[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

The EEOC sued “Atlantic Properties” and “DFI” for alleged failure to provide reasonable accommodations under the Americans with Disabilities Act, in an employment context. 

“The EEOC seeks reimbursement of attorneys’ fees and expenses related to three discovery motions: its First Motion to Compel…, a Motion to Enforce the Court’s April 11, 2025 Order…, and a Second Motion to Compel….”  The EEOC’s motion was granted in part and denied in part.  Fees and expenses, in an amount to be determined, were awarded.  EEOC v. Atlantic Property Mgt. Corp., 2026 WL 686430 (D. Mass. Mar. 11, 2026).

THE FIRST MOTION TO COMPEL

On June 26, 2024, the EEOC served interrogatories and a request for production of documents.  Defendants produced some materials, but, without a privilege log, withheld others under claims of protection.  The court wrote:

Although Defendants agreed to supplement and provide a privilege log, they did not do so, and agreed-upon searches were incomplete with responses still outstanding eight months later. After months of correspondence and assurances, the EEOC filed its First Motion to Compel on March 14, 2025. [emphasis added].

The EEOC prevailed and the court wrote: “Following briefing and a hearing on April 10, 2025, the Court granted the Motion in full on April 11, 2025 and extended discovery to May 30, 2025 to accommodate production.  The court ordered that certain financial records be produced.

THE MOTION TO ENFORCE

EEOC filed a motion to enforce the order for two reasons.

First, the EEOC requested that Defendants produce the ordered financial records before a May 19, 2025, Rule 30(b)(6) deposition. They were not produced. The court wrote: “At the deposition, Defendants’ designee testified that the requested financial information was contained in a ‘trial balance sheet’ accessible via an application called Genark and that such reports could be exported to Excel. The EEOC repeatedly requested those trial balance sheets, but Defendants declined to produce them and indicated they would not provide additional financial information absent further court order.”

Second, the EEOC cross-checked Defendants’ email production against email that it had. The court wrote:

The EEOC also identified missing emails that should have been captured by competent searches, including counterpart emails to those the EEOC itself possessed. [emphasis added].

That excellent methodology led to further disclosure, with the court writing: “Defendants admitted a custodian had not been searched and later produced more than 100 previously undisclosed emails but continued to withhold the trial balance sheets, producing only tax records and an unverified spreadsheet.”

THE SECOND MOTION TO COMPEL

On a separate dispute, the EEOC served a second set of discovery requests.  In the court’s words: “Defendants missed the deadline, provided partial written responses without documents, and failed to answer the interrogatories. During a May 14, 2025 discovery conference, Defendants agreed to produce full responses by May 23 but did not do so.”

The EEOC moved to compel and asserted that all objections were waived.  The court stated: “At a June 20, 2025 hearing, Defendants agreed to produce the discovery sought in the Motion to Enforce and the Second Motion to Compel.”

THE PARTIES’ CONTENTIONS

The EEOC filed a Fed.R.Civ.P. 37 fee petition seeking $43,786.00. The court explained:

• “The EEOC contends it attempted in good faith to obtain discovery without court action, that Defendants’ delays and failures were not substantially justified, and that Defendants disobeyed the Court’s April 11 Order and disregarded the Scheduling Order based on their unilateral interpretation.”
• “Defendants oppose the Fee Petition, arguing the EEOC’s time records are insufficiently contemporaneous and specific and that Defendants’ discovery conduct was substantially justified given a compressed schedule and certain ESI search issues.”
• “In response, the EEOC argues that its time accounting is sufficiently particularized and reliable under First Circuit standards because it is grounded in timestamped materials (research histories, emails, calendars) rather than mere recollection, and that it omitted time it could not accurately substantiate.”

THE GOVERNING RULES

The court began its analysis, not with Rule 37, but with the “stop and think” rule, Fed.R.Civ.P. 26(g).  It explained that an attorney’s signature constitutes a certification and:

A certification imposes an affirmative duty to make a reasonable inquiry into the factual and legal basis for discovery positions. If a certification violates Rule 26(g) without substantial justification, the court may impose appropriate sanctions, including an order to pay reasonable expenses caused by the improper certification. Sanctions may be imposed on the signer, the party on whose behalf the signer acted, or both.

The court wrote that, when a motion to compel is granted under Fed.R.Civ.P. 37(a), fee-shifting is presumptive, and the court, with exceptions, “must” award the reasonable fees and expenses incurred in making the motion. Exceptions include substantial justification or avoiding injustice. 

Rule 37(b)(2) authorizes a broad range of sanctions for failure to obey a court order. “The court’s discretion under Rule 37(b) is guided by considerations of proportionality, the nature and willfulness of the noncompliance, prejudice to the moving party, and whether lesser sanctions would be effective.”

If a monetary award is appropriate, the court applies the lodestar method.  Essentially, that method multiplies the reasonable hourly rate times the reasonable hours to arrive at a presumptively reasonable fee.

THE COURT’S ANALYSIS

The First and Second Motions to Compel

The EEOC prevailed on these motions, with the court writing: “Defendants only agreed to satisfactorily resolve the discovery disputes during a brief recess in the middle of the hearing on the Second Motion to Compel.”  Further:

The record reflects extensive efforts by the EEOC to obtain discovery without court action: repeated correspondence, agreements to supplement, identification of custodians and search terms, and accommodations to sequencing and timing. Despite these efforts, agreed-upon searches remained incomplete, privilege logs were not provided when promised, and core categories of documents were not produced. The EEOC also conferred after missed deadlines on the second set of discovery and obtained renewed commitments that were not honored.

The court added:

Defendants’ explanation related to compressed schedules and ESI search challenges do not establish substantial justification, as those are ordinary obstacles in the course of being a litigator. Discovery deadlines were set by the Court, and the EEOC allowed additional time and provided specificity about custodians, counterpart emails, and financial records. The later disclosure of more than 100 previously undisclosed emails after admission that a custodian had not been searched, and the failure to produce comparator personnel files, job descriptions, organizational charts, accommodation-related notes, and other core materials, demonstrate that the nonproduction stemmed from inadequate diligence rather than a reasonable dispute about scope or burden.

As such, it held that the EEOC was entitled to a monetary recovery on those motions.

The Motion to Enforce

The court wrote: “The April 11 Order required production of financial records. After that Order, Defendants acknowledged missing custodians and produced additional emails, but they continued to withhold trial balance sheets that their Rule 30(b)(6) designee testified were readily exportable from Genark. Further, Defendants indicated they would not provide the trial balance sheets absent further court order and produced only tax records and an unverified spreadsheet.”

The court found that, with the upcoming corporate designee deposition, Defendants’ conduct was prejudicial.  It held that the EEOC was entitled to a monetary recovery on that motion.

The Lodestar Analysis

The court found that the EEOC’s submittal was sufficiently particularized and reliable.  “That said, the Court will exclude hours that reflect conversations between counsel, both co-counsel and opposing counsel, as this Court encourages discourse regarding discovery and in no way wants to penalize it. Further, administrative or duplicative tasks are excluded, as well as travel time,” given that EEOC counsel were out-of-state and did not seek remote attendance.  The court directed that EEOC submit a revised lodestar excluding those facts.

Rule 26(g) Sanctions

The court wrote: “To the extent Defendants’ repeated failures to provide complete discovery responses and privilege logs reflect inadequate certification under Rule 26(g), sanctions are likewise appropriate where certifications were not formed after reasonable inquiry.”

The court wrote that an award under that Rule would be duplicative.  None was made; however, a warning was issued.

The EEOC attorneys appear to have been diligent, cooperative, and transparent.  It paid off.

Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.