United States District Court, W.D. Louisiana, Lafayette Division
PATRICK J. HANNA, Magistrate Judge.
Currently pending is the motion to compel (Rec. Doc. 86), which was filed by non-party Alert Weather Services, Inc. The motion is opposed. Oral argument was heard and evidence was taken on June 23, 2015. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained below, the motion is GRANTED IN PART and DENIED IN PART.
This is a personal injury lawsuit, in which it is alleged that the plaintiff was injured on December 28, 2012 while being transferred from a vessel to a fixed platform in the Gulf of Mexico. The platform is allegedly owned and/or operated by Apache Corporation. Discovery revealed that the weather may have been a factor in causing the accident and that Alert Weather Services, Inc. provided contemporaneous weather forecasts to Apache. The plaintiff issued a subpoena to Alert on November 20, 2014, seeking to document the fact that Alert had provided weather forecasts to Apache on ten consecutive days including the date of the alleged accident.
Alert responded to the subpoena by producing 275 documents and an invoice for its services. After reviewing the documents, a representative of the plaintiff's counsel's office called Alert and clarified that the information requested in the subpoena were the communications between Alert and Apache. Alert again produced responsive documents and submitted a second invoice.
When the invoices went unpaid, Alert contacted the plaintiff's counsel and demanded payment. The plaintiff's counsel tendered an amount less than that invoiced but which the plaintiff argued is reasonable compensation for Alert's efforts in complying with the subpoena.
Alert now seeks, by way of the pending motion, to recover as damages the full amount of both invoices as well as a sanction in the form of the reasonable attorneys' fees incurred in bringing the motion.
A. THE "MOTION TO COMPEL"
Alert calls its pending motion a "motion to compel" but seeks relief under Fed.R.Civ.P. 45(d)(1). Motions to compel are authorized by Fed.R.Civ.P. 37 and are generally used for the purpose of enforcing the deadlines for responding to discovery requests. In this case, Alert responded to the subpoena in a timely manner, it is not attempting to have the court order responses to any discovery requests, and it did not reference or rely upon Rule 37 in its briefing. Therefore, the pending motion is not a motion to compel.
Alert is actually attempting to be protected against undue burden or expense in responding to the subpoena. Such protection is authorized by Fed.R.Civ.P. 45(d)(1), which states:
A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction - which may include lost earnings and reasonable attorney's fees - on a party or attorney who fails to comply.
Accordingly, Alert's "motion to compel" will be treated as a motion for protective ...