In Vaughn v. Grand Brands, LLC, No. 2:19cv596, 2020 U.S. Dist. LEXIS 176744 (E.D. Va. Sep. 25, 2020), a Fair Credit Reporting Act dispute, the Court was tasked with deciding whether Grand Brands LLC (“Defendant”) should be awarded reasonable expenses associated with a motion to compel directed at non-party Equifax Information Services, LLC (“Equifax”). The motion resulted from Defendant’s inability to secure agreement from Plaintiff Danita Vaughn’s (“Plaintiff”) attorneys to provide written authorization from their client permitting Equifax to provide a copy of Plaintiff’s credit report to Defendant. Plaintiff did not contest that her credit report was relevant to the immediate case nor did she oppose Defendant’s efforts to obtain the report.

In ruling that an award of Defendant’s reasonable expenses for compiling its motion to compel was appropriate, the Court noted that according to Fed. R. Civ. P. 37(a)(5)(A), the only time an award of fees is not mandatory is where “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” In determining the absence of any exceptions, the Court noted that Defendant, “endeavored at length to obtain Plaintiff’s written authorization.”

Plaintiff’s counsel advanced two arguments to shield itself from imposition of fees: (1) Equifax was obligated to comply with an attorney subpoena under 15 U.S.C. § 1681b(a)(1) so Defendant contacting Plaintiff in order to obtain the subpoenaed documents was “superfluous and unnecessary,” and (2) “a genuine dispute exists” as to whether Plaintiff was required to assist with Defendant’s subpoena because it was Equifax and not Plaintiff who was subject to the subpoena. The Court rejected both arguments. As to the first argument, the Court observed that “the only subpoena which qualifies [for disclosure under 15 U.S.C. § 1681b(a)(1)] is one issued in connection with a Federal grand jury investigation [thus] certainly a subpoena presented by an attorney in private civil litigation does not.” Continuing with its analysis, the Court noted that  regardless of physical possession, Plaintiff was in control of her credit report and obligated to produce it under Fed. R. Civ. P. 34(a)(1).

Ultimately, the Court found that “Plaintiff required [Defendant] to incur significant expense, not to mention the unnecessary involvement of the Court, when a simple written authorization would have sufficed.” Accordingly, without a “good reason” in refusing to cooperate and by not contesting that the information sought was relevant to the case, Plaintiff “was not substantially justified in refusing to cooperate in discovery.” The Court concluded by noting it has the authority to award costs against Plaintiff, her attorneys or both and decided to only award costs against Plaintiff’s attorneys because there was no information suggesting that Plaintiff “was the instigating force behind the decision to refuse to cooperate.”

Defendant has twenty-one days from the date of the Court’s order to submit a motion substantiating its costs and fees pursuant to the factors enumerated in Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243-44 (4th Cir. 2009). The lesson here: don’t be difficult merely for the sake of making your opponent jump through hoops; the court is likely to take notice and make you pay – literally.