                                                 Aug 19 2014, 9:48 am
FOR PUBLICATION



ATTORNEYS FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

RONALD J. WAICUKAUSKI                        KEVIN W. BETZ
YVONNE BALLESTEROS                           SANDRA L. BLEVINS
Price Waicukauski & Riley, LLC               Betz + Blevins
Indianapolis, Indiana                        Indianapolis, Indiana

JUDY M. TYRRELL
Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

LISA B. GONZALEZ,                            )
                                             )
      Appellant-Plaintiff,                   )
                                             )
             vs.                             )       No. 29A02-1311-DR-984
                                             )
R. STANTON EVANS,                            )
                                             )
      Appellee-Non-Party.                    )


                   APPEAL FROM THE HAMILTON CIRCUIT COURT
                          The Honorable Paul A. Felix, Judge
                           Cause No. 29C01-0810-DR-1818


                                   August 19, 2014


                             OPINION - FOR PUBLICATION

BARNES, Judge
                                     Case Summary

       Lisa Gonzalez appeals the trial court’s order requiring her to pay $8289.33 in

attorney fees to R. Stanton Evans and its failure to require Evans to pay any attorney fees

to her. We affirm in part and reverse and remand in part.

                                          Issues

       The issues before us are:

              I.     whether the trial court properly ordered Gonzalez to pay
                     $8289.33 in attorney fees to Evans in connection with
                     his response to Gonzalez’s subpoena; and

              II.    whether the trial court erred in not holding a hearing on
                     Gonzalez’s request to be awarded attorney fees in
                     connection with her motion to compel discovery from
                     Evans.

                                          Facts

       Gonzalez was married to Hector Gonzalez. The two divorced in 2009, after the trial

court approved their property settlement agreement and made it part of the dissolution

decree. The agreement included representations from Hector stating he did not have, and

never had, any interest in certain valuable business entities. Gonzalez claims she later

learned that these representations were false and, therefore, Hector had many more assets

at his disposal, undervalued the marital estate, and fraudulently induced her acceptance of

the property settlement agreement. Gonzalez filed a motion to modify the dissolution

decree’s marital property distribution based on this new information.

       In seeking further information related to Hector’s business interests, on September

7, 2012, Gonzalez subpoenaed Evans, Hector’s business partner in various endeavors. The


                                             2
subpoena contained seventeen separate requests for production of various documents

related to Hector’s involvement in thirty-one different business entities. As required by

Indiana Trial Rule 34(C)(3) for subpoenas on non-parties, the subpoena informed Evans

that he was “entitled to payment for damages resulting from your response” to the

subpoena. App. p. 70. The subpoena requested production of the documents within thirty

days.

        On September 26, 2012, counsel for Evans wrote to Gonzalez’s counsel, stating

Evans believed “the Subpoena is very broad, intrusive and expansive and exceeds the

acceptable bounds of discovery on a non-party.” Id. at 73. The letter also stated that Evans

would “move for protective order or to quash the Subpoena unless we are able to reach

some agreement on the payment of attorneys’ fees and costs necessary for Mr. Evans to

respond to this overbroad and burdensome Subpoena.” Id. Evans never moved for a

protective order or sought to quash the subpoena, nor has there ever been any claim that

Gonzalez sought privileged material.1               On October 7, 2012, Evans obtained, with

Gonzalez’s consent, an extension of time to respond to the subpoena until October 25,

2012. When that date passed, Evans obtained a second extension of time to respond until

November 16, 2012.

        That date also passed with no production. Counsel for both parties then began

communicating by phone and email regarding production of the documents. By mid-


1
 Evans claims in his brief, “[Gonzalez’s] counsel told counsel for Mr. Evans not to provide a formal, written
response with detailed objections to each request, because she did not want to pay for Mr. Evans’ counsel
to prepare the responses.” Appellee’s Br. p. 4. This assertion is not supported by any citation to the record,
in violation of Indiana Appellate Rule 22(C). In her reply brief, Gonzalez denies having “directed” Evans’s
attorney in such a fashion.
                                                      3
November 2012, however, Evans had already compiled the documents—nearly 1000 pages

worth—after spending approximately five hours doing so.2 Gonzalez claims there was a

verbal agreement that the documents would be delivered to a business for copying and

scanning by November 16, 2012.3 Gonzalez agreed to pay the copying costs. However,

the documents were not delivered. Emails sent between counsel for Gonzalez and Evans

do not mention any demand by Evans to be paid attorney fees before the documents would

be produced. Instead, counsel for Evans blamed delays in production upon emergency

filings and an oral argument before this court in another case.

          On December 5, 2012, counsel for Evans wrote counsel for Gonzalez demanding

payment of $1500 in attorney fees and $500 to Evans for his time spent in complying with

the subpoena before the documents would be turned over. The letter asserted that “this

was made necessary by the over-breadth of the Subpoena.” Id. at 95. It also stated that, if

no agreement was reached regarding payment of this $2000, Evans would “immediately

file a motion for protective order” and seek recovery of all attorney fees without limit;

likewise, “If you proceed to file a Motion to Compel, then we will also seek protection

from the Court and all fees associated with contesting that Motion.” Id.




2
  At oral argument, counsel for Evans asserted that the documents had not been compiled by early
November 2012. However, in a response to Gonzalez’s motion to compel, counsel for Evans wrote that
they and counsel for Gonzalez “conferred again by phone on November 13, 2012, wherein Mr. Evans
informed Ms. Gonzalez that he had up to 1,000 pages of documents that were reasonably responsive to Ms.
Gonzalez’s nonparty document requests.” App. p. 97. This, along with other evidence in the record, plainly
indicates that the documents were, in fact, compiled no later than November 13, 2012.
3
    There is no written confirmation of this agreement by Evans’s counsel in the record.
                                                      4
       Gonzalez agreed to pay Evans $500 for his time but refused to pay any attorney

fees, and the documents were not delivered. Instead, on January 22, 2013, Gonzalez filed

a motion to compel production of the documents, requesting an award of attorney fees

along with production of the documents. Evans responded with a request that any granting

of the motion to compel be conditioned upon Gonzalez’s “prepayment of damages to be

proximately incurred by Mr. Evans, including reasonable attorneys’ fees incurred in

reasonable resistance and in establishing such damages.” Id. at 101. Evans did not seek to

quash or limit the subpoena. On February 26, 2013, the trial court entered an order

“conditionally granting” Gonzaelz’s motion to compel and ordering Evans to produce the

documents she requested, “within ten (10) days following the prepayment of damages” to

Evans “for his reasonable resistance and/or response” to the motion to compel. Id. at 125.

The order did not specify the amount of damages to be paid or whether “damages” included

attorney fees.

       On March 6, 2013, Evans filed a “Verified Petition for Damages.” Within this

petition, Evans claimed to have personally spent ten hours on the subpoena and sought

“damages” of $2500, or ten times his regular business consulting fee of $250 per hour. The

petition also stated that Evans’s attorneys and a paralegal incurred $8430 in fees working

on the subpoena. Although this amount totaled over $10,900, Evans said he was willing

to accept only $7520.35 in damages, “[i]n the interests of justice and fairness . . . .” Id. at

129.   On March 21, 2013, the trial court ordered Gonzalez to pay Evans $500, “and the

Court will decide the amount [Gonzalez] shall pay toward [Evans]’s attorney fees upon

presentment of detailed audit of hours worked in resolving this discovery dispute.” Id. at

                                              5
140. The order required production of the documents within ten days of the payment of

$500; apparently, both this payment and the production of the documents did occur at some

point.

         On July 1, 2013, Evans filed a “Verified Audit” of the hours his attorneys had spent

working on the subpoena issue. Id. at 141. The audit asserted that attorneys and paralegals

for Evans had spent 45.75 hours on the issue, at a total cost of $17,123.75. However, the

audit “non-charged” $8051.25 of that amount, and further reflected a “discount” of ten

percent, with the end result that Evans’s attorneys were seeking a total of $8289.33,

including expenses for postage and copying. Id. at 147. Gonzalez cites this fee affidavit

as indicating that counsel only spent 1.5 hours actually helping Evans compile the

documents requested by the subpoena, with the remainder of the time spent on fighting the

subpoena and seeking collection of attorney fees. However, it is not clear how Gonzalez

arrived at this determination.

         The trial court held a hearing on this “audit” on October 28, 2013. There is no

indication in the record that the trial court ever held any other hearing in conjunction with

the subpoena. This hearing focused exclusively upon Evans’s attorney fees request.

Counsel for Gonzalez chose not to conduct any cross-examination related to the “audit”

after being given the opportunity to do so. Also, no evidence was presented regarding the

amount of attorney fees Gonzalez incurred in pursuing the subpoena and motion to compel;

in fact, that issue was not mentioned at all during the hearing. Gonzalez likewise never

filed an attorney fee affidavit in relation to the subpoena. After the hearing, the trial court

awarded Evans $8289.33 in attorney fees and costs. Gonzalez now appeals.

                                              6
                                         Analysis

       Trial courts have broad discretion in making discovery rulings, and this court will

reverse such rulings only when there is an abuse of that discretion. International Bus.

Mach. Corp. v. ACS Human Servs., LLC, 999 N.E.2d 880, 885 (Ind. Ct. App. 2013), trans.

denied. “‘Discretion is a privilege afforded a trial court to act in accord with what is fair

and equitable in each case.’” Vernon v. Kroger Co., 712 N.E.2d 976, 982 (Ind. 1999)

(quoting McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind. 1993)). An

abuse of discretion occurs when the trial court’s decision is clearly against the logic and

effect of the facts and circumstances before the court, or if it misinterprets the law. IBM,

999 N.E.2d at 885.

       A trial court’s discovery rulings are given a strong presumption of correctness

because they are usually fact-sensitive. Id. This presumption also applies to rulings

regarding violations of discovery orders and attendant sanctions; to reverse such rulings,

there must be clear error and resulting prejudice. Id. The underlying purposes of the

Indiana Trial Rules’ discovery provisions are to provide for a minimum of court

involvement in the discovery process and to allow for a liberal discovery procedure.

Chustak v. Northern Indiana Pub. Serv. Co., 259 Ind. 390, 395, 288 N.E.2d 149,

153 (1972).

                           I. Award of Attorney Fees to Evans

       The first issue in this case is whether there was a sound basis upon which the trial

court could award Evans over $8000 in attorney fees in relation to the subpoena, where he

never sought a protective order with respect to the subpoena. This case requires us to

                                             7
balance the interest in allowing liberal discovery procedures against the competing interest

in protecting non-parties to litigation from having to bear the expense of participating in

lawsuits in which they are strangers. Ultimately, we conclude that a non-party served with

a subpoena for documents may be entitled to collect attorney fees strictly related to

complying with the subpoena, but that any additional fees, including those incurred in

fights over such fees, are not compensable unless the non-party had a reasonable basis for

resisting the subpoena.

       Here, although Evans refers to Gonzalez’s subpoena as allegedly being overbroad

and intrusive, he never filed for a protective order, nor did the trial court ever find the

subpoena to be overbroad or intrusive. The gist of this case is that Evans claims he was

entitled to insist that Gonzalez pay attorney fees to him in an amount he requested before

he had to comply with the subpoena. Evans’s argument is based on Indiana Trial Rule

34(C)(3), which governs discovery requests to non-parties and states:

                      The request shall contain the matter provided in
              subsection (B) of this rule. It shall also state that the witness
              or person to whom it is directed is entitled to security against
              damages or payment of damages resulting from such request
              and may respond to such request by submitting to its terms, by
              proposing different terms, by objecting specifically or
              generally to the request by serving a written response to the
              party making the request within thirty (30) days, or by moving
              to quash as permitted by Rule 45(B). Any party, or any witness
              or person upon whom the request properly is made may
              respond to the request as provided in subsection (B) of this rule.
              If the response of the witness or person to whom it is directed
              is unfavorable, if he moves to quash, if he refuses to cooperate
              after responding or fails to respond, or if he objects, the party
              making the request may move for an order under Rule
              37(A) with respect to any such response or objection. In
              granting an order under this subsection and Rule 37(A)(2) the

                                              8
              court shall condition relief upon the prepayment of damages to
              be proximately incurred by the witness or person to whom the
              request is directed or require an adequate surety bond or other
              indemnity conditioned against such damages. Such damages
              shall include reasonable attorneys’ fees incurred in reasonable
              resistance and in establishing such threatened damage or
              damages.

(Emphases added). Evans contends that, under the language of this rule, he reasonably

resisted Gonzalez’s subpoena because Gonzalez refused to pay any security against any

damages Evans might sustain and, therefore, he was entitled to an award of attorney fees.

Gonzalez asserts that “reasonable resistance” to a subpoena cannot be based solely upon a

responding party’s insistence to be paid attorney fees before complying with the subpoena.

       Only one Indiana case has directly addressed Indiana Trial Rule 34(C)(3), and that

is IBM. There, IBM sent a subpoena to ACS requesting a vast number of documents and

electronic files. ACS was a non-party in the litigation between IBM and the State regarding

the failed “modernization” of the State’s welfare system. ACS was slow to respond to the

subpoena, and IBM filed a number of motions to compel, several of which the trial court

granted. It does not appear that IBM paid anything to ACS before ACS eventually

produced the requested documents, nor did ACS demand prepayment of any security or

damages before it would produce the documents. After the trial between IBM and the State

was concluded, ACS filed a motion seeking an award of costs and attorney fees associated

with the subpoena. The trial court awarded ACS some of its sought-after costs related to

an e-discovery vendor and attorney fees related to a document review team because of the

“extraordinary number of requested documents.” IBM, 999 N.E.2d at 885. However, the

trial court did not award any attorney fees to ACS related to challenging or failing to timely

                                              9
comply with the subpoena because ACS did not demonstrate that it engaged in reasonable

resistance to the subpoena. Also, upon motion by IBM, the trial court awarded it a

substantial amount of attorney fees against ACS as sanctions for ACS’s delays in producing

discovery.

       On appeal by IBM, arguing that the trial court had awarded ACS too much in

damages related to the subpoena, and cross-appeal by ACS, arguing that it had been

awarded too little in damages and was improperly sanctioned, we affirmed. Among other

issues, we addressed ACS’s cross-appeal claim that the trial court erred in not awarding it

any attorney fees in connection with counsel’s resistance to IBM’s subpoena. We noted

that no prior cases had interpreted the damages provisions of Trial Rule 34(C)(3), but that,

as in other cases, “it is incumbent upon an individual seeking the payment of fees and costs

to prove their entitlement to such an award.” Id. at 889-90. This court further explained:

                     Trial Rule 34 requires a requesting party to provide
              security against damages “proximately incurred” by a non-
              party from whom discovery is sought. While we lack prior
              case law to decide this point, and the parties do not direct us to
              any cases interpreting this portion of the Trial Rule, we note
              that the rule uses language harkening to the concept of
              “proximate cause” in tort law. In that area of law, damages
              have their proximate cause in an alleged breach of care when
              “the injury was a natural and probable consequence of the
              negligent act, which, in light of the attending circumstances,
              could have been reasonably foreseen or anticipated.” And, as
              in assessing proximate cause, it is plain that under Trial Rule
              34(C)(3) some fact-finding is necessary to determine what
              damages were incurred in responding to a discovery
              request. Moreover, we observe that equitable considerations
              are within the scope of the trial court’s discretion in reaching
              decisions on discovery matters.



                                             10
                     Thus, Trial Rule 34(C)(3) does not by its plain language
              require that the trial court order payment for all damages a non-
              party might incur. To hold as much, absent an express
              statement in the Rule requiring such a conclusion, would be to
              undermine the trial court’s exercise of discretion in discovery
              matters. Thus, ACS was not as a matter of law entitled to full
              compensation of all its costs and fees by operation of Trial Rule
              34(C) alone.

Id. at 890 (citations omitted).

       Applying this standard, we held the trial court did not abuse its discretion in refusing

to award any attorney fees to ACS associated with resisting the subpoena and in awarding

it only one-half of the costs and other fees it sought. We noted that the trial court denied

very few of IBM’s motions to compel discovery and that, even if IBM had not sought

discovery from ACS, the State would have. And, although IBM requested a vast amount

of information from ACS, ACS did not explain delays in production, forced the trial court

to “‘ride herd’” over the discovery process, and incorrectly claimed that much of the

sought-after information was privileged. Id. at 890-91.

       There are some similarities between ACS’s situation and Evans’s. Both, relatively

speaking, were subjected to broad discovery requests. Neither ACS nor Evans ever

established a proper basis for resisting discovery, such as that the subpoena was overbroad

or intrusive or sought privileged materials. The delays in production by ACS largely were

unexplained, and the delay in production by Evans largely was explained only by his

demand to be paid a certain amount before production would occur, not by any inherent




                                              11
difficulty in compiling the necessary documents;4 i.e., the documents apparently were

compiled by early November 2012, but were not produced until the spring of 2013, after

Gonzalez paid the $500 to Evans that she had previously agreed to pay him. Despite these

similarities, the trial court here was not compelled to deny Evans’s attorney fees request,

given the broad discretion trial courts have in discovery matters. Generally, where abuse

of discretion is the standard of review, an appellate holding that a trial court did not abuse

its discretion in making a ruling does not mean that a similar ruling is required in a different

case with similar facts. See Maxwell v. Maxwell, 850 N.E.2d 969, 974 (Ind. Ct. App.

2006), trans. denied.

       We conclude that the amount of attorney fees the trial court awarded Evans

exceeded the bounds of what is contemplated by Trial Rule 34(C)(3). The trial court

awarded those fees following Gonzalez’s motion to compel under Trial Rule 37(A)(2).

Trial Rule 34(C)(3) requires a trial court to condition the granting of a motion to compel

production of documents from a non-party “upon the prepayment of damages to be

proximately incurred by the witness or person to whom the request is directed . . . .”

However, in the present case, the trial court technically only required Gonzalez to pay $500

to Evans as a precondition for production of the documents; the attorney fees were to be

determined later, but payment of them by Gonzalez was not a precondition of the order to




4
 As noted, ACS did not seek recoupment of its attorney fees and costs until after the trial between IBM
and the State was over. Unlike Evans, ACS did not attempt to force IBM to pay those fees and costs as a
precondition of its compliance with the subpoena.


                                                  12
compel. Thus, strictly speaking, the attorney fees were awarded outside the parameters of

Trial Rule 34(C)(3).

        The key here in our view is that Gonzalez proximately caused only a small

percentage of the attorney fees that Evans incurred. That is to say, the subpoena requested

a considerable amount of financial information related to a number of business entities. It

was entirely reasonable for Evans to consult with an attorney regarding the scope of the

subpoena, determine what needed to be provided to Gonzalez, and to review the matter to

determine if the subpoena sought any privileged material or anything of that nature.

        To the extent Gonzalez argues Evans was not entitled to any attorney fees for such

consultation and assistance, we disagree.5 In IBM, we also affirmed, over IBM’s objection,

the award of $354,070 to ACS related to a document review team complied by outside

counsel to review and redact documents that eventually were produced to IBM. IBM, 999

N.E.2d at 894-95. This holding indicates that Trial Rule 34(C)(3)’s general reference to



5
  Gonzalez cites federal cases for the proposition that Evans did not reasonably resist the subpoena because
he failed to specify precisely how the subpoena was overbroad or unduly intrusive. See, e.g., Boyer v.
Gildea, No. 1:05-CV-129, 2008 WL 4911267 at *4 (N.D. Ind. Nov. 13, 2008). These cases, however,
addressed whether it was proper to compel production of documents from a non-party, not whether the non-
party was entitled to any compensation for complying with a subpoena. Additionally, a non-party may be
compelled to comply with a discovery request, yet still have a reasonable basis for resisting the request.
This is made clear from the language of Trial Rule 34(C)(3) itself, which provides for granting a motion to
compel while at the same time requiring the prepayment of expenses to the subpoenaed party, “including
attorney fees incurred in reasonable resistance . . . .”
         Most importantly, the Federal Rules of Civil Procedure are completely different than the Indiana
Trial Rules with respect to non-party subpoenas and awards of attorney fees. Specifically, Federal Rule of
Civil Procedure 34(C) does not contain any provision permitting non-parties to obtain damages for
responding to a subpoena. Indiana Trial Rule 34(C)(3) is more protective of non-parties than the Federal
rules, because it has an express provision for allowing non-parties to obtain “damages” that might result
from complying with a subpoena. Reference to the Federal Rules of Civil Procedure and cases decided
thereunder are of little help in this case, given the completely different wording of the relevant Federal rule
from the Indiana rule.

                                                     13
“damages . . . proximately incurred by the witness or person” may include attorney fees

directly related to complying with a subpoena, regardless of whether there was a basis for

resisting it.

        We acknowledge that Indiana follows the American Rule regarding attorney fees,

meaning that such fees generally are not considered to be “damages,” in the absence of

statutory authority, an agreement between the parties, or an equitable exception such as

“obdurate behavior” or “common fund.” Lorapex, LLC v. MPI Release Tech., LLC, 964

N.E.2d 806, 816-17 (Ind. 2012). However, we observe that Trial Rule 34(C)(3) expressly

includes as recoverable “damages” attorney fees not only for “reasonable resistance” to a

discovery request, but also for such fees “incurred . . . in establishing such threatened

damage or damages.” (Emphasis added). A discovery request such as the one in this case

carries a “threat” of damages to a subpoenaed party if, for example, privileged material is

disclosed.      Non-parties subjected to subpoenas, such as when sensitive financial

information is sought as in Evans’s case, may reasonably be expected to consult with

counsel to ensure compliance with the subpoena without unnecessarily divulging

privileged information or to determine whether there is any legal basis to object to the

subpoena. We conclude that an award of attorney fees to a non-party associated with

attorney review of a discovery request and assistance with complying with that request is

within the parameters of the heightened protection provided to non-parties under Trial Rule

34(C)(3).

        If, however, such review by counsel fails to divulge a reasonable basis for resisting

the subpoena, the requested material should be provided promptly. We conclude Gonzalez

                                             14
did not proximately cause Evans to refuse to turn over the documents he compiled by mid-

November, and to withhold them for several months and not release them until the trial

court conditionally granted Gonzalez’s motion to compel. Although Evans continues to

imply in his brief that Gonzalez’s subpoena was overbroad, he never asked the trial court

to find that it was overbroad or to quash the subpoena or to modify it. The trial court, in

fact, never did find that the subpoena was overbroad. Evans also does not argue that the

subpoena sought information that was privileged, or irrelevant to Gonzalez’s underlying

action against her ex-husband, or anything of the kind. The only possible “reasonable”

basis Evans had for resisting the subpoena—especially after Evans had already compiled

the documents—would have been his insistence upon security in the form of Gonzalez

paying attorney fees before the documents would be produced.

       Some comparison to the Indiana rule governing motions to compel discovery, and

awards of sanctions thereon, is helpful in defining the otherwise undefined term

“reasonable resistance” in Trial Rule 34(C)(3). Specifically, Trial Rule 37(A)(4) provides

that if a motion to compel is granted or denied, the trial court shall award attorney fees to

the party who wins the motion, unless the losing party can establish that the resistance to

or seeking of discovery was “substantially justified or that other circumstances make an

award of expenses unjust.” This court has defined “substantially justified” resistance to or

seeking of discovery as existing “if reasonable persons could conclude that a genuine issue

existed as to whether a person was bound to comply with the requested discovery.” Penn

Cent. Corp. v. Buchanan, 712 N.E.2d 508, 513 (Ind. Ct. App. 1999), trans. denied.



                                             15
       The “substantially justified” language is similar to the “reasonable resistance”

language, so it makes sense that the same “reasonable persons” definition might apply

under both rules. The “substantially justified” standard under Trial Rule 37(A)(4) is used

to avoid the payment of attorney fees, while the “reasonable resistance” standard under

Trial Rule 34(C) entitles one to attorney fees. And, the drafters of the rules chose not to

use exactly the same language in both rules. It is difficult, however, to craft a definition of

“reasonable resistance” that is significantly different than “substantially justified.”

       We also hold that Trial Rule 34(C)(3) does not permit a non-party to unilaterally

withhold documents requested by a subpoena unless the requesting party first pays attorney

fees in an amount demanded by the non-party. The language of the rule suggests that if a

non-party objects to a subpoena, it should either make a written objection to the subpoena

within thirty days or move to quash the subpoena under Indiana Trial Rule 45(B). Evans

did not file a motion to quash. Evans did write two letters to Gonzalez complaining about

the subpoena and requesting attorney fees, but no objections were filed with the trial court.

Evans never articulated or specified anything more than broad generalities in attempting to

explain what was objectionable or onerous about the subpoena aside from the fact that it

requested much information. Despite that claim, it ultimately took Evans only about five

hours to collect all the information requested by the subpoena. After that, there was no

reasonable basis for refusing to give the documents to Gonzalez.

       Regardless, Evans claims he was permitted to perpetually withhold that information

from Gonzalez unless she agreed to pay security to him in an amount set by him. Even if

Trial Rule 34(C)(3) permits a subpoenaed party to ask for prepayment of security from the

                                              16
subpoenaing party, we do not believe that a disagreement between the parties as to the

appropriate amount of such security permits the subpoenaed party to withhold the

documents indefinitely and to run up more attorney fees in the process. In discovery

matters, parties are encouraged, even required by rule, to “[m]ake a reasonable effort to

reach agreement with the opposing party concerning the matter which is the subject of the

motion or request . . . .” Ind. Trial Rule 26(F)(1). Although discovery is intended to require

little trial court supervision or assistance, trial courts may become involved in the process

when the system breaks down. M.S. ex rel. Newman v. K.R., 871 N.E.2d 303, 311 (Ind.

Ct. App. 2007).

         Here, Gonzalez offered to pay Evans $500 in connection with the subpoena, while

Evans ultimately demanded $2000. Once it was clear Gonzalez and Evans could not agree

upon an appropriate amount of security for the subpoena, and there being no substantive

reason for resisting it, we believe it was incumbent upon Evans to provide the documents

to Gonzalez and ask the trial court to settle the matter of his attorney fees. Given the

considerable interest in allowing liberal discovery procedures, we conclude there was no

reasonable resistance to Gonzalez’s subpoena by Evans and that he was not entitled to any

attorney fees related to such resistance. For the present case, and based on these specific

facts, we conclude that Evans began resisting the subpoena—unreasonably so—for the

time period after he had already compiled the documents but refused to turn them over to

Gonzalez. Once the documents were in fact compiled, they should have been immediately

provided to Gonzalez, and Evans could have then filed a petition for fees with the trial

court.

                                             17
        Given our above holdings, we reverse the attorney fees award of $8289.33 to Evans.

We remand to the trial court for a determination of how much in attorney fees Evans

actually incurred in relation to his compliance with the subpoena and document review by

his attorneys, excluding such fees related to Evans’s months-long effort to avoid providing

the documents to Gonzalez.6 In our view, this resolution properly balances the general

interest in liberal discovery procedures underlying the Indiana Trial Rules with the extra

protection for non-parties expressly provided for in Trial Rule 34(C)(3).

                          II. Non-Award of Attorney Fees to Gonzalez

        Gonzalez also contends the trial court erred in not holding a hearing to determine

whether she was entitled to an award of attorney fees in connection with her motion to

compel.7 Indiana Trial Rule 37(A)(4) provides that if a motion to compel is granted,

                 the court shall, after opportunity for hearing, require the party
                 or deponent whose conduct necessitated the motion or the party
                 or attorney advising such conduct or both of them to pay to the
                 moving party the reasonable expenses incurred in obtaining the
                 order, including attorney’s fees, unless the court finds that the
                 opposition to the motion was substantially justified or that
                 other circumstances make an award of expenses unjust.

If a motion to compel is denied, the trial court shall award attorney fees to the non-moving

party, unless, “after opportunity for hearing,” the trial court finds that “the making of the


6
 Also excluded would be fees related to communications with counsel for Gonzalez regarding whether and
when the subpoenaed documents would be produced.
7
 Counsel for Evans has cited a not-for-publication memorandum decision from this court in support of his
arguments on this issue. At oral argument, we admonished counsel that such citation was in clear violation
of Indiana Appellate Rule 65(D) as currently written. We emphatically state that this Court will strike from
a brief any citations to not-for-publication decisions, unless they fit an exception in Appellate Rule 65(D).
That rule is there for a reason. There is a distinct difference between for-publication and not-for-publication
opinions. The rule and policy of this Court are clear, and any assumptions to the contrary are incorrect.
                                                     18
motion was substantially justified or that other circumstances make an award of expenses

unjust.” Rule 37(A)(4) further provides if a motion to compel “is granted in part and denied

in part, the court may apportion the reasonable expenses incurred in relation to the motion

among the parties and persons in a just manner.”

       When a party moves to compel discovery and to be awarded attorney fees in

conjunction with the motion and the trial court grants the motion to compel, the trial court

must hold a hearing to ascertain whether the non-moving party’s noncompliance with

discovery was substantially justified or whether other circumstances would make the award

of expenses unjust. Drake v. Newman, 557 N.E.2d 1348, 1352 (Ind. Ct. App. 1990), trans.

denied. If the non-moving party fails to show that its non-compliance was justified or why

an award of expenses would be unjust, the trial court must award reasonable attorney fees

to the moving party. Id. There is a presumption that attorney fees will be awarded to a

party who successfully moves to compel discovery. Georgetown Steel Corp. v. Chaffee,

519 N.E.2d 574, 576 (Ind. Ct. App. 1988), trans. denied.

       Here, Gonzalez’s motion to compel clearly requested that she be awarded attorney

fees in conjunction with the motion. The trial court in two separate orders conditionally

granted the motion to compel, and ultimately required Gonzalez to pay $500 to Evans

before he had to comply with the subpoena, without ever holding a hearing on the matter.

The two orders issued by the trial court regarding the motion to compel also were silent

regarding Gonzalez’s attorney fees request. In a clear-cut case such as Drake, this plainly

would have been erroneous, and we would be required to remand this case for a hearing

regarding Gonzalez’s attorney fees.

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       This case is not clear-cut. We conclude that Gonzalez has waived her claim to

attorney fees, and Drake does not apply here. Although Trial Rule 37(A)(4) is largely

designed to be self-executing with respect to attorney fees, we first note that it is unclear

that this was a case where Gonzalez automatically was entitled to fees, given that the

granting of her motion was conditioned upon payment of security to Evans. Furthermore,

Gonzalez had numerous time and opportunities to present some evidence or argument to

the trial court regarding her attorney fees, but she never did so. Generally, a party waives

an issue that he or she failed to present to the trial court when there was an opportunity to

present that issue. In re R.P., 949 N.E.2d 395, 399 (Ind. Ct. App. 2011). Gonzalez never

expressly requested a hearing to address her attorney fees claim, she never submitted any

attorney fees affidavit to the trial court, and she (or her attorney) did not mention her

purported entitlement to attorney fees during the hearing addressing Evans’s attorney fees

claim. Approximately ten months passed between the time of the conditional granting of

Gonzalez’s motion to compel and that hearing. We believe Gonzalez had an obligation

under these circumstances to present some evidence or argument to the trial court at some

point regarding her attorney fees or to request a hearing on them, particularly given that it

is not perfectly clear whether she automatically was entitled to them. Gonzalez has waived

her claim to attorney fees, and we will not address the issue.

                                        Conclusion

       We interpret Trial Rule 34(C)(3) as permitting non-parties to recover attorney fees

associated with complying with a subpoena or other discovery request, but that refusing to

comply with a discovery request solely on the basis that the parties cannot agree on an

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appropriate amount to pay does not constitute reasonable resistance to a discovery request.

Evans did not reasonably resist Gonzalez’s subpoena, but he is entitled to some attorney

fees associated with complying with the subpoena. Therefore, we reverse the award of

$8229.33 in attorney fees to Evans and remand for determination of the amount of attorney

fees he incurred in strict relation to complying with the subpoena. We affirm the trial

court’s failure to award any attorney fees to Gonzalez upon her motion to compel, given

her failure to present any evidence or make any argument to the trial court regarding any

such fees despite having an opportunity to do so.

       Affirmed in part, reversed in part, and remanded.

VAIDIK, C.J., and BAKER, J., concur.




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