Trenado v. Cooper Tire & Rubber Co.
Trenado v. Cooper Tire & Rubber Co.
Opinion of the Court
MEMORANDUM OPINION AND ORDER
Pending before the court are defendant Cooper Tire & Rubber Company’s (“Cooper”) Filing of Counsels’ Affidavits Related to Attorneys’ Fees (Docket Entry No. 432), Plaintiffs’ Response to Cooper’s Filing of Counsels’ Affidavit Relating to Attorney Fees (Docket Entry No. 434), and Cooper’s Reply in Further Support of Its Filing of Counsels’ Affidavits Related to Attorneys’ Fees (Docket Entry No. 435), all of which were filed in accordance with the court’s Memorandum Opinion and Order (Docket Entry No. 430) granting in part Cooper’s motion for sanctions against plaintiffs’ counsel Hugh N. Smith and his law firm.
The court concluded in its prior opinion and order that the violation of the Amended Protective Order of Confidentiality (“Protective Order”) by Smith and his law firm, although not willful, nevertheless warrants sanctions because of (1) Smith’s awareness of the strongly worded Protective Order combined with the magnitude of the violation, (2) the attorney’s fees and expenses that Cooper incurred investigating the violation and enforcing the Protective Order, and (3) the fact that Smith had previously violated a similar protective order.
Federal Rule of Civil Procedure 37(b) authorizes courts to impose sanctions for violations of discovery orders. Rule 37(b)(2)(A) provides a list of possible sanctions, including directing certain facts to be taken as established, striking pleadings, staying proceedings, dismissing the action, and rendering a default judgment. In addition, Rule 37(b)(2)(C) provides that “[ijnstead of or in
A district court “has broad discretion under Rule 37(b) to fashion remedies suited to the misconduct.” Pressey v. Patterson, 898 F.2d 1018, 1021 (5th Cir. 1990). This discretion is subject to certain limitations, however. A party’s violation of a discovery order ordinarily must be committed willfully or in bad faith for the court to award the severest of remedies available under Rule 37(b), such as striking pleadings, entering a default judgment, or dismissing the action with prejudice. Id. at 1021 & n. 2; see also Plasticsource Workers Comm. v. Coburn, 283 Fed.Appx. 181, 184 (5th Cir. 2008) (unreported); Chisesi v. Auto Club Family Ins. Co., 374 Fed.Appx. 475, 477 (5th Cir. 2010) (unreported) (dismissal). But the Fifth Circuit does not require a showing of willful or “contumacious” misconduct as a prerequisite to sanctions that are less harsh than a dismissal or default judgment. Chilcutt v. United States, 4 F.3d 1313, 1322, 1323 n. 23 (5th Cir. 1993). Awarding attorney’s fees and expenses is viewed by the Fifth Circuit as one of the least severe remedies afforded by Rule 37(b). See id. at 1320 n. 17.
Smith argues that Rule 37(b)(2) “is an inappropriate vehicle to impose sanctions for violation of a protective order.”
Rule 26(c)(1)(B) states that the court may issue a protective order “specifying terms, including time and place, for the disclosure of discovery.” The Protective Order entered in this case (Docket Entry No. 54) “govern[ed] confidential material produced or disclosed by these Defendants or Plaintiff[s] in response to formal or informal discovery conducted in this matter” (¶3); allowed the parties to designate as confidential material “all or any portion of documents, things and information it [sic] produces formally or informally to other parties to this litigation” (¶ 4); addressed the inadvertent production of confidential material (¶¶ 5 and 13); included procedures for objecting to the designation of material produced as confidential (¶ 6); limited access to confidential material (¶ 7); and included provisions for the storage of confidential material (¶ 9), the use of confidential material in depositions and at trial (¶¶ 12 and 14), and the return of confidential material (¶ 15). Even reading Rule 26(c) in the narrow manner adopted by the Lipscher court, the court concludes that the Protective Order in this case was an “order to provide or permit discovery” as that term is used in Rule 37(b)(2).
Moreover, the court does not find the Lipscher court’s narrow reading of Rule 37(b)(2) to be persuasive. The court agrees with the many other courts that have concluded that attorney’s fees and costs, as well as other appropriate sanctions, may be awarded under Rule 37(b)(2) for a violation of a protective order. See, e.g., Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 784 (9th Cir. 1983) (awarding attorney’s fees and costs pursuant to Rule 37(b)(2) for a violation of a protective order); Am. Nat’l Bank & Trust Co. ex rel. Emerald
Smith also contends that Cooper’s affidavits and supporting evidence fail to establish the reasonableness and necessity of the fees claimed.
Cooper submitted affidavits from T. Christopher Trent, the attorney who represented Cooper in this action,
The court concludes that the affidavits and supporting evidence showing the amount of time Cooper’s attorneys spent on investigating violations of the Protective Order and enforcing the order, the applicable hourly rates, and the lodestar calculations are reasonable and appropriate. The court ORDERS and ADJUDGES that Hugh N. Smith and the law firm of Smith & Fuller, P.A. jointly and severally pay to Cooper the following amounts within ten days from the entry of this Memorandum Opinion and Order:
(a) attorney’s fees of $4,169.80, payable to the law firm of Johnson, Trent, West & Taylor, L.L.P.;
(b) attorney’s fees of $23,831.00, payable to the law firm of Thacker Martinsek LPA; and
(c) costs of $1,666.91, payable to the law firm of Thacker Martinsek LPA.
. Memorandum Opinion and Order, Docket Entry No. 430, pp. 3-5.
. Id. at 5-6.
. Cooper’s Filing of Counsels’ Affidavits Related to Attorneys’ Fees ("Cooper’s Filing"), Docket Entry No. 432.
. Plaintiffs’ Response to Cooper's Filing of Counsels’ Affidavit Relating to Attorney Fees ("Plaintiffs’ Response”), Docket Entry No. 434, pp. 3-14.
. Plaintiffs’ Response, Docket Entry No. 434, pp. 3, 3-4.
. Id. at 9-14.
. Affidavit of T. Christopher Trent, Exhibit A to Cooper’s Filing, Docket Entry No. 432.
. Affidavit of Nicole K. Schwieterman, Exhibit B to Cooper's Filing, Docket Entry No. 432.
. See Affidavit of T. Christopher Trent, Exhibit A to Cooper’s Filing, Docket Entry No. 432, ¶¶ 3-4; Affidavit of Nicole K. Schwieterman, Exhibit B to id., ¶¶ 3-4.
. See Affidavit of T. Christopher Trent, Exhibit A to Cooper’s Filing, Docket Entry No. 432, ¶ 5; Affidavit of Nicole K. Schwieterman, Exhibit B to id., ¶ 5.
. Affidavit of T. Christopher Trent, Exhibit A to Cooper’s Filing, Docket Entry No. 432, ¶ 6.
. Affidavit of Nicole K. Schwieterman, Exhibit B to Cooper’s Filing, Docket Entry No. 432, ¶ 6.
. Affidavit of Stephen M. Fernelius, attachment to Cooper’s Reply in Further Support of Its Filing of Counsels' Affidavits Related to Attorneys’ Fees, Docket Entry No. 435, ¶¶ 1-3.
Reference
- Full Case Name
- Maria Rodriguez TRENADO, Individually and as Representative of the Estates of Her Spouse, Martin Ramon Trenado, and of Her Son, Jose Trenado, and Emanuel Trenado, Individually, and Jessica Trenado, Individually v. COOPER TIRE & RUBBER COMPANY
- Cited By
- 2 cases
- Status
- Published