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Litigation News | 2021

Want to Recover Attorney Fees under Rule 37? Be Reasonable!

Karen L Stevenson


  • To successfully be awarded fees, you must meet the evidentiary burden with well-supported records.
  • But remember, more often than not, a discovery motion does not result in total victory for one party. Instead, motions are frequently granted in part and denied in part. 
Want to Recover Attorney Fees under Rule 37? Be Reasonable!
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A large part of my job involves ruling on discovery motions. Perhaps it is a side effect of the pandemic with few in-person hearings and civil trial dates continued into 2021, but discovery motion practice seems to have exploded. With that explosion has come a similar increase in the number of motions for attorney fees brought under Federal Rule of Civil Procedure 37 by parties that have prevailed on a motion to compel. Rule 37’s provision for awarding reasonable expenses adds real “teeth” to the court’s ability to hold parties accountable for their discovery obligations. But getting an award of attorney fees after a motion to compel is not a foregone conclusion. To successfully recover such fees, you must meet Rule 37’s evidentiary burden with well-supported records.

Are Rule 37(a) Sanctions Mandatory or Discretionary? It Depends

When the court grants or denies a motion to compel in its entirety, Rule 37(a)(5)(A) provides that “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” (emphasis added). Rule 37(a)(5)(B) includes a similar provision to recover expenses when a motion to compel disclosure is denied in its entirety.

But the court must not order an award of fees if “the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; the opposing party’s nondisclosure, response, or objection was substantially justified; or other circumstances make an award of expenses unjust.” Id. Thus, under Rule 37(a)(5)(A), and (B), when the court finds the opposing party’s nondisclosure was substantially unjustified or the motion to compel itself was unjustified, an award of reasonable expenses, including attorney fees, is mandatory.

More often than not, however, a discovery motion does not result in total victory for one party. Instead, motions are frequently granted in part and denied in part. In such circumstances, under Rule 37(a)(5)(C), the court “may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.”

The Lodestar Method

Federal courts use the lodestar method to calculate a fee award by multiplying the number of hours reasonably expended on the motion by a reasonable hourly attorney billing rate. To determine the reasonable hourly rate of an attorney, courts look to the prevailing rate in the relevant community for similar work done by attorneys with comparable skill, experience, and reputation.

A party requesting attorney fees has the burden to provide satisfactory evidence that the billing rates its lawyers charged are comparable to the rates prevailing in the community. A declaration attaching survey data showing prevailing rates in the relevant community is generally sufficient to establish a reasonable hourly rate. When a party fails to provide such data, the court can draw on its own experience and familiarity with prevailing rates in the community to determine the reasonableness of the billing rates submitted. But the better practice is to make the court’s job easier by including evidence of local billing rates with your fee motion.

The declaration should also include information about the experience of the lawyers who worked on the motion to compel, including how long have they have practiced and whether they are partners or associates. This information is key to helping the court determine whether the billing rates that the legal professionals charged on the discovery motion are reasonable. Once a party seeking attorney fees establishes that its billing rates are reasonable, that party then has the burden of demonstrating that the total hours expended were reasonably necessary to succeed on the motion.

Avoid These Common Mistakes on Fee Motions

To maximize the recovery of attorney fees under Rule 37, you must avoid common mistakes that will lead the court to discount or even deny your fee motion altogether. First, submit a declaration with objective evidence of billing rates in the relevant community. If your intellectual property case is pending in Los Angeles, it is not helpful to present billing rates for personal injury lawyers in Chicago.

Next, remember that the most persuasive evidence to support the number of hours expended on the motion to compel will be contemporaneous billing records. When preparing a fee motion under Rule 37, do not take a chance. Provide the contemporaneous billing records to support your motion, even if you need to file these records under seal or with redactions to protect attorney-client communications.

That said, contemporaneous records are preferred, but not mandatory. Courts will accept summary charts of time entries if the summary entries include a sufficiently detailed description of the work that the lawyer performed in connection with the motion to compel. If paralegals or legal assistants worked on the motion to compel, properly identify those specific time entries and clearly identify what tasks each professional performed.

Avoid block billing. Block billing occurs when attorneys make a single time entry for multiple and varied tasks performed over a large block of time, e.g., “Researched privilege issues; revised draft of motion; reviewed emails, met with partner to discuss same—6.5 hrs.” Block billing does not allow the court to determine whether the work performed was actually necessary to the motion to compel. Courts carefully scrutinize billing records and can make across-the-board reductions to the amount sought of as much as 25 percent—or more—for block billing practices.

Consider how many lawyers worked on the motion to compel. Even when a fee motion is unopposed, the court must still independently assess whether the number of hours billed is reasonable. Did it really take three partners and two associates to prepare a single-issue motion to compel further responses to a few requests for production of documents? If that is what your billing records reflect, you must be prepared to defend that staffing. Show the court why the complexity of the issues, or nuances in the factual record or the case law, required so many staff. Even better, do your own “reasonableness” analysis and pare the bill down before you submit it to the court by eliminating billing that may appear duplicative or excessive.

Do not assume you can recover for time spent in the meet-and-confer process. Know the case law in your jurisdiction. Here in the Ninth Circuit, meet-and-confer time is not recoverable under Rule 37. Courts note that the express language of Rule 37 refers to the award of expenses “incurred in bringing the motion.” The meet and confer process is not considered time expended in “bringing the motion” because that requirement is designed to avoid motion practice altogether.

The key to prevailing on a motion for attorney fees under Rule 37 following a successful, or even partially successful, motion to compel is straightforward: Be reasonable. Keep good records, present a clear argument well supported by the records, and don’t overreach.


  • Fed. R. Civ. P. 37(a)(5)(A), (B).
  • Fed. R. Civ. P. 37(e).
  • Morgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ., 2016 WL 4375015, at *4 (E.D. Cal. Aug. 17, 2016) (noting mandatory nature of Rule 37(a)(5)(A)).
  • Hensley v. Eckerhart, 461 U.S. 424 (1983).