In Armor Screen Corp. v. Storm Catcher, Inc., et. al., 2009 U.S. Dist. LEXIS 59927 (S.D. Fla. June 29, 2009), U.S. Magistrate Judge Anne E. Vitunac awarded reasonable expenses incurred by plaintiff in opposing defendants' meritless motion to compel electronically stored information ("ESI") in a reasonably usable format.

Defendants filed a motion to compel plaintiff to provide documents and survey data relied upon by plaintiff's experts.  Plaintiff notified defendants that its expert's reports were prepared using a statistical software program costing $1,700 that would open the files produced to defendants.  Defendants never bought the software and instead filed a motion to compel arguing that plaintiff had an obligation to produce the data in a form that defendants could readily access (i.e., by producing the software program or hard-copy printouts).  The court noted that defendants did not avail themselves of the opportunity to purchase readily available software at a nominal cost that would have alleviated the formatting issue. The court further criticized defendants' counsel for their lackluster efforts in the meet and confer process and in filing a motion to compel ESI that their experts did not need or use. The court rejected defense counsel's argument that it moved to compel to "preserve his expert's right to review the [ESI]" even though counsel did not know whether the expert would actually need or review the data.

The court was also troubled by defendants filing the motion to compel subpoenaed documents without any meet and confer whatsoever, even though all parties were attending a deposition the day the motion was filed. "Apparently, rather than confer with Plaintiff's counsel in a good faith attempt to resolve the issue, the Rist Defendants filed the motion shortly before midnight that same day.  Such actions undermine the purpose and effectiveness of the meet and confer requirement and the court considers such action an additional reason for finding that the motion was not in response to a genuine dispute." The subpoenaed documents were produced prior to the hearing of the motion.

The court awarded reasonable attorneys fees of $4,960.00 which was about half of plaintiff's request.  The court struck certain items that were either non-recoverable or unwarranted (e.g., the court reduced an associate's billing of 7.3 hours to research FRCP 34's "reasonably usable" standard to 4 hours).