UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America 

 v. Civil No. 08-cv-499-SM 

David M. Hulick; Caroline P.

Hulick; and State of New Hampshire

Department of Employment Security 

O R D E R 

In an order dated March 1, 2012, document no. 87, the 

government was directed to show cause why it should not be 

required to pay the costs and fees incurred by David and 

Caroline Hulick in successfully moving to compel the production 

of two revenue officers for depositions. Plaintiff’s 

explanations are not persuasive.

Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure 

provides for the payment of reasonable expenses, including 

attorney’s fees, by a party that has been the target of a 

successful motion to compel. But,

the court must not order [such a] payment if:

(i) the movant filed the motion before attempting in

 good faith to obtain the disclosure or discovery

 without court action;

(ii) the opposing party’s nondisclosure, response, or

 objection was substantially justified; or

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(iii) other circumstances make an award of expenses

unjust.

Fed. R. Civ. P. 37(a)(5)(A). In its March 1 order, the court 

directed the government to explain

why it was necessary for the Hulicks to litigate this 

discovery dispute in the face of: (a) the court’s 

having granted the parties’ joint request for a 

continuance, (b) the court’s subsequent ruling that 

the Hulicks’ outstanding request to extend discovery

(to allow for these depositions prior to trial) was 

moot, and (c) the government’s agreement in principle, 

at an earlier point in this litigation, to extend 

discovery to allow for these depositions prior to 

trial.

Document no. 87, at 1-2. In other words, the court directed 

briefing on the issue addressed by Rule 37(a)(5)(A)(ii).

In its response, the government both exceeded the scope of 

the court’s order, by offering unsolicited arguments on the 

issues addressed by Rule 37(a)(5)(A)(i) & (iii), and provided

substantially less than what the court asked for with respect to 

Rule 37(a)(5)(A)(ii). The government devotes much of its 

attention to the court’s first area of concern and argues 

logically, if not plausibly, that it did not understand the 

court’s continuance to reopen deadlines that had already passed. 

But, with regard to the court’s second area of concern, the 

government misses the mark. While it appears to assert that it 

was justified in its interpretation of Judge McAuliffe’s order 

mooting the Hulicks’ request to extend discovery, it offers no 

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actual explanation of that position. Moreover, if Judge 

McAuliffe had intended to convey the meaning the government 

ascribes to his order, he could have written “Denied as Moot” 

rather than “Moot.” Finally, the government appears to evade

completely the court’s directive that it address its earlier 

agreement in principle with the Hulicks that it would agree to 

extend discovery to allow for the depositions at issue.

In sum, the government has fallen short in responding to 

the court’s order of March 1, 2012. Accordingly, the government 

is ordered to pay the reasonable expenses, including attorney’s 

fees, incurred by the Hulicks in moving to compel the government 

to produce the two revenue agents for depositions.

SO ORDERED. 

__________________________

Landya McCafferty 

United States Magistrate Judge 

May 2, 2012 

cc: Patrick B. Gushue, Esq.

Andrea A. Kafka, Esq.

Richard J. Lavers, Jr,. Esq.

Gerald C. Miller, Esq.

Daniel E. Will, Esq.

Joshua M. Wyatt, Esq.

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