*1 1. The Court previously denied Plaintiffs' ex parte application to compel the deposition of an Amgen employee. (Docket # 39.) Defendant subsequently moved for an award of approximately $16,000 in fees incurred in opposing the application. (Docket # 47 at 4.) Plaintiff filed a timely opposition. (Docket # 52.)

2. The Court concludes that a modest fee award is appropriate. Plaintiffs ex post facto justification of the attempt to depose the HR employee is no more convincing than the original daffy presentation. I thought the motion to compel was frivolous when I first dealt with it; I still do.

3. However, I don't see a basis for imposing the entire big-firm bill on Plaintiff. Instead, in an exercise of discretion, the Court orders Plaintiff's attorneys to pay the sum of $2,500 in fees to the defense.

4. Federal Rule of Civil Procedure 37(a)(5) allows a victorious party in a discovery motion to recover its “reasonable expenses incurred in making [or opposing] the motion, including attorney's fees.” When a discovery-related motion is denied (as here), “the 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).

5. Rule 37(a)(5) “is really aimed at curbing discovery abuses and preventing waste of judicial time when there is no genuine dispute.” Phillips & Stevenson, Federal Civil Procedure Before Trial, ¶ 11:2386 (The Rutter Group 2020) (emphasis omitted) (formerly Schwarzer, Tashima, & Wagstaffe). A “genuine dispute” is one in which “reasonable people could differ as to the appropriateness of the contested action.” Id. at ¶ 11:2382 (citing cases); Reygo Pacific Corp. v. Johnston Pump Co., 680 F.2d 647, 649 (9th Cir. 1982) (interpreting the then-recent fee-shifting amendment to Rule 37, noting that “A request for discovery is ‘substantially justified’ under the rule if reasonable people could differ as to whether the party requested must comply.”) The losing party to a discovery motion bears the burden “affirmatively to demonstrate that its position was substantially justified.” Phillips & Stevenson, ¶ 11:2382.

6. It is “for the court to decide what amount is proper” in evaluating a request for expenses. 8B Wright, Miller & Marcus, Federal Practice & Procedure, § 2288 (3d ed. 2010 and supp.). An appellate court reviews an award of fees or sanctions for abuse of discretion. R&R Sails, Inc. v. Insurance Co. of Pennsylvania, 673 F.3d 1240, 1245 (9th Cir. 2012); Republic of Ecuador v. Mackay, 742 F.3d 860, 864 (9th Cir. 2014).

7. In the fee opposition brief, Plaintiff tries to demonstrate that the original expedited proceedings were substantially justified. Plaintiff argues that her lawyers “reasonably believed” that Ms. Smith could provide testimony “to likely yield evidence supporting” the claim that the Amgen arbitration agreement was procedurally unconscionable. (Docket # 52 at 10.) Plaintiff offers this argument based on the fact that Ms. Smith worked at Amgen's Thousand Oaks facility, and recited her familiarity with the company's policies and procedures in the terse declaration filed in opposition to the TRO request. (Id. at 11.)

*2 8. That's resoundingly unconvincing. Any clear reading of Ms. Smith's declaration (which was the subject of the deposition motion, not her overall knowledge of the company's business practices (Docket # 32 at 3)) reveals that the minimal statement was offered to authenticate certain items – including the employment records – as a custodian of records. The declaration obviously tracks the language of the hearsay exception provisions of Federal Rule of Evidence 803(6)(A-D). (Docket # 27-1 at 2.) Moreover, Amgen's lawyers told Plaintiffs legal team before the filing of the emergency application that Ms. Smith's declaration was limited to authentication of those items. (Docket # 32-1 at 14.)

9. For Plaintiff to assert well after the fact that Ms. Smith was an expert or percipient witness with relevant knowledge of Ms. Dierl's situation – more so than any of the many other HR staff members at a major multinational corporation – solely on the basis of the flimsy declaration is just absurd. The desire to depose Ms. Smith based on her focused custodian of records declaration was unnecessary and unreasonable. Plaintiff's original motion was not substantially justified.

10. Neither, in all candor, was the defense fee bill. I'll put to one side my visceral reaction to Mr. Spiegel's extraordinary hourly rack rate. But even after applying the Groupon to the bill presented to Amgen, the number of hours and the rates charged by three Bunker Hill lawyers to respond (yes, rapidly) to a discovery motion were pretty high. It's not reasonable under Rule 37 to stick those full costs on Plaintiff.

11. Ms. Madjidi posits that the time of Messrs. Dyk and Heckenlively should be billed at rates of roughly $470 and $760 per hour. (Docket # 52 at 16.) Fine. It's not unreasonable to conclude[1] that Mr. Dyk took four hours to assemble the opposition papers and that Mr. Heckenlively took two hours to review them, plus to allocate a few minutes of his time to the in-court presentation with me. That minimal expenditure already takes us north of $3,000 in fees.

12. As a matter of equity, I won't impose a hefty fee award based on the outcome of the poorly conceived motion. I also recognize that the lawyers were able to resolve the remainder of their dispute (with my gentle encouragement) at our hearing. That saved the Court and the parties a considerable amount of grief.

13. So, in an express exercise of discretion, it is ordered that Plaintiffs attorneys will pay the sum of $2,500 to the defense pursuant to Rule 37.[2] This payment will be completed within 14 days. Plaintiffs will promptly file a notice with the Court to document the payment.

14. The Court expressly opines that the fee award in this action should not be considered a personal sanction on an attorney that is potentially reportable to the State Bar of California pursuant to Business and Professions Code section 6068(o)(3). C.f. Medina v. United Parcel Service, No. C-06-791 JW PVT, 2007 WL 2123699 (N.D. Cal. 2007) (state statute “exempts” discovery-related proceedings from self-reporting obligation).