UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SCOTT A. McNAMARA, M.D.,

Plaintiff/Counter-Defendant,

v. Civil Action No. 11-1051 (ESH/JMF)

CATHERINE A. PICKEN, M.D., et al.,

Defendants/Counter-Plaintiffs.

MEMORANDUM OPINION

In my Memorandum Order of August 29, 2012 I granted in part and denied in part 

Defendants/Counter-Plaintiffs’ Motion to Compel Plaintiff/Counter-Defendant to Produce 

Documents and Hard Drives in Response to Defendants/Counter-Plaintiffs’ Rule 34 Request for

Production of Documents [#37]. Memorandum Order [#52]. Plaintiff/Counter-Defendant 

(“Picken”) seeks attorney fees for having filed that motion. Motion for Fees in Accordance with 

August 29, 2012 Order [#76].

LEGAL STANDARDS

Rule 37(a)(5) of the Federal Rules of Civil Procedure requires a court that has granted a 

motion to compel discovery to award the moving party’s reasonable expenses, including 

attorneys’ fees, unless 1) the movant filed the motion before attempting in good faith to obtain 

the disclosure or discovery without court action; 2) the opposing party’s “nondisclosure, 

response, or objection was substantially justified;” or 3) other circumstances make an award of 

expenses unjust. Fed. R. Civ. P. 37(a)(5).
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ANALYSIS

In opposing the motion for fees, plaintiff/counter-defendant (“McNamara”) frequently

argues that he opposed the discovery and the motion to compel in “good faith.” Opposition to 

Motion for Fees [#81]. That is, of course, not the standard for objecting to discovery requests,

for it would justify objections made with a good heart but an empty head. Instead, the court must 

be convinced that, viewed objectively, there was legal support for the objection. See Pierce v. 

Underwood, 487 U.S. 552, 565 (1988) (a party meets the “substantially justified” standard where 

there is a “genuine dispute” or “if reasonable people could differ” as to the appropriateness of the 

motion to compel). If there was no legal support given for the objection, then the objection is not 

justified. Covad Commc’ns Co. v. Revonet, Inc., 262 F.R.D. 1, 4 (D.D.C. 2009).

Moreover, there is another problem with McNamara’s approach to objecting to Picken’s 

discovery requests: the objections seem to evolve over time. In many instances, McNamara 

makes one objection at first, but then supplements that objection or adds a new objection in later 

pleadings. For example, regarding Document Request No. 5, at first McNamara objected on the 

grounds that disclosing his personal bank account exceeded permissible discovery. 

Plaintiff/Counter-Defendant’s Response to Request for Production of Documents [#37-3] at 3. 

In response to the motion to compel, he argued that Picken’s counterclaim did not allege that 

McNamara received payments from any source other than the Eagle Bank account, and 

statements from that checking account were already turned over. Plaintiff/Counter-Defendant’s 

Opposition to Defendant/Counter-Plaintiffs’ Motion to Compel [#41] at 2. Finally, in opposition 

to the motion for fees, McNamara argues that he “had a good faith belief that his personal bank 

accounts would not provide any information which would be probative to any issue in this case, 

and would constitute a gross invasion of his privacy.” [#81] at 1 (emphasis added). It is clear 
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that with each bite at the apple, McNamara tweaked his objection or raised new objections, such 

as the invasion of privacy argument.

This manner of proceeding is intolerable. Rule 34 requires the producing party to either 

permit the requesting party to make the requested copies of the documents demanded, or “state 

an objection to the request, stating the reasons.” Fed. R. Civ. P. 34(b)(2)(C). The requesting 

party must decide whether to move to compel only on the basis of that objection. It is pernicious 

and unfair to the requesting party to force it to make a motion to compel on the basis of the 

actual objection made, and then hold it to the new objections provided later on. The situation 

only gets worse when the producing party prevails on its motion to compel, only to confront

additional reasons for not producing the documents raised for the first time in opposition to a fee 

petition. When those objections were neither asserted in response to the original document 

request, nor asserted in opposition to the motion to compel, they cannot be used to defeat an 

award of reasonable attorneys’ fees. Conversely, when the producing party provides the most 

fulsome and complete objection initially, the requesting party can make the best judgment 

possible as to whether to move to compel. 

I will not, therefore, condone McNamara’s “making it up as he goes along” approach, but 

instead will consider only the initial objection made and determine whether it and it alone was 

substantially justified.

With that understanding, I will now turn to each request and the original objection made. 

I will then address two categories of objections that apply to multiple document requests.
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I. Document Requests and the Corresponding Original Objections

A. Bank Accounts 

As noted above, McNamara’s original objection to Picken’s demand that he produce 

documents relating to his bank accounts was that doing so “exceeds permissible discovery.”

[#37-3] at 3.

First, that barely meets the requirement of Rule 34(2)(B) that the responding party state 

the reasons for its objections. In analogous cases, this Court has persistently held that objections 

to interrogatories that merely parrot the language of the pertinent rule or claim that a request is 

“burdensome,” without a specific explanation why, are insufficient. See, e.g., Tequila Centinela, 

S.A. de C.V. v. Bacardi & Co, Ltd., 242 F.R.D. 1, 10 (D.D.C. 2007) (“The responding party 

cannot just merely state in a conclusory fashion that the requests are burdensome” (internal 

quotations omitted)); Miller v. Holzmann, 240 F.R.D. 1, 3 (D.D.C. 2006) (“I will not consider 

the objection that an interrogatory is overbroad and burdensome without a showing by affidavit 

why it is overbroad and burdensome”); Athridge v. Aetna Cas. and Sur. Co., 184 F.R.D. 181, 

191 (D.D.C. 1998) (“The party opposing discovery must show specifically how an interrogatory 

is overly broad, burdensome or oppressive” (internal quotations omitted)). The objection that a 

particular demand “exceeds the scope of permissible discovery” is not much better. Moreover, 

as Picken correctly points out, she specifically alleged that McNamara took patient revenues that 

should have been paid into the account that Picken and McNamara shared, and placed them in 

his own bank accounts. Reply Memorandum in Support of Motion for Fees in Accordance with 

August 29, 2012 Order [#86] at 4. Surely, that allegation made the records of McNamara’s bank 

account relevant to Picken’s claims, and the only objection made was meritless and hardly 

substantially justified.
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B. Tax Returns 

McNamara’s initial objection to producing his tax returns is that, since Picken objected to 

producing her tax returns, McNamara would object to producing his. [#37-3] at 3. The Federal 

Rules, however, do not create some kind of mutuality that renders any objection made by one 

side ispo facto legitimate when made by the other side. Discovery is a process whereby parties 

obtain information from each other. Saying that “since she did not show me hers, I will not show 

her mine” sounds like fourth graders quarreling in the school yard, and not like legal 

professionals making legitimate objections to a party’s discovery demands. It is, after all, easy to 

conjure a case where a request that is illegitimate when made to one party is nevertheless 

legitimate when made to the other. Indeed, in this case, whether or not Picken should have had 

to produce her tax returns has nothing to do with whether McNamara has to produce his. As 

Picken correctly points out, McNamara claimed that his income was impacted negatively by the 

termination of his relationship with Picken and the company called “WENT.” [#86] at 5. Tax 

returns which, of course, are made under penalty of perjury, are vital admissions of the amount 

of income earned in a period of time and bear directly on McNamara’s allegation of a loss of 

income. The “tit for tat” objection is juvenile, and hardly substantially justified.

C. Agreements to Provide Services 

McNamara’s original “objection” to produce agreements to provide services between 

McNamara and any of his patients or a patient of WENT was actually a refusal to produce on the 

grounds that Picken supposedly already had what she was demanding. [#37-3] at 4. As Picken 

points out, however, the courts have rejected as illegitimate any objection based on the 

supposition that the other party already has what it is demanding. [#86] at 6. A moment’s 

thought shows how impractical such an objection can be. The demanding party cannot possibly 
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know whether it has, in fact, all of the documents it is requesting, because neither side can know 

to a certainty what the other side has. It is preferable, easier, and more efficient to the producing 

party to produce what it has, so the demanding party can determine, with all the records in front 

of it, whether it has all the information it needs and wants. On the other hand, a response such as 

the one given by McNamara will most often create an immediate and irreconcilable squabble 

over what the demanding party actually has. That, of course, only postpones the quarrel and 

renders an expensive and time consuming motion to compel nearly inevitable—precisely what

happened in this case. Because such a response makes further discovery motion practice nearly 

inevitable, it cannot possibly be described as “substantially justified.”

D. Payments Received 

McNamara’s only objection to producing documents pertaining to payments he received 

was that he had no such documents. [#37-3] at 4. This in itself appears to be a legitimate 

objection since, as I understand it, he was saying that he had no documents, not that Picken 

already had what she was demanding.

E. Evidence of Payments

McNamara produced a spreadsheet listing payments received. He did not, however, 

produce the documents upon which that spreadsheet was based, as requested by Picken. [#37-3]

at 4. Thus, the objection—that McNamara already produced a spreadsheet—did not meet the 

demand, which sought all documentary evidence of payments McNamara received, including the 

checks he received from patients and reimbursements from insurers. Id. Since the objection did 

not actually speak to the demand made, the objection was not substantially justified.
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F. Documents Pertaining to Interference with Business Relationship

In his complaint, McNamara charged that Picken has frustrated his efforts to obtain his 

patients’ medical records and instructed her employees at WENT to refuse to provide 

McNamara’s telephone number or address to a person who came to the M Street Office to see 

him or called the office about him. Complaint [#1-1] at 10, ¶¶ 37-40. He also charged that

Picken 1) instructed WENT employees to offer treatment to McNamara’s patients by Picken or 

another WENT physician; and 2) removed McNamara’s name from the Washington Physician’s 

Directory without telling him, thereby depriving McNamara of referrals from other physicians. 

Id. at 11, ¶ 43. These allegations supported Count Three of his complaint, premised on the tort 

of Interference with Business Relationship. Id. at 10. 

In her opinion of January 11, 2012, however, Judge Huvelle dismissed this count because 

of McNamara’s failure to “allege any actual loss of business, time, or money as a result of the 

alleged interference.” Memorandum Opinion [#33] at 5. 

Picken sought documents that identified the business relationships in the caption of Count 

Three, i.e., “Interference with Business Relationship.” [#37-3] at 5. McNamara’s objection was 

that Count Three had been dismissed. Id.

The request (No. 13) is specifically addressed to “the business relationships that 

McNamara alleged in Count Three of this Complaint.” Id. That appears to be a direct demand 

for those relationships that McNamara was claiming Picken interfered with in that count. His 

objection—that that count had been dismissed, rendering academic his identifying the 

relationships with which Picken had interfered—therefore appears to me a reasonable one and 

substantially justified. 
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G. Communications with Garrin

The original objection made to the request for documents relating to communications 

between McNamara and Garrin was that McNamara was unaware of any such relevant 

documents, and that, in any event, any such communications were beyond the scope of 

discovery. [#37-3] at 5. First, the objection that the communications were “beyond the scope of 

discovery” does not provide any reasons why this is so. Second, McNamara admitted that such 

communications did exist, and McNamara claimed that three of them were produced.1

If they were in fact produced, McNamara may not have complied with his obligation 

under Rule 26(g), which notes that, by signing the discovery response, the producing party 

certifies that the disclosure is “complete and correct as of the time it is made.” Fed. R. Civ. P. 

26(g). The initial objection—that McNamara was unaware of any such communications—is, of 

course, contradicted by his later representation and disclosure of some documents relating to that 

request. Whatever the truth that emerges from this tangled web, McNamara’s original 

objection—a lack of awareness—has been disproven by his own actions, and therefore does not 

qualify as a substantial justification.

H. Documents Relating to Discharge

This objection regarding documents relating to McNamara’s discharge under Chapter 7 is 

based upon McNamara’s argument that the bankruptcy discharge occurred many years before 

McNamara interacted with Picken and the company called WENT. [#37-3] at 5. But, as Picken 

points out, her counterclaim charges that McNamara kept from her that he had been declared

bankrupt, and thereby defrauded her into entering whatever relationship they had. See

Defendants/Counter-Plaintiffs’ Answer, Affirmative Defenses, and Counterclaims to 

 1 Picken insists that she got them not from McNamara but from McNamara’s former counsel. 

[#86] at 10.
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Plaintiff/Counter-Defendant’s Amended Complaint [#74] at 27-28. That she may not ultimately 

be able to show sufficient causality between that failure to disclose and the fraud she charges 

does not render evidence of the alleged fraud beyond the scope of the discovery permitted by 

Rule 26(b)(1). To the contrary, evidence of the bankruptcy is, of course, relevant to the claim 

that it should have disclosed; the merits (or lack thereof) of such a claim do not bear, at the 

discovery stage, on the relevance of the information pertaining to that claim.

I. Net Worth

The original objection made to this discovery request was that evidence of McNamara’s net 

worth was beyond the scope of permissible discovery. [#37-3] at 8. Again, that statement is 

insufficient because it does not provide a reason for that conclusion. McNamara’s assertion that 

he lost income because of his relationship with Picken and WENT renders relevant the financial 

information bearing on that assertion. Perhaps an argument could have been made that 

McNamara’s current net worth did not sufficiently bear on his earnings during the period in

question, and the request should have been limited to his net worth during that period. But, that 

argument was not made, and the one sentence objection to all such information was not 

substantially justified.

II. Objections Applying to Multiple Document Requests

A. Privileged Material

McNamara challenged Requests Nos. 10 and 21 on the grounds that they sought 

information protected by the attorney-client privilege. [#37-3] at 4, 6. McNamara, however, 

never filed a privilege log, and this Court ordered him to do so. [#52] at 2; [#86] at 8. Merely 

claiming privilege as a defense to production is insufficient. The controlling rule is unequivocal: 

the party who “withholds information. . . by claiming that the information is privileged. . . must 
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(1) expressly make the claim; and (2) describe the nature of the documents . . . in a manner that, 

without revealing information itself privileged or protected, will enable other parties to assess the 

claim.” Fed. R. Civ. P. 26(b)(5). Thus, claiming privilege without complying with subsection 

(2), by submitting with the Rule 34 (b)(2) response a so-called “privilege log” required by Rule

26(b)(5), is an insufficient and illegitimate response. Indeed, when a litigant, like McNamara, 

claims privilege but does not produce a log, his opponent must move to compel compliance with 

the rule with which McNamara should have complied in the first place. Far from being 

“substantially justified,” claiming privilege without complying with the applicable rule is an 

inexcusable violation of that rule.

B. Excessive Fees

According to the declaration of Picken’s counsel, Tracy D. Rezvani, she and her 

colleague, Mitchell J. Rotbert, spent 23.57 hours 1) drafting a letter to McNamara’s counsel; 2) 

meeting with their client and staff to prepare the motion to compel; and 3) researching, drafting 

and editing it. Declaration of Tracy D. Rezvan [sic] in Support of Motion for Fees in Accordance 

with August 29, 2012 Order [#76-1] at 1-2. They also incurred $48.63 for using electronic legal 

research. Id. at 2.

In response to this detailed showing, McNamara contents himself with two words: the 

billing “appears excessive.” [#81] at 2. He does not provide any analysis whatsoever of why the 

hours or the hourly rate charged by Rotbert and Rezvani are unreasonable. Thus, he makes no 

legitimate objection to what is sought. In any event, I have reviewed the submission and find it 

reasonable. 

The two lawyers spent 23.57 hours, or just about three days, collecting the record of a 

series of protracted discovery disputes, creating the narrative of what happened, researching the 
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legal issues, and preparing a comprehensive motion that was well-written, researched, and 

argued. Three working days to do that is about right. I will allow what they seek, $7,311.25, but 

will discount it by $1,000 to allow for my finding that two objections (documents related to 

“payments received” and to the ultimately-dismissed Count Three, the substantial interference 

with business relationship) were substantially justified. Picken also seeks $2,984.56 in legal fees 

for the 6.32 hours it took to prepare her motion for fees and the supporting documentation. [#76-

1] at 2. This is also reasonable, and I will award the full amount. Finally, Picken seeks $48.63 

in fees associated with legal research. I will allow this as well. In total, I will award Picken 

$9,364.44 in fees ($7,311.25 + $2,984.56 + $48.63 - $1,000 for two substantially justified 

objections = $9,364.44).

CONCLUSION

For the above-stated reasons, defendant/counter plaintiffs’ Motion for Fees in Accordance 

with August 29, 2012 Order [#76] will be granted in part. A separate Order accompanies this 

Memorandum Opinion. 

___________________________________

JOHM M. FACCIOLA

UNITED STATES MAGISTRATE JUDGE