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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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