BB Fly Trucking LLC v. Regions Bank

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BB Fly Trucking LLC,
Plaintiff,
v.
Regions Bank,
Defendant.
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Civil Action No. 4:24-cv-04512
ORDER ON RULE 37 ATTORNEYS’ FEES
On January 21, 2026, this Court issued an order granting Plaintiff BB
Fly Trucking LLC’s motion to compel (Dkt. 29) Defendant Regions Bank to
supplement its inadequate responses to discovery requests, deeming Regions
Bank to have waived assertions of work product privilege over its investigation
of the check underlying this suit, and concluding that Regions Bank’s lack of
substantial 	justification 	for 	withholding 	documents 	and 	information
warranted fee-shifting under Fed. R. Civ. P 37(a)(5)(A). Dkt. 42. In an ensuing
February 23, 2026 order, this Court granted Plaintiff’s motion for sanctions
(Dkt. 51) and found that Plaintiff was entitled to further attorneys’ fees under
Fed. R. Civ. P. 37(b)(2)(A) because Regions Bank violated the January 21, 2026
order by continuing to withhold documents based on a work-product privilege
that was deemed to be waived, violated its discovery obligations by providing
United States District Court
Southern District of Texas
ENTERED
March 05, 2026
Nathan Ochsner, Clerk
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deficient privilege logs, and failed to adequately substantiate any assertions of
privilege. 	See Dkt. 62 at 4-12. The same order also rejected Regions Bank’s
attempt to revisit the Court’s earlier finding that fee-shifting is merited. 	See
id. at 12.
The 	only 	remaining 	issues 	here 	concern 	the 	amount 	of 	Plaintiff’s
reasonable and necessary attorneys’ fees and whether those fees should be
borne 	by 	Regions 	Bank, 	its 	counsel, 	or 	both. 	After 	carefully 	reviewing
Plaintiff’s original and supplemental fee applications, Dkt. 45, 70, Regions
Bank’s responses, Dkt. 56, 77, and the applicable law, the Court concludes that
Regions 	Bank 	and 	its outside 	counsel must 	pay 	to 	Plaintiff the sum of
$6,200.00 as reasonable attorneys’ fees related to Plaintiff’s motion to compel
(Dkt. 29), and that Regions Bank’s outside counsel, alone, owes Plaintiff the
further sum of $6,500.00 in reasonable attorneys’ fees for violating the January
21, 2026 discovery order.
Fees related to Plaintiff’s motion to compel (Dkt. 29). 	Plaintiff
requests $8,650.00 in attorneys’ fees related to its original motion to compel
discovery, based on 17.3 attorney hours expended and an hourly rate of $500.
See Dkt. 45 at 5; Dkt. 45-1 at 2 (counsel’s declaration); id. at 4-6 (billing
entries). Regions Bank responds that Plaintiff is entitled “at best” to $1,500 in
fees that “are directly related to Plaintiff’s preparation of the motion to
compel.” Dkt. 56 at 12. The answer lies somewhere between those two figures.
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Rule 37(a)(5)(A) states, in pertinent part, that upon granting a motion to
compel, “the court must, after giving an opportunity to be heard, require the
party ... whose conduct necessitated the motion, the party or attorney advising
that conduct, or both to pay the movant’s reasonable expenses incurred in
making the motion, including attorney’s fees.” 	Fed. R. Civ. P. 37(a)(5)(A).
Under that rule, the prevailing party can recover its fees incurred preparing
and litigating the motion to compel. See Tollett v. City of Kemah, 285 F.3d 357,
368 (5th Cir. 2002); see also, e.g., Johnson v. Mississippi, 606 F.2d 635, 638 (5th
Cir. 1979) (holding as a general matter that “the time expended by an attorney
litigating the fee claim is justifiably included in the court’s fee award”); Eubank
v. Lockhart Indep. Sch. Dist., 2017 WL 9325506 at *2 (W.D. Tex. Jan. 25, 2017)
(applying Johnson to fee application under Rule 37).
The injured party is also entitled to its “reasonable expenses [including
attorney’s 	fees] 	caused 	by 	[the] 	failure 	to 	comply 	with 	discovery” 	that
precipitated its motion to compel. 	See Tollett, 285 F.3d at 368; see also, e.g.,
Williams v. Best Temporary Servs., LLC, 2015 WL 12763508, at *2 (N.D. Tex.
June 17, 2015) (awarding fees incurred preparing the successful portions of the
motion to compel and conferring with opposing counsel “as to the motion to
compel”). Also recoverable is the “time spent litigating the fee claim.” Eubank,
2017 WL 9325506, at *2 (citing Johnson, 606 F.2d at 638). 	But the injured
party cannot recover fees that it would have incurred even if the motion had
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not been filed. 	See, e.g., id. (excluding fees for reviewing discovery responses
and communicating with opposing counsel that “would have been incurred
even if motion practice had not been necessary”).
More generally, “a court employs the ‘lodestar’ method to calculate the
amount of fees to be awarded under Rule 37.” 	Cortis, Inc. v. Cortislim Int’l,
Inc., 2014 WL 12577397, at *3 (citing Tollett, 285 F.3d at 367, which utilized
the lodestar method). 	Under that method, the court takes the “number of
hours reasonably expended” and multiples that “by an appropriate hourly rate
in the community for such work.” 	Id. (quoting Heidtman v. Cnty. of El Paso,
171 F.3d 1038, 1043 (5th Cir. 1999)). As with all fee requests, the party seeking
fees under Rule 37 bears the burden to prove that the attorney-hours expended
and the attorney’s billable rate are reasonable. See id.
The foregoing standards exclude some of Plaintiff’s requested attorneys’
fees. 	In particular, the attorney work reflected in the billing entries from
November 15, 2025 through December 12, 2025, 4.0 hours in all, Dkt. 45-1 at
4, 	is 	not 	recoverable 	because 	such 	“[r]eview 	of 	discovery 	responses 	and
communication with opposing counsel is part of the discovery process, and
those fees would have been incurred even if motion practice had not been
necessary.” 	Eubank, 2017 WL 9325506, at *2 (excluding analogous attorney
hours). 	Indeed, conferring about alleged discovery deficiencies is not only
expected but required before seeking court intervention.
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With one exception, the attorney hours from December 17, 2025 onward
relate directly to Plaintiff’s motion to compel and were caused by Regions
Bank’s 	discovery 	deficiencies. 	Recoverable 	hours 	include 	12.4 	hours 	of
attorney time spent (a) notifying Regions Bank about Plaintiff’s intent to file a
motion to compel, (b) preparing and finalizing the motion to compel before
filing it; (c) conducting post-motion conferences and negotiations with Regions
Bank’s counsel; (d) reviewing related Court orders and participating in the
hearing on the motion to compel; and (e) preparing Plaintiff’s fee application.
See Dkt. 45-1 at 5-6. As concluded in a previous order, Dkt. 42 at 9, the mere
fact that Regions Bank ultimately capitulated on some of the issues does not
alter Plaintiff’s entitlement to fees necessitated by Regions Bank’s failure to
comply with discovery obligations at the outset. See Fed. R. Civ. P. 37(a)(4)(A).
But the Court excludes .9 hours that Plaintiff’s counsel spent reviewing
Regions Bank’s amended discovery responses after the January 20, 2026
hearing that resolved Plaintiff’s motion to compel. See Dkt. 45-1 at 6 (January
21, 2026 entry). 	That work would have been necessary even if Regions Bank
had provided the requested information in the first instance. See, e.g., Cortis,
Inc., 2014 WL 12577397, at *3 (“Because fees for reviewing discovery responses
would have been incurred regardless of the failure to comply with the order
and 	were 	not 	actually 	cause 	by 	a 	discovery 	violation, 	they 	are 	not
recoverable.”).
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Thus, only 12.4 hours of attorney time in Plaintiff’s fee application
(Dkt. 45) are recoverable. 	Having reviewed those billing entries, the Court
concludes that the amount of time spent on each individual task is reasonable.
Further, Regions Bank does not dispute, and the Court also finds, that the
$500 hourly rate for Plaintiff’s counsel is reasonable in this type of case,
especially considering counsel’s qualifications and 37 years of experience
litigating commercial and lender liability cases. 	See Dkt. 45-1 at 2. Applying
the 	lodestar 	method, 	the 	appropriate 	attorneys’ 	fee 	award 	for 	Plaintiff’s
successful motion to compel is $6,200.00.
Based on the discussions at the January 20, 2026 hearing, it is apparent
that the fault for the discovery deficiencies lies with both Regions Bank and its
outside counsel. 	As a result, both client and counsel are jointly and severally
liable to Plaintiff for those fees.
Attorneys’ fees related to Plaintiff’s motion for sanctions (Dkt. 51).
At the Court’s direction, Plaintiff filed a supplement detailing its attorneys’
fees relating to its motion requesting sanctions for Regions Bank’s failure to
comply 	with 	the 	January 	21, 	2026 	discovery 	order. 	See 	Dkt. 	70. 	The
supplement seeks an additional $8,550.00 in fees based on 17.1 attorney hours
at counsel’s $500 hourly rate. See id. at 4; Dkt. 70-1 at 2 (counsel’s declaration);
id. at 4-5 (billing entries). Regions Bank responded that it does not dispute the
reasonableness of those fees. 	See Dkt. 77. 	Nevertheless, the Court’s analysis
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of the original fee application merits reducing a portion of Plaintiff’s requested
supplemental fees.
Like counsel’s review of Regions Bank’s original discovery responses and
his 	initial 	communications 	with 	opposing 	counsel 	about 	those 	responses,
neither counsel’s review of Regions Bank’s privilege log (on January 28, 2026)
nor counsel’s initial correspondence flagging deficiencies (on January 29, 2026)
is recoverable. See Dkt. 70-1 at 4. Those tasks, totaling 4.0 hours, would need
to be undertaken in every case even without seeking relief.
The 	remaining 	attorney 	hours, 	however, 	were 	incurred 	because 	of
Regions Bank’s failure to comply with the January 21, 2026 discovery order
despite 	Plaintiff’s 	pre-motion 	efforts 	to 	resolve 	the 	issue. 	This 	includes
Plaintiff’s counsel’s combined 13.1 hours spent (a) research and drafting the
motion 	for 	sanctions; 	(b) 	reviewing 	related 	Court 	orders 	and 	responsive
briefing; (c) preparing for and participating in the hearing; and (d) preparing
the supplemental fee application. See Dkt. 70-1 at 4-5 (entries dated February
4, 2026 through February 27, 2026). In addition, both counsel’s time expended
on each task and his hourly rate are reasonable. Based on the lodestar method,
the appropriate fee award for Plaintiff’s successful motion for sanctions is
$6,550.00.
The nature of the sanctionable conduct dictates that those fees should be
taxed against Regions Bank’s outside counsel. 	Counsel was responsible for
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preparing the privilege logs that were not only inadequate on their face, but
also defied the January 21, 2026 order’s finding that work-product privilege
had been waived and ignored the order’s warning not to use the privilege log
as an end-run around that finding. As the Court observed, counsel “appeared
wholly unfamiliar with the Order’s express restrictions” about the privilege log
and Regions Bank’s waiver of work product privilege “when confronted with
them at the hearing.” 	Dkt. 62 at 9. 	Because the fault lies with counsel, it is
counsel who must reimburse Plaintiff for its $6,500.00 in attorneys’ fees.
Conclusion
For the foregoing reasons, it is ORDERED that Plaintiff’s original
motion for attorneys’ fees (Dkt. 45) is GRANTED IN PART. 	Plaintiff is
entitled to recover $6,200.00 in attorneys’ fees from Regions Bank and its
outside counsel, jointly and severally, under Fed. R. Civ. P. 37(a)(5)(A).
It 	is 	further 	ORDERED 	that 	Plaintiff’s 	supplemental 	motion 	for
attorneys’ fees (Dkt. 70) is GRANTED IN PART. 	Regions Bank’s outside
counsel must reimburse Plaintiff for $6,500.00 in attorneys’ fees under Fed. R.
Civ. P. 37(b)(2)(A) for violating the January 21, 2026 discovery order.
It is ORDERED that all attorneys’ fees must be paid by April 3, 2026.
Signed on March 5, 2026, at Houston, Texas.
__________________________________
Yvonne Y. Ho
United States Magistrate Judge
Texass...
____________________________________
nne Y	Y	Y.. H	Ho
ed S	Sttates Magiistrate Judge
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