UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John M. Antonis,

Plaintiff

v. Civil No. 07-cv-163-JL

Electronics for Imaging, Inc.,

Defendant

O R D E R

It is apparent from the pleadings that plaintiff failed to

provide timely responses to discovery requests and failed to make

timely disclosures required by Fed. R. Civ. P. 26(a), despite

repeated requests made by defendant after the deadlines passed

and repeated promises to provide the material by plaintiff. 

Defendant has moved to compel responses and for sanctions,

certifying that it has in good faith conferred or attempted to

confer with the plaintiff in an effort to secure the required

discovery. There does not appear to be any dispute about the

scope of discovery sought, or adequacy of the responses; the

claim is simply that what was requested and repeatedly promised

was not delivered. The major reason for plaintiff’s failure to

produce seems to have been his own foot-dragging in providing

plaintiff’s counsel with the requested material. That does not

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rise to the level of “substantial justification” for the failure

under any standard.

Rule 37(a)(4)(A) provides for the imposition of reasonable

expenses incurred, including attorney’s fees, if the disclosures

or requested discovery is provided after a motion to compel is

filed. That is the case here. Defendant’s motion to compel is

moot with regard to the merits, the material having been

provided, but it is not moot with regard to sanctions since the

material was provided, in substantial part, after the motion was

filed. 

While, as a general principle, simply reiterating demands

for production in a series of emails probably does not meet the

requirement that the parties confer in good faith about discovery

issues before invoking judicial remedies. See, e.g., Shuffle

Master, Inc. v. Progressive Games, Inc., 170 F.R.D. 166 (D. Nev.

1996), in this case it does not appear that any “dispute” existed

regarding the nature of the material requested. Rather,

production was not accomplished because plaintiff did not place

that obligation very high on his list of priorities. Plaintiff’s

counsel could not produce what he could not get from his client

(though he made efforts to deliver what he could get, including

unsigned responses). The repeated emails and phone calls between

counsel, under the circumstances, presents a closer call than

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defendant thinks, but the effort to confer suffices, given that

uncontested production was all that defendant sought.

On the other hand, no real prejudice has been shown;

defendant seemed anxious to file a motion to compel rather early

on in the “conferral” process (see Exhibit 2 to document no. 10);

and, had plaintiff filed a motion to extend the time in which to

respond or make the required disclosures and offered some

reasonable basis, it likely would have been granted.

Taking all of the circumstances into account, and

recognizing that Rule 37 favors imposition of a cost when tardy

compliance is attained only after a motion to compel has been

filed, the court will impose an appropriate sanction. The

reasonable costs, including attorney’s fees, associated with

filing the motion to compel (the reply was unnecessary) does not

exceed $200.00, assuming a reasonable hourly rate customarily

charged in this district, and the modest amount of time required

to dictate or type the motion and electronically file it.

Conclusion

The motion to compel (document no. 10) is moot, the

discovery material having been produced. But sanctions are

imposed under the express provisions of Fed. R. Civ. P. 37

(a)(4)(A) in the amount of $200., which plaintiff shall pay to

defendant. 

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SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

January 16, 2008

cc: Paul T. Fitzgerald, Esq.

Linda S. Johnson, Esq.

Michael T. Pearson, Esq.

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