United States District Court, D. Idaho
WILDEARTH GUARDIANS, CASCADIA WILDLANDS, KOOTENAI ENVIRONMENTAL ALLIANCE, CENTER FOR BIOLOGICAL DIVERSITY, WESTERN WATERSHEDS PROJECT, PROJECT COYOTE, Plaintiffs,
UNITED STATES FOREST SERVICE, CHARLES A. MARK, in his official capacity, Defendants.
MEMORANDUM DECISION AND ON PLAINTIFFS' MOTION FOR
Honorable Ronald E. Bush Chief U.S. Magistrate Judge,
is Plaintiffs' Motion for Fees on Motion for Protective
Order (Dkt. 110). Having carefully considered the record, and
otherwise being fully advised, the Court enters the following
Memorandum Decision and Order:
various environmental groups, sued the United States Bureau
of Land Management (“BLM”), the United States
Forest Service (“USFS”), and others to stop a
wolf derby on public lands near Salmon, Idaho. Compl. (Dkt.
1). Defendants asserted an affirmative defense of res
judicata based on a 2013 order of U.S. Magistrate Judge
Candy W. Dale denying a temporary restraining order in a
similar case. The parties' joint litigation plan
acknowledged a disagreement as to whether discovery on the
res judicata defense was appropriate. Joint Lit.
Plan (Dkt. 25-1). In resolving that disagreement, this Court
issued a Case Management Order providing in relevant part
that “[t]he Court will allow discovery on the issue of
res judicata. If Plaintiffs object to any materials being
sought, they may seek a protective order.” CMO ¶ 3
(Dkt. 28). Subsequently, Defendants did seek discovery
pertaining to a possible defense based on res
judicata, and Plaintiffs did seek a protective order
barring that discovery (Dkt. 33). After an unfortunately
extended delay, the Court granted Plaintiffs' motion for
protective order, holding that in this case the res
judicata defense fails as a matter of law. Order 2 (Dkt.
91). Accordingly, the Court then barred Defendants from
seeking further discovery on that topic. Id. at 5.
various parties settled or withdrew, the Court ultimately
resolved cross-motions for summary judgment in favor of
Defendant USFS and dismissed the case (Dkts. 108, 109). The
remaining Plaintiffs' appeal is pending (Dkt. 116).
issue here is Plaintiffs' Motion for Fees on Motion for
Protective Order (Dkt. 110). Plaintiffs assert that because
they prevailed on their motion for protective order, they are
entitled to their reasonable attorney fees and litigation
expenses as a matter of right under Federal Rules of Civil
Procedure 26(c)(3) and 37(a)(5). They seek a total of $137,
313.27 in fees and costs for litigating the motion for
protective order. Mot. for Prot. Order Fees 2 (Dkt. 110).
challenge both the basis for, and the amount of, the fee
request. They assert that under the circumstances of the
case, the motion for protective order should be regarded as
more like a motion to strike or a motion for partial summary
judgment rather than a typical motion for protective order.
Defs.' Opp. 7 (Dkt. 119). Alternatively, they argue that
even if the motion were treated as a true motion for
protective order, Plaintiffs are still not entitled to fees
under Rule 37(a)(5)(A)(ii) because Defendants were both
“substantially justified” in seeking the
discovery and under Rule 37(a)(5)(A)(iii) because
“other circumstances [would] make an award of expenses
unjust.” Id. at 8-14. Finally, they argue the
requested fee amount is “grossly excessive.”
Id. at 14-17.
reply, Plaintiffs offer a revised fee request that is reduced
to $66, 139.97, somewhat less than half the original request.
Pls.' Reply Ex. 4 (Dkt. 121-4).
Rule of Civil Procedure 26(c)(3), addressing protective
orders, provides that “Rule 37(a)(5) applies to the
award of expenses.” That Rule, in turn, provides:
motion is granted-or if the disclosure or requested discovery
is provided after the motion was filed-the court must, after
giving an opportunity to be heard, require the party or deponent
whose conduct necessitated the motion, the party or attorney
advising that conduct, or both to pay the movant's
reasonable expenses incurred in making the motion, including
attorney's fees. But the court must not order this
(i) the movant filed the motion before attempting in good
faith to obtain the disclosure or discovery without court
(ii) the opposing party's nondisclosure, response, or
objection was ...