United States District Court, N.D. Oklahoma
ALEXANDER ACOSTA, Secretary of Labor, United States Department of Labor,  Plaintiff,
EL TEQUILA, LLC, and CARLOS AGUIRRE, Individually, Defendants.
OPINION AND ORDER
E. DOWDELL UNITED S/ATES DISTRICT JUDGE
the Court is Plaintiff's Motion and Brief for Emergency
Relief (the “Motion”) (Doc. 337). On February 26,
2016, the Court granted the Motion in part, and took under
advisement plaintiff's request for sanctions and costs.
(Doc. 347 at 2). Specifically, plaintiff requests the Court
to sanction defendants “for their continued practice of
taking unsupportable positions and requiring the Plaintiff to
either file or respond to unnecessary motions.” (Doc.
337 at 2). Plaintiff also asks for an award of costs incurred
in its filing of the Motion. (Id. at 3).
February 17, 2016, the Court entered an Order directing the
parties to commence expedited Rule 69 post-judgment
discovery. (Doc. 334). Plaintiff's Motion was filed five
days later, asserting that defendants were unwilling to allow
plaintiff to depose both defendants for seven hours each, and
that defendants would not provide them with any guidance
regarding the extent of financial information and documents
they intended to produce. (Doc. 337 at 2). Defendants'
Response asked the Court to limit the deposition time to
seven hours total and to deny plaintiff's request for
sanctions and costs. (Doc. 344 at 2).
Civ. P. 37, which governs sanctions for discovery misconduct,
is applicable here.Rule 37(a)(5)(A) mandates the district
court to order a party to pay the opposing party's
reasonable expenses, including attorney fees, incurred in
filing a discovery motion if the opposing party's
discovery motion is granted, or the party provided discovery
only after the discovery motion was filed. See Fed.
R. Civ.P. 37(a)(5)(A); Centennial Archaeology, Inc. v.
AECOM, Inc., 688 F.3d 673, 678 (10th Cir. 2012)
(affirming district court's award of attorney's fees
incurred by party in filing motions to compel because the
motions resulted in the opposing party's compliance or an
order to compel). However, a court may not award payment of
attorney's fees if the movant filed the motion before
making a good-faith attempt to obtain discovery without court
action; the opposing party's nondisclosure, response, or
objection was substantially justified; or other circumstances
make an award of expenses unjust. Fed.R.Civ.P.
case, the Court granted plaintiff's request to compel the
depositions of defendant Aguirre, and ordered defendants to
produce defendant Aguirre for two days of depositions at
seven hours each, if it was determined to be necessary. (Doc.
347 at 2). The facts clearly demonstrate that plaintiff's
Motion resulted in an order by the Court mandating
defendants' compliance with discovery. Under Rule
37(a)(5)(A), an award of reasonable expenses incurred by
plaintiff in filing and responding to the Motion is therefore
mandated. Moreover, none of the exceptions listed in Rule
37(a)(5)(A)(i)-(iii) apply to the facts of this case.
Specifically, plaintiff's Motion details its good-faith
efforts to schedule defendant Aguirre's depositions and
obtain information from defendants about discovery prior to
filing the Motion; defendants' Response, which cites no
supporting case law, fails to demonstrate they were
substantially justified in contending plaintiff was not
entitled to seven hours of discovery per defendant as
required by Fed.R.Civ.P. 30(d)(1); and defendants have
provided no evidence that other circumstances exist to make
an award of expenses unjust.
Court next addresses plaintiff's request for sanctions.
The purpose of a Rule 37 sanction is to penalize and deter
abuse of the discovery process. See Diaz v. Romer,
961 F.2d 1508, 1512 (10th Cir. 1992); see also National
Hockey League v. Metropolitan Hockey Club, Inc., 427
U.S. 639, 643 (1976). Rule 37(b)(2) grants the Court wide
discretion to impose sanctions for failure to obey an order
to provide or permit discovery, including striking pleadings,
staying further proceedings until the order is obeyed,
dismissal of the action, rendering a default judgment against
the disobedient party, or treating the party's failure to
obey as contempt of court. See Fed. R. Civ. P.
37(b)(2)(A). Sanctions imposed under Fed.R.Civ.P. 37(b)(2)
“must be in the interests of justice and proportional
to the specific violation of the rules.” Olcott v.
Delaware Flood Co., 76 F.3d 1538, 1557 (10th Cir. 1996).
The court may, “instead of or in addition to”
imposing sanctions listed in Rule 37(b)(2)(A), order the
disobedient party to pay reasonable expenses, including
attorney's fees. Fed.R.Civ.P. 37(b)(2)(C).
Court notes that this is not the first instance in which
defendants have demonstrated an unwillingness to comply with
discovery rules. (See Doc. 232 (finding
defendants' pretrial disclosures insufficient to meet
requirements of Fed.R.Civ.P. 26(a)(3)(A)(iii)). Nonetheless,
for the reasons discussed above, the Court finds that an
award of reasonable expenses incurred by plaintiff in filing
the Motion, including attorney's fees, is an appropriate
sanction to both penalize defendants' conduct with
respect to post-judgment discovery and deter similar conduct
in the future.
THEREFORE ORDERED that plaintiffs request for sanctions and
costs in its Motion and Brief for Emergency Relief (Doc. 337)
is granted. Defendants are directed to pay
plaintiff reasonable expenses incurred in filing the Motion,
including attorneys' fees, in an amount to be determined.
Plaintiff shall, within seven (7) days of the date of this
Order, provide the Court with an affidavit itemizing the
reasonable expenses and attorney's fees it has incurred.
Defendants shall have seven (7) days thereafter to file a
 Alexander Acosta was sworn in as
Secretary of Labor on April 28, 2017. In accordance with
Fed.R.Civ.P. 25(d), he is automatically substituted for
Thomas Perez, former Secretary, as a party in this
 Carlos Aguirre was to be deposed on
behalf of both defendants, as a personal deponent and a
 Plaintiff's Motion does not
identify the federal rule under which it seeks sanctions.
Upon review of the Federal Rules, the Court finds that
Fed.R.Civ.P. 37 is applicable because plaintiff's request
for sanctions ...