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Court clarifies attorney fee recovery under Trial Rule 34(C)(3)

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The Indiana Court of Appeals Tuesday decided that under Indiana Trial Rule 34(C)(3), refusing to comply with a discovery request solely because the parties can’t agree on an appropriate amount to pay does not constitute reasonable resistance to a discovery request.

Lisa Gonzalez subpoenaed R. Stanton Evans for information about her ex-husband’s business interests. Evans is a business partner in 31 of those endeavors, and Gonzalez believed that her ex-husband undervalued the marital estate in their divorce and fraudulently induced her to accept the property settlement agreement.

Evans believed the subpoena was too broad. Months passed, and although Evans had already compiled the nearly 1,000 pages of documents, Evans demanded $1,500 in attorney fees and $500 for his time before turning over the documents. Gonzalez paid the $500 but refused to pay attorney fees, instead filing a motion to compel. Evans claimed any grant of the motion should be conditioned upon her prepayment of damages incurred by Evans in his “reasonable resistance.” Evans never sought to quash or limit the subpoena in court and never sought a protective order.

The court eventually ordered Gonzalez to pay Evans $8,289.33 in attorney fees and did not award her any attorney fees for Evans initial noncooperation.

The gist of the case is Evans’ claims that he was entitled to insist that Gonzalez pay attorney fees to him in an amount he requested before he had to comply with the subpoena, based on T.R. 34(C)(3). The rule says damages shall include reasonable attorney fees incurred in “reasonable resistance.” He claimed he reasonably resisted the subpoena because she refused to pay any security against any damages he might sustain, so he is entitled to the attorney fees.

Citing IBM v. ACS Human Servs. LLC, 999, N.E.2d 880, 885 (Ind. Ct. App. 2013), the only other Indiana case directly addressing this trial rule, the judges concluded the amount of attorney fees award to Evans exceeded the bounds of what is contemplated by the rule.

“The key here in our view is that Gonzalez proximately caused only a small percentage of the attorney fees that Evans incurred,” Judge Michael Barnes wrote in Lisa B. Gonzalez v. R. Stanton Evans, 29A02-1311-DR-984. Evans is entitled to attorney fees, but not the amount originally ordered. The judges ordered the trial court to determine how much in fees Evans incurred in relation to his compliance with the subpoena and document review.

The judges also held that the rule does not permit a non-party to unilaterally withhold documents requested by a subpoena on the condition that the requesting party first pays attorney fees in an amount demanded by the non-party.

“Even if Trial Rule 34(C)(3) permits a subpoenaed party to ask for prepayment of security from the subpoenaing party, we do not believe that a disagreement between the parties as to the appropriate amount of such security permits the subpoenaed party to withhold the documents indefinitely and to run up more attorney fees in the process,” he wrote.

They also affirmed the denial of attorney fees to Gonzalez because they found she waived her claim by failing to present some evidence or argument regarding her attorney fees.

 

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  1. Andrew, you are a whistleblower against an ideologically corrupt system that is also an old boys network ... Including old gals .... You are a huge threat to them. Thieves, liars, miscreants they understand, identify with, coddle. But whistleblowers must go to the stake. Burn well my friend, burn brightly, tyger.

  2. VSB dismissed the reciprocal discipline based on what Indiana did to me. Here we have an attorney actually breaking ethical rules, dishonest behavior, and only getting a reprimand. I advocated that this supreme court stop discriminating against me and others based on disability, and I am SUSPENDED 180 days. Time to take out the checkbook and stop the arrogant cheating to hurt me and retaliate against my good faith efforts to stop the discrimination of this Court. www.andrewstraw.org www.andrewstraw.net

  3. http://www.andrewstraw.org http://www.andrewstraw.net If another state believes by "Clear and convincing evidence" standard that Indiana's discipline was not valid and dismissed it, it is time for Curtis Hill to advise his clients to get out the checkbook. Discrimination time is over.

  4. Congrats Andrew, your street cred just shot up. As for me ... I am now an administrative law judge in Kansas, commissioned by the Governor to enforce due process rights against overreaching government agents. That after being banished for life from the Indiana bar for attempting to do the same as a mere whistleblowing bar applicant. The myth of one lowly peasant with the constitution does not play well in the Hoosier state. As for what our experiences have in common, I have good reason to believe that the same ADA Coordinator who took you out was working my file since 2007, when the former chief justice hired the same, likely to "take out the politically incorrect trash" like me. My own dealings with that powerful bureaucrat and some rather astounding actions .. actions that would make most state courts blush ... actions blessed in full by the Ind.S.Ct ... here: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  5. I presented my defense against discipline to the Virginia State Bar this morning and the 26-member Board of Discipline 100% rejected what Indiana has done to me, including what Ahler did. Discipline DISMISSED.

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