and award Mudron $33,813.71

in attorney’s fees and costs.

IL. Discovery Sanctions and Other Relief

On December 17, 2004, Mudron filed a motion for discovery sanctions and
other relief alleging that he has been consistently denied electronic data that is in
Brown’s control which may be relevant to Mudron’s pattern and practice discovery.
On January 4, 2005, after Mudron’s motion was fully briefed, we issued a minute
order and struck all previously set discovery and dispositive motion dates and
ordered that Mudron’s forensic expert be allowed access to Brown’s computer drives

to obtain forensic images. In addition, we granted Mudron 60 days leave thereafter


to Brown’s resistance to discovery in this court and in the Seventh Circuit. Brown
opposes Mudron’s request and argues that the position it took with respect to
Mudron’s discovery requests was substantially justified. Specifically, Brown argues
that its position was substantially justified because of: 1) certain documents that
were allegedly confidential, 2) the applicability of law of the case doctrine, and 3)

the Seventh Circuit’s order denying its writ of mandamus.

1. Confidentiality

Brown argues that its “attempts to avoid producing its confidential
information to its competitor were not unreasonable, under the circumstances, as this
Court already concluded when it previously declined to award [Mudron] his
expenses under Rule 37.” (Def.’s Opp’n 6). However, this court did not previously
conclude that Brown’s failure to produce the documents was “not unreasonable.”
Brown’s argument that the documents were confidential was previously addressed
and rejected when we denied Brown’s three motions for entry of a protective order
and granted Mudron’s motion to compel the documents. Therefore, Brown’s
argument that its position was substantially justified because the documents were

confidential is without merit.

2. Law Of The Case Doctrine

Under the law of the case doctrine, “a ruling made in an earlier phase of a


extent that it relates to fees and costs beyond those that [Brown] ‘was forced to
incur’ at the appellate level.” (Def.’s Opp’n 2). Brown also states that the Seventh
Circuit’s Order makes a “presumption related to fees” and “overlooks the exceptions
to Rule 37....” Id. at 6. In addition, Brown contends that the Seventh Circuit’s
order “provides no basis for this Court to reverse itself and award Plaintiff his fees
and costs....” (Def.’s Opp’n 6). We disagree with Brown’s interpretation of the
Seventh Circuit’s order and note that Brown continued to resist discovery and
brought the issue before the Seventh Circuit via mandamus. In its order denying
mandamus the Seventh Circuit stated the following:

Rule 37(a)(4) entitles plaintiff to recover the full costs (including legal fees)
entailed in overcoming Brown & Brown’s resistance to discovery. Because
Rule 37(a)(4) is a fee-shifting provision rather than a sanctions rule, these
costs and fees automatically include outlays needed to defend one’s victory in
the court of appeals. See Rickels v. South Bend, 33 F.3d 785 (7th Cir. 1994).
When the district court makes the award required by Rule 37(a)(4), it should
include the expenses and legal fees that plaintiff has been forced to incur in
this court.

(Pl.’s Ex. A.).

Brown has failed to establish that its position to contest Mudron’s motion to
compel was substantially justified. Accordingly, we find that pursuant to Rule
37(a)(4) Mudron is entitled to the attorney’s fees and costs it has shouldered as a
result of Brown’s actions before this court and the Seventh Circuit. In addition to
the attorney’s fees and costs associated with Mudron’s motion to compel, Mudron is

also entitled to be reimbursed for the costs connected with Brown’s three motions for

6


to complete his statistical expert report. Without addressing the merits of Mudron’s
instant motion, we find that such a motion may be unnecessary or, in any event,
better adjudicated after Mudron has had the opportunity to view the electronic data
in question and complete his expert report. Accordingly, Mudron’s motion for
discovery sanctions and other relief is premature and we therefore deny it without

prejudice.

CONCLUSION

Based on the foregoing analysis, we grant in part and deny in part Mudron’s
motion for attorney’s fees and costs. In addition, we deny Mudron’s motion for

discovery sanctions and other relief without prejudice.

Som 2 Dun. Zi ghug —

Samuel Der-Yeghiayan “  TM
United States District Court Judge

Dated: March 17, 2005


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICK MUDRON,
Plaintiff,

No. 03 C 8708

BROWN & BROWN, INC.,

<
wee ve ees Se Se

Defendant.

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Plaintiff Patrick Mudron’s (“Mudron”)
motion for attorney’s fees and costs and motion for discovery sanctions and other
relief. For the reasons stated below, we grant in part and deny in part Mudron’s
motion for attorney’s fees and costs. In addition, we deny Mudron’s motion for

discovery sanctions and other relief without prejudice.

BACKGROUND
During the course of discovery, Mudron requested the production of certain
documents from Defendant Brown & Brown, Inc. (“Brown”). Brown refused

Mudron’s request and filed a motion for entry of a protective order with respect to

an


entry of a protective order.

B. Expense Request Entries

In support of Mudron’s motion for attorney’s fees and costs, Mudron has
submitted exhibits which contain the hourly rates of his attorneys and a detailed
breakdown of their fees and costs from May 6, 2004, through and including October
22, 2004. See Rickles, 33 F.3d at 787(discussing the Rule 37(a)(4) fee shifting rule
and stating that “[t]he rationale of fee-shifting rules is that the victor should be made
whole-should be as well off as if the opponent respected his legal rights in the first
place.”)(emphasis in the original). Mudron has identified each expense request entry
and has declared that attorney Penny Nathan Kahan’s rate per hour was $375.00,
attorney Michael Merrick’s rate per hour was $275.00, attorney Marc Siegel’s rate
per hour was $210.00, and attorney Kristin Case’s rate per hour was $175.00. (Pl.’s
Ex. B {’s 7, 11). Brown has not objected to the hourly rates charged by Mudron’s
attorneys and in any event we find them to be reasonable.

Brown has argued that a number of Mudron’s expense request entries are
inappropriately combined with other expenses not related to the discovery expenses
in this case. We note that certain expense request entries submitted by Mudron
totaling $2,119.51 fail to sufficiently delineate the degree and extent of time Mudron
expended on the issue of discovery in this case. See P1.’s Group I Ex.(identified as

Slip LD. #’s 20750, 20769, 21609, 21713, 21932, and 23026). Therefore, we find


the production of such documents. After we denied Brown’s motion, Brown filed
another motion for entry of a protective order which we also denied. Mudron then
filed a motion to compel the production of such documents from Brown. We
granted Mudron’s motion to compel and Brown filed a motion for reconsideration.
After we denied Brown’s motion for reconsideration, Brown continued to fail to
produce the documents and Mudron filed a renewed motion to compel. Before
briefing was completed on Mudron’s renewed motion to compel, Brown filed a
petition for writ of mandamus in the Seventh Circuit concerning our order granting
Mudron’s initial motion to compel. While Brown’s petition for writ of mandamus
was pending, we granted Mudron’s renewed motion to compel and Brown
subsequently produced the documents. Despite having produced the documents,
Brown continued to pursue its petition for writ of mandamus in the Seventh Circuit
and also filed another motion for a protective order before this court (which we later
denied). Mudron then filed a motion to dismiss Brown’s petition for writ of
mandamus in the Seventh Circuit. Subsequently, the Seventh Circuit issued an order
denying Brown’s petition for writ of mandamus and stated that “Rule 37(a)(4)
entitles plaintiff to recover the full costs (including legal fees) entailed in
overcoming Brown & Brown’s resistance to discovery.” (Pl.’s Ex. A). Pursuant to
Federal Rule of Civil Procedure 37(a)(4) (“Rule 37(a)(4)”), Mudron now requests
$36,841.43 in attorney’s fees and costs. Brown “denies that [Mudron] is entitled to

any fees and costs.” (D.’s Opp’n 13). Brown further argues that if we grant


Mudron’s motion, we “should reduce the amount by a total of $27,163.01.” Id.

DISCUSSION
I. Rule 37(a)(4)

In Rickels v. City of South Bend, Ind., 33 F.3d 785 (7th Cir. 1994), the
Seventh Circuit stated that “Rule 37(a)(4) presumptively requires every loser to
make good on the victor’s costs. . . .” /d. at 786. Rule 37(a)(4), entitled “Expenses
and Sanctions” provides in sub-part (A) the following:

If the motion is granted or if the disclosure or requested discovery is provided
after the motion was filed, the court shall, after affording an opportunity to be
heard, require the party or deponent whose conduct necessitated the motion or
the party or attorney advising such conduct or both of them to pay to the
moving party the reasonable expenses incurred in making the motion,
including attorney's fees, unless the court finds that the motion was filed
without the movant's first making a good faith effort to obtain the disclosure
or discovery without court action, or that the opposing party's nondisclosure,
response, or objection was substantially justified, or that other circumstances
make an award of expenses unjust.

Fed. R. Civ. P. 37(a)(4)._ In addition, since“Rule 37(a)(4) is a fee-shifting rule,” the
prevailing party is “entitled to fees unless the opponent establishes that his position
was ‘substantially justified.’” See Rickels, 33 F.3d at 787(stating that “[a] loser may

avoid payment by establishing that his position was substantially justified.”).

A. Attorney’s Fees & Costs

Pursuant to Rule 37(a)(4), Mudron requests attorney’s fees and costs related