ADDITIONAL CASES Sager Electrical Supply Company, Inc., also known as Sager Electronic, Counter Claimant v. Austin Air Systems, Limited, Counter Defendant DECISION and ORDER This case, originally referred on May 30, 2019, by Honorable Lawrence J. Vilardo to United States Magistrate Judge Hugh B. Scott for all pretrial matters (Dkt. 14), was reassigned to the undersigned on March 5, 2021 (Dkt. 71). The matter is presently before the court for consideration of Plaintiff’s responses to the court’s order to show cause why Defendants ebm and Sager should not be awarded expenses, including reasonable attorney’s fees, incurred in connection with their respective motions to compel filed June 14, 2022 (Dkt. 113) (responding with regard to ebm’s motion to compel, Dkt. 79), and June 18, 2022 (Dkt. 114) (responding with regard to Sager’s motion to compel, Dkts. 82 and 83). The order to show cause was included in the undersigned’s February 15, 2022 Decision and Order (Dkt. 107) (“D&O”). An award of sanctions including, at a minimum, reasonable attorney’s fees incurred in prosecuting a motion to compel, are mandated by Rule 37(a)(5)(A) unless the failure of the responding party to provide discovery was substantially justified or an award of attorney’s fees would, under the circumstances, be unjust. Underdog Trucking LLC v. Verizon Services Corp., 273 F.R.D. 372, 377 (S.D.N.Y. 2011) (citing Fed.R.Civ.P. 37(a)(5)(A)(ii), (iii)) (“Rule 37(a)___”). “A party’s failure to provide discovery is substantially justified if a genuine dispute exists or if there is an objectively reasonable basis for the failure,” Rosehoff, Ltd v. Truscott Terrace Holdings LLC, 2016 WL 2640351, at *4 (W.D.N.Y. May 10, 2016) (citing Parsi v. Daioleslam, 778 F.3d 116, 126 (D.C. Cir. 2015) (citing caselaw)), “such as where a party believed caselaw supported its position….” Scott-Iverson v. Independent Health Association, Inc., 2016 WL 1458239, at *2 (W.D.N.Y. Apr. 14, 2016) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citing Maddow v. Proctor & Gamble Co. Inc., 107 F.3d 846, 853 (11th Cir. 1997))). Further, as the test for substantial justification is “determined by an ‘objective standard of reasonableness and does not require that the party have acted in good faith,’” Underdog Trucking, L.L.C.., 273 F.R.D. at 377 (quoting Bowne of New York City, Inc. v. AmBase Corp., 161 F.R.D. 258, 262 (S.D.N.Y. 1995) (citing Pierce, 487 U.S. at 565)), that a party believed it was acting in good faith is irrelevant. See also Baicker-McKee, Janssen, Corr, FEDERAL CIVIL RULES HANDBOOK (2016 Thomson Reuters) at 970 (“Good faith generally does not equate to substantial justification; the losing party [on the motion to compel] must demonstrate some unsettled issue of law or like circumstance.” (citing Pierce, 487 at 565; Parsi, 778 F.3d at 126-27) (underlining and bracketed material added)). “An award of attorneys fees may be unjust where the party’s failure was based on factors beyond the party’s control.” Scott-Iverson, 2016 WL 1458239, at *3. In the instant case, the record supports a finding that Plaintiff’s failures to respond to Defendants’ respective discovery requests were not substantially justified, nor would an award of attorney’s fees be otherwise unjust. Defendant ebm With regard to ebm’s motion to compel, ebm sought samples of both the Classic Standard and Classic Junior production unit air purifiers (“production unit air purifiers”), the packaging in which the units were sealed and shipped to China, air filters manufactured or produced for use with the air purifiers in China (“air filters”), the prototype air purifier units (“prototypes”) for which testing by both ebm and Plaintiff’s Chinese distributor, Mecent, showed the prototypes meeting China’s revised noise and air flow standards (“revised standards”), and the identity by name of certain individuals with actual participation in or knowledge of events and facts relevant to this action. As explained by ebm in moving to compel, the requested production unit air purifiers were critical for ebm’s inspection for compliance with ebm’s engineering specifications, the air filters were necessary to discern whether a significant air flow variation was attributable to the filters, ebm needed to inspect the prototypes Plaintiff shipped to Mecent who found the prototypes ‘barely met’ the revised standards, and the identity of those individuals involved in various aspects of Plaintiff’s engineering, design, and manufacturing of the production units were required to permit inquiry into such activities. Dkt. 79-1 at 4-10. In opposition to awarding ebm the costs of the motion, Plaintiff argues that Plaintiff produced the sample filters, provided the names of the requested witnesses, served a formal response advising Plaintiff was not in possession of the prototype air purifiers, and, after requesting an extension of time, produced eight newly manufactured sample production units which were delivered to ebm. Dkt. 113
