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

Back to TopCommentsE-mailPrintBookmark and Share

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.



Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?