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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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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