State Of New York v. Grand River Enterprises Six Nations, LTD.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

____________________________________

STATE OF NEW YORK, DECISION

Plaintiff, and

v. ORDER

GRAND RIVER ENTERPRISES SIX NATIONS, LTD., 14-CV-910A(F)

NATIVE WHOLESALE SUPPLY COMPANY, INC.,

Defendants.

____________________________________

APPEARANCES: LETITIA A. JAMES

New York State Attorney General

Attorney for the Plaintiff

LESLIEANN CACHOLA,

BRANT B. CAMPBELL,

CHRISTOPHER K. LEUNG,

JOHN P. OLESKE,

Assistant Attorneys General, of Counsel

120 Broadway

New York, New York 10271

FRIEDMAN KAPLAN SEILER & ADELMAN LLP

Attorneys for Defendant Grand River Enterprises

ERIC O. CORNGOLD,

JEFFREY R. WANG, of Counsel

7 Times Square, 27th Floor

New York, New York 10036

LIPPES MATHIAS WEXLER FRIEDMAN LLP

Attorneys for Defendant Native Wholesale Supply

SCOTT S. ALLEN,

MICHAEL G. ROSSETTI,

DENNIS C. VACCO, of Counsel

1400 Liberty Building

Buffalo, New York 14202

In a Decision and Order filed December 15, 2020 (Dkt. 225), the court granted in

part and denied in part Plaintiff’s motion to compel Defendants’ document production,

interrogatory answers, and witness information pursuant to mandatory disclosure

pertaining to Defendants’ business operations involving the manufacture and shipment

of cigarettes into New York State and elsewhere, on which New York State’s required

excise tax had not been prepaid, answers to interrogatories directed to the present

ownership of Defendant NWS, the rationale for Defendants’ 2013 change in the F.O.B.

point for Defendants’ cigarette shipments to NWS in New York State from Defendant

GRE in Ontario, and witness contact information required by Fed.R.Civ.P. 26(a)(1)(A)(i)

(“Rule 26(a)(1)(A)(i)”). In the D&O, the court granted Plaintiff’s motion in part as

Defendants agreed to produce in response to Plaintiff’s document requests documents

limited to Defendants’ activities regarding Defendants’ shipment and sales of the

untaxed cigarettes within New York State, a limitation with which the court agreed.

D&O at 9 (disallowing production for Defendants’ activities outside New York State).

The court also found Defendants had failed to provide answers to Plaintiff’s

interrogatories upon oath as required by Fed.R.Civ.P. 33(b)(3) rendering Defendants’

answers deficient including with respect of NWS’s current ownership, D&O at 10, that

Defendants’ objections to Plaintiff’s interrogatory directed to Defendants’ change of

F.O.B. for Defendants’ cigarette shipments was meritless, id., and, contrary to

Defendants’ objection, Plaintiff was entitled to Defendants’ witness contact information

required by Rule 26(a)(1)(A)(i). D&O at 10-12.

As regards Defendants’ motion to compel Plaintiff’s document production, the

court determined Defendants’ motion based on Defendants’ requests seeking

documents directed to Plaintiff’s authority to enforce, in this lawsuit, Plaintiff’s cigarette

tax laws against Defendants given Plaintiff’s record of “forbearance” in such

enforcement regarding sales of untaxed cigarettes by Indian retail sellers to non-Indians

on Indian reservations over a prior period, was without merit for lack of relevance to

Defendants’ putative equitable defenses,1 D&O at 15-25, and proportionality as required

by Fed.R.Civ.P. 26(b)(1) as Plaintiff contended. D&O at 25-27. Defendants also

demanded Plaintiff serve a privilege log as Plaintiff had, according to Defendants,

agreed to do, which request the court granted. D&O at 27.

Because the court determined Plaintiff’s and Defendants’ motions were

meritorious, in part, the court required the parties show cause why sanctions, including

reasonable attorneys fees, as the parties had also requested should not be awarded

pursuant to Fed.R.Civ.P. 37(a)(5)(A) (“Rule 37(a)(5)(A)”) and Fed.R.Civ.P. 37(a)(5)(B)

(“Rule 37(a)(5)(B)”) (“the OTSC”). Presently before the court are Plaintiff’s and

Defendants’ Responses to the court’s OTSC filed January 29, 2021 (Dkt. 231)

(Defendants); Dkt. 232 (Plaintiff); the parties’ replies were filed February 12, 2021 (Dkt.

234) (Defendants); Dkt. 235 (Plaintiff). Plaintiff’s surreply was filed February 26, 2021

(Dkt. 237). Defendants’ response to Plaintiff’s surreply was filed March 10, 2021 (Dkt.

241). Oral argument was deemed unnecessary.

Under Rule 37(a)(5)(A), in resolving motions to compel discovery, court are

required to award the successful party’s expenses incurred in connection with its

motion, including its reasonable attorneys fees, unless the opposing party’s refusal to

provide the discovery at issue was substantially justified, the award would be unjust in

the circumstances and further provided the moving party had complied with

Fed.R.Civ.P. 37(a)(1) (“Rule 37(a)(1)”) requiring a good faith effort, prior to filing the

motion, to avoid court intervention, as well as an allocation of such expenses between a

party and counsel whose conduct necessitated the motion. See Rosehoff, Ltd. v.

1 Defendants have filed a motion to dismiss the Third Amended Complaint (“TAC”) and thus have not

answered Plaintiff’s Third Amended Complaint; Defendants’ equitable defenses were, however, asserted

in Defendants’ Answers to the Second Amended Complaint. Dkts. 122 and 124, The equitable defenses

Truscott Terrace Holdings LLC, 2016 WL 2640351, at * (W.D.N.Y. May 10, 2016)

(allocating pursuant to Fed.R.Civ.P. 37(a)(5)(A) responsibility for moving plaintiff’s

attorneys fees equally between defendants and defendants’ attorney and citing Brown

v. Tellermate Holdings Ltd., 2014 WL 2987051, at **18, 24 (S.D.Oh. July 1, 2014)

(awarding attorney fees jointly against the defendant and its counsel where counsel

failed to reasonably investigate to assure the defendant’s compliance with valid request

discovery request)). A party’s refusal to provide the discovery at issue on a request for

Rule 37(a)(1)(A) sanctions is substantially justified is “‘where a genuine dispute

existed,’” “‘if reasonable people could differ as to the appropriateness of the contested

action,’” or “if there is an objectively reasonable basis” for the party’s failure to respond.

Scott-Iverson v. Indep. Health Ass’n, Inc., 2016 WL 1458239, at *2 (W.D.N.Y. Apr. 14,

2016) (quoting Parsi v. Daioleslam, 778 F.3d 116, 126 (D.C.Cir. 2015) (internal citations

omitted)). A good faith, subjective, belief that a party’s refusal was justified is not

sufficient. See S.E.C. v. Yorkville Advisors, LLC, 2015 WL 855796, at *7 (S.D.N.Y. Feb.

27, 2015). An award of Rule 37 (a)(5)(A) sanctions would be unjust where the accused

party’s failure to comply was the result of factors beyond a party’s control. See Scott-

Iverson, 2015 WL 1458239, at *3. Under Rule 37(a)(5)(B), the court is required to grant

the prevailing party its expenses incurred in successfully opposing a motion to compel

unless the motion was substantially justified. Under Fed.R.Civ.P. 37(c)(1), similar

sanctions are imposed for failure to comply with the disclosures required by

Fed.R.Civ.P. 26(a)(1).

(1) Plaintiff’s Motion.

As indicated, Plaintiff’s motion demanded Defendants’ responses to Plaintiff’s

document requests pertaining to Defendants’ business operations throughout the United

States, including specifically with regard to New York State. Noting Defendants

represented Defendants intended to comply with Plaintiff’s demands provided the

requests were limited to Defendants’ contacts within New York State, and not

throughout the United States as the TAC also alleged, upon finding the Third Amended

Complaint predominately related to Defendants’ cigarette shipments to New York State,

the undersigned granted Plaintiff’s motion but restricted the scope of Plaintiff’s requests

as Defendants argued. See D&O at 9. Thus, Defendants’ initial resistance to Plaintiff’s

requests was substantially justified and no sanctions pursuant to Rule 37(a)(5)(A)

should be awarded.2 With regard to Plaintiff’s motion directed to Defendants’ failure to

provide sworn answers to Plaintiff’s interrogatories particularly regarding the identity of

NWS’s present ownership, Defendants’ response to the OTSC provides no justification

for this inadequacy. Further, with respect to Plaintiff’s F.O.B. interrogatory, Defendants

assert Defendants’ objection was objectively reasonable as it was based on a “differing

interpretation[ ] of governing law.” Dkt. 231 at 9. However, in Defendants’ response

Defendants fail to point to exactly what “governing law” reasonably supports

Defendants’ refusal to respond and, accordingly, the court is unable to determine

Defendants’ failure to answer this interrogatory was substantially justified. Finally,

Defendants’ reliance on Tamas v. Family Video Club, Inc., 204 F.R.D. 543 (N.D.Ill.

2015) (“Tamas”) to support Defendants’ refusal to provide contact information for

Defendants’ witnesses in accordance with Rule 26(a)(1) is, as the D&O explained, D&O

2 Although, as Plaintiff points out, Dkt. 237 at 6, the OTSC did not specify that Plaintiff should address

whether Defendants were entitled to a partial sanction based on Defendants’ successful opposition to

Plaintiff’s motion pursuant to Rule 37(a)(5)(B), as the TAC did refer to Defendants’ nationwide business

activities, see D&O at 9, such that it was at least objectively reasonable that Plaintiff’s document requests

directed to Defendants’ nationwide cigarette sales would also yield information relevant to Defendants’

New York State activities, the court finds, contrary to Defendants’ Response to Plaintiff’s Surreply (Dkt.

at 11-12, entirely misplaced as the Tamas decision is not, as an out-of-circuit decision,

entitled to precedential effect in this district and its holding does not find support within

the plain language of Rule 26(a)(1). Id. Accordingly, Defendants’ reliance on Tamas

does not provide substantial justification for Defendants’ refusal to provide complete

disclosure of witness contact information as Plaintiff’s motion sought. Plaintiff is

therefore entitled to an award of expenses related to these issues.

(2) Defendants’ Motion.

In response to the OTSC, Defendants reassert the potential viability of

Defendants’ putative equitable defenses as a bar to Plaintiff’s claims, based on the

manufacture, shipment, sale and distribution of Defendants’ cigarettes in New York

State, see Dkt. 231 (“A central issue in the [instant] litigation . . . is whether the State

has, and has exercised, the legal authority to regulate such activity in Indian Country.”)

Dkt. 231 at 5 (underlining added). Defendants further assert that “[b]ecause of the

critical nature of this question, Defendants’ attorneys, in good faith, propounded

document requests” to elicit evidence to support such defenses. Id. However, despite

Defendants’ asserted “good faith,” for Defendants’ “belief” that Defendants are “entitled”

to the requested documents, Dkt. 231 at 6, which is irrelevant to the question of whether

Plaintiff’s opposition to Defendants’ requests was substantially justified, see Yorkville

Advisors, LLC, 2015 WL 855796, at *7 (a good faith belief in the rationale for a party’s

refusal to produce discovery insufficient to avoid sanctions pursuant to Rule

37(a)(5)(A)); Cullins v. Heckler, 108 F.R.D. 172, (S.D.N.Y. 1985) (genuine dispute

regarding possibility of whether the requested party’s extensive computer system could

produce further information responsive to discovery request did not render the party’s

initial responses to be made in bad faith and thus did not support award of attorneys

fees), and Defendants’ other contentions, Plaintiff’s refusal to produce responsive

documents based on the irrelevancy of Defendants’ request, directed as they were to

Plaintiff’s previous acknowledgements of Plaintiff’s lack of authority to enforce its

cigarette excise tax laws and related federal statutes such as the CCTA and the PACT

Act against Defendants’ contraband cigarette operations in New York State, was

substantially justified. As the TAC and the D&O make plain, Plaintiff’s claims are based

solely on Defendants’ alleged failure to comply fully with New York’s cigarette tax and

public health laws which require all cigarettes shipped to New York to be processed by

state licensed tax agents which affix pre-paid tax stamps permitting the stamped

cigarettes to be possessed and sold within New York State. D&O at 16 (citing N.Y. Tax

Law §§ 471, 471-e). Moreover, the D&O carefully reviewed the Second Circuit’s

controlling decision in Oneida Nation of New York v. Cuomo, 645 F.3d 154, 158 (2d Cir.

2010) (“Oneida”) upholding Plaintiff’s cigarette taxing scheme which allocates the

quantity of cigarettes, on which the excise tax was pre-paid, to Indian retailers based on

estimated cigarette consumption by the retailer’s reservation’s purchasers, to assure

compliance by Indian retailers with New York’s cigarette tax laws requiring non-Indian

cigarette retail purchasers to bear the costs of the New York excise tax. D&O at 16-18.

The scheme contemplates such limitation of the retailers’ supply will cause the retailers

to sell the retailer’s limited inventory of taxed cigarettes, for which the wholesaler may

receive a refund of the prepaid taxes, only to tax-exempt Indian customers, while

requiring non-Indian non-exempt purchasers to pay the tax. See D&O at 16-17.

Defendants’ business operation is alleged by the TAC to circumvent Plaintiff’s cigarette

tax scheme by supplying Defendants’ untaxed cigarettes to Indian retailers in unlimited

quantities for sale to Indians and non-Indians on Indian reservations throughout New

York State thus completely by-passing prepayment of the excise tax by licensed tax

agents. In Oneida, the court noted New York’s prior forbearance in enforcement of its

cigarette tax laws upon Indian retail cigarette sales to non-Indians, beginning in 1988

and ending in 2010, was the result of concerns arising from potential further litigation,

threats of civil unrest, and failed negotiations with Indian tribes to facilitate compliance

on a cooperative basis with New York cigarette tax laws applicable to non-Indian retail

sales, not, as relevant to the instant case, whether the Plaintiff lacked authority, i.e., a

legal, not a factual question appropriate for discovery, to pursue enforcement of New

York State’s cigarette tax laws with respect to such sales. D&O at 19 (citing Oneida,

645 F.3d at 159).

The D&O also carefully analyzed Defendants’ asserted equitable defenses,

including laches, waiver and estoppel, and found, based on recent Second Circuit

caselaw, including New York v. United Parcel Service, Inc., 942 F.3d 554, 599 (2d Cir.

2019), that Plaintiff’s litigation to enforce the CCTA and the PACT Act, predicated on

N.Y. Tax Laws §§ 471 and 471-e, constituted civil enforcement actions that are not

amenable to equitable defenses such as laches or estoppel, as asserted by

Defendants, which defenses may be interposed against private litigants and in limited

instances against public entities. D&O at 21 (quoting caselaw). Remarkably, as with

Defendants’ motion to compel (Dkt. 212), Defendants’ response to the OTSC makes no

mention of Oneida and ignores the D&O’s explanation as to why Defendants’ putative

equitable defenses are wholly without relevance to the instant matter including that the

Plaintiff’s forbearance policy dealt with the sale of untaxed cigarettes by Indian retailers,

not the primary illegality alleged by Plaintiff in this case. D&O at 23. The basic illegality

alleged by the TAC at issue here is Defendants’ operation of a scheme to avoid New

York’s taxing authority over any cigarettes imported by Defendants for resale in New

York, unlawful conduct outside the scope of the Plaintiff’s defunct, since 2010,

forbearance policy, an issue Defendant fails to address in Defendants’ response to the

OTSC. Simply put, the court is unable to find that, given the history of the proceedings

and the state of the law on these issues prior to Defendants’ motion, Defendants could

reasonably believe Defendants’ document requests directed to Plaintiff’s authority to

enforce its cigarette tax law scheme as pleaded in the TAC (or, for that matter, by the

Second Amended Complaint) had even a reasonably arguable basis in fact or law.

Significantly, Defendants’ response to the OTSC cites to no judicial authority supporting

Defendants’ notion that Defendants’ equitable defenses, at this time unpleaded in the

absence of Defendants’ answer to the TAC, have any relevance in the context of this

case, and the court’s research has found none. Nevertheless, the Second Circuit

“[r]ecogniz[es] the district court’s broad discretion to direct and manage the pre-trial

discovery process . . . .” Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004).

Accordingly, Plaintiff’s opposition to Defendants’ document requests on this question

was substantially justified and Plaintiff is entitled to its expenses in successfully

opposing Defendants’ motion seeking to compel such production as provided in Rule

37(a)(5)(B).

Nor would awarding Plaintiff its expenses be unjust. Defendants posit that as

Plaintiff has not moved to strike such defenses from Defendants’ answers to the Second

Amended Complaint it would create a “perverse incentive” if sanctions were to be

awarded to Plaintiff as to do so would, according to Defendants, encourage parties to

avoid moving to strike or dismiss questionable defenses to enable a later motion to

compel, on disputed discovery related to such defenses, in order to obtain a sanction

that would otherwise not be available if the party were to successfully move to strike or

dismiss. Dkt. 231 at 7-9. Several difficulties with Defendants’ novel proposition are

apparent. At the April 28, 2020 conference with the parties, in accordance with Judge

Arcara’s direction, Dkt. 176, to commence discovery in this case, the Scheduling Order,

filed April 28, 2020, based on the conference and as agreed to by the parties, called for

discovery to conclude October 30, 2020 (Dkt. 177). At that time, the undersigned had

already filed, on March 10, 2020 (Dkt. 160), a Decision and Order and Report and

Recommendation addressing Plaintiff’s motions for leave to file the Third Amended

Complaint and to strike Defendants’ Thirteenth Affirmative Defense, based on the

Commerce Clause, pleaded by Defendants in Defendants’ Answer to the Second

Amended Complaint, which Report and Recommendation remains pending before the

District Judge. In compliance with this court’s grant of permission in the March Decision

and Order to do so, Plaintiff filed the TAC on March 16, 2020 (Dkt. 164); Defendants

thereafter moved, on June 29, 2020, to dismiss the TAC in lieu of an answer (Dkt. 193).

The undersigned’s Report and Recommendation recommending denial of Defendants’

motion was filed December 15, 2020 (Dkt. 224) and also remains pending. Discovery

by the parties, including the requests at issue,3 nevertheless continued as the

Scheduling Order contemplated without Defendants’ requesting a stay of discovery until

Judge Arcara acted upon Defendants’ motion to dismiss the TAC and the then pending

R&R. Defendants’ suggestion that Plaintiff purposefully failed to move to strike the

equitable defenses, which Defendants chose not to reassert in an answer to the TAC, is

therefore baseless. Also, courts are quite capable for discerning discovery-related

abuses, as Defendants suggested could occur, and the undersigned fails to see any by

Plaintiff here. Thus, contrary to Defendants’ contention, there is nothing unjust about

granting Plaintiff its expenses in connection with its opposition to this part of

Defendants’ motion.

As to Plaintiff’s failure to provide a privilege log in connection with the second

category of Defendants’ document requests, i.e., documents from several state

agencies pertaining to Defendants’ manufacture, importation, sales of Defendants’

cigarettes in New York State in violation of New York and federal law, and any unpaid

related excise taxes Plaintiff alleges are due from Defendants, in response to the OTSC

Plaintiff contends (1) Defendants failed to comply with the meet and confer requirement

of Rule 37(a)(1), a prerequisite to an award of expenses pursuant to Rule 37(a)(5)(A)

and Rule 37(a)(5)(B), (2) no privilege log was required because Plaintiff’s non-privilege

objections to production, particularly Defendants’ Requests Nos. 1, 2, 10, 13, 15 and 28

(see Dkt. 209-4), which have not been determined by the court, and (3) any award of

Defendants’ expenses would, under the circumstances, be unjust as Defendants’ have,

in sharp contrast to Plaintiff’s production of 3,500 documents (including nearly 20,000

pages), produced few, three (including 60 pages) documents responsive to Plaintiff’s

extensive requests. Dkt. 232 at 2-3; 8. According to Plaintiffs, in neither Defendants’

June 23, 2020 letter describing Defendants’ asserted deficiencies in Plaintiff’s initial

production nor during two later telephone meet and confer discussions on July 2, 2020

and July 20, 2020, related to this issue did Defendants demand Plaintiff serve a

privilege log. Dkt. 232 at 4. Specifically, Plaintiff asserts Defendants made no formal

demand for a privilege log until Defendants filed, on October 23, 2020, Defendants’

motion to compel. Dkt. 232 at 5. Plaintiff also maintains Plaintiff reaffirmed during the

conferences Plaintiff’s intention to provide a privilege log in support of Plaintiff’s

objections that may be based on privilege as well as work-product, as Defendants

acknowledged in Defendants’ motion. Dkt. 232 at 5-6 (“Defendants admit that during

both calls ‘the State confirmed that it would produce documents . . . [in response to the

second category]’ . . . and a privilege log . . ..”) (referencing Dkt. 209-4 ¶¶ 10-11). Such

preliminary discussions, Plaintiff argues, do not satisfy the requirements of Rule

37(a)(1) directed to Plaintiff’s service of a privilege log and thus under Rule 37(a)(5)(B)

no expenses regarding Plaintiff’s submission of a privilege log may be awarded to

Defendants. Dkt. 232 at 6 (citing Local R.Civ.P. 7(d)(3) (requiring “details” of the

parties’ efforts to avoid need for judicial assistance in resolving discovery deputes);

Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., 1998 WL 67672, at *3 (S.D.N.Y.

Feb. 18, 1998). Accordingly, Plaintiffs contend, Defendants’ motion directed to this

issue was premature and, as Defendants have failed to demonstrate Defendants’ full

compliance with Rule 37(a)(1) with respect to the privilege log, provides no ground for

an award of Defendants’ expenses. Dkt. 232 at 7 (citing Ampion Corp., v. AXXA Tech,

Inc., 2019 WL 6320344, at *6 (W.D.N.Y. Nov. 26, 2019) (no award of Rule 37 expenses

absent compliance with Rule 37(a)(1))). Plaintiff further contends no privilege log was

required until Plaintiff’s non-privilege objections to Defendants’ second category of

document requests were resolved. Dkt. 232 at 7 (quoting Grand River Enterprises Six

Nations v. King, 2009 WL 63461, at * 4 (S.D.N.Y. Jan. 12, 2009) (responsive party not

required to provide privilege log while party’s non-privilege objections remained

unresolved) (citing United States v. Philip Morris, Inc., 347 F.3d 951, 954 (D.C. Cir.

2003)). Finally, Plaintiff submits that given the gross disparity in document production

based on Plaintiff’s voluminous production in contrast to the paltry production of

Defendants (20,000 pages of documents by Plaintiff compared to 60 pages by

Defendants), Dkt. 232 at 8, and in light of the four-month extension of time within which

to complete document production recently granted by the court to Defendants in the

D&O, D&O at 12-13, it would be patently unjust to sanction Plaintiff with regard to an

issue over whether earlier service of Plaintiff’s privilege log was required, which log

Plaintiff has served on January 14, 2020, Dkt. 232 at 4 n. 4, in compliance with the

D&O.

Defendants counter by pointing to the two conference calls conducted in July

2020 in which the need for Plaintiff’s privilege log pertaining to Plaintiff’s asserted

privileged-based objections was raised by Defendants, Dkt. 234 at 2, as sufficient

compliance with Rule 37(a)(1). Defendants further contend that there has been no

further effort by Plaintiff to avoid motion practice directed to Plaintiff’s failure, as of

October 23, 2020, the date of Defendants’ motion to compel, to serve the privilege log

as Plaintiff represented during the conferences. Id. at 2-3. Defendants further argue

that as Plaintiff’s proffered non-privilege objections were not directed to a majority of

Defendants’ production requests, Dkt. 234 at 3, Plaintiff had no reasonably arguable

basis, i.e., substantial justification, for failing to serve Plaintiff’s privilege log. Id.

Defendants also assert Plaintiff’s contention, if accepted, would excuse a responding

party’s failure to provide discovery through repetitive unfulfilled promises to produce.

Dkt. 234 at 3. Finally, Defendants assert Plaintiff’s contention that the dearth of

Defendants’ production to date demonstrates it would be unjust to award Defendants’

expenses based on Plaintiff’s delay in serving the proffered privilege log merely

rehashes Plaintiff’s unsuccessful opposition to Defendants’ request that the court

extend the period for completion of discovery because of coronavirus issues. Dkt. 234

at 4.

In all, the court finds the record fails to demonstrate Defendants sufficiently

complied with Rule 37(a)(1) with respect to service of Plaintiff’s privilege log. Notably,

while the record shows the subject was addressed during the two July 2020 telephone

conferences, the record does not indicate the issue was further addressed so as to alert

Plaintiff that further delay in service would likely trigger Defendants’ motion to compel.

Significantly, Defendants cite to no authority contradicting Plaintiff’s position that the

pendency of non-privilege objections absolves, at least temporarily, the requested party

from the required service of the log thus supporting Plaintiff’s failure to do so was at

least reasonably arguable. See Dkt. 232 at 7 (citing Grand River Enters. Six Nations,

2009 WL 63461, at * 3). Rule 37(a)(5)(A) makes clear no expenses may be awarded

where the requesting party fails to make a good faith effort to obtain the discovery at

issue, here Plaintiff’s privilege log. The court also notes that no formal demand letter

from Defendants directing Plaintiff’s attention to this issue was sent after the July 2020

telephonic conferences which may have obviated the need for Defendants’ motion but

would, at a minimum, have more fully satisfied Defendants’ obligation under Rule

37(a)(1). Accordingly, Defendants’ request for expenses relating to this issue should be

DENIED.

Finally, based on Defendants’ failure to address any allocation of responsibility,

as the OTSC, in accordance with Rule 37, requested, for Defendants’ unsuccessful

motion, the court finds Defendants and Defendants’ respective counsel shall be equally

responsible for payment of the award of Plaintiff’s expenses incurred by Plaintiff in

opposing Defendants’ motions. See Scott-Iverson v. Independent Health Ass’n, Inc.,

2016 WL 1457881, at *4 (W.D.N.Y. Apr. 14, 2016) (where record fails to indicate any

basis upon which court may allocate responsibility for Rule 37 sanctions court may

impose liability in equal shares upon sanctioned party and counsel) (citing Rich

Products Corp., v. Bluemke, 2014 WL 860364, at *6 (W.D.N.Y. Mar. 5, 2014)).

CONCLUSION

Based on the foregoing, Plaintiff’s request for expenses is GRANTED;

Defendants’ request is DENIED. Plaintiff shall submit its affidavit of expenses, including

reasonable attorneys fees, not later than 30 days from the date of this Decision and

Order; Defendants’ responses shall be filed within 20 days thereafter; replies may be

filed within 10 days. Oral argument shall be at the court’s discretion.

SO ORDERED.

/s/ Leslie G. Foschio

_________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

Dates: March 12, 2021

Buffalo, New York