                                                                           FILED
                                                                       Dec 30 2019, 8:51 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEES
Paul L. Jefferson                                         THOMAS KELLEY, CHARLES
Bradley J. Buchheit                                       SURACK, SWEETWATER
McNeely Stephenson                                        SOUND, INC., KYLE WITWER,
Indianapolis, Indiana                                     WITWER CONSTRUCTION, INC.,
                                                          ANDREA SCHENKEL, WILLIAM
James P. Buchholz                                         P. SCHENKEL, IV, DARRICK
Tourkow, Crell, Rosenblatt & Johnston,                    HOOPINGARNER, AND AARON
LLP                                                       GAROFOLA
Fort Wayne, Indiana
                                                          Mark E. GiaQuinta
                                                          Sarah L. Schreiber
                                                          Haller & Colvin, P.C.
                                                          Fort Wayne, Indiana

                                                          ATTORNEYS FOR APPELLEE
                                                          JOSEPH OSCAR MITSON
                                                          Stephen J. Peters
                                                          David I. Rubin
                                                          Kroger Gardis & Regas, LLP
                                                          Indianapolis, Indiana

                                                          ATTORNEYS FOR APPELLEE
                                                          INDIANA UNIVERSITY HEALTH
                                                          Norris Cunningham
                                                          Kimberly E. Schroder
                                                          Katz Korin Cunningham, PC
                                                          Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA


Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019                           Page 1 of 29
Lutheran Health Network of                                December 30, 2019
Indiana, LLC, Lutheran Health                             Court of Appeals Case No.
Network Investors, LLC, and                               19A-MI-654
CHSPSC, LLC,                                              Appeal from the Allen Superior
Appellants-Plaintiffs,                                    Court
                                                          The Honorable Nancy Eshcoff
        v.                                                Boyer, Judge
                                                          Trial Court Cause No.
Brian Bauer, John Doe #1, and                             02D01-1711-MI-1018
John Doe #2-5,
Defendants,

        and


Thomas Kelley, Charles Surack,
Sweetwater Sound, Inc., Kyle
Witwer, Witwer Construction,
Inc., Andrea Schenkel, William
P. Schenkel, IV, Darrick
Hoopingarner, Aaron Garofola,
and Joseph Oscar Mitson,
Non-Parties-Appellees,

        and


Indiana University Health,
Non-Party Intervenor-Appellee



Crone, Judge.




Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019                  Page 2 of 29
                                              Case Summary
[1]   Lutheran Health Network of Indiana, LLC, Lutheran Health Network

      Investors, LLC, and CHSPSC, LLC (collectively “Lutheran”), filed a

      complaint in Tennessee state court against former CEO of Lutheran Health

      Network (“LHN”) Brian Bauer and five John Does. Pursuant to Indiana Trial

      Rule 28(E), Lutheran initiated an ancillary proceeding in Allen Superior Court

      in Indiana (“the trial court”) to assist its discovery in the Tennessee lawsuit.

      Lutheran asked the trial court to authorize service of subpoenas for testimony

      and documents on various non-parties domiciled in Indiana, which the court

      did. Indiana University Health (“IU Health”) was allowed to intervene in the

      ancillary proceeding to protect its interests with respect to confidential and

      proprietary documents and information that Lutheran requested from non-

      parties who were IU Health employees. Lutheran, the non-parties, and IU

      Health repeatedly requested either enforcement of or relief from the discovery

      requests. The Tennessee lawsuit was dismissed while discovery matters were

      still pending in the trial court. Pursuant to Indiana Trial Rule 34(C)(3), some of

      the non-parties and IU Health (collectively “Appellees”) requested damages

      resulting from Lutheran’s discovery requests, including attorneys’ fees and

      costs. The trial court granted the requests over Lutheran’s objection and

      awarded fees to the non-parties and fees and costs to IU Health.


[2]   Lutheran now appeals, arguing that the trial court lacked jurisdiction to award

      fees and costs; that the trial court erred in ruling that Appellees are entitled to

      fees under Trial Rule 34(C)(3); that the trial court erred in ruling that IU Health

      Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019        Page 3 of 29
      has standing to seek fees and costs under that rule; and that the trial court never

      afforded it an opportunity to challenge the reasonableness of the requested fees.

      We hold that the trial court did not lack jurisdiction to award fees and costs;

      that the trial court did not err in ruling that Appellees are entitled to fees under

      Trial Rule 34(C)(3); that the trial court did not err in ruling that IU Health has

      standing to seek fees and costs under that rule; and that Lutheran must be given

      an opportunity to challenge the reasonableness of the requested fees.

      Accordingly, we affirm in part and remand for further proceedings.


                                  Facts and Procedural History 1
[3]   The relevant facts are undisputed. Bauer is a resident of Fort Wayne, Indiana,

      and was the CEO of LHN and Lutheran Hospital of Indiana. In 2016, Bauer

      and a group of Fort Wayne physicians unsuccessfully attempted a buyout of

      Lutheran. LHN terminated Bauer, who then consulted with IU Health about

      entering the Fort Wayne hospital market. On November 2, 2017, Lutheran

      filed a complaint in Tennessee state court against Bauer and five John Does.

      The complaint alleged that the John Does were “a singular or group of

      anonymous online commenters that post on the social media network

      Facebook under the pseudonym ‘Sajin Young’” and that the Facebook profile

      “was created for the purposes of: (1) falsely portraying Lutheran and LHN; and

      (2) intimidating and harassing Lutheran’s employees and creating a hostile




      1
        We held oral argument on December 5, 2019, at Jay County High School. We thank the staff and students
      for their hospitality and interest, and we thank counsel for their excellent advocacy.

      Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019                        Page 4 of 29
      work environment to drive away qualified employees from Lutheran’s

      businesses in Fort Wayne[,]” which is in Allen County. Lutheran’s App. Vol. 2

      at 50, 64. The complaint asserted claims for breach of contract, defamation,

      trade and commercial disparagement, unfair and deceptive business practices,

      and tortious interference with existing and prospective business relationships.

      The complaint also asserted that Bauer consented to personal jurisdiction in

      Tennessee pursuant to a stock option agreement that was the basis for the

      breach of contract claim. The complaint included a prayer for injunctive relief

      and damages.


[4]   Lutheran filed a motion to expedite discovery, which the Tennessee court

      granted. Lutheran petitioned the trial court to open an ancillary proceeding in

      Allen County pursuant to Indiana Trial Rule 28(E), which provides in pertinent

      part,


              Assistance to Tribunals and Litigants Outside this State. A
              court of this state may order a person who is domiciled or is
              found within this state to give his testimony or statement or to
              produce documents or other things, allow inspections and copies
              and permit physical and mental examinations for use in a
              proceeding in a tribunal outside this state. The order may be
              made upon the application of any interested person or in
              response to a letter rogatory and may prescribe the practice and
              procedure, which may be wholly or in part the practice and
              procedure of the tribunal outside this state, for taking the
              testimony or statement or producing the documents or other
              things. To the extent that the order does not prescribe otherwise,
              the practice and procedure shall be in accordance with that of the
              court of this state issuing the order.


      Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019     Page 5 of 29
[5]   On November 8, the trial court granted Lutheran’s petition and issued an order

      authorizing Lutheran to serve subpoenas issued by the Tennessee court for

      testimony and production of documents on non-parties Dr. William Cast and

      Northeast Indiana Citizens for Healthcare Excellence, Inc. (“NICHE”). 2 Those

      subpoenas, and the other subpoenas issued in this proceeding, contain

      references to the Tennessee Rules of Civil Procedure, but the trial court’s

      discovery orders do not prescribe the practice or procedure for taking testimony

      or producing documents otherwise than in accordance with the Indiana Trial

      Rules. The subpoenas ordered Dr. Cast to appear with specified documents for

      a deposition on specified topics in Fort Wayne on November 21. The requested

      documents and deposition topics primarily involved communications or

      information regarding Sajin Young, NICHE, Bauer, and IU Health. Dr. Cast

      and NICHE moved to quash the subpoena due to scheduling conflicts, and the

      parties rescheduled the deposition for December 19.


[6]   Meanwhile, on November 29, the trial court authorized the service of

      additional subpoenas on non-parties Aaron Garofola and Ozzie Mitson, who

      were ordered to produce similar documents and appear for depositions on




      2
       According to the complaint, NICHE “is an Indiana domestic nonprofit corporation with its principal place
      of business in Fort Wayne[.]” Lutheran’s App. Vol. 2 at 51. “NICHE was created in June 2017” by Dr. Cast
      and others and “is a self-proclaimed ‘group of concerned individuals,’ whose stated focus ‘is to hold
      accountable Community Health Systems.’” Id. Sajin Young posted derogatory comments about Lutheran
      on NICHE’s Facebook page. Id. at 65.

      Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019                         Page 6 of 29
      similar topics on December 20. Both Garofola and Mitson had been employed

      by Lutheran, and Mitson was now employed by IU Health.


[7]   On December 6, Bauer moved to dismiss the Tennessee lawsuit. NICHE, Dr.

      Cast, Garofola, and Mitson moved to quash their subpoenas, arguing that the

      ancillary proceeding would be rendered moot if Bauer’s motion was successful.

      On December 14, the trial court granted the motions to quash over Lutheran’s

      objection.


[8]   Also on December 14, the trial court granted IU Health’s motion to intervene in

      the ancillary proceeding; at a hearing on that date, Lutheran stated that it had

      no objection to the motion. 12/14/17 Tr. Vol. 2 at 6. In its motion to

      intervene, IU Health noted that it had been subpoenaed by Lutheran in a

      related ancillary proceeding in Marion Superior Court and that it had filed a

      motion to quash the subpoena, which ultimately was partially successful, on the

      basis that Lutheran was “seeking confidential and proprietary information from

      IU Health that is not relevant to the Tennessee Lawsuit.” Lutheran’s App. Vol.

      2 at 120. IU Health learned that Lutheran had subpoenaed Mitson and made

      discovery requests “that would potentially implicate documents or information

      Mr. Mitson created, sent or received while an employee of IU Health.” Id. IU

      Health requested, and was granted, “a protective order requiring that any

      documents or information to be produced by Mr. Mitson related to IU Health

      be approved by IU Health prior to its production to the parties in this action, so

      that IU Health has an opportunity to assert relevant objections or privileges that

      may apply.” Id. at 122.

      Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019     Page 7 of 29
[9]    On December 27, Lutheran amended its complaint to add a breach of loyalty

       claim against Bauer. On February 14, 2018, the Tennessee court granted

       Bauer’s motion to dismiss as to the disparagement, deceptive business practices,

       and breach of loyalty claims, but denied the motion as to the remaining claims

       and issued a temporary injunction against Bauer as to certain activities.


[10]   On April 10, Lutheran filed a motion for authorization to serve subpoenas for

       testimony and documents on Dr. Cast, NICHE, and Mitson, as well as on the

       following additional non-parties: former Lutheran (and subsequent IU Health)

       employees Jennifer Ann Garver and Dr. Geoff Randolph, former LHN board

       members Thomas Kelley and Charles Surack, and Surack’s company

       Sweetwater Sound, Inc. 3 The trial court granted the motion on April 18. Also

       on that date, Mitson filed a motion to quash or limit his subpoena, which was

       withdrawn pending negotiations regarding its timing and scope.


[11]   On May 11, Lutheran filed a motion for authorization to serve subpoenas for

       testimony and documents on non-parties Witwer and Witwer Construction,

       Inc., which the trial court granted.4 Witwer moved to quash the subpoenas or

       limit the scope of document production and deposition length. On July 2, the



       3
        According to Lutheran, “Kelley and Surack each had direct knowledge of Bauer’s attempts to sell LHN
       without the knowledge or consent of its majority owner[,]” and “Surack employed Bauer, Mitson, and others
       upon leaving their employment with Lutheran, and gave them the use of an email server and office space to
       conduct their business, including the negotiation of a joint venture between Bauer and IU Health.”
       Lutheran’s Br. at 12 n.8.
       4
        According to Lutheran, “Lutheran subpoenaed Witwer because the discovery process revealed that Bauer
       had regularly communicated with Witwer concerning his secret plan to force a sale of LHN.” Lutheran’s Br.
       at 13 n.9.

       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019                         Page 8 of 29
       trial court issued an order limiting the deposition time and scope of document

       production for Witwer, Kelley, Garver, Mitson, and Dr. Randolph. On July

       24, Lutheran filed a motion for rule to show cause regarding Dr. Randolph’s

       failure to comply with his subpoena. On August 17, after a hearing, the trial

       court ordered Dr. Randolph to provide responsive documents.


[12]   On September 21, Lutheran filed a motion for authorization to serve subpoenas

       for testimony and documents on non-parties Andrea Schenkel and her son

       William Schenkel IV, former Lutheran employees whom Bauer had recruited to

       join him at IU Health. IU Health moved for a protective order on the basis that

       the scope of document production for the Schenkels should have limits similar

       to those for Dr. Randolph. The trial court issued a protective order on October

       18 and authorized the issuance of the subpoenas on October 31.


[13]   On November 2, Lutheran filed a motion for authorization to serve a subpoena

       for testimony and documents on non-party Darrick Hoopingarner, who

       allegedly had information regarding Sajin Young’s identity and activities; the

       trial court granted the motion on November 9. On November 13, the Schenkels

       filed a motion to quash their depositions and asked that Lutheran “be ordered

       to pay all fees associated with the subpoenas upon their presentment to this

       court.” Lutheran’s App. Vol. 7 at 147. No specific basis was cited for this

       request. On November 14, Hoopingarner filed a motion to quash his subpoena

       and deposition, which the trial court granted that same day.




       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019   Page 9 of 29
[14]   On November 23, a Fort Wayne newspaper published a letter to the editor from

       former LHN hospital employee Craig Sorg; pursuant to a settlement agreement

       with Lutheran, Sorg admitted in the letter to creating and posting statements

       under the Sajin Young Facebook profile. Sorg was represented by attorney

       Mark GiaQuinta, who has also represented Kelley, Surack, Sweetwater Sound,

       Witwer, Witwer Construction, the Schenkels, Hoopingarner, and Garofola

       (collectively “the Non-Parties”), as well as Dr. Cast and NICHE.


[15]   On November 27, Lutheran and Bauer filed a proposed agreed order of

       voluntary dismissal in the Tennessee court. On November 29, Dr. Cast,

       NICHE, Kelley, Surack, Sweetwater Sound, Witwer, Witwer Construction,

       and the Schenkels filed in the trial court a petition for attorneys’ fees that cites

       Himsel v. Indiana Pork Producers Ass’n, 95 N.E.3d 101 (Ind. Ct. App. 2018),

       which contains an extensive discussion of Indiana Trial Rule 34(C)(3); we

       address that rule more fully below. Counsel attached designated evidence and a

       fee affidavit to the motion; some of the fees are for deposition preparation and

       attendance. See, e.g., Lutheran’s App. Vol. 8 at 27 (Kelley’s fee statement).


[16]   On November 30, the Tennessee court entered an agreed order of voluntary

       dismissal, pursuant to which Lutheran’s breach of contract and tortious

       interference claims against Bauer were dismissed with prejudice and the

       defamation claim was dismissed without prejudice. That same day, Lutheran

       filed in the trial court a notice of dismissal requesting the termination of the

       ancillary proceeding.



       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019       Page 10 of 29
[17]   On December 3, Mitson filed a petition for attorneys’ fees that specifically cites

       Trial Rule 34(C)(3); counsel attached a fee affidavit and a billing statement to

       the petition. On December 6, the Non-Parties filed an amended petition for

       attorneys’ fees that specifically mentions Trial Rule 34(C)(3). Dr. Cast and

       NICHE moved to withdraw their fee petition based on their stated “desire to

       maintain journalistic neutrality in this matter.” Lutheran’s App. Vol. 8 at 75.

       On December 12, IU Health filed a motion for attorneys’ fees and costs

       pursuant to Trial Rule 34(C)(3), seeking compensation for the time spent

       reviewing and responding to subpoenas served on its employees, who had

       retained separate counsel; counsel attached a fee affidavit and a billing

       statement to the motion.


[18]   On December 14, Lutheran filed an objection to the fee petitions, asserting that

       the trial court lacked jurisdiction to hear the petitions due to the termination of

       the Tennessee lawsuit; that Appellees waived their opportunity to seek fees

       because their petitions were untimely; that Trial Rule 34(C)(3) does not apply to

       subpoenas from out-of-state courts or allow recovery of deposition-related fees;

       that IU Health lacked standing to seek fees and costs; and that Appellees had

       failed to establish that the requested fees are reasonable. Lutheran’s objection

       states, “Should the Court find that it has jurisdiction, and that [Appellees] have

       a basis for relief, [Lutheran requests] an opportunity to more fully address the

       numerous deficiencies and issues raised by the lengthy time submissions

       appended to each of the Petitions.” Lutheran’s App. Vol. 9 at 22-23.




       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019      Page 11 of 29
[19]   On December 17, the trial court held a hearing on the fee petitions. Lutheran

       requested an opportunity to review Appellees’ billing statements and

       “highlight” their purported unreasonableness for the court. 12/17/18 Tr. Vol. 2

       at 37. The court stated that it would allow counsel to file briefs on the issues of

       jurisdiction, waiver, and standing. On February 5, 2019, Lutheran filed a

       motion to dismiss the fee petitions in which it stated, “If the Court determines

       that it has jurisdiction to grant [Appellees’] Petitions, Lutheran respectfully

       request[s] discovery and briefing to address the time entries submitted in

       support of [Appellees’] applications.” Lutheran’s App. Vol. 10 at 173. On

       February 13, the trial court held another hearing at which it stated, “What

       [Lutheran] said is I don’t have jurisdiction to hear this. Well, we’re going to

       hear that argument today. I’m not going to rule on that [i.e., jurisdiction] today

       and then bring everybody back if I decide that I do have jurisdiction. So I’m

       going to hear that argument, take that under advisement, and then we’re going

       to talk about the balance of the case.” 2/13/19 Tr. Vol. 2 at 9-10. The

       reasonableness of the requested fees was not discussed at the hearing.


[20]   On February 18, the trial court issued a twenty-page order granting the fee

       requests. The court observed that it had “issued no less than thirty-six (36)

       Orders arising out of the ancillary proceeding.” First Appealed Order at 2. The

       court set forth much of the foregoing procedural history and further stated, 5




       5
           Here, and elsewhere, we have replaced references to “Plaintiffs” with “Lutheran” where appropriate.


       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019                            Page 12 of 29
        Lutheran and Bauer were involved in a lawsuit for well over a
        year. Lutheran’s claims against Bauer ranged from allegations of
        Bauer’s breach of contract, breach of non-solicitation agreement,
        and a request for injunctive relief to an obsessive search for a
        cyber blogging individual or individuals by the name of “Sajin
        Young.” The Indiana Non-Parties, as demonstrated above, were
        required to endlessly search for information, communication,
        documents and emails with respect to the identity of the elusive
        “Sajin Young,” who Lutheran believed was singlehandedly
        bringing about the demise of Lutheran. The Non-Parties were
        subjected to hours-long depositions and multiple repetitive
        subpoenas.

        The Non-Parties selected by Lutheran included not only
        individuals who were previous employees of the Lutheran Health
        Network, but also members of Lutheran’s own volunteer Board
        of Directors. Lutheran sought out corporations and individuals
        who constructed buildings for Lutheran and/or I.U. Health.


        Once evidence was presented to the Court that Lutheran was
        conducting depositions that exceeded eight (8) hours, the Court
        limited future depositions to two (2) or three (3) hours. This
        Court was asked to intercede during the deposition of Witwer,
        who had constructed a building for one of Lutheran’s
        competitors. William Schenkel and his mother Andrea Schenkel
        were required to conduct searches through a year of personal
        emails. Their Motions to Quash and Request for Protective
        Order were still pending when Lutheran dismissed the Tennessee
        lawsuit. The amount of time and effort the Non-Parties
        expended on Lutheran’s relentless search for “Sajin Young” was
        immense. Allen County was not the only venue where ancillary
        proceedings were initiated. Seeking the same type of
        information, Lutheran initiated ancillary proceedings in
        Wisconsin and in Marion County, Indiana. The Non-Parties
        could never have navigated Lutheran’s discovery demands of
        voluminous documents and other information on their own.

Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019   Page 13 of 29
               Issues of relevance, confidentiality and privilege existed. As a
               result, substantial attorneys’ fees were incurred.


       Id. at 8-10.


[21]   The trial court determined that it had jurisdiction to rule on the fee petitions;

       that Appellees are entitled to fees under Trial Rule 34(C)(3); and that IU Health

       has standing to request fees and costs under that rule. The order granted the

       Non-Parties’ requests for fees and IU Health’s request for fees and costs and

       also granted Appellees seven days to file supplemental fee petitions, which they

       did. On March 8, the trial court issued a second order granting the

       supplemental fee petitions and ordering Lutheran to pay the following amounts:


                        Joseph Oscar Mitson                                   $51,069.73
                        Thomas Kelley                                         $31,962.61
                        Charles Surack and Sweetwater Sound, Inc.             $32,807.21
                        Kyle Witwer and Witwer Construction, Inc.             $20,072.10
                        Andrea Schenkel                                       $16,852.25
                        William Schenkel                                      $15,362.25
                        Darrick Hoopingarner                                  $ 8,580.25
                        Aaron Garofola                                        $ 5,225.25
                        I.U. Health (Attorney’s Fees)                         $91,497.50
                        I.U. Health (Costs)                                   $ 2,499.51


       Second Appealed Order at 2.


[22]   Lutheran now appeals. Additional facts will be provided as necessary.




       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019                Page 14 of 29
                                       Discussion and Decision

         Section 1 – The trial court did not lack jurisdiction to award
                           attorneys’ fees and costs.
[23]   Lutheran first contends that the trial court lacked jurisdiction to award

       attorneys’ fees and costs, citing Dean v. Weaver, 928 N.E.2d 254 (Ind. Ct. App.

       2010), trans. denied. In that case, Kristine Weaver filed a divorce proceeding

       against her husband Loren in Michigan. Loren disclosed as a possible expert

       witness the couple’s accountant, Ronald Dean, an Indiana resident. Pursuant

       to a Trial Rule 28(E) ancillary proceeding initiated by Loren in Elkhart Superior

       Court in Indiana, Weaver deposed Dean in early January 2009. In late

       January, the Weavers informed the Michigan court that they had reached a

       settlement, and on February 6, that court entered a final property settlement

       order. On March 16, Dean billed Weaver over $3000 for the deposition. On

       March 20, the Elkhart Superior Court noted that the divorce had been settled

       and dismissed the ancillary proceeding. Weaver refused to pay Dean, so on

       August 24, Dean petitioned the Elkhart Superior Court to reopen the

       proceeding to allow him to collect expert witness fees and attorney fees; Dean’s

       basis for seeking attorney fees is not specifically mentioned in the opinion. The

       court initially granted the petition, but in response to Weaver’s argument that

       the court lacked jurisdiction over the matter, the court ruled that “the dismissal

       of the ancillary proceeding in Indiana terminated [its] judicial power to deal

       with the parties named in that action[.]” Id. at 256.




       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019     Page 15 of 29
[24]   Dean appealed, arguing that because the Elkhart Superior Court “had

       established independent jurisdiction over the persons and subject matter, its

       authority [was] not derivative of the Michigan trial court that had jurisdiction

       over the divorce proceedings.” Id. Another panel of this Court stated,


               As the discovery proceedings in Indiana aid the principal cause
               instituted outside of Indiana, proceedings under Indiana Trial
               Rule 28(E) are properly characterized as ancillary proceedings.
               Because ancillary proceedings aim to further a principal
               proceeding, they can only exist by virtue of the main cause of
               action—without the main cause of action, they would not be
               required. Here, an Indiana trial court was requested to help a
               party in a divorce proceeding which was commenced in
               Michigan to pursue discovery in Indiana. As such, the Indiana
               trial court acquired its jurisdiction by virtue of the Michigan
               cause.

               Furthermore, pursuant to Indiana Trial Rule 28(E), this
               jurisdiction was limited to providing assistance in discovery
               issues—ordering a person to give testimony or statement, or to
               produce documents or other things, allow inspections and copies
               and permit physical and mental examinations for use in a
               proceeding in a tribunal outside this state. Based on the
               unambiguous and narrow language of the Trial Rule, this
               jurisdiction does not expand to disputes over expert witness fees.
               Therefore, we find that the Indiana trial court which had
               acquired restrictive jurisdiction pursuant to Indiana Trial Rule
               28(E) to conduct ancillary discovery proceedings, lacks the
               jurisdiction to reopen the cause and hear Dean’s motion on the
               payment of his fees.

               Even if we were to consider the payment of attorney fees to be an
               issue intrinsically bound to the discovery proceeding commenced
               under Indiana Trial Rule 28(E), we would still reach the same
               result. Dean filed his motion for payment of attorney fees after

       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019      Page 16 of 29
                [Weaver] and Loren entered into a divorce settlement. Thus,
                because the Michigan cause was settled and an order was issued
                prior to Dean filing his motion for payment of attorney fees,
                Michigan’s jurisdiction ended and consequently, Indiana’s
                derivative jurisdiction to conduct the ancillary proceedings
                pursuant to Indiana Trial Rule 28(E) extinguished at that
                moment as well.


       Id. at 257-58 (citation omitted).


[25]   Here, Lutheran argues that “[w]hen the underlying action in Tennessee was

       dismissed, the trial court’s ancillary jurisdiction was terminated as a matter of

       law. The trial court had ancillary jurisdiction only by virtue of the Tennessee

       case. Without it, the trial court was powerless.” Lutheran’s Br. at 28-29.


[26]   “A court’s jurisdiction either exists or does not, and the question of a court’s

       jurisdiction is accordingly a question of law that is not entrusted to the trial

       court's discretion. Rather, it is reviewed de novo.” In re Paternity of M.R., 778

       N.E.2d 861, 863 (Ind. Ct. Ap. 2002), clarified on reh’g, 784 N.E.2d 861, trans.

       dismissed (2003). Assuming for argument’s sake that Lutheran’s (and the Dean

       panel’s) description of and reliance on jurisdictional concepts are appropriate, 6

       we find Dean distinguishable, for three reasons. First, multiple discovery




       6
        The Non-Parties argue that Dean’s jurisdictional analysis was called into question, if not implicitly overruled,
       by R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453 (Ind. 2012), in which our supreme court stated that
       “jurisdictional concepts are simply the wrong analytical tools for determining whether an Indiana trial court’s
       post-judgment action [in that case, ruling on a fee petition based on a fee-shifting statute for frivolous lawsuits]
       was a valid exercise of its authority” and that “the question … is one of procedural error, not jurisdiction.” Id.
       at 458.

       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019                                 Page 17 of 29
matters, including several fee petitions and the Schenkels’ motion to quash their

depositions, were pending in the ancillary proceeding in this case when the

primary proceeding was terminated; 7 it would be absurd to hold that “any issue

pending before the ancillary tribunal, no matter how ripe for decision, cannot

proceed once the main cause is dismissed[,]” as the Non-Parties put it. Non-

Parties’ Br. at 22. Second, the trial court in this case did not dismiss the

ancillary proceeding, precisely because several ripe issues remained pending

before it. And third, Appellees are seeking attorneys’ fees for responding to

discovery requests, not expert witness fees, which Dean should have sought

from Weaver in a separate breach-of-contract action. In other words, as the

Non-Parties point out, Appellees “do not have another method of recovery

available to them.” Id. at 19. Based on the foregoing, we conclude that the trial

court did not lack jurisdiction to award attorneys’ fees and costs.




7
  The trial court found that “[t]he Non-Parties had no clue that their window of time for filing requests for
attorneys’ fees was coming to an abrupt end. Indeed, Lutheran led the Non-Parties and I.U. Health down
the ‘primrose path.’” First Appealed Order at 15. Lutheran has asserted that counsel GiaQuinta was aware
of the impending settlement; GiaQuinta has asserted otherwise. See 2/13/19 Tr. Vol. 2 at 27 (“I didn’t know
what was going on with Bauer. I knew – I knew that there was settlement discussions going on. I didn’t
know – I wasn’t a party to those and I didn’t wanna be.”). Lutheran has also asserted that IU Health was
aware of the impending settlement “as Bauer’s employer and litigation financier[,]” pointing to a November
21, 2018 email from IU Health’s counsel in which she “communicated that she had ‘learned of a resolution’
of the Tennessee action.” Lutheran’s Reply Br. at 20. That email is directed to Lutheran’s counsel, who
failed to “confirm this matter has been resolved and dismissed” as IU Health’s counsel had requested.
Lutheran’s App. Vol. 10 at 155.

Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019                            Page 18 of 29
           Section 2 –The trial court did not err in ruling that Appellees
           are entitled to attorneys’ fees pursuant to Trial Rule 34(C)(3).
[27]   Next, Lutheran argues that the trial court erred in ruling that Appellees are

       entitled to attorneys’ fees pursuant to Trial Rule 34(C)(3). Trial Rule 34 is

       entitled, “Production of Documents, Electronically Stored Information, and

       Things and Entry Upon Land for Inspection and Other Purposes.” Subsection

       (C) of the rule is entitled “Application to Non-Parties” and reads in relevant

       part as follows:


                  (1) A witness or person other than a party may be requested to
                  produce or permit the matters allowed by subsection (A) of this
                  rule.[ 8] Such request shall be served upon other parties and
                  included in or with a subpoena served upon such witness or
                  person.

                  ….

                  (3) The request shall contain the matter provided in subsection




       8
           Trial Rule 34(A) reads in relevant part as follows:

                (A) Scope. Any party may serve on any other party a request:
                (1) to produce and permit the party making the request, or someone acting on the requester’s
                behalf, to inspect and copy, any designated documents or electronically stored information … or
                to inspect and copy, test, or sample any designated tangible things which constitute or contain
                matters within the scope of Rule 26(B) and which are in the possession, custody or control of
                the party upon whom the request is served ….

       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019                             Page 19 of 29
           (B) of this rule.[ 9] 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)[ 10] the court shall condition relief



9
    Trial Rule 34(B) reads in relevant part as follows:

         (B) Procedure. The request may, without leave of court, be served upon the plaintiff after
         commencement of the action and upon any other party with or after service of the summons
         and complaint upon that party. The request shall set forth the items to be inspected either by
         individual item or by category, and describe each item and category with reasonable
         particularity.… The request shall specify a reasonable time, place, and manner of making the
         inspection and performing the related acts ….
         The party upon whom the request is served shall serve a written response within a period
         designated in the request, not less than thirty [30] days after the service thereof or within such
         shorter or longer time as the court may allow. The response shall state, with respect to each
         item or category, that inspection and related activities will be permitted as requested, unless it is
         objected to, … in which event the reasons for objection shall be stated.… The party submitting
         the request may move for an order under Rule 37(A) with respect to any objection to or other
         failure to respond to the request or any part thereof, or any failure to permit inspection as
         requested.
10
     Trial Rule 37(A)(2) reads in relevant part as follows:

         If … a party or witness or other person, in response to a request submitted under Rule 34, fails
         to respond that inspection will be permitted as requested or fails to permit inspection as
         requested, the discovering party may move for an order compelling an answer, or a designation,
         or an order compelling inspection in accordance with the request. When taking a deposition on
         oral examination, the proponent of the question may complete or adjourn the examination
         before he applies for an order.

         If the court denies the motion in whole or in part, it may make such protective order as it would
         have been empowered to make on a motion made pursuant to Rule 26(C).

Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019                                   Page 20 of 29
               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.


       Trial Rule 45(B) provides,


               A subpoena may also command the person to whom it is
               directed to produce the books, papers, documents, or tangible
               things designated therein; but the court, upon motion made
               promptly and in any event at or before the time specified in the
               subpoena for compliance therewith, may

               (1) quash or modify the subpoena if it is unreasonable and
               oppressive or

               (2) condition denial of the motion upon the advancement by the
               person in whose behalf the subpoena is issued of the reasonable
               cost of producing the books, papers, documents, or tangible
               things.


[28]   Lutheran’s argument is threefold: (1) Trial Rule 34(C)(3) is inapplicable to this

       ancillary proceeding; (2) even if the rule is applicable, Appellees’ fee petitions

       were untimely; (3) even if the petitions were not untimely, Appellees are not

       entitled to fees related to preparing for and attending depositions. In addressing

       Lutheran’s argument, “we are mindful of the rules of statutory construction,

       which are applicable to the interpretation of trial rules.” Carter-McMahon v.

       McMahon, 815 N.E.2d 170, 175 (Ind. Ct. App. 2004). “Thus, as with statutes,

       our objective when construing the meaning of a rule is to ascertain and give


       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019       Page 21 of 29
       effect to the intent underlying the rule.” Id. “If the language of a rule is clear

       and unambiguous, it is not subject to judicial interpretation. Moreover, in

       construing a rule, it is just as important to recognize what it does not say as it is

       to recognize what it does say.” Id. (citation omitted). “We are also mindful

       that the Rules of Trial Procedure are to be construed together and harmoniously

       if possible.” Id. (citation and quotation marks omitted). We review de novo

       questions involving the interpretation of the Indiana Trial Rules. Health & Hosp.

       Corp. of Marion Cty. v. Foreman, 51 N.E.3d 317, 318 (Ind. Ct. App. 2016).


                         2.1 –Trial Rule 34(C)(3) applies to this proceeding.

[29]   The trial court noted that Trial Rule 28(E) “specifically provides” that to the

       extent that a discovery order in an ancillary proceeding “does not prescribe

       otherwise, the practice and procedure shall be in accordance with that of the

       court of this state issuing the order.” First Appealed Order at 15. The court

       further noted that its “original Order commencing the ancillary proceedings”

       (not to mention its subsequent discovery orders) “did not prescribe that

       Tennessee rules of procedure would apply” and concluded that, “[a]s a result,

       all of the Indiana Rules of Trial Procedure apply.” Id. at 15, 16. We agree.

       Lutheran insists that Trial Rule 34(C)(3) “governs the procedure of document

       production requests to nonparties in cases originating in Indiana courts.”

       Lutheran’s Br. at 32. But, as the Non-Parties point out, nothing in Trial Rule

       34 “limits its application to nonparties being served by in-state litigants, and

       there is no compelling reason why a nonparty served a subpoena from out-of-

       state should be somehow less protected than a nonparty served a subpoena

       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019       Page 22 of 29
       from in-state.” Non-Parties’ Br. at 28. 11 See In re WTHR-TV, 693 N.E.2d 1, 6

       (Ind. 1998) (“[W]here non-parties to a dispute are involuntarily dragged into

       court their interest in being left alone is a legitimate consideration in this

       balancing [of the need for information and the burden of supplying it] and they

       are no less entitled to any protections the Trial Rules afford.”) (emphasis added).


                             2.2 –Appellees’ fee petitions were not untimely.

[30]   Lutheran argues that even if Trial Rule 34(C)(3) applies, Appellees “waived

       their ability to seek attorneys’ fees under that rule because they failed to request

       those fees at the time they resisted the subpoenas, as required by the rule.”

       Lutheran’s Br. at 33. In its order, the trial court stated,


                Here, all of the Non-Parties and I.U. Health were still preparing
                for depositions and hearings and gathering information pursuant
                to Lutheran’s discovery demands when Lutheran terminated the
                Tennessee lawsuit. None of the Non-Parties and I.U. Health
                knew the extent of what their final attorneys’ fees and costs
                would be. To continually return to this Court to seek additional
                security each time a new subpoena was issued would have been
                an unreasonable waste of time and judicial resources. Non-
                Parties and I.U. Health did not waive their right to seek costs and
                attorneys’ fees by not seeking security each time Lutheran made
                a new discovery demand.


       First Appealed Order at 16.




       11
         The Non-Parties also point out that Lutheran availed itself of other Indiana trial rules, such as when it
       noticed a Trial Rule 30(B)(6) deposition of an IU Health representative in the Marion Superior Court
       ancillary proceeding and sought relief under Trial Rule 37 during Witwer’s deposition.

       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019                              Page 23 of 29
[31]   Contrary to what Lutheran suggests, Trial Rule 34(C)(3) simply does not

       require a non-party to request fees and costs at the time it moves to quash or

       objects to a subpoena. 12 The onus is on the trial court to “condition relief upon

       the prepayment of damages[,]” and the trial court did not do so here. As the

       court’s order indicates, prepayment would have been impossible in any event

       because none of the Appellees knew what their fees and costs would ultimately

       be. Cf. R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 460 (Ind. 2012)

       (referring to post-judgment request for attorneys’ fees under fee-shifting statute

       for frivolous lawsuits: “A request for attorneys’ fees almost by definition is not

       ripe for consideration until after the main event reaches an end. Entertaining

       such petitions post-judgment is virtually the norm.”). In short, Appellees’ fee

       petitions were not untimely.


            2.3 – Appellees are entitled to fees related to preparing for and attending
                                            depositions.

[32]   Finally, Lutheran argues that Appellees are not entitled to fees related to

       preparing for and attending depositions because Trial Rule 34(C)(3) does not

       allow for them. In its order, the trial court stated,


                The Indiana Trial Rules anticipate that witnesses will be required
                to seek the advice of attorneys regarding document preparation
                pursuant to a subpoena duces tecum. Here, production was
                always inextricably tied to an accompanying deposition. In a
                2018 Court of Appeals’ case, the Court recognized the burdens



       12
         Neither does Trial Rule 45(B); it says only that the trial court “may” condition denial of a motion to quash
       upon the advancement of the reasonable cost of production of the requested items.

       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019                             Page 24 of 29
               thrust upon non-parties. Himsel v. Ind. Pork Producers Association,
               95 N.E.3d 101 (Ind. Ct. App. 2018).

               First and foremost, the Indiana Court of Appeals held that
               attorneys’ fees, and not just costs, could be awarded to a non-
               party under the Indiana Rules of Court. Id. at 115. In that case,
               the Court noted the wide breadth of documents sought by the
               plaintiffs. Id. at 111. The Court found that the plaintiffs had
               already acquired substantial evidence from other sources
               regarding the discovery sought from the non-parties. Id. The
               Court noted the “sheer breadth of records” and subpoenas that
               the plaintiffs asked the nonparties to comb through required legal
               assistance. Id. The discovery requests were unreasonably
               cumulative, duplicative and burdensome, as they were here. See
               id.

               The Court of Appeals specifically held:


                        Nonparties subjected to subpoenas may reasonably
                        be expected to consult with counsel to ensure
                        compliance with the subpoena without necessarily
                        divulging privileged information or to determine
                        whether there is any legal basis to object to the
                        subpoena.…”


               Id. at 113.


       First Appealed Order at 17.


[33]   Simply because Trial Rule 34(C)(3) does not specifically mention depositions

       does not mean that deposition-related fees are prohibited by the rule. Here, as

       the trial court noted, the document requests were “inextricably tied” to

       accompanying depositions, both of which were authorized pursuant to Trial


       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019      Page 25 of 29
       Rule 28(E). It was reasonable for the witnesses to be expected to consult with

       counsel to ensure compliance with the subpoenas as to the production of both

       documents and testimony, and therefore we conclude that Appellees are

       entitled to fees related to preparing for and attending depositions.


       Section 3 – The trial court did not err in ruling that IU Health
       has standing to seek attorneys’ fees and costs under Trial Rule
                                  34(C)(3).
[34]   Lutheran also contends that the trial court erred in ruling that IU Health has

       standing to seek attorneys’ fees and costs under Trial Rule 34(C)(3). The trial

       court made the following findings on this issue:


               [A]s a result of Lutheran’s behavior, I.U. Health was forced to
               intervene in the Allen County proceedings. The discovery
               demanded from different Non-Parties oftentimes sought the same
               information previously produced by other parties and/or Non-
               Parties. The information sought in Allen County included
               discovery already in the hands of Lutheran. Lutheran’s
               discovery relating to I.U. Health began in Marion County.
               Originally, Lutheran served subpoenas on I.U. Health on a broad
               range of topics. The Marion County court narrowed the scope of
               the requests. As a result, Lutheran attempted to seek from I.U.
               Health employees in Allen County the same discovery struck by
               Marion County. Lutheran served subpoenas on a number of I.U.
               Health employees residing in Allen County. Oftentimes, the
               subpoenas served in Allen County requested those individuals to
               produce documents quashed in Marion County. As a result, I.U.
               Health was required to intervene in these proceedings and
               constantly monitor the discovery sought here. Thus, in addition
               to all of the Non-Parties, I.U. Health has standing to seek
               attorneys’ fees and costs pursuant to Rule 34(C)(3).


       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019   Page 26 of 29
       Id. at 18.


[35]   Lutheran makes the following argument:


               An intervenor is a “party.” Cf. Ind. Trial Rule 3.1(C) (“At the
               time the first matter is submitted to the court seeking to intervene
               in a proceeding, the attorney representing the intervening party
               or parties, or the intervening party or parties, if not represented by
               an attorney, shall file an appearance.…”) (emphasis added)).
               The trial court’s December 14, 2017, order granting IU Health’s
               motion to intervene acknowledged that, at that time, the only
               “nonparties” to the ancillary proceeding were NICHE, Cast,
               Garofola, and Mitson.

               Trial Rule 34(C)(3) is titled “Application to Non-parties” and
               allows nonparties served with records subpoenas to recover as
               “damages” their “reasonable attorneys’ fees incurred in
               reasonable resistance” to the document production aspect of the
               subpoenas. Ind. Trial Rule 34(C)(3). By its very definition, Trial
               Rule 34(C)(3) is inapplicable to intervening parties like IU
               Health.

               What is more, Rule 34(C)(3) gives only the witness or person to
               whom a subpoena is issued an opportunity to seek costs resulting
               from such document requests. See Ind. Trial Rule 34(C)(3) (only
               a “witness or person to whom the [document production request]
               is directed” may seek “security against damages or prepayment
               of damages resulting from such request.…”). Lutheran never
               served IU Health with any document production requests in the
               trial court. The trial court accordingly erred in determining that
               a party who had not been served with any discovery requests
               should be treated as a nonparty who had.


       Lutheran’s Br. at 42-43 (citation to appendix omitted).



       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019        Page 27 of 29
[36]   We disagree, for several reasons. First, Lutheran fails to explain how an

       intervenor can be a party to a non-party proceeding. Second, Lutheran did not

       object to IU Health’s motion to intervene. And third, as IU Health observes,


               Lutheran continually argued at each of the hearings and disputes
               involving IU Health’s employees that the subpoenas on the
               employees should include documents and information in the
               possession of IU Health by virtue of the employees’ status in the
               organization. The Court agreed and ordered that the documents
               and information be produced despite where it may have resided.
               Thus, IU Health has not been awarded fees as an intervenor; the
               fees and costs are solely those it incurred because it was not a
               party to the litigation.… Its fees were generated on behalf of
               non-party discovery served and court orders issued.


       IU Health’s Br. at 22-23. Consequently, we affirm the trial court’s ruling on

       this issue.


            Section 4 – Remand is appropriate to give Lutheran an
           opportunity to challenge the reasonableness of Appellees’
                           requested attorneys’ fees.
[37]   Where, as here, the amount of an attorneys’ fee award is not inconsequential,

       “there must be objective evidence of the nature of the legal services and the

       reasonableness of the fee.” Stewart v. TT Comm. One, LLC, 911 N.E.2d 51, 59

       (Ind. Ct. App. 2009), trans. denied. Lutheran argues, and we agree, that it was

       never given an opportunity to challenge the reasonableness of Appellees’

       requested fees “once the court determined that it had jurisdiction.” Lutheran’s




       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019    Page 28 of 29
       Reply Br. at 33. 13 Accordingly, we remand with instructions to give Lutheran

       that opportunity. 14


[38]   Affirmed in part and remanded.


       Baker, J., and Altice, J., concur.




       13
         Appellees’ claims that Lutheran never challenged the reasonableness of their fee requests and that the trial
       court provided Lutheran “ample opportunity to address this issue” are unsupported by the record. Non-
       Parties’ Br. at 32-33.
       14
          Mitson argues that we should also “remand this matter to the trial court for a determination of appellate
       attorneys’ fees to be awarded to [Appellees].” Mitson’s Br. at 44. This argument is based on Hastetter v. Fetter
       Properties, LLC, 873 N.E.2d 679, 685 (Ind. Ct. App. 2007), which, as Mitson himself acknowledges, states
       that “one is entitled to attorney fees when provided for by statute or contract.” Mitson cites no statute or
       contract to justify his request for appellate fees.

       Court of Appeals of Indiana | Opinion 19A-MI-654 | December 30, 2019                              Page 29 of 29
