United States District Court, D. New Mexico
ORDER GRANTING IN PART DEFENDANTS' MOTION FOR
FEES AND COSTS
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Defendants' Amended
Motion to Tax Fees and Costs and the attendant briefing.
Docs. 66, 67. For the reasons that follow, the Court hereby
GRANTS in part Defendants' Motion to Tax Fees and Costs
December 7, 2018, the Court ordered that Plaintiff pay
Defendants those reasonable attorney's fees and costs
associated with the briefing of their Motion for Protective
Order. Doc. 61. On December 14, 2018, Defendants filed a
Motion to Tax Fees and Costs. Doc. 62. Plaintiff objected to
that Motion on the grounds that Defendants' cost bill
failed to state the billable rate or the time expended. Doc.
63. The Court thereafter ordered Defendants to supplement
their Motion to Tax Fees and Costs to include the billable
rate and time expended. Doc. 65. Defendants filed the instant
Amended Motion to Tax Fees and Costs on December 20, 2018.
Doc. 66. In their Motion, Defendants seek reimbursement of
$771.00, the sum of the fees and costs that Defendants state
they expended performing tasks associated with the briefing
of their Motion for Protective Order. Id.
objects to the $771.00 sum, arguing that Defendants should
not recover for those tasks performed before drafting their
Motion for Protective Order. Doc. 67.Specifically, he notes that
parties are required to confer in good faith prior to seeking
court intervention and contends that the tasks performed by
Defendants before drafting their Motion were part of the good
faith communications process. Id. See Fed. R. Civ.
P. 37(a)(5) (The losing party of a motion will not be
compelled to pay the prevailing party those reasonable
expenses associated with its briefing if “the movant
filed the motion before attempting in good faith to obtain
the disclosure or discovery without court action”). In
other words, he contends that Defendants, in order to recover
any fees, were first required to engage in good faith
discussions, and would have incurred the fees associated with
the conferral process even if the parties had resolved the
dispute without a motion.
point is valid. Moreover, awarding fees for good faith
conferral efforts could discourage resolution of difficult or
contentious discovery issues. These considerations have led
to many courts excluding time spent in good faith meet and
confer efforts. See Lifetime Products, Inc. v. Russell
Brands, LLC, 2016 WL 5349728, at *2 (D. Utah September
23, 2016) (unpublished) (collecting cases). However, the
undersigned concludes that the exclusion of such time from
costs ordered pursuant to Rule 37(a)(5) should be carefully
limited. First, it should only apply to time exclusively
devoted to the meet-and-confer process. For example, time
spent reviewing matters with a client prior to a
meet-and-confer is also valuable when later drafting the
motion if the meet-and-confer is unsuccessful. Second, the
time should only be excluded where the losing party engaged
in good faith conferral efforts. Indeed, the
fact that a party's position is later found not to be
substantially justified as required for the imposition of
fees under Rule 37(a)(5) is some evidence that the conferral
efforts by that party were not in good faith.
these considerations in mind, the Court rejects
Plaintiff's objections listed as items e and f in his
Response. See doc. 67 at 2. The Court finds that
these items were not exclusively devoted to the
meet-and-confer process. With respect to the remaining
objections, the Court will exclude 50% of those costs in
recognition of Plaintiff's imperfect conferral efforts.
As a result, Plaintiff will not be made to pay $90.00 of the
fees sought by Defendants and to which Plaintiff objects.
therefore ORDERED that Plaintiff shall pay Defendants $681.00
pursuant to Fed.R.Civ.P. 37(a)(5) and doc. 61.
 In particular, Plaintiff objects to
the following entries:
a. 11/9/18 Review of email from Plaintiff's
counsel concerning 30(b)(6) duces tecum in the amount of
b. 11/9/18 Responding to Plaintiff's counsel's
duces tecum request via email in the amount of
c. 11/9/18 Telephone conference with clients to
discuss duces tecum request and other 30(b)(6) deposition
matters in the amount of $60.00;
d. 11/13/18 Email correspondence with Plaintiff's
counsel to follow up on duces tecum issue in the amount ...