Plaintiffs' response to Defendant's motion for continuance and ...

Case: 2:08-cv-00575-GLF-NMK Doc #: 96 Filed: 05/07/10 Page: 14 of 16 PAGEID #: 1894
Real Meaning of the Zodiac, and Icons of Evolution, and a “Lies in the Textbooks” videotape
with the text “Part A 487” and “10 Lies of Evolution.” The Court should also enter an
evidentiary inference that the 15 Freshwater affidavits, based on Freshwater’s failure to produce
the billing records, were not prepared or executed in May 2008, as Freshwater contends, but at
some later date.
In addition to evidentiary inferences, the Dennises also seek costs and attorney’s fees.
Rule 37(a)(5) explicitly states that a court “must, after giving an opportunity to be heard” require
the parties and/or their attorneys necessitating a motion to compel to “pay the movant’s
reasonable expenses incurred in making the motion, including attorney’s fees.” Out of great
benevolence, the Dennises did not move for costs and attorney’s fees when they filed their
Motion to Compel on December 30, 2009 or during the telephone conference on April 21, 2010.
Because the Court issued Written and Oral Orders granting the Dennises’ Motion to Compel and
because the Defendant has not complied with those Orders, the Dennises now seek costs and
attorney’s fees related to all discovery pleadings since late December 2009. See Star Lock
Systems, Inc. v. Dixie-Narco, Inc., No. 2:03-CV-616, 2006 WL 2265886, at *3 (S.D. Ohio 2006)
(Frost, J.) (imposing sanctions in the form of attorney’s fees and costs against a party under Rule
37(a) for inappropriately withheld documents). 3
C. The Dennises Request A Status Conference To Address Issues That Remain
Prior To Trial.
With the trial date rapidly approaching, the Dennises request that the Court schedule an
in-person status conference at the Court’s earliest convenience to discuss ongoing discovery
3 Costs and attorney’s fees are also appropriate under Rule 37(b)(2), which punishes parties for disobeying
discovery orders. Under the rule, the Court “must order the disobedient party, its attorney, or both to pay the
reasonable expenses, including attorney’s fees,” incurred because of any noncompliance. Fed. R. Civ. P.
37(b)(2)(C); see also Tdata, 2007 WL 433295, at *4 (imposing sanctions under Rule 37(b)(2) against a party that
had disobeyed a magistrate judge’s discovery order).
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