                                                                              FILED
                                                                         Feb 14 2018, 5:29 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
Kim E. Ferraro                                             Andrew M. McNeil
Samuel J. Henderson                                        Daniel P. McInerny
Hoosier Environmental Council                              Mark A. Wohlford
Valparaiso, Indiana                                        Bose McKinney & Evans, LLP
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Martin Richard Himsel, Janet                               February 14, 2018
Himsel, Robert Lannon, and                                 Court of Appeals Case No.
Susan Lannon,                                              32A01-1703-PL-612
Appellants-Plaintiffs,                                     Appeal from the Hendricks
                                                           Superior Court
        v.                                                 The Honorable Mark A. Smith,
                                                           Judge
Indiana Pork Producers                                     Trial Court Cause No.
Association and Livestock                                  32D04-1510-PL-150
Engineering Solutions,
Appellees-Nonparties.



Barnes, Judge.




Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018                       Page 1 of 30
                                               Case Summary
[1]   In this interlocutory appeal, Martin and Janet Himsel and Robert and Susan

      Lannon (collectively “the Plaintiffs”) appeal the trial court’s award of $4,980.50

      in attorney fees to Indiana Pork Producers Association, Inc. (“IPPA”) and

      $3,925.04 in attorney fees and other expenses to Livestock Engineering

      Solutions, Inc. (“LES”), arising from a discovery dispute between the Plaintiffs,

      IPPA, and LES. IPPA and LES cross-appeal, contending they were entitled to

      more attorney fees. We affirm.


                                                      Issues
[2]   The restated issues before us are:


              I.       whether the trial court properly denied the Plaintiffs’
                       motion to compel the production of documentary evidence
                       from IPPA and LES, who were nonparties in the
                       Plaintiffs’ litigation against different defendants; and


              II.      whether the amount of attorney fees and expenses
                       awarded to IPPA and LES was reasonable. This includes
                       both the Plaintiffs’ contention that the trial court awarded
                       too much and IPPA and LES’s contention that it awarded
                       too little.


                                                       Facts
[3]   In 2013, Samuel, Cory, and Clinton Himsel (“the Himsels”) obtained a

      rezoning of their property from the Hendricks County Plan Commission to

      allow for construction of a concentrated animal feeding operation (“CAFO”).

      The Plaintiffs, who live near the property, objected to the rezoning. During a
      Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 2 of 30
      hearing regarding the rezoning, Josh Trenary from IPPA testified in favor of the

      rezoning, stating in part that no studies had been done regarding odors from

      hog CAFOs and denying that there was any correlation between CAFOs and a

      loss of value to nearby properties. IPPA essentially is a lobbying and

      informational entity for the pork industry in Indiana. The Indiana Department

      of Environmental Management (“IDEM”) subsequently issued a permit to

      allow construction of a CAFO on the rezoned property.


[4]   The Himsels created an LLC, 4/9 Livestock, to own and operate the CAFO.

      4/9 Livestock entered into a contract with Co-Alliance, LLP, which would own

      the hogs at the CAFO. LES is an agricultural engineering firm that provided

      consultation regarding construction of the CAFO and approval of the facility

      from IDEM. The CAFO was completed in September 2013 and eventually

      housed up to 8,000 hogs.


[5]   On October 6, 2015, the Plaintiffs, represented by the Hoosier Environmental

      Council, filed suit against the Himsels, 4/9 Livestock, and Co-Alliance; IPPA

      and LES were not named as defendants. The complaint alleged that the

      Plaintiffs’ use and enjoyment of their homes, as well as their homes’ value, were

      ruined by noxious odors and airborne emissions coming from the CAFO.

      Furthermore, the complaint alleged that, contrary to Trenary’s testimony at the

      rezoning hearing, there are numerous studies indicating that hog CAFOs

      generate extreme odors and noxious emissions and that the property values for

      persons living nearby are significantly reduced thereby. The complaint sought

      recovery under theories of nuisance, negligence, and trespass, and also sought a

      Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 3 of 30
      declaratory judgment that Indiana’s “right to farm” laws that favor agricultural

      operations are unconstitutional.


[6]   On March 28, 2016, the Plaintiffs sent a request for production of documents

      and subpoena to IPPA under Indiana Trial Rules 34(C) and 45. The subpoena

      noted, as required by the Trial Rules, that IPPA was “entitled to security

      against damages or payment of damages resulting from this request.”

      Appellant’s App. Vol. II p. 64. The subpoena had eighteen requests, some of

      which were divided into multiple subparts, as follows:


              1.    Any and all documents regarding the Defendants’ CAFO,
              the named Defendants in this action, and/or this lawsuit.


              2.     Any and all communications between the IPPA and any
              of the named Defendants in this action, and/or anyone acting on
              the Defendants’ behalf, including but not limited to
              correspondence, emails, letters, notes taken during telephonic
              conversations, and any other record of communication as that
              term is defined above.


              3.    Any and all IPPA intra-office communications, including
              but not limited to emails, letters, memoranda, notes taken during
              telephonic conversations, proposed responses, and reviews
              regarding any of the named Defendants in this action, the
              Defendants’ CAFO and/or this lawsuit.


              4.     All correspondence, documents, or written
              communications from, to, or between you, or on your behalf,
              and the U.S. EPA (“EPA”), the Indiana Department of
              Environmental Management (“IDEM”), the Indiana State
              Department of Agriculture (“ISDA”), Hendricks County
              officials, or any other governmental entity, local, county, state or
      Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 4 of 30
        federal (as well as any of these entities’ agents, servants,
        representatives or employees) relating to the Defendants’ CAFO
        including but not limited to communications relating to any
        aspect of the Defendants obtaining government approvals and/or
        permits; monitoring and/or reporting of odors, air emissions or
        emissions estimates from the Defendants’ CAFO; or any aspect
        of siting, constructing, owning, operating, maintaining or
        managing the Defendants’ CAFO.


        5.     All correspondence, documents, statements or
        communications from, to, or between you, or on your behalf,
        and any public or private institutions, research center, other
        professional, trade or advocacy organization, farm association,
        cooperative, union or other similar entities (as well as any of
        these entities’ agents, servants, representatives or employees)
        relating to any aspect of the Defendants obtaining government
        approvals and/or permits; monitoring and/or reporting of odors,
        air emissions or emissions estimates from the Defendants’
        CAFO; or any aspect of siting, constructing, owning, operating,
        maintaining or managing the Defendants’ CAFO.


        6.     Any and all documents pertaining to permits, variances,
        special exceptions, rezoning or other such approvals of any kind
        to construct, operate or use land on which the Defendants’
        CAFO is located or other land owned or controlled by any of the
        named Defendants to this action.


        7.     Any and all documents regarding the ownership,
        management and/or control of the Defendants’ CAFO including
        but not limited to production contracts, grower service contracts,
        real estate transfer documents, purchase agreements, lease
        agreements, partnership agreements, employment contracts, or
        operator agreements.




Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 5 of 30
        8.   Any and all photographs or videos pertaining to the
        Defendants’ CAFO.


        9.     Joshua Trenary’s entire file regarding the Defendants’
        CAFO, his testimony on the Defendants’ behalf before the
        Hendricks County Area Plan Commission on March 12, 2013,
        and all other documents related to and/or demonstrating the
        nature of the relationship and involvement of the IPPA and/or
        Joshua Trenary with the Defendants.


        10. Please produce a copy of the “study done by Indiana
        University using actual sales data to study the relationship
        between property values and livestock operations” as referred to
        by Joshua Trenary in his testimony before the Hendricks County
        Area Plan Commission on March 12, 2013 at the public hearing
        on the Defendants’ rezoning request.


        11. Please produce a copy of the “cost of community services
        study funded by the Indiana Soybean Association” as referred to
        by Joshua Trenary in his testimony before the Hendricks County
        Area Plan Commission on March 12, 2013 at the public hearing
        on the Defendants’ rezoning request.


        12. Referring to the Minutes of the March 12, 2013 public
        hearing on Defendants’ rezoning request before the Hendricks
        County Area Plan Commission, please produce all documents
        that support or are related to the following statements made by
        Joshua Trenary:


                 a.     “If an operator want[s] to avail himself of the type
                 of state of the art environmental safeguards available in a
                 modern livestock facility, it would be necessary to build
                 one of the size and scope that could maintain that
                 advanced of a facility and still be profitable.”


Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018    Page 6 of 30
                 b.     “Residents in Hendricks County would be
                 benefitting from the proposed [Defendants’ CAFO].”


                 c.      “[The Defendants are] a farm family building a
                 facility that they would own. Both sides of the transaction
                 would be benefitting or they would not be entering into the
                 transaction. The family farm is still taking on all of the
                 financial risk of the facility and the environmental
                 liability.”


                 d.     “There are no air regulations on a CFO because
                 there is no consensus in the nation on what emissions
                 levels are harmful and what levels should be regulated.
                 There is not enough data to regulate air emissions on
                 livestock operations.”


        13. Any and all test results, findings, reports, records,
        spreadsheets, photos, videos or documents of any kind relating to
        testing, monitoring, estimates and/or analysis of odors, odorous
        compounds and/or air emissions, including but not limited to
        airborne emissions of ammonia, hydrogen sulfide, and/or
        particulate matter, from any CAFO, CFO or other livestock
        facility in Indiana that IPPA has made available to: 1) the
        public; 2) members and/or supporters of IPPA; 3) the regulated
        community and/or interested stakeholders through educational
        seminars, conferences and the like; and/or 4) directly to one or
        more of the Defendants within the last ten (10) years.


        14. Any and all documents in your possession or control
        related to the National Air Emissions Monitoring Study
        (NAEMS) conducted by Purdue University and the U.S. EPA
        including but not limited to testing data, reports of findings,
        photos, videos, publications, fact sheets, bulletins, inter-office
        memos, notes, summaries, emails, communications, documents
        demonstrating input and/or involvement by participating

Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 7 of 30
        livestock operations, citizens, government agencies, academic
        institutions and/or the IPPA such as comments, correspondence,
        emails, memos or any other related documents.


        15. All IPPA publications, policy papers, fact sheets, bulletins,
        newsletters, worksheets or other written information whether
        prepared by IPPA or on the Association’s behalf, about
        controlling, monitoring, reporting, calculating estimates,
        emissions factors, or other analyses of airborne emissions from
        CAFOs or CFOs for purposes of any federal, state or local law,
        rule, regulation or standard that IPPA has made available to: 1)
        the public; 2) members and/or supporters of IPPA; 3) the
        regulated community and/or interested stakeholders through
        educational seminars, conferences and the like; and/or 4) directly
        to one or more of the Defendants within the last ten (10) years.


        16. All documents relating to citizen complaints and/or
        inquiries, whether formal or informal, made to or received by the
        IPPA about odors, odorous compounds and/or air emissions
        from CAFOs, CFOs or other livestock operations in Indiana
        within the last ten (10) years.


        17. All correspondence, documents, statements, memos,
        policy papers, briefs or communications from, to, or between
        you, or on your behalf, and any public or private institution,
        government agency, research center, professional, trade or
        advocacy organization, farming association, cooperative, union
        or other similar entities (as well as any of these entities’ agents,
        servants, representatives or employees) within the last ten (10)
        years related to the following:


                 a.    odors, odorous compounds and/or air pollution
                 from CAFOs or CFOs;




Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018    Page 8 of 30
                 b.     regulation of odors, odorous compounds and/or air
                 pollution from CAFOs or CFOs;


                 c.    community impacts of CAFOs or CFOs including
                 but not limited to reduced air quality or reduction in
                 property values;


                 d.    the application, interpretation or requirements of
                 Ind. Code § 32-30-6-9;


                 e.    the application, interpretation or requirements of
                 Ind. Code § 15-11-2(a).


        18. Produce all studies, articles, reports, policy papers,
        assessments, fact sheets, or other documents in your possession
        or control related to the following:


                 a.    odors, odorous compounds and/or air pollution
                 from CAFOs and CFOs;


                 b.     regulation of odors, odorous compounds and/or air
                 pollution from CAFOs and CFOs;


                 c.    community impacts of CAFOs or CFOs including
                 but not limited to reduce air quality or reduction in
                 property values;


                 d.    the application, interpretation or requirements of
                 Indiana’s Right to Farm Act at Ind. Code § 32-30-6-9;


                 e.    the application, interpretation or requirements of
                 Ind. Code § 15-11-2(a).


Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 9 of 30
      Id. at 68-71.


[7]   In response to this subpoena, IPPA produced some documents to request

      number one but limited those documents to those it deemed nonprivileged and

      only those from the time period when IPPA was assisting the Defendants in

      obtaining permission to rezone their land and operate a CAFO thereon, or

      beginning in March 2013. IPPA also agreed, in response to requests number

      ten and eleven, to produce specific reports Trenary had referred to in his

      testimony before the Hendricks County Area Plan Commission. IPPA objected

      to responding to any of the other subpoena requests. Generally, IPPA claimed

      the requests were overbroad, privileged, requested documents not in its

      possession, and/or would be overly burdensome for IPPA to comply with.

      IPPA also requested “appropriate security against damages it proximately

      incurs in responding to this subpoena and reasonably resisting its overbroad

      provisions.” Id. at 75. However, it did not specify an amount of security.


[8]   Counsel for the Plaintiffs and IPPA engaged in phone, letter, and email

      communications in an attempt to resolve their dispute without court

      intervention. In response to the Plaintiffs’ request that IPPA specify the

      amount of “security” it was seeking for complying with the subpoena, IPPA

      wrote in a May 16, 2016 email that it had already incurred approximately

      $5,000 in attorney fees and expenses in reviewing and responding to the

      subpoena and that it expected that amount to increase. The Plaintiffs did not

      pay anything to IPPA at this time.



      Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 10 of 30
[9]    On August 10, 2016, the Plaintiffs served a second subpoena duces tecum upon

       IPPA. This subpoena generally sought documents and communications in

       IPPA’s possession or control related to an “Air Quality Agreement with

       Animal Feeding Operations” prepared by the EPA; a 1997-2000 “On-Farm

       Odor Management Assistance Program” prepared by the National Pork Board

       (“NPB”) and the National Pork Producers Council (“NPPC”); and a 1997-98

       “Odor Solutions Initiative” prepared by the NPB and NPPC. The subpoena

       also sought information regarding the employment of two individuals with

       IPPA. IPPA objected to all the requests in the second subpoena, generally on

       the grounds of overbreadth and their irrelevancy to the parties and subject

       matter of the litigation between the Plaintiffs and the Defendants. IPPA also

       noted that the Plaintiffs had never paid anything toward its attorney fees in

       relation to the first subpoena.


[10]   Also on August 10, 2016, the Plaintiffs served a subpoena duces tecum upon

       LES. The Plaintiffs sought all communications between LES and the

       Defendants regarding the construction and operation of the CAFO at issue.

       They also sought “[a]ll correspondence, letters, emails, reports, memoranda,

       invoices, telephone records, or any other documents in your possession

       regarding the at-issue CAFO.” Id. at 160. Furthermore, they wanted to obtain

       documents related to the EPA, NPB, and NPPC reports referred to in the

       subpoena to IPPA. Finally, the subpoena requested records from LES

       regarding the determination of where the CAFO would be located. LES agreed

       to provide documents it had produced regarding the CAFO, but asserted there


       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 11 of 30
       were no documents exchanged between it and the Defendants regarding the

       CAFO because it had worked with a third party, not any of the Defendants.

       LES also asserted that it played no role in determining the location of the

       CAFO and so had no documents on that issue. It also asserted it would be

       unduly burdensome to obtain all phone records regarding the CAFO, and that

       the requests regarding the EPA, NPB, and NPPC reports were overly broad and

       unrelated to the parties and subject matter of the litigation.


[11]   On October 5, 2016, both IPPA and LES filed formal petitions with the trial

       court requesting the Plaintiffs to pay attorney fees related to their response to

       the subpoenas.1 IPPA sought $4,980.50 in attorney fees for evaluating and

       partially complying with the subpoenas, $3,480.00 for reasonably resisting the

       subpoenas, and $5,923.00 for attempting to recover attorney fees for reasonably

       resisting the subpoenas. LES sought $2,572.75 in attorney fees for evaluating

       and partially complying with the subpoena, and $5,033.00 for reasonably

       resisting the subpoena and for attempting to recover attorney fees for reasonably

       resisting; LES also sought $1,353.29 in costs for its non-attorney principal’s

       time spent responding to the subpoena.


[12]   The Plaintiffs filed cross-motions to compel IPPA and LES to fully comply with

       the subpoenas, requesting that the trial court deny IPPA and LES’s attorney

       fees petitions, and seeking attorney fees of their own. After conducting a




       1
           IPPA and LES were and are represented by the same attorneys.


       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 12 of 30
       hearing on the matter on February 1, 2017, the trial court entered an order

       denying the Plaintiffs’ motion to compel, expressly finding “that the non-parties

       reasonably resisted the Plaintiffs’ efforts to seek irrelevant, overbroad and

       onerous discovery.” Id. at 27. However, the trial court did not award IPPA

       and LES the full amount of attorney fees they were seeking. It awarded IPPA

       $4,980.50 and LES $2,572.75 “for time spent evaluating and responding to the

       subpoenas”; it also awarded LES $1,352.29 “for direct expenses incurred

       responding to the subpoenas . . . .” Id. at 26. The trial court explained its

       refusal to award more attorney fees to IPPA and LES by stating, “Just as the

       non-parties reasonably resisted, the Plaintiffs sought relief they believed

       themselves to be entitled by filing a motion to compel. The Court finds that an

       award of additional fees would be unjust under these circumstances.” Id. at 27.

       The Plaintiffs now appeal and the Defendants cross-appeal.2


                                                      Analysis
[13]   The Plaintiffs are appealing an interlocutory order. It is appealable as of right

       because the trial court’s order compelled them to pay money to IPPA and LES.

       See Ind. Appellate Rule 14(A)(1). Moreover, in the interest of judicial

       economy, we will review the intertwined discovery order in this case, the denial




       2
         On December 16, 2016, the Defendants moved for summary judgment. On October 24, 2017, the trial
       court granted summary judgment in favor of the individual defendants but denied it as to the corporate
       defendants, 4/9 Livestock and Co-Alliance. The trial court reserved judgment on the constitutionality of the
       “right to farm” statutes. 4/9 Livestock and Co-Alliance have filed a motion to correct error in response to
       that ruling, which has not yet been resolved.

       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018                    Page 13 of 30
       of the Plaintiffs’ motion to compel. See White-Rodgers v. Kindle, 925 N.E.2d 406,

       411 (Ind. Ct. App. 2010).


                                       I. Denial of Motion to Compel

[14]   A trial court has broad discretion in ruling upon discovery matters, and we will

       reverse such rulings only when there has been a clear abuse of discretion.

       Davidson v. Perron, 756 N.E.2d 1007, 1012 (Ind. Ct. App. 2001), trans. denied.

       An abuse of discretion occurs if a decision is clearly against the logic and effect

       of the facts and circumstances before the court, or if the trial court has

       misinterpreted the law. Wright v. Miller, 989 N.E.2d 324, 330 (Ind. 2013).

       There is a presumption that a trial court will act fairly and equitably in each

       case before it. Id. Also, “[b]ecause of the fact-sensitive nature of discovery

       issues, a trial court’s ruling is cloaked with a strong presumption of

       correctness.” Davidson, 756 N.E.2d at 1012. We also note that the trial court

       made some written statements accompanying its order that might be construed

       as sua sponte findings. We will affirm a general judgment with sua sponte

       findings if it can be sustained on an legal theory supported by the record. Farah,

       LLC v. Architura Corp., 952 N.E.2d 328, 333 (Ind. Ct. App. 2011).


[15]   Indiana Trial Rule 34(C) permits a party to request the production of

       documents from a nonparty in conjunction with the issuance of a subpoena

       under Trial Rule 45. If a nonparty objects to the subpoena, the requesting party

       may file a motion to compel discovery under Trial Rule 37(A). Additionally,

       Trial Rule 26(C) “requires that any party or third party from whom discovery is

       requested may be protected from ‘annoyance, embarrassment, oppression, or
       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 14 of 30
       undue burden or expense’ and permits a variety of conditions to be imposed.”

       In re WTHR-TV, 693 N.E.2d 1, 6 (Ind. 1998). Under the Indiana Trial Rules,

       discovery generally should go forward, “but, if challenged, a balance must be

       struck between the need for the information and the burden of supplying it.” Id.

       “[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 and

       they are no less entitled to any protections the Trial Rules afford.” Id.


[16]   We also set forth the general parameters of permissible discovery found in Trial

       Rule 26(B):


               Parties may obtain discovery regarding any matter, not
               privileged, which is relevant to the subject-matter involved in the
               pending action, whether it relates to the claim or defense of the
               party seeking discovery or the claim or defense of any other
               party, including the existence, description, nature, custody,
               condition and location of any books, documents, or other
               tangible things and the identity and location of persons having
               knowledge of any discoverable matter. It is not ground for
               objection that the information sought will be inadmissible at the
               trial if the information sought appears reasonably calculated to
               lead to the discovery of admissible evidence.


               The frequency or extent of use of the discovery methods
               otherwise permitted under these rules and by any local rule shall
               be limited by the court if it determines that: (i) the discovery
               sought is unreasonably cumulative or duplicative, or is obtainable
               from some other source that is more convenient, less
               burdensome, or less expensive; (ii) the party seeking discovery
               has had ample opportunity by discovery in the action to obtain
               the information sought or; (iii) the burden or expense of the
               proposed discovery outweighs its likely benefit, taking into

       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 15 of 30
               account the needs of the case, the amount in controversy, the
               parties’ resources, the importance of the issues at stake in the
               litigation, and the importance of the proposed discovery in
               resolving the issues. The court may act upon its own initiative
               after reasonable notice or pursuant to a motion under Rule 26(C).


[17]   IPPA and LES did provide some response to the Plaintiffs’ subpoenas.

       Specifically, they agreed to provide documents directly related to construction

       of the Defendants’ CAFO. IPPA also agreed to produce written reports that

       Trenary specifically mentioned during his testimony before the Hendricks

       County Plan Commission. Also, IPPA and LES responded to several of the

       document requests stating that they did not have the documents the Plaintiffs

       were requesting. For example, LES stated that it had no documents related to

       the siting of the CAFO because it was not involved in that decision, nor that it

       had direct communications with any of the Defendants. The Plaintiffs continue

       to insist on appeal that LES must have some of these documents, but we see no

       basis in the record to question LES’s representation that it did not have them.


[18]   The Plaintiffs generally contend that they were entitled to seek additional

       discovery from IPPA and LES to support their negligence claim, i.e. to prove

       that the Defendants knew or should have known that locating their CAFO so

       close to the Plaintiffs’ residences would negatively impact their homes because

       of odors and noxious emissions. The elements of a negligence action are: (1) a

       duty owed to plaintiff by defendant; (2) breach of that duty by conduct falling

       below the applicable standard of care; and (3) compensable injury proximately

       caused by the breach of duty. Williams v. Cingular Wireless, 809 N.E.2d 473, 476

       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 16 of 30
       (Ind. Ct. App. 2004), trans. denied. Foreseeability of harm is a component of

       both duty and proximate cause. Id. at 477. When determining whether a

       particular act is the proximate cause of an injury, the issue is whether the injury

       was a natural and probable consequence of the act that should have been

       foreseen or anticipated in light of the circumstances. Control Techniques, Inc. v.

       Johnson, 762 N.E.2d 104, 108 (Ind. 2002).


[19]   We will assume for the sake of argument that much of the material the Plaintiffs

       were seeking from IPPA and LES was relevant to the question of foreseeability

       in a negligence case.3 That is, communications by IPPA and/or LES to the

       Defendants regarding foul odors and noxious emissions from CAFOs, or more

       general information on that topic, could be relevant to what the Defendants

       knew or should have known when they built their CAFO in close proximity to

       the Plaintiffs’ homes. However, relevance is not the end of the analysis when it

       comes to compelling discovery, especially where a nonparty is concerned.

       There are multiple considerations to be balanced, as reflected in Trial Rule

       26(B). When weighing those considerations, as well as IPPA’s and LES’s

       interests in being left alone as strangers to this litigation, we cannot say the trial

       court abused its discretion in denying the Plaintiffs’ motion to compel.


[20]   The Plaintiffs’ subpoenas requested a wide breadth of documents from IPPA

       and LES, some of them going back two decades. Many of the requested



       3
         There is no claim by IPPA and LES on appeal that the Plaintiffs were seeking privileged or confidential
       information.

       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018                     Page 17 of 30
       documents had no direct relation to the Defendants’ CAFO or to the

       Defendants at all, for that matter. Some of the documents it would appear

       could be more readily obtained from other sources, such as information related

       to the reports prepared by the EPA, NPB, and NPPC regarding CAFOs.


[21]   Most importantly, it appears from the record that the Plaintiffs already acquired

       substantial evidence from other sources regarding the readily-available

       knowledge of the potentially-harmful effects of CAFOs as reflected in

       government, academic, and scientific studies. The Plaintiffs had evidence that

       Samuel Himsel and the CEO of Co-Alliance in particular were aware of such

       potential harmful effects before the CAFO at issue was constructed. The

       Plaintiffs relied upon such evidence and designated it in their response to the

       Defendants’ December 16, 2016 summary judgment motion. That evidence

       was enough to convince the trial court to deny the corporate Defendants’

       summary judgment motion; the court stated in its order denying summary

       judgment that there were genuine issues of material fact as to whether the

       CAFO was a nuisance, whether the CAFO was negligently sited and operated,

       and whether the intrusion of noxious odors onto the Plaintiffs’ properties from

       the CAFO constituted trespass.4


[22]   Considering the evidence the Plaintiffs were able to compile without obtaining

       all the information they sought from IPPA and LES, it is unclear how much




       4
         The trial court granted summary judgment to the individual Defendants on the basis of the corporate shield
       from liability.

       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018                    Page 18 of 30
they truly need that information, particularly in light of the sheer breadth of

records the subpoenas asked IPPA and LES to comb over. In other words, the

discovery that the Plaintiffs were seeking from IPPA and LES could be

considered “unreasonably cumulative or duplicative, or . . . obtainable from

some other source that is more convenient, less burdensome, or less expensive .

. . .” See Ind. T.R. 26(B)(1)(i). Alternatively, it is possible that, “the burden or

expense of the proposed discovery outweighs its likely benefit, taking into

account the needs of the case, the amount in controversy, the parties’ resources,

the importance of the issues at stake in the litigation, and the importance of the

proposed discovery in resolving the issues.” See Ind. T.R. 26(B)(1)(iii). That is

to say, the burden on nonparties IPPA and LES in complying with the

subpoenas would be substantial with little additional benefit to the Plaintiffs in

proving their claims, in light of the evidence the Plaintiffs have already

discovered. Keeping in mind the broad discretion that trial courts enjoy in

ruling on discovery disputes, which requires carefully balancing the

circumstances and equities of each case, we cannot say the trial court here

abused its discretion in denying the Plaintiffs’ motion to compel IPPA and LES

to more completely comply with the subpoenas.5




5
  This holding necessarily resolves the Plaintiffs’ argument that they should have been awarded attorney fees
in addition to the granting of the motion to compel.

Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018                     Page 19 of 30
                             II. Reasonableness of Attorney Fees Awarded

[23]   Next, we address the Plaintiffs’ argument that IPPA and LES asked for and the

       trial court awarded an excessive amount in attorney fees for reviewing and

       partially complying with the subpoenas. Additionally, we believe that we

       should consider IPPA and LES’s cross-appeal, claiming that they were awarded

       too little in fees, in conjunction with this issue. That is to say, the total amount

       of attorney fees and other costs awarded to IPPA and LES should be viewed as

       a whole, in light of all the facts and circumstances of the case.


[24]   We review the amount and reasonableness of an attorney fee award for an

       abuse of discretion. Cavallo v. Allied Physicians of Michiana, LLC, 42 N.E.3d 995,

       1009 (Ind. Ct. App. 2015). Where the amount of a fee award is not

       inconsequential, there must be objective evidence of the nature of the legal

       services and the reasonableness of the fee. Id.


[25]   An award of attorney fees to a nonparty in connection with a subpoena is

       governed by Indiana Trial Rules 34(C)(3) and 37(A)(4). Rule 34(C)(3)

       provides:


               The [subpoena] 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

       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 20 of 30
               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 [a subpoena] 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 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.


[26]   Rule 37(A)(4) in turn states:


               If the 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 the motion is denied, the court shall, after opportunity for
               hearing, require the moving party or the attorney advising the
               motion or both of them to pay to the party or deponent who
               opposed the motion the reasonable expenses incurred in
               opposing the motion, including attorney’s fees, unless the court
               finds that the making of the motion was substantially justified or
               that other circumstances make an award of expenses unjust.




       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 21 of 30
               If the motion 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.


[27]   We examined these two provisions in Gonzalez v. Evans, 15 N.E.3d 628 (Ind. Ct.

       App. 2014), trans. denied. We held in part, “[n]on-parties subjected to

       subpoenas . . . 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.”

       Gonzalez, 15 N.E.3d at 637 (emphasis added). We further explained that under

       Trial Rule 34(C)(3), a subpoenaed nonparty is entitled to “‘damages . . .

       proximately incurred by the witness or person’” and that such damages “may

       include attorney fees directly related to complying with a subpoena, regardless

       of whether there was a basis for resisting it.” Id. (citing Int’l Bus. Mach. Corp. v.

       ACS Human Servs., LLC, 999 N.E.2d 880, 885 (Ind. Ct. App. 2012), trans.

       denied).


[28]   Here, IPPA submitted documentation regarding the time its lawyers and other

       legal professionals spent in relation to the subpoenas. That documentation was

       split into three categories: “fees associated with evaluating the subpoenas and

       complying with discovery”; “fees from reasonable resistance to the subpoenas”;

       and “fees from having to seek recovery for reasonable resistance fees”.

       Appellants’ App. Vol. II pp. 93, 95, 97. The time spent on the first category

       was 12.5 hours for a total cost of $4,980.50. The time spent on the second

       category was 8.4 hours for a total cost of $3,480.00. The time spent on the third


       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 22 of 30
       category was 22.8 hours for a total cost of $5,923.00. The billing rates for the

       attorneys representing IPPA, from the large Indianapolis firm of Bose

       McKinney & Evans, were $450, $410, and $225 per hour; a paralegal also

       worked on the case at a rate of $185 per hour. The trial court only awarded

       IPPA its attorney fees related to the first category.


[29]   As for LES, which utilized the same attorneys and paralegal as IPPA at the

       same hourly rates, it asserted time spent “evaluating the subpoenas [sic] and

       complying with discovery” as 7.4 hours at a total cost of $2,572.75. Id. at 167.

       As for “reasonable resistance to the subpoenas [sic] and seeking to recover for

       reasonable resistance,” it asserted time spent of 17.15 hours at a total cost of

       $5,033.00. Id. at 168. Again, the trial court only awarded attorney fees in

       relation to the first category.6


[30]   The gist of the Plaintiffs’ argument is that IPPA and LES did not need to hire

       such expensive attorneys to evaluate and respond to the subpoenas, which they

       characterize as routine and not seeking any confidential or privileged

       information. When evaluating the reasonableness of an attorney fee award, the

       starting point is the hours worked and the hourly rate charged. Cavallo, 42

       N.E.3d at 1009. The trial court may consider a number of other factors,




       6
         The trial court also awarded $1,353.29 to LES in costs for the time its principal—an engineer—spent
       responding to the subpoena. The Plaintiffs fail to differentiate this amount in its argument regarding attorney
       fees. We conclude they have waived any objection on appeal to this amount for failing to make a cogent
       argument as to why it was improper or excessive. See Brazier v. Maple Lane Apartments I, LLC, 45 N.E.3d 442,
       451 (Ind. Ct. App. 2015) (citing Ind. Appellate Rule 46(A)(8)), trans. denied.

       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018                      Page 23 of 30
       including the responsibility of the parties in incurring the attorney fees and the

       judge’s personal expertise and knowledge. Id. In addition, a court may

       consider the factors listed in Indiana Professional Conduct Rule 1.5(a)

       governing the reasonableness of a fee for disciplinary purposes, but it is not

       required to expressly do so.7 Id. at 1009-10.


[31]   We first reject the Plaintiffs’ suggestion that under Trial Rule 34(C)(3) and

       Gonzalez, a nonparty is only entitled to attorney fees with respect to evaluating

       whether a subpoena is seeking confidential or otherwise sensitive information.

       Although that was indeed the type of information sought in Gonzalez, as well as

       in the IBM case upon which Gonzalez relied, we also stated that attorney

       consultation by a nonparty was permissible “to determine whether there is any

       legal basis to object to the subpoena.” Gonzalez, 15 N.E.3d at 637 (emphasis

       added). As discussed in Part I of this opinion, overbreadth and undue burden

       upon a nonparty are two such legal bases for objecting to a subpoena. IPPA




       7
           Those factors are:

                (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill
                requisite to perform the legal service properly;
                (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will
                preclude other employment by the lawyer;
                (3) the fee customarily charged in the locality for similar legal services;
                (4) the amount involved and the results obtained;
                (5) the time limitations imposed by the client or by the circumstances;
                (6) the nature and length of the professional relationship with the client;
                (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
                (8) whether the fee is fixed or contingent.



       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018                           Page 24 of 30
       and LES were entitled to have their attorneys review the broad subpoenas they

       received before expending substantial time and effort attempting to comply with

       them. They also were entitled under Trial Rule 34(C)(3) to recover attorney

       fees from the Plaintiffs related to that review and their partial compliance with

       the subpoenas.


[32]   We also cannot say that counsel for IPPA and LES spent an inordinate or

       unreasonable amount of time evaluating the subpoenas and facilitating partial

       compliance with them. Again, about 12.5 hours was spent with respect to the

       two subpoenas sent to IPPA and 7.4 hours on the one subpoena sent to LES.

       In other words, approximately three work days were spent on three lengthy and

       detailed subpoenas. This amounts to roughly one day of work on each of them,

       which does not seem outlandish.


[33]   The hourly rate charged here is undoubtedly at the high end of the scale. IPPA

       and LES chose to employ some of the most highly-paid attorneys at one of the

       largest firms in Indiana to review the subpoenas. Combining the hourly rates of

       all the attorneys and the paralegal who worked on the subpoenas, IPPA was

       charged $398.44 per hour with respect to its subpoenas and LES was charged

       $347.67 per hour with respect to its subpoena. Those rates, while high and

       which include a maximum charge of $450 per hour, do not appear in our

       experience and knowledge to be out-of-line with rates charged by experienced

       partners at large Indianapolis firms. As for the Plaintiffs’ contention that less-

       experienced, less-expensive attorneys or paralegals should have spent the bulk

       of the time on these subpoenas, we disagree. Given the sheer volume of

       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 25 of 30
       information sought by the subpoenas in relation to a novel underlying case in

       which IPPA and LES undoubtedly were interested, if not actually parties to, we

       see nothing wrong with their having chosen whom they believed to be the best

       attorneys possible to review the subpoenas.


[34]   In support of their argument that the fees here were excessive, the Plaintiffs cite

       Order for Mandate of Funds Montgomery County Council v. Milligan, 873 N.E.2d

       1043 (Ind. 2007). In that case, a law firm for trial judges who successfully

       sought a mandated increase in their employees’ pay submitted an invoice for

       fees and expenses totaling $128,300. The most highly-paid attorney who

       worked on the case charged $320 per hour. Our supreme court held that the

       firm could only collect $72,810.29. It based this reduction on several factors,

       including a much-lower normal hourly rate for attorneys in Montgomery

       County than in the Indianapolis area, where the firm was located, the issues in

       the case were fairly straightforward and did not require excessive legal work,

       and the fact that the fees sought were substantially more than the total amount

       of pay increases obtained by counsel, or $85,000. Milligan, 873 N.E.2d at 1049-

       50.


[35]   Milligan does not require us to find that the fees here are unreasonable. As for

       the difference between $320 and $450 per hour, we note that Milligan was

       decided over ten years ago. Also, the hourly rate there was found excessive in

       part based on the much lower rates in rural Montgomery County. Here, all of

       the litigation involved parties or entities in Indianapolis or immediately

       surrounding counties that are part of the metropolitan area. There also is no

       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 26 of 30
       recovered judgment with which to compare the approximately $7,500 in

       attorney fees awarded to IPPA and LES as there was in Milligan; regardless,

       their entitlement to those fees is clearly set forth by our trial rules and caselaw.


[36]   We are aware that IPPA and LES are substantively aligned with the

       Defendants here; a judgment in favor of the Plaintiffs could substantially and

       negatively impact the pork CAFO industry in Indiana. Thus, IPPA and LES

       were not necessarily inclined to automatically and fully comply with the

       Plaintiffs’ subpoenas. But they were within their legal rights in not doing so

       and in hiring counsel of their choice to review the subpoenas to determine if

       there was any legal basis for resisting them. They also were within their legal

       rights to seek recovery of attorney fees as nonparties being asked to expend

       considerable time and effort responding to the subpoenas. The fees awarded to

       IPPA and LES are not excessive or unreasonable.


[37]   On the other hand, we also reject IPPA and LES’s cross-appeal contention that

       they were entitled to the full amount of the fees they sought because they

       reasonably resisted the subpoenas, as expressly found by the trial court. IPPA

       and LES argue that once the trial court made such a finding, it was required to

       award them all attorney fees related to resisting the subpoenas and seeking fees

       on fees related to resisting.


[38]   Trial Rule 34(C)(3) expressly states that, if a trial court grants a motion to

       compel discovery from a nonparty, the order compelling discovery “shall” be

       conditioned upon the moving party prepaying damages to the nonparty or


       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 27 of 30
       obtaining a surety bond or other indemnity against such damages, and that

       “[s]uch damages shall include reasonable attorneys’ fees incurred in reasonable

       resistance . . . .” (Emphasis added). The rule is silent as to what happens if the

       trial court denies a motion to compel, as happened here. In such a case, the

       express guidance for awarding attorney fees is found solely in Trial Rule

       37(A)(4), which provides that the trial court shall order the moving party or the

       moving party’s attorney or both of them to pay attorney fees to the other side,

       “unless the court finds that the making of the motion was substantially justified

       or that other circumstances make an award of expenses unjust.”8


[39]   We also note the following observation we made in IBM:


                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.


       IBM, 999 N.E.2d at 890. We proceeded to hold that the trial court did not

       abuse its discretion in reducing by one-half ACS’s undisputed expenses incurred




       8
         At first glance, it may seem illogical to guarantee “reasonable resistance” damages to a nonparty if a motion
       to compel is granted but not if it is denied. We believe the difference can be explained by the fact that the
       party seeking discovery receives a definitive benefit if a motion to compel is granted, counterbalanced by fees
       to the nonparty for any “reasonable resistance,” whereas there is no benefit to the party if the motion to
       compel is denied and there is also a strong possibility, but not guarantee, that it also will have to pay attorney
       fees to the nonparty. In any case, that is the plain language of Rules 34(C)(3) and 37(A)(4).

       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018                         Page 28 of 30
       in reviewing and complying with those requests, out of concerns for “general

       equity.” Id. at 891.


[40]   The trial court here found that it “would be unjust under these circumstances”

       to award additional attorney fees to IPPA and LES, also suggesting that the

       Plaintiffs themselves had substantial justification for filing their motion to

       compel. Appellant’s App. Vol. II p. 27. It also would not be improper to note

       that the Plaintiffs are individual homeowners represented by a public interest

       law firm, while IPPA and LES are businesses in close relation to the

       Defendants who felt comfortable hiring some of the most expensive lawyers in

       the state to address the subpoenas and who already were awarded

       approximately $7,500 in attorney fees related to the subpoenas, which resulted

       in minimal document production to the Plaintiffs. In other words, looking at

       all the facts and circumstances surrounding the discovery dispute between the

       Plaintiffs and IPPA and LES, it is apparent the trial court split the baby by

       awarding IPPA and LES some of the attorney fees it sought, but not all of

       them. The trial court had broad equitable discretion to fashion such a remedy,

       which is not in direct conflict with any trial rule. It did not abuse that discretion

       in refusing to award more attorney fees to IPPA and LES.


                                                   Conclusion
[41]   The trial court did not abuse its discretion in denying the Plaintiffs’ motion to

       compel and in awarding $7,553.25 in attorney fees to IPPA and LES. On cross-

       appeal, the trial court also did not abuse its discretion in refusing to award

       additional attorney fees to IPPA and LES. We affirm in all respects.
       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 29 of 30
[42]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 32A01-1703-PL-612 | February 14, 2018   Page 30 of 30
