*1 This matter is before the Court on a Motion for Fees and Expenses, filed by non-parties Wayne R. Golomb and Graceia Golomb (collectively “the Golombs”). [Dkt. 89.] On December 5, 2017, the Court granted the Golombs’ Motion to Quash Defendants’ Subpoena. [Dkt. 87.] The Golombs now seek an award of $11,813.00, representing their expenses incurred in making the Motion to Quash. The Golombs have provided an Affidavit in support of the fees requested and an accounting, redacted to protect attorney-client privilege and attorney work product, to show fees incurred related to the Motion to Quash. [Dkt. 89-1.] For the reasons set forth below, the Court DENIES the Golombs’ Motion for Fees and Expenses.

The Golombs seek an award of the attorneys’ fees accrued in relation to their Motion to Quash Defendants’ Subpoena [Dkt. 61], which requested the Court to quash Defendants’ subpoena that sought the Golombs’ financial records. Defendants argued that these documents were necessary to prove their malpractice counterclaim against Plaintiff; specifically, the documents were necessary to show that Plaintiff neglected opportunities to obtain meaningful discovery in Defendants’ forgery case against Mark Zupan. [Dkt. 75 at 2–3.]

On December 5, 2017, the Court found that the Golombs lacked standing to bring a motion to quash pursuant to Federal Rule of Civil Procedure 45, but the Court issued a protective order under Rule 26(c). [Dkt. 87.] The Court found that the documents were not relevant to Defendants’ legal malpractice claim against Plaintiff because discovery was closed when Plaintiff started representing Defendants in the Zupan lawsuit, and Plaintiff would not have been able to obtain the Golombs’ financial records as evidence to be presented at trial in that case. [Dkt. 87 at 6.] Furthermore, the Court found that the Golombs are entitled to reasonable expenses and fees related to Defendants’ subpoena and gave the Golombs leave to file a brief to show their fees and expenses. [Dkt. 87 at 7.]

Defendants objected to the Court's Order [Dkt. 103], and on March 20, 2018, District Judge Richard L. Young found “no error in issuing the sanction of attorney's fees against Defendants.” [Dkt. 110 at 2.]

In their Motion to Quash, the Golombs’ moved the Court to issue an order to quash Defendants’ subpoena pursuant to Rule 45; in the alternative, they asked for a protective order pursuant to Rule 26(c). [Dkt. 61 at 1.] Because the Court found that the Golombs did not have standing under Rule 45, Rule 26 applies to the awarding of attorneys’ fees. Rule 26(c)(3) states that Rule 37(a)(5) governs the awarding of expenses.

Rule 37(a)(5) provides that if a motion for protective order is granted, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion ... to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A). Though “the Rule ‘presumptively requires every loser to make good the victor's costs,’ ” Malibu Media LLC v. Harrison, No. 1:12-cv-01117-WTL-MJD, 2014 WL 5392097, at *1 (S.D. Ind. Oct. 23, 2014) (quoting Rickels v. City of S. Bend. Ind., 33 F.3d 785, 786 (7th Cir. 1994)), a court must not order fees if: “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) the circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(i)–(iii). Further, the “burden of persuasion is on the losing party to avoid assessment of fees, rather than on the winning party to obtain such an award.” Malibu Media, LLC, 2014 WL 5392097, at *1 (citing Lincoln Diagnostics, Inc. v. Panatrex, Inc., No. 07-cv-2077, 2008 WL 4330182, at *3 (C.D. Ill. Sept. 16, 2016)). Here, the Golombs’ Motion to Quash was granted, and the Court issued a protective order. [Dkt. 87.] Therefore, Defendants can only avoid paying fees if one of the three exceptions applies.

*2 Defendants argue that the first exception applies: the Golombs filed their Motion to Quash before attempting in good faith to resolve the issue without court action. [Dkt. 95.] Defendants point to a letter that the Golombs emailed to them that requests Defendants to immediately withdraw their subpoena.[1] [Dkt. 95 at 14; Dkt. 61-1.] The Golombs did not address this argument in their Reply [Dkt. 104], but argued in their Response in Opposition to Defendants’ Objection to the Court's December 5, 2017 Order that this letter satisfied the Rule 37 requirement [Dkt. 92 at 7–8]. Defendants, on the other hand, contend that this is not a good-faith effort to resolve the issue, as required by Rule 37. [Dkt. 95 at 14.] The Court agrees.

The letter does not meet the good-faith requirement because it is just that – a letter. “An electronic ultimatum is not a good faith attempt to resolve a discovery dispute.” Loparex, LLC v. MPI Release Technologies, LLC, No. 1:09-cv-1411-JMS-TAB, 2011 WL 1871167, at *2 (S.D. Ind. May 16, 2011). Instead of simply sending a strongly-worded email, the Golombs should have called Defendants and tried to discuss the matter in real time. While the Golombs and Defendants may not have come to a resolution had they actually conferred, Rule 37 requires at least a good-faith attempt to do so. “The good faith requirement is intended to have parties work out their discovery disputes on their own, to actually attempt to [resolve them].” DeVries v. KT-Grant, Inc., No. 2:16-cv-365-RL-JEM, 2017 WL 6017829, at *1 (N.D. Ind. May 10, 2017) (citing Compass Bank v. Shamgochian, 287 F.R.D. 397, 399 (S.D. Tex. 2012) (“The good faith language [in Rule 37] encompasses, among other things, honesty in one's purpose to meaningfully discuss the discovery dispute ... and faithfulness to one's obligation to secure information without court action.”)).

The letter also does not try to avoid court involvement; instead of trying to resolve the dispute so that no fees would be sanctioned, the letter states that withdrawing the subpoena would only minimize expenses. [Dkt. 61-1 at 1.] It provides, “Even if you withdraw the subpoena, the Golombs are still entitled to payment of their undue expenses.... Withdrawing the subpoena immediately will minimize the fees you owe the Golombs. We look forward to your response.” [Id.] This is not an attempt to discuss the issue with Defendants, but simply a cease-and-desist letter. The Golombs argue that case law supports the proposition that they would be entitled to fees even if Defendants withdrew their subpoena per the Golombs’ request. [Dkt. 92 at 7, n.2.] While the cases cited do not fully support this notion, they are also irrelevant to Defendants’ argument; telling pro se Defendants that they will be responsible for the Golombs’ fees no matter what does not show an honest effort to resolve the issue, but rather an attempt to use intimidation tactics.

To paraphrase the Golombs, “[t]he fact that Defendants are proceeding pro se does not exempt [the Golombs] from the discovery rules....” [Dkt. 92 at 8.] The Golombs certainly were entitled to a protective order, but the Court cannot issue an award of fees if one of the exceptions to Rule 37 applies.[2] The Golombs’ letter to Defendants is not an adequate, good-faith attempt to resolve the issue without court action.[3] Consequently, the Golombs are not entitled to attorneys’ fees, and the Golombs’ Motion for Fees and Expenses is DENIED.

*3 SO ORDERED.