*1 Pursuant to Judge Kearney's Orders of April 28, 2022 (D.I. 402, D.I. 404), Defendants’ requests for reasonable fees incurred in responding to several of Plaintiffs’ motions for sanctions were referred to me as Special Master. More specifically, in the first of Plaintiffs’ motions (D.I. 350), Plaintiffs claimed that Defendants “intentionally and permanently destroyed all copies of Allscripts’ source code and other data stored on 30-40 laptops.” (D.I. 350 at 6) Plaintiffs requested that the Court impose an adverse evidentiary inference, among other sanctions. In the second of Plaintiffs’ motions (D.I. 370), Plaintiffs moved for sanctions for Defendants’ alleged failure to produce deponent Venkat Deepak, also asking for the imposition of an adverse evidentiary inference. I denied both motions (D.I. 383, D.I. 394), without addressing Defendants’ request for attorney fees.

1. Rule 37(a)(5)(B) of the Federal Rules of Civil Procedure provides that, if a motion for an order compelling disclosure or discovery is denied, the court “must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees.” This presumption of cost-shifting has an important caveat, however: “[T]he court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(a)(5)(B). The Parties agree that the above standard applies to proceedings arising under sub-sections other than 37(a). (D.I. 531 at 1; D.I. 530 at 2) See Al-Sabah v. Agbodjogbe, 2019 WL 4447235, at *6 (D. Md. Sept. 17, 2019). The fact that a court ruled unfavorably “does not mean, ergo that [the party] raised frivolous or unjustifiable” arguments. Baier v. Princeton Office Park, L.P., 2018 WL 5253288, at *5 (D.N.J. Oct. 22, 2018). Substantial justification requires showing: “(1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory it propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced.” Corona v. Barnhart, 431 F. Supp. 2d 506, 511 (E.D. Pa. 2006). In other words, “[s]ubstantial justification requires justification ‘to a degree that could satisfy a reasonable person,” e.g., if there is a “ ‘genuine dispute’ ” or if “ ‘reasonable people could differ’ ” as to the appropriateness of the contested action. Baier, 2018 WL 5253288, at *5 (citations omitted).

2. With respect to the first of the Rule 37 motions through which Plaintiffs requested sanctions for alleged spoliation of ESI on local computers at Mahathi headquarters in India (D.I. 350), I suggested in my recommended order that the record created by the Parties was confusing at best, so much so that I could not determine whether the ESI sought by Plaintiffs had been lost; i.e., Plaintiffs had not carried their burden of proof in this regard. (D.I. 383 at 3, 5) I, nevertheless, went on to the question of whether a loss would prejudice Plaintiffs. In this regard, I concluded that Plaintiffs had not proffered persuasive arguments or evidence that they were prejudiced by the alleged spoliation given their access to the cloud-storage repository and their expert's ability to complete his report without mention of the missing data. Ultimately, I observed that Plaintiffs had filed a motion for sanctions rather than a motion for access to the computers in question, leaving me without actual proof of loss in the first instance and only conclusory arguments about the resulting prejudice even assuming loss. Judge Kearney agreed, declaring in his order that Plaintiffs “decided to jump right to sanctions rather than a motion to compel access to the computers” and, indeed, had not requested access even in their motion. (D.I. 402, fn.1 at 3) In light of this record, I conclude that Plaintiffs have not demonstrated that their motion for sanctions (D.I. 350) was substantially justified or that other circumstances would make the award of fees unjust.

*2 3. Plaintiffs’ second motion (D.I. 370) dealt with the alleged failure of Defendants to produce for deposition Venkat Deepak before he left the employ of Mahathi. Plaintiffs argued that Mr. Deepak was a “managing agent” pursuant to Rule 37(d) and, therefore, had an obligation to make himself available for deposition upon being served with proper notice or be subject to sanctions. Although I found in my recommended order that Mr. Deepak was not a “managing agent” and, therefore, was not subject to sanctions under Rule 37(d), Judge Kearney denied Plaintiffs’ motion for sanctions on other grounds. In his order dated May 4, 2022, Judge Kearney found that Plaintiff “never issued proper notice required under Federal Rules of Civil Procedure 30(b)(1) and 37(d)(1)(A)(i),” and “wondered why Plaintiffs move[d] directly to sanctions rather than first noticing or issuing process to depose the foreign witness, then moving to compel the Defendant to produce its managing agent or following procedures to subpoena a foreign witness before the close of discovery.” (D.I. 430) Under these circumstances, I conclude that Plaintiffs’ motion for sanctions (D.I. 370) was not substantially justified, nor are there circumstances that would make an award of fees unjust.

4. I have concluded that the two motions for sanctions were not substantially justified and that there are no circumstances that would make an award of costs unjust. Although Plaintiffs argue that Defendants should have segregated the amount of time spent and fees incurred for each motion, they have not objected to the attorney hourly rates or to any specific time allocations recorded by Defendants. Here, where I am recommending that fees for both motions be awarded, I find that the invoice submitted adequately describes the subject matter of the time spent during the correct time period. (D.I. 531, Exs. 1-2) In sum, I find the fees requested to be reasonable.

THEREFORE, I recommend that Defendants’ request for attorney fees incurred in connection with defending against Plaintiffs’ motions for sanctions be granted in the amount of $36,900.05.