UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-1151

DAVID BRYTE, Personal Representative of the

Estate of Lova E. Bryte, deceased; DAVID

BRYTE; KATHY B. SMITH; JAMES B. SMITH; M. E.

SMITH, a minor, by and through her legal

guardian, Kathy B. Smith; DONNA J. MILLER,

Plaintiffs - Appellees,

versus

AMERICAN HOUSEHOLD, INCORPORATED, formerly

known as Sunbeam Corporation; SUNBEAM

PRODUCTS, INCORPORATED,

Defendants - Appellants,

and

SEARS ROEBUCK AND COMPANY,

Defendant.

No. 04-1561

DAVID BRYTE, Personal Representative of the

Estate of Lova E. Bryte, deceased; DAVID

BRYTE; KATHY B. SMITH; JAMES B. SMITH; M. E.

SMITH, a minor, by and through her legal

guardian, Kathy B. Smith; DONNA J. MILLER,

Plaintiffs - Appellees,

versus
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AMERICAN HOUSEHOLD, INCORPORATED, formerly

known as Sunbeam Corporation; SUNBEAM

PRODUCTS, INCORPORATED,

Defendants - Appellants,

and

SEARS ROEBUCK AND COMPANY,

Defendant.

No. 04-2016

DAVID BRYTE, Personal Representative of the

Estate of Lova E. Bryte, deceased; DAVID

BRYTE; KATHY B. SMITH; JAMES B. SMITH; M. E.

SMITH, a minor, by and through her legal

guardian, Kathy B. Smith; DONNA J. MILLER,

Plaintiffs - Appellees,

versus

AMERICAN HOUSEHOLD, INCORPORATED, formerly

known as Sunbeam Corporation; SUNBEAM

PRODUCTS, INCORPORATED,

Defendants - Appellants.

No. 04-2029

DAVID BRYTE, Personal Representative of the

Estate of Lova E. Bryte, deceased; DAVID

BRYTE; KATHY B. SMITH; JAMES B. SMITH; M. E.

SMITH, a minor, by and through her legal

guardian, Kathy B. Smith; DONNA J. MILLER,

Plaintiffs - Appellants,
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versus

AMERICAN HOUSEHOLD, INCORPORATED, formerly

known as Sunbeam Corporation; SUNBEAM

PRODUCTS, INCORPORATED,

Defendants - Appellees.

Appeals from the United States District Court for the Northern

District of West Virginia, at Elkins. Richard L. Williams, Senior

District Judge, sitting by designation, and John S. Kaull,

Magistrate Judge. (CA-00-93-2)

Argued: May 26, 2005 Decided: August 2, 2005

Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.

Affirmed in part and reversed in part by unpublished per curiam

opinion. 

ARGUED: John Howard Williams, Jr., ECKERT, SEAMANS, CHERIN &

MELLOTT, P.L.L.C., Pittsburgh, Pennsylvania, for American

Household, Incorporated, fka Sunbeam Corporation, and Sunbeam

Products, Incorporated. George Edward McLaughlin, MCDERMOTT,

HANSEN & MCLAUGHLIN, Denver, Colorado, for M. E. Smith, a minor, by

and through her legal guardian, Kathy B. Smith; David Bryte,

Individually and as Personal Representative of the Estate of Lova

E. Bryte, deceased; Kathy B. Smith; James B. Smith; Donna J.

Miller. ON BRIEF: John E. Hall, ECKERT, SEAMANS, CHERIN &

MELLOTT, P.L.L.C., Pittsburgh, Pennsylvania, for American

Household, Incorporated, fka Sunbeam Corporation, and Sunbeam

Products, Incorporated. William J. Hansen, MCDERMOTT, HANSEN &

MCLAUGHLIN, Denver, Colorado, for M. E. Smith, a minor, by and

through her legal guardian, Kathy B. Smith; David Bryte,

Individually and as Personal Representative of the Estate of Lova

E. Bryte, deceased; Kathy B. Smith; James B. Smith; Donna J.

Miller.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Lova E. Bryte died in a tragic fire in her home in

Bruceton Mills, West Virginia, on October 23, 2000. Her family

(the "Brytes") commenced this action against Sunbeam Corporation

and related companies ("Sunbeam"), alleging that the fire was

caused by a defective electric throw. At trial, the district court

granted Sunbeam's motion for judgment as a matter of law on the

ground that the Brytes failed to prove their causes of action

against Sunbeam.

This appeal involves challenges by both parties of

numerous collateral orders entered by the district court, some of

which we now affirm and some of which we now reverse, as indicated

below.

I

The Brytes challenge the district court's taxation of

court costs against them. After Sunbeam submitted a bill of costs

to the clerk of the court and the Brytes filed objections, the

clerk taxed costs against the Brytes in the amount of $29,230.89.

The Brytes, however, failed to file a timely motion for review by

the district court of the clerk's action, and the district court

accordingly did not review the costs assessed. Federal Rule of

Civil Procedure 54(d)(1) provides that "[o]n motion served within

5 days [of the clerk's taxing of costs], the action of the clerk

may be reviewed by the court." (Emphasis added). Because the
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Brytes did not file their objection to the clerk's taxing of costs

until 14 days thereafter, they lost their right to have the court

review the clerk's action. Accordingly, we affirm the award of

costs.

II

Sunbeam challenges the district court's order imposing

sanctions of $13,736 against Sunbeam for the alleged spoliation of

evidence. The Brytes sought a broad array of remedies as sanctions

for Sunbeam's destruction, under its retention policy, of electric

bedding products that were returned to Sunbeam and were not the

subject of this action. The district court denied all of the

relief requested, noting that the Brytes' expert witnesses 

did not need the missing blanket remains in order to

formulate their opinions for use in the action. . . .

Therefore, [the Brytes] have suffered no damage as a

result of Defendant Sunbeam's destruction of blanket

remains. Absent proof of damage, Plaintiffs are not

entitled to an adverse inference instruction or to the

other extraordinary remedies they seek.

Nonetheless, the court awarded the Brytes the fees incurred in

pursuing their motion.

We conclude that the imposition of this sanction was

error because the Brytes did not prevail on their motion. Federal

Rule of Civil Procedure 37(a)(4)(A) states, "[i]f 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
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conduct necessitated the motion" to pay the moving party

"reasonable expenses." (Emphasis added). Because the Brytes'

motion was not granted, the district court should not have awarded

attorneys fees to the Brytes. Accordingly, we reverse this order.

III

 Sunbeam also challenges the district court's sanctions

of $29,890 to reimburse the Brytes for expenses in traveling to

Michigan to review product remains that had been withheld from

earlier discovery productions. The district court found that

Sunbeam improperly destroyed blanket remains that should have been

preserved for discovery. Because of the misconduct, the district

court determined that "the only and best evidence remaining is the

notes, reports, photographs and other documents pertaining to the

remains." Because the court had "no reasonable way to identify

from the multitude of conflicting lists presented to the parties

what blanket remains existed, when they existed, what was destroyed

and when the same were destroyed," the court ordered the production

and the inspection of remains or other materials (including notes

or photographs) relating to the destroyed evidence on site in

Birmingham, Michigan. The court also ordered that Sunbeam pay the

Brytes the expenses incurred for counsel and experts in reviewing

the products' remains. Finding no abuse of discretion in the entry

of this order, see Strag v. Board of Trustees, 55 F.3d 943, 954

(4th Cir. 1995), we affirm this order.
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IV

Sunbeam next challenges the district court's orders

imposing sanctions of $19,350 for attorney fees and expenses

incurred by the Brytes in opposing Sunbeam's motions for protective

orders.

Seeking to limit discovery to this case and to deny the

Brytes' counsel the right of sharing discovery with other litigants

in other cases, Sunbeam filed various motions for protective

orders. On three separate occasions, the district court actually

entered protective orders in favor of Sunbeam. But in connection

with Sunbeam's amended motion for protective order and second

amended motion for protective order, the Brytes substantially

prevailed. The court granted only limited protection with respect

to certain Sunbeam design documents. After the Brytes' success,

they filed a motion for $28,000 in expenses incurred in opposing

the protective orders, and the district court awarded them $19,350.

In doing so, we believe that the district court erred.

Rule 37(a)(4)(B) provides that the court has discretion

to deny expenses to the prevailing party where "the court finds

that the making of the motion was substantially justified." In

this case, Sunbeam had a legitimate interest in filing motions with

the court seeking protection from unfettered dissemination of its

proprietary, confidential, trade secret and private documents. It

also had a legitimate interest in limiting discovery to this case,
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thus opposing the Brytes' efforts to expand the benefits of

discovery to other cases where the Brytes' counsel were

representing plaintiffs in product litigation. At the very least,

a reasonable person could differ as to the appropriateness of the

contested action. See Pierce v. Underwood, 487 U.S. 552, 565

(1988) (noting that "substantially justified" means a "genuine

dispute" where "reasonable people could differ as to [the

appropriateness of the contested action]" (citations and internal

quotation marks omitted)).

Because Sunbeam's position was substantially justified,

we reverse the entry of this order imposing sanctions.

V

Both parties challenge the district court's imposition of

sanctions in connection with a false affidavit filed by the Brytes.

The district court concluded that an affidavit submitted by the

Brytes was "errant to the point of potentially being misleading to

anyone who could read it." The court accordingly invited Sunbeam

to submit its expenses "for consideration for payment." Sunbeam

claimed that it spent $31,240 in having the false affidavit

stricken. The district court, however, reduced Sunbeam's claim to

$9,000. Sunbeam challenges the reduction of the amount of

sanctions, and the Brytes challenge the imposition of any

sanctions.
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Having reviewed the matter, we cannot find that the

district court abused its discretion, and accordingly we affirm.

VI

Sunbeam challenges the Brytes' spoliation of evidence,

namely its destruction of the remains of the fire including the

electric throw's power cord, the electrical receptacle, and other

remains. Shortly after the fire, David Bryte cleaned out the

house, throwing the burnt remains away. Sunbeam's counsel admitted

that David Bryte did not destroy the evidence to prevent Sunbeam

from investigating the case, and the magistrate judge concluded,

"David Bryte did nothing that I wouldn't have done under the same

or similar circumstances."

Even though Sunbeam was denied evidence that might have

been useful in defending the claims that the electric throw was

defective, we agree with the district court that sanctions should

have been denied. Indeed, we now question whether the issue

remains a live one in view of the district court's decision in

favor of Sunbeam on the merits for judgment as a matter of law. It

is at most conditional. Nonetheless, we affirm.

VII

Sunbeam challenges the district court's refusal to allow

Sunbeam to depose a witness after the conclusion of trial pending

appeals to our court. Sunbeam learned that an insurance adjustor
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had taken a tape-recorded statement from one of the Brytes, in

which the witness contradicted some of the evidence that the Brytes

gave at trial. Sunbeam sought to preserve this evidence pending

appeal in the event that the judgment in their favor is reversed on

appeal.

Federal Rule of Civil Procedure 27(b) specifically

authorizes the perpetuation of testimony while a case is on appeal

for use in the event of further proceedings in the district court.

But allowing such depositions falls within the discretion of the

district court. See Deiulemar Compagnia Di Navigazione S.p.A. v.

M/V Allegra, 198 F.3d 473, 479 (4th Cir. 1999).

While it might have been a better to have allowed Sunbeam

to take the deposition in this case, because there is no evidence

that the tape-recorded statement is at risk of loss, we cannot find

that the district court abused its discretion in denying the right

to take the deposition.

VIII

Finally, Sunbeam seeks relief from the district court's

order directing Sunbeam to stay adherence to its document retention

policy "while this claim is in litigation." Sunbeam filed a motion

with the district court after judgment was entered in its favor to

obtain clarification from the district court that the stay was no

longer in effect. The district court never expressly ruled on the
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motion, and Sunbeam expresses concern that it was effectively

denied by a blanket order entered July 22, 2004.

We agree with Sunbeam that it remains unclear whether

Sunbeam's motion was necessary or whether it was denied. But in

any event, with the entry of final judgment and completion of

appeals, the stay entered with respect to Sunbeam's retention

policy will be lifted by the terms of the stay order. Accordingly,

we confirm that if Sunbeam is successful in the appeal on the

merits, it will no longer be bound by the stay order.

As indicated above, the various orders of the district

court are 

AFFIRMED IN PART AND REVERSED IN PART.