United States District Court, D. Utah, Central Division
Parrish District Judge
MEMORANDUM DECISION AND ORDER REGARDING MOTION TO
C. Wells United States Magistrate Judge
before the court is Defendant Mentor Capital, Inc.'s
Motion to Compel the Depositions of Plaintiffs Susan Golden
and Gena Golden. This motion is now largely moot because
the “depositions of Susan and Richard Golden are set to
occur on May 3, 2017” and the deposition of Gena
Golden, although not set, is anticipated to occur in
“San Francisco on June 17th
….” What remains, however, is Defendants'
request for costs and fees in the amount of $2, 080.50
incurred in bringing the motion to compel.
Rule of Civil Procedure 37(a)(5)(A) provides,
If the motion is granted-or if the disclosure or
requested discovery is provided after the motion was
filed-the court must, after giving an opportunity to be
heard, require the party or deponent whose conduct
necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant's reasonable expenses
incurred in making the motion, including attorney's
to Defendants, Plaintiffs did not respond to the requests to
schedule depositions until after the filing of the motion.
Thus, because the requested discovery was provided after the
motion was filed costs and fees are appropriate.
among counsel is not only helpful, but required, and the
court has the duty to ensure that such cooperation is
forthcoming.” “The cooperation process should
involve information sharing and dialogue in an attempt to
resolve discovery disputes without the necessity of the Court
ruling on each issue in dispute.” In the ideal
world discovery should require at most infrequent court
involvement because discovery is designed to be extrajudicial
and self-executing. Federal Rule 37 vests the court with
authority to encourage cooperation between counsel.
court has carefully reviewed the correspondence between
counsel regarding the scheduling of depositions. After doing
so the court finds Plaintiffs' counsel's cooperation
and diligence in responding to Defendants' counsel's
requests for scheduling depositions failed to meet the
necessary cooperation standards. Particularly troubling is
the uptick in cooperation and responsiveness after Defendants
motion was filed. While the court is sympathetic to the
health challenges of Plaintiffs and their busy schedules,
those matters alone do not justify what occurred in this
case. The court therefore will grant Defendants request for
costs and fees in part based upon the failure to cooperate
adequately in scheduling depositions prior to the filing of
accordance with Rule 37 and based upon the circumstances in
this case before the court, the court GRANTS IN PART
Defendants request for costs and fees. The court will
award $1040.25 in costs and fees. The court discounts the
amount by half giving credit to Plaintiffs for some
cooperation in the discovery process given their health
are ORDERED to provide the court and Plaintiffs with an
affidavit of costs and fees associated with bringing this
motion within fourteen (14) days from the date of this order.
Upon receipt, Plaintiffs will have fourteen (14) days to pay
the required amount of costs and fees to Defendants.
Docket no. 93.