Xerox Corporation v. Conduit Global, Inc.

OCR transcription for search; preserved printed pages are authoritative

Case 6:21-cv-06467-EAW-MJP Document 86 Filed 07/26/24 Page 1 of 47

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

Xerox Corporation,

Plaintiff and Counterclaim-
Defendant.
DECISION and ORDER
Vv.
21-cv-6467-EAW-MJP
Conduit Global, Inc.,

Defendant and Counter-
claim-Plaintiff

APPEARANCES

For Plaintiff and

Counterclaim-Defendant: Carolyn G. Nussbaum, Esq.
Eric M. Ferrante, Esq.
Sarah L. Tufano, Esq.
Nixon Peabody LLP
1300 Clinton Sq, Ste 1244
Rochester, NY 14604

For Defendant and

Counterclaim-Plaintiff: Peter J. Behmke, Esq.
Maxwell D. Herman, Esq.
Scott S. Balber, Esq.
Herbert Smith Freehills New
York LLP
450 Lexington Ave, 14th Flr
New York, NY 10017

[Remainder of this page intentionally blank.]

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INTRODUCTION
Pedersen, M.J. The Federal Rules of Civil Procedure make los-
ing a motion to compel costly. They likewise reward successful protective
order motions.
Here, Plaintiff Xerox brought a successful motion for a protective
order. Xerox likewise prevailed on the bulk of its opposition to Defendant
Conduit Gobal’s motion to compel. On the other side of the coin, how-
ever, Conduit succeeded on some of its motion to compel. The question
for the Court is whether to award attorneys’ fees and costs and to whom.
BACKGROUND
This case involves a contract dispute between Xerox and its for-
mer service provider, Conduit. Under an Outsourcing Agreement, Xerox
asked Conduit to provide telephone services for Xerox customer support.
The Agreement required Conduit to provide “customer service call cen-
ter support and other extensive IT-related services” and to do so in a
secure manner. (Compl. ¶¶ 13–14, ECF No. 1, July 2, 2021.) Conduit
provided a platform to support Xerox’s customer relationships in the
United States, including customer service, orders, and sales. (Id. ¶ 1.)
Recognizing the critical role that these functions played in Xerox’s
operations, the Agreement required Conduit to “maintain levels of phys-
ical and data security protection in accordance with industry standards,
current legal obligations and Xerox policies as outlined in Schedule 15
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(Xerox Policies) of this Agreement.” (Herman Decl. Ex. 1 (the “Agree-
ment”) § 20.1, ECF No. 60-2, Feb. 28, 2023.) These security protections
could include, for example, multi-factor authentication, which Xerox al-
leges Conduit failed to implement. (Compl. ¶ 22, ECF No. 1 (alleging
that the cause of the breach to Conduit’s networks included “Conduit’s
failure to use multi-factor authentication and its use of insufficient end-
point security and intrusion detection”).)
Conduit 	suffers 	a 	ransomware 	attack 	that 	allegedly 	harms
Xerox, so Xerox sues.
Roughly three-and-a-half years into the Agreement, Conduit suf-
fered a ransomware attack.1 The attack appears to have been wide-
spread: Xerox indicates that the attackers “cripple[d] all of Conduit’s
data centers globally.” (Id. ¶ 23.) Xerox notes that “Xerox agents could
not log into Conduit’s system to take customer calls and Xerox customers
and partners could not contact Xerox by telephone, including those in
need of repairs[.]” (Id.) In sum, the attack “crippled” Xerox’s ability to
communicate with its partners and customers for “weeks.” (¶¶ 1, 12, 20,
ECF No. 1.)
Xerox terminated the Agreement for cause based on Conduit’s
“material breaches” of the Agreement, citing Conduit’s “failure to meet
1 For background, see Federal Bureau of Investigation, Ransomware,
https://www.fbi.gov/how-we-can-help-you/scams-and-safety/common-scams-
and-crimes/ransomware (last visited July 25, 2024).
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contractually prescribed service levels.” (Id. ¶¶ 1, 3, 32.) Conduit re-
jected the notice, demanding the termination fee required under the
Agreement for termination without cause. (Id. ¶¶ 34, 42.) So, Xerox
sued, seeking a declaratory judgment that terminating Conduit was
valid, that Xerox was not obligated to pay the termination fee, and that
Xerox should be awarded damages for Conduit’s breach. (Id. ¶¶ 53 &
59.)
After a saga of discovery disputes, the parties bring dueling dis-
covery motions.
After the parties completed their pleadings, the Hon. Elizabeth
A. Wolford, Chief Judge, referred this case to the undersigned. (Text Or-
der, ECF No. 10, July 29, 2021.) With this case came a string of discovery
disputes. While the Court managed to informally resolve some of the
parties’ disputes, Conduit eventually moved to compel. (ECF No. 60,
Feb. 28, 2023.) Xerox opposed and cross-moved for a protective order.
(ECF No. 62, Mar. 21, 2023.) Conduit’s motion to compel comprised two
categories.
Conduit first demanded Xerox policy documents, including “all”
documents related to Xerox’s data security “policies” and “any analysis
or assessment” of the same. (Herman Decl. in Supp. of Mot. to Compel
Ex. 4 at 9 ¶¶ 1 & 2 (Conduit’s Second Set of Document Requests, Request
Nos. 1 and 2), ECF No. 60-5, Feb. 28, 2023.) The parties refer to these
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as the “Policy Requests.” The Policy Requests ask Xerox to produce doc-
uments explicitly referenced in the Agreement and any “analysis or as-
sessment” of those policies:
1. All Documents Concerning [Xerox’s] policies rules, re-
quirements and procedures relating to data security, in-
cluding but not limited to [Xerox’s] policies, rules, require-
ments and procedures referenced in Section 20.1 of the
Outsourcing Agreement.
2. All Documents Concerning any analysis or assessment
of [Xerox’s] policies, rules, requirements, and procedures
relating to data security, including but not limited to
[Xerox’s] policies, rules, requirements and procedures ref-
erenced in Section 20.1 of the Outsourcing Agreement.
(Id.) Conduit additionally maintained that, under these requests, it
should have access to assessments and policies regarding two other
Xerox vendors: Bell Canada and Genesys.2 Ultimately, the Court disa-
greed.
2 About this, Conduit stated in its motion to compel:
Based on discovery to date, Conduit understands there are at
least two Xerox business partners that provided the same or sim-
ilar information and technology services to Xerox during the rel-
evant period: Bell Canada (which provided telephony services to
Xerox in Canada) and Genesys (to which Xerox outsourced te-
lephony services after terminating the Agreement with Con-
duit). There are presumably other business partners that pro-
vided information services to Xerox, or that had similar Xerox
data on its systems, that were required to comply with the same
policies as Conduit. Because Xerox was required under its own
policies to review, assess, and audit all security controls applica-
ble to those services, processes, and information, Conduit ex-
pects there is a trove of relevant information concerning Xerox’s
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The second category of Conduit’s motion to compel deals with a
separate ransomware attack Xerox suffered (the “Xerox Incident Re-
quest”). Conduit’s Xerox Incident Request demanded documents and in-
formation about a cyber-attack Xerox had suffered: “All Documents and
Communications Concerning any malware or cyberattacks on [Xerox],
including but not limited to the cyberattack suffered by [Xerox] in or
about June 2020[.]” (Id. Ex. 2 at 13 ¶ 21 (Conduit’s First Set of Document
Requests, Request No. 21), ECF No. 60-3, Feb. 28, 2024.) The Court de-
nied Conduit’s motion to compel concerning this Request, granting in-
stead Xerox’s cross-motion for a protective order concerning the Xerox
Incident.
In cross-moving for a protective order, Xerox argued that the
Xerox Incident was irrelevant to Conduit’s claims and defenses. (Mem.
of Law in Opp’n to Mot. to Compel and in Supp. of Cross-Mot. at 19–22,
ECF No. 62-6, Mar. 21, 2023.) Besides contending that the Xerox Inci-
dent was “beyond the proper scope of discovery,” Xerox argued that Con-
duit had “no purpose” for these requests other than to “frustrate and
annoy Xerox.” (Id. at 2, 23–24.)
usage, course of dealing, and understanding of those policies as
applied to businesses and systems like those of Conduit.
(Mem. of Law in Supp. of Mot. to Compel at 10, ECF No. 60-15.)
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The Court decides Conduit’s motion to compel and Xerox’s mo-
tion for a protective order.
The Court granted Conduit’s motion to compel in part but granted
Xerox’s cross-motion for a protective order in full. (Decision & Order
(“D&O”), ECF No. 73, Sept. 7, 2023.3) The Court granted Conduit’s mo-
tion to compel only concerning part of its “Policy Requests.” The Court
limited what it would compel by requiring that the documents Xerox had
to produce could only relate to “Xerox’s claims that Conduit failed to
comply with Xerox policies”:
After considering extensive arguments of both parties, the
Court directs Xerox to respond to Request 1 and to produce
all relevant documents concerning Xerox’s policies, rules,
requirements and procedures relating to data security, in-
cluding but not limited to Xerox’s policies, rules, require-
ments and procedures referenced in Section 20.1 of the
Outsourcing Agreement so long as it is related to Xerox’s
claims that Conduit failed to comply with Xerox policies.
The Court finds that this information will aid[] Conduit in
understanding its alleged breaches of the Agreement and
possibly lead to admissible evidence.
(Id. at 6.) Since then, Xerox has maintained that it already turned over
all documents the Court required it to compel.
After the Court grants Conduit’s motion in part, Conduit moves
for attorneys’ fees.
The Court allowed the parties to submit briefing on whether to
award costs, and if so, to what extent. Conduit moved for $74,143.60 in
3 This decision and order is dated September 6, 2023, but was docketed
on September 7.
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attorneys’ fees under Federal Rule of Civil Procedure 37. (Behmke Decl.
in Supp. of Fee Mot. ¶ 25, ECF No. 74-1, Sept. 20, 2023.) Conduit based
its request on Fed. R. Civ. P. 37(a)(5)(A). (Mem. of Law in Supp. of Fee
Mot. at 4, ECF No. 74-4.) Xerox cross-moved for $51,951.20 in reasona-
ble expenses, including attorneys’ fees
pursuant 	to 	Federal 	Rule 	of 	Civil 	Procedure
37(a)(5)(C) and/or Rule 37(a)(5)(B), and in making
a Cross-Motion for a Protective Order (Dkt. No. 62),
pursuant 	to 	Federal 	Rule 	of 	Civil 	Procedure
26(c)(3) and Rule 37(a)(5)(A), on the grounds that
the Court’s Decision and Order (Dkt. No. 73) sub-
stantially 	denied 	Conduit’s 	Motion 	to 	Compel,
granting it only as to documents Xerox had already
produced, and granted Xerox’s Cross-Motion for a
Protective Order in its entirety.
(Nussbaum Decl. in Opp’n to Fee Mot. and in Supp. of Fee Cross-Mot.
(“Nussbaum Cross-Mot. Decl.”) ¶¶ 2 & 36, ECF No. 75-1, Oct. 4, 2023.)
Conduit opposed Xerox’s cross-motion for two reasons. First, Con-
duit argued that Xerox was procedurally barred from receiving a fee
award for “fail[ure] to meet and confer with Conduit prior to filing its
motion for a protective order to limit the scope of depositions, a prereq-
uisite for any fee award.” (Opp’n to Fee Cross-Mot. and Reply in Supp.
of Fee Mot. at 1, ECF No. 78, Oct. 11, 2023.) Second, Conduit claimed
that its “motion to compel and opposition to the protective order were
well supported by legal authority” and thus substantially justified, pre-
cluding fee shifting under Rule 37(a)(5). (Id. at 1–2.)
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Xerox responds to Conduit’s application for attorneys’ fees by
cross-moving.
Xerox had two responses. First, Xerox claimed it had attempted
to meet and confer with Conduit on the subject matter of the protective
order and that further attempts would have been futile. (Nussbaum Re-
ply Decl. in Supp. of Fee Cross-Mot. ¶¶ 3–8, ECF No. 79, Oct. 18, 2023.)
Second, Xerox argued that because Conduit’s motion to compel was de-
nied essentially in full, “[t]he only fair apportionment is to deny any fees
to Conduit.” (Reply Mem. of Law in Supp. of Fee Cross-Mot. at 3, ECF
No. 79-12, Oct. 18, 2024 (emphasis in original).) Similarly, Xerox as-
serted that since “Xerox’s” motion for a protective order “was completely
successful[,] [t]he Court should grant Xerox’s Fee Cross-Motion in its
entirety.” (Id. (alterations added).)
The Court holds oral argument on the fees applications.
The Court held oral argument on the dueling fees motions on De-
cember 13, 2023. (Minute Entry, ECF No. 82.) Although the Court per-
mitted the parties time to submit limited post-argument briefing, they
declined to do so. (Text Order, ECF No. 83, Dec. 14, 2023; Xerox Letter,
ECF No. 84, Dec. 19, 2023.)
LEGAL STANDARDS
For the reasons discussed here and below, the Court analyzes
Xerox’s motion for a protective order under Fed. R. Civ. P. 37(a)(5)(A)
and Conduit’s partially successful motion to compel under Fed. R. Civ.
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P. 37(a)(5)(C). The Court begins with the standard applicable to the mo-
tion to compel.
Rule 37(a)(5)(C) gives the Court broad discretion to apportion
fees for Conduit’s motion to compel.
When the court grants in part and denies in part a Rule 37 motion
to compel, under the plain language of that rule, it “may issue any pro-
tective order authorized under Rule 26(c) and may, after giving an op-
portunity to be heard, apportion the reasonable expenses for the mo-
tion.” Fed. R. Civ. P. 37(a)(5)(C). Courts have “broad discretion” to award
such fees. Uddin v. O’Brien Rest. Holding Co., LLC, No. 16-CV-2098
(RJS), 2017 WL 11674895, at *3 (S.D.N.Y. Aug. 23, 2017) (quoting Smith
v. Conway Org., Inc., 154 F.R.D. 73, 78 (S.D.N.Y. 1994)); see also Corpo-
ration of Lloyd’s v. Lloyd’s U.S., 831 F.2d 33, 36 (2d Cir. 1987). As dis-
cussed below in denying Conduit’s motion for fees with leave to renew,
Rule 37(a)(5)(C) may include the exceptions the Court discusses for Rule
37(a)(5)(A).
Rule 37 mandates that the Court award attorneys’ fees based on
Xerox’s successful Rule 26(c) motion unless an exception applies.
Fed. R. Civ. P. 37(a)(5)(A) requires the party opposing a motion
for a protective order to “pay the movant’s reasonable expenses incurred
in making the motion, including attorney’s fees” if the Court grants the
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motion.4 This rule has three exceptions. See Hassoun v. Searls, 524 F.
Supp. 3d 101, 109 (W.D.N.Y. 2021) (“It is widely accepted that an award
of expenses under Rule 37(a)(5)(A) is mandatory unless one of the three
exceptions applies.” (cleaned up) (quoting Wager v. G4S Secure Integra-
tion, LLC, No. 1:19-CV-03547 MKV KNF, 2021 WL 293076, at *4
(S.D.N.Y. Jan. 28, 2021))). Under these exceptions, the Court must not
award fees where
4 Some brush-clearing may be helpful about the governing law for this
decision. First, Fed. R. Civ. P. 26(c)(3) directs the Court to look to Fed. R. Civ.
P. 37(a)(5) for awarding fees on a successful motion for a protective order.
Second, the rule also requires that the Court provide the losing party
the opportunity to be heard. See Hassoun v. Searls, 524 F. Supp. 3d 101, 109
(W.D.N.Y. 2021) (“Rule 37(a)(5)(A) mandates an award of fees in connection
with a successful motion to compel, unless ‘after giving an opportunity to be
heard’ the Court determines that” one of three exceptions applies (quoting Fed.
R. Civ. P. 37(a)(5)(A))). Here, the Court provided as much by hearing from the
parties on papers and at oral argument. See, e.g., Ost-W.-Handel Bruno Bis-
choff GmbH v. M/V Pride of Donegal, No. M8-85, 1997 WL 231126, at *1
(S.D.N.Y. May 7, 1997) (“The parties have been afforded an opportunity to be
heard, as I decide this motion having heard the parties at oral argument and
having considered their letter briefs on the issue of attorneys' fees which were
submitted at my request.”).
Third, the Court finds that Fed. R. Civ. P. 37(a)(5)(A) applies to Xerox’s
fully successful motion for a protective order. Fed. R. Civ. P. 37(a)(5)(C) gives
the Court some pause because it anticipates that in granting in part and deny-
ing in part a motion to compel, the Court may also award a protective order. It
states: “If the motion is granted in part and denied in part, the court may issue
any protective order authorized under Rule 26(c)[.]” Fed. R. Civ. P. 37(a)(5)(C).
But the plain language of Rule 37(a)(5)(A) seems far more applicable because
it contemplates situations like this one where the Court granted a motion for
a protective order in full. Moreover, Rule 37(a)(5)(C) seems designed for situa-
tions in which the party opposing the motion to compel does not move for a
protective order. That is not the case here. Under Rule 37(a)(5)(C), the Court
may still grant a protective order, even if the party opposing the motion to
compel did not move for one.
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• 	“(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.”
Id. (reformatted as a list) (quoting Fed. R. Civ. P. 37(a)(5)(A)(i)–(iii)).
“The burden is ‘on the disobedient party to avoid expenses by showing
that his failure is justified or that special circumstances make an award
of expenses unjust.’” White v. Larusch, 532 F. Supp. 3d 122, 124
(W.D.N.Y. 2021) (quoting Novak v. Wolpoff & Abramson LLP, 536 F.3d
175, 178 (2d Cir. 2008)).
If the Court awards fees, the lodestar analysis applies.
“After concluding a party is entitled to attorneys’ fees, a court de-
termines the ‘presumptively reasonable fee’ to which that party is enti-
tled by multiplying a reasonable hourly rate for each attorney by the
reasonable number of hours he or she expended on the case.” Capitol
Recs., LLC v. ReDigi Inc., No. 1:12-CV-95 (RJS), 2022 WL 3348385, at
*1 (S.D.N.Y. Aug. 12, 2022) (Sullivan, J., sitting by designation) (quoting
Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany,
522 F.3d 182, 189–90 (2d Cir. 2008)). “This procedure is referred to as
the ‘lodestar method.’” Id. (quoting McDonald ex rel Prendergast v.
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Pension Plan of the NYSA-ILA Pension Tr. Fund, 450 F.3d 91, 96 (2d
Cir. 2006)).
Additionally, the Second Circuit has directed district courts to
consider factors outside the lodestar.5 See Arbor Hill, 522 F.3d at 190
(noting that district courts should “bear in mind all of the case-specific
variables that we and other courts have identified as relevant to the rea-
sonableness of attorney’s fees in setting a reasonable hourly rate”).
Courts are thus entrusted with discretion to calculate a reasonable fee
5 In Arbor Hill, the Second Circuit listed seven non-exhaustive factors:
(1) the complexity and difficulty of the case,
(2) the available expertise and capacity of the client’s
other counsel (if any),
(3) the resources required to prosecute the case effec-
tively (taking account of the resources being mar-
shaled on the other side but not endorsing scorched
earth tactics),
(4) the timing demands of the case,
(5) whether an attorney might have an interest (inde-
pendent of that of his client) in achieving the ends of
the litigation or might initiate the representation
himself,
(6) whether an attorney might have initially acted pro
bono (such that a client might be aware that the at-
torney expected low or non-existent remuneration),
and
(7) other returns (such as reputation, etc.) that an at-
torney might expect from the representation.
Id. at 184 (reformatted as a list).
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given their “familiarity with the quality of the representation and the
extent of the litigation[.]” Cush-Crawford v. Adchem Corp., 94 F. Supp.
2d 294, 301 (E.D.N.Y. 2000), aff’d, 271 F.3d 352 (2d Cir. 2001) (citing
Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998)).
But the “starting point” is always calculating the lodestar. Millea
v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (“While the lodestar
is not always conclusive, its presumptive reasonability means that, ab-
sent extraordinary circumstances, failing to calculate it as a starting
point is legal error.”). It is the starting point because “the Supreme
Court’s directive that fee award calculations be ‘objective and reviewa-
ble,’ implies [that] the district court should at least provide the number
of hours and hourly rate it used to produce the lodestar figure.” Id. at
166–67 (quoting Perdue v. Kenny A. ex rel. Winn., 559 U.S. 542, 555
(2010)).
XEROX IS ENTITLED TO ATTORNEYS’ FEES
Xerox successfully opposed the bulk of Conduit’s motion to com-
pel. And the Court granted Xerox’s motion for a protective order in full.
Under these circumstances, and for the reasons the Court discusses, the
Court will award Xerox some of its requested attorneys’ fees as an exer-
cise of its discretion under Fed. R. Civ. P. 37(a)(5)(A) & (C). The Court
addresses Conduit’s application for fees separately.
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Conduit has not shown it is entitled to an exception based on
the Federal Rules’ meet-and-confer requirement.
There are two possible meet-and-confer provisions involved here.
First, under Fed. R. Civ. P. 26(c)(1), the party moving for a protective
order “must include a certification that the movant has in good faith
conferred or attempted to confer with other affected parties in an effort
to resolve the dispute without court action.” Second, under Fed. R. Civ.
P. 37(a)(5)(A)(i), which applies to awards of fees per Fed. R. Civ. P.
26(c)(3), the Court “must not order” a fee award if “the movant filed the
motion before attempting in good faith to obtain the disclosure or dis-
covery without court action.” The Court begins with the first of these.
Conduit forfeited any argument based on Xerox’s
failure 	to 	include 	a 	certification 	in 	opposing
Xerox’s cross-motion under Rule 26(c)(1).
Remember that Conduit moved to compel all Xerox Incident doc-
uments, namely, “[a]ll Documents and Communications concerning any
malware or cyberattacks on [Xerox],” including the ransomware attack
Xerox suffered “in or about June 2020.” (Nussbaum Cross-Mot. Decl.
¶ 20, Oct. 4, 2023, ECF No. 75-1.) Xerox cross-moved for a protective
order. (ECF No. 62.) The Court granted Xerox’s motion. (D&O at 9–10,
ECF No. 73.) Xerox’s cross-motion did not mention its attempts to meet-
and-confer with Conduit nor did it include a certification or affidavit
about the same. But neither did Conduit raise the issue in its opposition
to Xerox’s cross-motion. Or at all, for that matter.
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Because Conduit did not raise Xerox’s failure to include a certifi-
cation in opposing Xerox’s cross-motion under Rule 26(c)(1), Conduit
may not do so now. The Court finds that Conduit forfeited this argu-
ment. See Brown v. City of New York, 862 F.3d 182, 187 (2d Cir. 2017)
(“The discretion trial courts may exercise on matters of procedure ex-
tends to a decision on whether an argument has been waived.”); see also
Document Sec. Sys., Inc. v. Ronaldi, No. 20-CV-6265-EAW-MJP, 2022
WL 2207185, at *11 (W.D.N.Y. June 21, 2022) (“Given the danger
of … gamesmanship, courts may deem arguments forfeited especially
where, as here, the party does not explain its delay.” (citing Fed. R. Civ.
P. 1)).
But Conduit has not forfeited any argument under Fed. R. Civ. P.
37(a)(5)(A)(i). That rule does not come into play until the winning party
makes a fee application. It requires the losing party to pay attorneys’
fees and expenses unless “the movant filed the motion before attempting
in good faith to obtain the [documents] without court action.” Fed. R.
Civ. P. 37(a)(5)(A)(i).
Here, the Court finds that the parties attempted to resolve their
underlying dispute about Conduit’s requests without court action. They
met the meet-and-confer requirement. Even if they had not, the Court
finds that additional meet-and-confers would have been futile.
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The meet-and-confer requirement of Fed. R. Civ.
P. 37(a)(5)(A)(i) does not bar Xerox from fees and
costs.
“The ‘meet[-]and[-]confer’ requirement embodies a policy of en-
couraging voluntary resolution of pretrial disputes, in the interest of ju-
dicial and client economy and effective processing of cases.” Wang v. Del-
phin-Rittmon, No. 3:17-CV-00586 (JAM), 2023 WL 7384389, at *4 (D.
Conn. Nov. 8, 2023) (quoting Avent v. Solfaro, 210 F.R.D. 91, 95
(S.D.N.Y. 2002)). “[D]istrict courts maintain discretion to waive the
meet-and-confer requirement.” Elhannon LLC v. F.A. Bartlett Tree Ex-
pert Co., No. 2:14-CV-262, 2017 WL 1382024, at *9 (D. Vt. Apr. 18, 2017)
(“Courts have excused a failure to meet and confer where: (1) under the
circumstances, the parties do not have time to attempt to reach an
agreement; or (2) an attempt to compromise would have been clearly
futile.” (quoting Care Envtl. Corp. v. M2 Techs. Inc., No. CV–05–1600
(CPS), 2006 WL 1517742, at *3 (E.D.N.Y. May 30, 2006))); accord Wood-
ward 	v. 	Holtzman, 	No. 	16-cv-1023A(F), 	2018 	WL 	5112406, 	at 	*2
(W.D.N.Y. Oct. 18, 2018) (holding that “further efforts by Plaintiff to re-
solve the dispute without motion practice would be futile” (citing United
States v. Acquest Transit LLC, 319 F.R.D. 83, 89 (W.D.N.Y. 2017))). “In
particular, courts look to the history of negotiations between the parties
to determine whether further meet-and-confer efforts would be unfruit-
ful.” Elhannon LLC, 2017 WL 1382024, at *9 (citing Prescient Partners,
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18
L.P. v. Fieldcrest Cannon, Inc., No. 96 CIV. 7590(DAB)JCF, 1998 WL
67672, at *3 (S.D.N.Y. Feb. 18, 1998)).
Additional history of the parties’ negotiations—beyond what the
Court discussed in recounting the procedural history of this case—
demonstrates that the parties met and conferred in good faith. This his-
tory likewise shows that further meet-and-confer efforts would have
been pointless.
Despite eighteen months of back-and-forth, the parties did not re-
solve the issues that Xerox later identified in its cross-motion for a pro-
tective order. True, Xerox’s eventual motion for a protective order dealt
with depositions. But that does not alter the underlying basis of the dis-
pute: Conduit’s improper requests that necessitated Xerox’s forward-
looking cross-motion for a protective order.
In a string of letters,6 the parties identified the disputes that this
Court ultimately resolved in its decision and order granting Xerox’s mo-
tion for a protective order. Eventually, the Court directed the parties to
6 For ease of reading, the Court has placed this citation here: (Conduit
Letter, ECF No. 42, Sept. 22, 2022 (noting dispute regarding the Policy Re-
quests); Xerox Letter, ECF No. 43, Sept. 30, 2022 (noting dispute regarding the
Policy Requests and Xerox Incident); Conduit Letter, ECF No. 44, Oct. 7, 2022
(noting that the parties had engaged in “multiple meet and confer attempts”);
Conduit Letter, ECF No. 45, Nov. 7, 2022 (“The parties also currently are meet-
ing and conferring with respect to discovery disputes, which disputes may re-
sult in the production of documents or the need for Court intervention.”); Con-
duit Letter, ECF No. 50, Feb. 2, 2023 (requesting conference with the under-
signed).)
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19
meet-and-confer again. (Text Order, ECF No. 55, Feb. 13, 2023.) That
text order likewise directed the parties to submit a status report. (Id.)
Two weeks later, the parties’ status report came back. Conduit
and Xerox stated that
the Parties exchanged correspondence and, on Feb-
ruary 16, 2023, met and conferred in a good faith
effort to resolve the pending discovery dispute con-
cerning Request Number 21 in Conduit’s First Set
of Document Requests, dated October 5, 2021, and
Request Numbers 1 and 2 in Conduit’s Second Set
of Document Requests, dated July 19, 2022.
(ECF No. 59, Feb. 21, 2023.) Conduit told the Court that “[d]espite these
efforts, the Parties remain at an impasse.” (Id.) The Court draws several
conclusions from this background.
First, Xerox and Conduit met and conferred. See Big Apple Pyro-
technics v. Sparktacular Inc., No. 05 CIV. 9994 KMW/DFE, 2006 WL
587331, at *1 (S.D.N.Y. Mar. 8, 2006) (“‘Confer’ means to meet, in person
or by telephone, and make a genuine effort to resolve the dispute by de-
termining, without regard to technical interpretation of the language of
a request, (a) what the requesting party is actually seeking, (b) what the
discovering party is reasonably capable of producing that is responsive
to the request, and (c) what specific genuine issues, if any, cannot be
resolved without judicial intervention.”). Conduit reads the meet-and-
confer requirement to require Xerox to discuss the dispute exhaustively.
The Court disagrees.
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20
Here, the parties met and conferred about the requests Conduit
made that caused their dispute. They concluded that compromise was
unattainable. So, they asked the Court for intervention. When it came
time for the motion to compel, Xerox understandably asked for relief for
depositions as the next step of discovery. On this record, the Court con-
cludes that Xerox met its meet-and-confer requirement. The meet-and-
confer requirement does not demand that parties discuss every possible
avenue for relief, only their underlying dispute and what is involved in
it.
Second, additional meet-and-confers would have been “unfruit-
ful.” Elhannon, LLC, 2017 WL 1382024, at *9 (citation omitted). Further
meet and confers about depositions or the disputes more broadly would
be pointless once the parties had agreed that they could not reach com-
promise about the request at issue. See Acquest Transit LLC, 319 F.R.D.
at 89–90 (holding that compliance with meet-and-confer requirement
was futile where the parties had “a history of prior attempts at resolu-
tion without resort to motion practice”). Alerting Conduit to the possi-
bility that Xerox would cross-move for a protective order concerning dep-
ositions would have made no difference, other than to expose Xerox’s
litigation strategy. In any event, Conduit—as a sophisticated litigant—
should have understood a cross-motion about depositions was possible.
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21
Third, if the months of discovery disputes before were not enough
time to resolve the parties’ disputes, the 14 days Xerox had before its
opposition to Conduit’s motion to compel and cross-motion was not
enough time for additional negotiation. “Courts have excused a failure
to meet and confer where” the parties lack “time to attempt to reach an
agreement.” Elhannon, LLC, 2017 WL 1382024, at *9 (quoting Care En-
vtl. Corp., 2006 WL 1517742, at *3). Here, with depositions approaching,
“and the need for” Xerox “to prepare in advance,” Conduit and Xerox
“ran out of time to complete a meet-and-confer.” In re Rock ‘N Play
Sleeper Mktg., Sales Pracs., & Prod. Liab. Litig., No. 1:19-MD-2903,
2021 WL 11962970, at *2 (W.D.N.Y. Aug. 4, 2021). For these reasons,
the Court finds that Xerox is not barred from attorneys’ fees for its suc-
cessful motion for a protective order based on the meet-and-confer re-
quirement.
Conduit’s requests insofar as the Court declined to grant them—
and thus Conduit’s opposition to Xerox’s motion for a protective
order—were not substantially justified.
Under Fed. R. Civ. P. 37(a)(5), the losing party on a motion for a
protective order can avoid paying attorneys’ fees if “the opposing party’s
nondisclosure, response, or objection was substantially justified[.]” Fed.
R. Civ. P. 37(a)(5)(A)(ii). Substantial justification exists “where there is
justification to a degree that could satisfy a reasonable person that par-
ties could differ as to whether the party was required to comply with the
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22
disclosure request, or if there exists a genuine dispute concerning com-
pliance.” Jackson v. Nassau County, 602 F. Supp. 3d 352, 355 (E.D.N.Y.
2022) (quoting Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v.
Coventry First LLC, 280 F.R.D. 147, 159 (S.D.N.Y. 2012)); Hinterberger
v. Cath. Health Sys., Inc., 284 F.R.D. 94, 106 (W.D.N.Y. 2012) (“The Su-
preme Court has defined ‘substantially justified’ to mean ‘justified in the
substance or the main’—that is, justified to a degree that could satisfy a
reasonable person.” (quoting United States v. $19,047.00 in U.S. Cur-
rency, 95 F.3d 248, 251 (2d Cir. 1996))).
“This standard requires only an inquiry as to ‘an objective test of
reasonableness’ and not as to whether the party or counsel acted ‘in good
faith.’” Jackson, 602 F. Supp. 3d at 355 (quoting Cardwell v. Davis Polk
& Wardwell LLP, No. 1:19-CV-10256-GHW, 2021 WL 2650371, at *2
(S.D.N.Y. June 28, 2021)). “The burden of persuasion as to whether an
exception to mandatory expenses applies is on the party opposing the
motion.” Id.; see also Novak 536 F.3d at 178 (discussing Fed. R. Civ. P.
37).
This standard does not change when the Court denies a motion to
compel.7 See Novick v. AXA Network, LLC, No. 07 CIV. 7767 AKH KNF,
7 Fed. R. Civ. P. 37(a)(5)(B) states: “But the court must not order [ ]
payment” for a motion to compel loss “if the motion was substantially justified
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23
2013 WL 7085799, at *2 (S.D.N.Y. Nov. 6, 2013) (citation omitted) (“A
motion is substantially justified if it is justified in substance or in the
main—that is, justified to a degree that could satisfy a reasonable per-
son.” (cleaned up) (quoting Gomez-Beleno v. Holder, 644 F.3d 139, 145
(2d 	Cir. 	2011))). 	“In 	other 	words, 	to 	avoid 	mandatory 	attorney’s
fees … the movant must show that his motion had a ‘reasonable basis
both in law and fact.’” Id. (quoting Pierce v. Underwood, 487 U.S. 552,
565 (1988)).
Unlike the cases Conduit discusses where courts acknowledged
mitigating circumstances, the Court here declined to compel Xerox to
produce entire categories of information that Conduit demanded. Yet
Conduit makes much of the substantial justification standard. True,
that standard is not the same as the standard for granting a Rule 37 or
26 motion in the first instance. See id. (“The fact that the plaintiff's mo-
tion to compel an accounting was denied and the Court found the
or other circumstances make an award of expenses unjust.” Notably absent is
any reference to the meet-and-confer requirement.
As discussed, however, the Court is deciding Xerox’s motion for fees
based on the Court’s partial denial of Conduit’s motion to compel under Fed.
R. Civ. P. 37(a)(5)(C). See supra n.4. As discussed infra n.13, the Court is un-
dertaking a substantial justification analysis based on case law but notes its
uncertainty about the necessity of doing so based on the plain language of Rule
37(a)(5)(C). But see Wager, 2021 WL 293076, at *3 (“Rule 27(a)(5)(C) effectively
incorporates the substantive standards of Rule 37(a)(5)(A) … Therefore, in de-
termining whether to award expenses under Rule 37(a)(5)(C), courts must con-
sider the three exceptions listed under Rule 37(a)(5)(A).” (citations and quota-
tion omitted)).
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24
plaintiff’s evidence was insufficient to satisfy his burden of showing that
granting the motion was warranted does not, by itself, establish that the
plaintiff’s motion was not substantially justified.”). But this case is dif-
ferent. The Court concludes that Conduit was unjustified in its requests
(insofar as the Court declined to grant them) and in its opposition to
Xerox’s motion for a protective order.
As for the requests, the Court rejected them as irrelevant. And
the Court granted Xerox’s motion for a protective order in full. This pays
tribute to what Conduit should have known from the outset: its requests
were not reasonable. (D&O at 7–8, ECF No. 73 (finding that Conduit’s
“request for documents concerning other businesses” amounted to “a
fishing expedition” and finding Conduit’s request for information “re-
lated to Xerox’s ransomware attack … not relevant”).) The Court thus
concludes Conduit fails to show substantial justification in any respect.
Because the Agreement is not ambiguous, most
of Conduit’s requests are irrelevant.
The Court next explains why Conduit’s requests, except for what
the Court compelled Xerox to produce, are irrelevant. Conduit’s requests
rested on the parties’ Agreement being ambiguous concerning what the
Agreement required of Conduit. But the Agreement was unambiguous
about the yardstick against which Conduit’s performance would be
measured. To comply with the Agreement, Conduit needed to adhere to
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25
industry 	standards, 	current 	legal 	obligations, 	and 	Xerox 	policies.
(Agreement § 20.1, ECF No. 60-2.8) By its plain terms, performance un-
der the Agreement did not hinge on Xerox’s contracts with third parties
or internal communications about those contracts. (D&O at 7, ECF No.
73 (“Conduit has not demonstrated that communications with or about
the third-party business partners concerning their own internal policies
would have any bearing on whether Conduit complied with Xerox’s pol-
icies.”).)
In moving to compel, however, Conduit argued that “the Xerox
policies are replete with ambiguous, conceptual requirements, such as
that ‘adequate’ controls be employed for sensitive or vulnerable systems,
that risks be mitigated to an ‘acceptable’ level, and that the costs for
mitigation be commensurate with the value or function of the system.”
(Mem. of Law in Supp. of Mot. to Compel at 1, ECF No. 60-15.) Conduit
8 It is worth recalling that, to the extent that Xerox incorporated its
policies by reference in the Agreement, the Court ordered Xerox to produce
such policies and certain documents concerning them. (D&O at 6–7, ECF No.
73 (“After considering extensive arguments of both parties, the Court directs
Xerox to respond to Request 1 and to produce all relevant documents concern-
ing Xerox’s policies, rules, requirements and procedures relating to data secu-
rity, including but not limited to Xerox’s policies, rules, requirements and pro-
cedures referenced in Section 20.1 of the Outsourcing Agreement so long as it
is related to Xerox’s claims that Conduit failed to comply with Xerox poli-
cies.”).) This is different from using extrinsic evidence from Xerox to show, say,
relevant industry standards.
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26
thus asserts that the Xerox policies made a part of the Agreement are
ambiguous.
Ambiguity in law occurs if words are “capable of more than one
meaning when viewed objectively by a reasonably intelligent person who
has examined the context of the entire” document. Aetna Cas. & Sur.
Co. v. Aniero Concrete Co., 404 F.3d 566, 598 (2d Cir. 2005) (quoting
Eskimo Pie Corp. v. Whitelawn Dairies, Inc., 284 F. Supp. 987, 994
(S.D.N.Y. 1968)). “[A]mbiguity never arises out of what was not written
at all, but only out of what was written so blindly and imperfectly that
its meaning is doubtful.” Donohue v. Cuomo, 38 N.Y.3d 1, 13 (2022)
(“Ambiguity in a contract arises when the contract, read as a whole, fails
to disclose its purpose and the parties’ intent, or when specific language
is susceptible of two reasonable interpretations.” (quoting Ellington v.
EMI Music, Inc., 24 N.Y.3d 239, 244 (2014))).
The terms to which Conduit points are not ambiguous. Terms like
“adequate” and “appropriate” simply require interpretation in the con-
text 	of 	the 	Agreement 	to 	determine 	their 	objective 	meaning.9
9 The Court finds helpful the descriptions of different kinds of ambiguity
available in Garner’s Modern English Usage 1192 (5th ed. 2022). Having ex-
amined the different kinds of ambiguity that can arise, the Court finds no am-
biguity in the words to which Conduit points. Here, “the context … make[s]
clear what meaning applies.” Id. The meaning of words like “adequate” can be
determined by reference to industry standards and the language of the parties’
Agreement, as Xerox pointed out in its earlier briefing on the motion to compel.
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27
(Agreement § 5.3, ECF No. 60-2.) Happily, Section 20.1 tells the Court
to look not only to Xerox policies, but also to industry standards and
relevant law.
Because the Agreement is unambiguous and directs the Court to
relevant controlling law and industry standards, the relevant analysis
is objective, not subjective, making Conduit’s requests for extrinsic evi-
dence irrelevant. See Royal Bank of Canada v. Beneficial Fin. Leasing
Corp., No. 87 CIV. 1056 (JMC), 1992 WL 167339, at *6 (S.D.N.Y. June
30, 1992) (citation omitted) (standard for evaluating performance is not
subjective but whether the party’s “dissatisfaction” is “objectively rea-
sonable”); see also J.D. Cousins & Sons, Inc. v. Hartford Steam Boiler
Inspection & Ins. Co., 341 F.3d 149, 153 (2d Cir. 2003) (“Whether the
standard for contract performance is objective or subjective is a matter
of intent and except in the case of an ambiguity is usually determined
as a matter of law.”). Beyond a lack of ambiguity, however, the Court
had additional reasons to reject Conduit’s requests as irrelevant.
Conduit’s 	request 	for 	Xerox’s 	assessments 	or
analyses of Xerox policies was not substantially
justified for additional reasons.
As a part of the Policy Requests, Conduit demanded discovery
into Xerox’s analysis or assessment of its own policies. The Court deter-
mined these analyses and assessments were irrelevant. (D&O at 7, ECF
No. 73 (“While Conduit attempted to limit this request by using the
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28
phrase ‘so long as it is related to Xerox’s claims that Conduit failed to
comply with Xerox policies,’ Xerox’s analysis or assessment of its policies
is not relevant to the issue at hand: whether Conduit breached the
Agreement.”).) Under the substantial justification standard, it should
have been apparent that what Xerox believed, intended, or did, was ir-
relevant to establishing the parameters of Conduit’s duty to Xerox under
the plain language of the Agreement. Put another way, under the sub-
stantial justification standard, the plain language of the Agreement gov-
erned.10 The Court finds no genuine dispute on this point, and thus, no
substantial justification.
The Policy Requests were likewise not substan-
tially 	justified 	because 	they 	requested 	irrele-
vant 	documents 	concerning 	other 	Xerox 	busi-
ness partners.
While the Court already explained why portions of the Policy Re-
quests were irrelevant because the Agreement was not ambiguous, these
same portions of the Policy Requests also fail because the Court rejected
Conduit’s argument that these other businesses were similarly situated
to Conduit:
Conduit has not provided any evidence that these
non-party businesses supplied the same type of ser-
vice to Xerox such that disclosure of any policies
10 As noted, the Agreement required Conduit to “maintain levels of
physical and data security protection in accordance with industry standards,
current legal obligations and Xerox policies as outlined in Schedule 15 (Xerox
Policies) of this Agreement.” (Agreement § 20.1, ECF No. 60-2.)
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29
would 	be 	enlightening 	as 	to 	whether 	Conduit
breached any specific Xerox policy. The Court finds
that this request is commensurate with a fishing
expedition and is therefore improper.
(D&O at 7, ECF No. 73.) Under these circumstances, the Court again
determines that these requests were not substantially justified.
Conduit has not shown substantial justification
concerning its opposition to Xerox’s motion for a
protective order.
This Court ruled that Conduit’s request for information and doc-
uments about a ransomware attack that Xerox suffered was “not rele-
vant to whether Conduit met the terms of the Agreement.” (D&O at 8,
ECF No. 73.) Conduit argues that its “opposition to Xerox’s motion for a
protective order likewise was justified” based on “the same, numerous
legal authorities that supported a finding that information concerning
the ransomware attack on Xerox was potentially relevant.” (Opp’n to Fee
Cross-Mot. and Reply in Supp. of Fee Mot. at 10–11, ECF No. 78.)
The Court rejects this argument as perfunctory: Conduit should
not address what it touts as a different legal standard (substantial jus-
tification) by reference to its arguments on the underlying motion to
compel. See Ronaldi, 2022 WL 2207185, at *12 (“Issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argu-
mentation, are deemed waived. It is not sufficient for a party to mention
a possible argument in the most skeletal way, leaving the court to put
flesh on its bones.” (quoting Great Lakes Ins. SE v. Sunset Watersports,
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30
Inc., 570 F. Supp. 3d 1252, 1272 (S.D. Fla. 2021))); see also Wong v. Gar-
land, 95 F.4th 82, 95 (2d Cir. 2024). Even if the Court considered Con-
duit’s argument on its merits, however, the outcome would remain the
same.
This case is not about why Xerox suffered any ransomware at-
tack. This case is about whether Xerox was entitled to terminate Con-
duit under the terms of the parties’ Agreement, that is, whether Conduit
breached. As with the other requests, this one is irrelevant and unjusti-
fied because this case hinges on what Conduit did—or failed to do—to
meet its contractual duties under the unambiguous terms of the Agree-
ment. Xerox’s response to a separate ransomware attack is irrelevant.
Conduit’s legal authority about substantial jus-
tification is unavailing.
Nor do the extensive legal authorities Conduit cites persuade the
Court.11 Conduit cites three principal cases12 to argue that the Xerox
11 The Court finds unhelpful lengthy string cites to cases in footnotes.
Indeed, the Court is justified in ignoring such unwieldy citations and has dis-
regarded the bulk of Conduit’s footnote 3 located in ECF No. 78. (Reply in Supp.
of Fee Mot. and in Opp’n to Fee Cross-Mot. at 14 n.3, Oct. 11, 2023.)
Further, Conduit’s reply runs afoul of nearly every subdivision of Loc.
R. Civ. P. 10(a). Failure to comply with the Local Rules may result in the Court
rejecting future filings. Xerox is not innocent in this either, as its reply at ECF
No. 79-12 exceeds the applicable page limit and contains a lengthy footnote.
12 These are: In re Sept. 11th Liability Insurance Coverage Cases, 243
F.R.D. 114, 127 (S.D.N.Y. 2007), In re Roblin Indus. Inc., 78 F.3d 30, 43 (2d
Cir. 1996) (also titled Lawson v. Ford Motor Company), and Granite Partners,
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31
Incident was “relevant” to “Xerox’s interpretation of what [its cyberse-
curity] policies meant or required, or provide data points for establishing
industry standards including what constitute[s] ‘appropriate’ or ‘ade-
quate’ security controls within the context of this business.” (Mem. in
Supp. of Mot. to Compel at 16 (citation omitted); see supra n.12.) Each
case fails to support Conduit’s argument because, as discussed, the re-
quests were irrelevant. These cases are inapposite for yet more reasons,
though.
First, in September 11th Liability Insurance, the court considered
Rule 11 sanctions based on a party’s false statement that “no evidence
existed showing the communicated intent of the parties,” to a contract,
among other statements. In re September 11th Liab. Ins., 243 F.R.D. at
126. After reviewing the drafters’ depositions, the court determined that
the party’s “factual contentions” that certain entities were not covered
was “objectively without rational basis” and imposed Rule 11 sanctions.
Id. at 114, 128. The court declined to impose Rule 37 sanctions after
evaluating the claim under Rule 37’s “reasonable trier of fact” relevance
standard. Id. at 125. It held that requesting “all versions or drafts” of
the insurance policy, “all documents concerning the drafting, meaning,
interpretation or application of key policy terms[,]” and “all documents”
L.P. v. Merrill Lynch, Pierce, Fenner & Smith Inc., No. 96 CIV. 7874 (RWS),
2002 WL 826956, at *5 (S.D.N.Y. May 1, 2002).
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32
concerning the policy provision at issue, id. at 122, were “relevant” un-
der Rule 37. Id. at 129–30.
Second, in In re Roblin Industries, Inc., 78 F.3d 30, the court an-
alyzed whether a creditor had proven the ordinary course of business
exception to avoid surrendering a preferential payment under the Bank-
ruptcy Act, 11 U.S.C. § 547(c)(2). Id. at 33. To establish the disputed
statutory element, the court held that “a creditor must show that the
business terms” of the payment were “ordinary from the perspective of
the industry,” and it would evaluate the “conduct of the debtor and cred-
itor ... objectively in light of industry practice.” Id. at 40. Because the
creditor “fail[ed] to introduce evidence of the ordinary practices of simi-
larly situated firms,” or industry practice, the court held it had failed to
prove the defense. Id. at 44. On its face, this case seems to have little to
do with the Conduit-Xerox discovery dispute.
Finally, in Granite Partners, the court analyzed a broker-broker-
age client contract dispute regarding what figure would trigger a margin
call. Granite Partners, 2002 WL 826956, at *1. The client moved in
limine to admit evidence of one dealer’s liquidation sale “to show that
there was ... a robust consumer market for the types of securities [] liq-
uidated and that [the broker’s] auction was not commercially reasona-
ble.” Id. at *4 (alterations added). The court admitted the evidence be-
cause a factfinder could “only” determine commercial reasonableness
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33
“by looking at how similarly situated entities acted in a similar situa-
tion,” and the applicable statute had express language requiring “evi-
dence of how other dealers acted.” Id. at *5 (citation omitted)
These cases do not reasonably justify Conduit’s requests. Only
one of the three pertains to Rule 37: In re September 11th Liability In-
surance Coverage Cases. Yet even there, the discovery request was lim-
ited to documents relevant to the drafters’ intent, whereas Conduit did
not limit its request on the Xerox Incident to documents the drafters
used to write the Agreement. Instead, it explicitly broadened the request
to encompass “All Documents” concerning “any malware or cyberattacks
on [Xerox],” including “descriptions and analyses” of Xerox’s own cyber-
security policies to provide “points of comparison to the ransomware at-
tack” at issue. (D&O at 2, ECF No. 73.) Even by the holding of that case,
much of the Policy Requests were overbroad. Separately, this case is un-
helpful to Conduit because it presumes ambiguity in the underlying con-
tractual terms. See In re September 11th Liab. Ins., 243 F.R.D. at 127.
The financial cases Conduit cites fare no better. First, the posture
of neither case is relevant. Both In re Roblin Industries and Granite
Partners rely on statutory interpretation to address whether extrinsic
evidence should have been admitted. Roblin Industries required evi-
dence of industry practice only after reviewing the language in the
Bankruptcy Act and relevant precedent. In re Roblin Indus., Inc., 78
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34
F.3d at 40. Granite Partners admitted the evidence based on the lan-
guage of Article 9 of the New York Uniform Commercial Code. Granite
Partners, 2002 WL 826956, at *5. Unlike either case, Conduit relied on
no specific statutory provision. And as previously discussed, the Court
does not find the Agreement ambiguous.
Even if In re Roblin Industries and Granite Partners applied, Con-
duit fails to show that it is similarly situated. Conduit vaguely claims it
is “almost identically situated” to Bell Canada and Genesys. (Mem. in
Supp. of Mot. to Compel at 10, 14–15, ECF No. 60-15). But unlike In re
Roblin Industries, which required evidence of contracts between “simi-
larly situated” parties, Conduit seeks contracts with one overlapping
party—Xerox—and other providers. See In re Roblin Indus., Inc., 78
F.3d at 42. Unlike Granite Partners, which admitted evidence of one bro-
ker’s liquidation sale to aid in determining whether the broker’s sale in
the present case was commercially reasonable, Conduit did not identify
a specific, comparable policy or clause. See 2002 WL 826956, at *4–5.
Instead, Conduit vaguely argued that Bell Canada and Genesys “pre-
sumably had the same obligations under the allegedly breached Xerox
policies.” (Mem. in Supp. of Mot. to Compel at 14 (emphasis added).)
That is not enough.
In sum, apart from the portion of Conduit’s motion to compel that
the Court granted, the Court does not find Conduit’s requests for
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production substantially justified. The Court likewise finds that Con-
duit’s opposition to Xerox’s motion for a protective order was not sub-
stantially justified. Conduit brought that successful motion for a protec-
tive order on itself by persisting in its overbroad and irrelevant requests.
The Court will not save Conduit from the consequences of its motion to
compel.
CALCULATION OF ATTORNEYS’ FEES
Through the lodestar calculation, the Court determines a pre-
sumptively reasonable fee, which is “what a reasonable, paying client
would be willing to pay, given that such a party wishes to spend the
minimum necessary to litigate the case effectively.” Simmons v. N.Y.C.
Trans. Auth., 575 F.3d 170, 174 (2d Cir. 2009) (internal quotation marks
omitted) (quoting Arbor Hill, 493 F.3d at 112, 118 (2d Cir. 2007)). “[T]he
fee applicant bears the burden of establishing entitlement to an award
and documenting the appropriate hours expended and hourly rates.”
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
Xerox sufficiently documents its work.
Xerox meets its burden of showing adequate documentation.
Courts consider documentation when analyzing if the party requesting
fees has billed a reasonable number of hours. See Equal Emp. Oppor-
tunity Comm’n v. Green Lantern Inn, Inc., No. 19-CV-06704-FPG-MJP,
2022 WL 1467820, at *5 (W.D.N.Y. May 10, 2022) (“Documentation is
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generally considered when analyzing reasonable hours billed.” (citing
Martinez v. City of New York, 330 F.R.D. 60, 71–72 (E.D.N.Y. 2019))).
For the Court to calculate any fee, the “requesting party” must “submit
evidence supporting the number of hours worked and the hourly rate
claimed.” New York v. Grand River Enterprises Six Nations, Ltd., No.
14-CV-910A(F), 2021 WL 4958653, at *2 (W.D.N.Y. Oct. 26, 2021) (citing
Hensley, 461 U.S. at 433). To satisfy this requirement, attorneys should
include “contemporaneously created time records that specify, for each
attorney, the date, the hours expended, and the nature of the work
done.” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998).
Xerox satisfies this requirement. (Nussbaum Cross-Mot. Decl.
¶ 38 & Ex. B, ECF Nos. 75-1 & 75-3.) Xerox has included billing entries
that “specify, for each attorney, the date, the hours expended, and the
nature of the work done.” Kirsch, 148 F.3d at 173. As the Court discusses
below, however, some of Xerox’s entries about the work expended are
insufficient.
The Court addresses Xerox’s proposed hourly rates.
“[D]etermination of a reasonable hourly rate ‘contemplates a
case-specific inquiry into the prevailing market rates for counsel of sim-
ilar experience and skill to the fee applicant’s counsel,’ an inquiry that
may ‘include judicial notice of the rates awarded in prior cases and the
court’s 	own 	familiarity 	with 	the 	rates 	prevailing 	in 	the 	district.’”
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Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 59 (2d Cir. 2012) (al-
teration added) (quoting Farbotko v. Clinton Cnty., 433 F.3d 204, 209
(2d Cir. 2005)). Such market rates “should be current rather than his-
toric hourly rates.” Reiter v. MTA N.Y.C. Transit Auth., 457 F.3d 224,
232 (2d Cir. 2006) (cleaned up) (quoting Gierlinger, 160 F.3d at 882).
Here, Xerox requests the below rates for its attorneys, arguing
that they “are commensurate with the prevailing rates in the Western
District of New York and are reasonable for a case of this complexity,
level of adversity, and length.” (Nussbaum Cross-Mot. Decl. ¶ 35, ECF
No. 75-1.)
• 	For Carolyn G. Nussbaum, Esq., Partner, $560 per hour. (Id.
¶ 30.) Ms. Nussbaum has practiced law for over 40 years. (Id.)
• 	For Eric Ferrante, Esq., Counsel, $378 per hour. (Id. ¶ 31.) Mr.
Ferrante has practiced law for over nine years. (Id.)
• 	For Sarah Tufano, Esq., Associate, $350 per hour. (Id. ¶ 32.) Ms.
Tufano has practiced law for over six years. (Id.)
• 	For Amy Demanchick, Paralegal, $250 per hour. (Id. ¶ 34.) Xerox
does not provide information about Ms. Demanchick’s experience
level, noting only that her hourly rate was discounted by 15%.
(See id.)
Xerox also notes that its attorneys’ hourly rates represented a discount
of their standard rates “ranging from 29% to 38%.” (Id. ¶ 33.) The Court
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38
notes that it has also reviewed the CVs of its attorneys that Xerox pro-
vided. (Id. Ex. C, ECF No. 75-4.)
“While the rate an attorney charges to paying clients may be evi-
dence of a reasonable hourly rate, it is not dispositive.” Capax Discovery,
Inc. v. AEP RSD Invs., LLC, No. 1:17-CV-00500-CCR, 2023 WL 140528,
at *6 (W.D.N.Y. Jan. 10, 2023) (“[T]he actual billing arrangement is a
significant, though not necessarily controlling, factor in determining
what fee is ‘reasonable.’” (citing Crescent Publ’g Grp., Inc. v. Playboy En-
ters., Inc., 246 F.3d 142, 151 (2d Cir. 2001))). “In the Western District,
$400–$500 per hour is generally deemed a reasonable hourly rate for
experienced trial counsel.” P3 v. Hilton Cent. Sch. Dist., No. 6:21-CV-
06546 EAW, 2023 WL 7326048, at *6 (W.D.N.Y. Nov. 7, 2023) (quoting
Capax Discovery, Inc., 2023 WL 140528, at *6).
Ms. Nussbaum’s hourly rate is reasonable.
Even with the $400 to $500 fee range for experienced counsel, the
Court still finds that Ms. Nussbaum’s hourly rate is reasonable. The
Western District has found an hourly rate of $500 reasonable for attor-
neys with “more than 20 years of experience.” Grand River Enterprises
Six Nations, Ltd., 2021 WL 4958653, at *4. Several years have passed
since this District made that finding. And Ms. Nussbaum has far more
than 20 years of experience. Ronaldi, 2022 WL 2207185, at *9 (finding
$500 rate appropriate in complex commercial matter for attorney with
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39
17 years of experience). Finally, her acumen in complex commercial lit-
igation matters (like this one) is well known to this Court. The Court
finds her hourly rate reasonable for these reasons, and because of
Xerox’s success on its motion for a protective order. See Barfield v. New
York City Health & Hosp. Corp., 537 F.3d 132, 152 (2d Cir. 2008) (“[T]he
most critical factor in a district court’s determination of what constitutes
reasonable attorney’s fees in a given case is the degree of success ob-
tained[.]” (internal quotation marks omitted) (quoting Farrar v. Hobby,
506 U.S. 103, 114 (1992))).
Mr. Ferrante’s and Ms. Tufano’s rates are not
reasonable for this District.
In past cases, this Court has found rates of $200 to $250 appro-
priate for newer attorneys. See, e.g., Grand River Enterprises, 2021 WL
4958653, at *4 (finding a $200 per hour rate reasonable in the Western
District for newer attorneys); see also Wright, 2020 WL 289156, at *2
($250 is reasonable for associate attorney with six or seven years of ex-
perience). Several reasons militate against using such a low rate for Mr.
Ferrante or Ms. Tufano:
• 	The Court is aware of rising market rates in the years since those
decisions.
• 	Mr. Ferrante and Ms. Tufano are at the higher end of associate
experience level.
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• 	This a complex commercial case.
• 	Xerox’s motion for a protective order succeeded.
Still, Xerox’s requested rates far exceed what this District has
awarded in its most recent decisions. The Court finds that a rate of $300
is reasonable for Mr. Ferrante. See McDermott v. Light the Region Media
LLC, --- F. Supp. 3d ----, No. 6:23-CV-06094 EAW, 2023 WL 8656783, at
*7 (W.D.N.Y. Dec. 15, 2023) (finding $300 hourly rate for a straightfor-
ward case involving an attorney with more experience than Mr. Fer-
rante). The Court finds that a rate of $285 per hour is reasonable for Ms.
Tufano as an associate having less experience than Mr. Ferrante. See
Bd. of Trustees of Bricklayers & Allied Craftworkers Loc. 3, New York
(Rochester Chapter) Pension Fund v. Upstate Specialty Coatings LLC,
No. 23-CV-06250-FPG, 2024 WL 376652, at *8 (W.D.N.Y. Feb. 1, 2024)
(awarding $285 to a junior attorney with eight years’ experience).
Ms. Demanchick’s hourly rate is not reasonable.
The Court reduces Ms. Demanchick’s hourly rate to $140. See Ca-
pax Discovery, Inc., 2023 WL 140528, at *7 (“The court therefore reduces
the rates for paralegal assistance to $140 for a ‘blended rate’ reflecting
a range of paralegal experience in the absence of more specific infor-
mation regarding each paralegal’s experience.”). While a paralegal bill-
ing $250 per hour signals considerable experience, Xerox “did not iden-
tify how many years of experience” Ms. Demanchick has. DIRECTV,
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41
LLC, 2020 WL 289156, at *2. In any event, a rate of $250 for a paralegal
is significantly “higher than what is typical in the Western District.” Id.
The Court finds that a slight reduction in Xerox’s hours billed is
warranted.
The Court must consider the “reasonable number of hours re-
quired by the case.” Millea, 658 F.3d at 166. “To determine the reasona-
bleness of the hours spent on the litigation, the court must make ‘a con-
scientious and detailed inquiry into the validity of the representations
that a certain number of hours were usefully and reasonably expended.’”
Godson v. Eltman, Eltman & Cooper, P.C., 328 F.R.D. 35, 63 (quoting
McLaughlin v. IDT Energy, No. 14CV4107ENVRML, 2018 WL 3642627,
at *18 (E.D.N.Y. July 30, 2018)). “The relevant issue, however, is not
whether hindsight vindicates an attorney's time expenditures, but
whether, at the time the work was performed, a reasonable attorney
would have engaged in similar time expenditures.” Grant v. Martinez,
973 F.2d 96, 99 (2d Cir. 1992).
The Court is persuaded that Xerox generally seeks compensation
only for hours that were “reasonably necessary.” Martinez, 330 F.R.D.
at 72 (quoting Louis Vuitton Malletier, S.A. v. LY USA, Inc., 676 F.3d
83, 111 (2d Cir. 2012)). In reviewing Xerox’s billing, the Court is per-
suaded that Xerox’s total hours expended are reasonable. But the Court
notes that many entries lack detail about the specific portion of the
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42
motion that Xerox’s counsel was addressing. Ms. Tufano, for example,
repeatedly refers generally to tasks like
• 	“[r]evise reply in further support of protective order,” (Nussbaum
Cross-Mot. Decl. Ex. B at 4, ECF No. 75-3 (this page contains
other similarly vague entries)),
• 	“[r]evise opposition arguments,” (id. at 2 (same)),
• 	“[e]dit draft of reply brief in further support of cross-motion for
protective order.” (Id. at 4.)
Several of Mr. Ferrante’s entries follow the same pattern:
• 	“[r]eview Conduit’s motion to compel and revise draft brief oppo-
sition,” (id. at 2),
• 	“[r]eview and revise reply in further support of cross-motion for
protective order.” (Id. at 4.)
Here, the Court exercises its discretion “to deduct a reasonable percent-
age of the number of hours claimed as a practical means of trimming fat
from a fee application.” Schneider on behalf of A.T. v. City of Buffalo, No.
18-CV-1431V(SR), 2021 WL 5042502, at *3 (W.D.N.Y. Oct. 29, 2021)
(quoting Kirsch, 148 F.3d at 173). This is appropriate where, as here,
“entries on a time sheet are vague or duplicative or otherwise insuffi-
cient[.]” Martinez, 330 F.R.D. at 72 (quoting T.S. Haulers, Inc. v. Cardi-
nale, No. 09 CV 451, 2011 WL 344759, at *3 (E.D.N.Y. Jan. 31, 2011)).
The Court finds that a 5% across-the-board reduction is appropriate.
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Xerox’s billing is hardly as egregious as Conduit makes it out to be. The
Court was able to determine what work Xerox’s attorneys performed and
when it performed that work. And while some of the entries are vague,
the Court does not find that the amount of time spent on these tasks
exceeds what is typical.

The Court awards Xerox $42,527.50 in reasonable attorneys’ fees.

Based on the below breakdown, the Court awards Xerox
$42,527.60 in reasonable attorneys’ fees. The Court has reduced each
attorney’s hours by 5% and multiplied it by each attorney’s awarded

rate. The result is a lodestar of $42,527.50.

Name Adjusted Awarded Lodestar by
total hours rate attorney
C. Nussbaum 30 $560 $16,800
E. Ferrante 8 $300 $2,400
S. Tufano 76.3 $285 $21,745.50
A. Demanchick 11.3 $140 $1,582
TOTAL 125.6 N/A $42,527.50

Accordingly, the Court directs the Clerk of the Court to enter judgment
in the amount of $42,527.50 in favor of Xerox.

Rather than determine an offset of Xerox’s fee award now based
on Conduit’s partial success on its motion to compel, the Court exercises

its discretion under Fed. R. Civ. P. 37(a)(5)(C) to deny, with leave to

43

44
renew, Conduit’s application for fees. The Court next explains its rea-
soning for doing so.
CONDUIT’S MOTION FOR FEES IS DENIED
WITH LEAVE TO RENEW
As noted, under Fed. R. Civ. P. 37(a)(5)(C), the Court has broad
discretion to apportion expenses when it grants in part a motion to com-
pel. Further, this Circuit’s district courts generally hold that a court
“must consider the three exceptions listed under Rule 37(a)(5)(A).”13
Wager, 2021 WL 293076, at *3 (citation omitted); see also Rahman v.
Smith & Wollensky Rest. Grp., No. 06 CIV 6198 LAK, 2009 WL 2169762,
at *2 n.1 (S.D.N.Y. July 21, 2009) (“Rule 37(a)(5)(C) effectively incorpo-
rates the substantive standards of Rule 37(a)(5)(A).”).
Here, the Court determines that Xerox should receive its reason-
able attorneys’ fees. Wager, 2021 WL 293076, at *3 (“[A]n award of ‘ex-
penses’ under Rule 37(a)(5)(C) may include attorneys’ fees.” (citation
omitted)). As discussed, Xerox prevailed on its motion for a protective
order and, in apportioning fees under Fed. R. Civ. P. 37(a)(5)(C), the
13 The parties appear to agree on this point. The Court is not as certain.
Although Fed. R. Civ. P. 37(a)(5)(A) & (B) expressly incorporate some exception
to an award of fees, Fed. R. Civ. P. 37(a)(5)(C) does not. Courts should not read
an exception into the Federal Rules when the drafters have not created one.
See White v. Larusch, 532 F. Supp. 3d 122, 124 (W.D.N.Y. 2021) (Courts must
“give the Federal Rules of Civil Procedure their plain meaning.” (quoting Bus.
Guides, Inc. v. Chromatic Commc’ns. Enterprises, Inc., 498 U.S. 533, 540
(1991))). Nonetheless, in its discretion, the Court has analyzed all possible ex-
ceptions.
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Court finds that Xerox deserves fees for its mostly successful opposition
to Conduit’s motion to compel. But Conduit is not necessarily left out in
the cold. The Court may award Conduit fees as an offset if depositions
show that Xerox had additional documents responsive to Policy Request
No. 1 yet did not produce them.
The Court granted Conduit’s motion to compel only concerning
Request No. 1 of the Policy Requests. At best, Conduit succeeded on a
third of its motion, meaning that “whether to award fees is left to [the
Court’s] ‘broad discretion.’” Uddin, 2017 WL 11674895, at *3 (S.D.N.Y.
Aug. 23, 2017) (quoting Conway Org., Inc., 154 F.R.D. at 78). At worst,
as Xerox contends, Conduit’s victory was pyrrhic: Xerox maintains that
it handed over all documents responsive to Request No. 1.
But the Court is not prepared to agree with Xerox that Conduit
gets nothing. The Court compelled Xerox to produce more than just “the
policy documents themselves.” (Opp’n to Fees Mot. and in Supp of Cross.
Mot. at 8, ECF No. 75-5 (quoting Mot. to Compel at 11, ECF No. 60).)
The Court directed Xerox to produce “policies, rules, requirements and
procedures referenced in Section 20.1 of the [ ] Agreement.” (D&O at 6,
ECF No. 73.) Conduit noted at oral argument that it would probe
whether Xerox had other documents responsive to the Court’s order
compelling production to Request No. 1 during depositions.
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But the Court, and Conduit’s counsel, agreed that a decision on
fees concerning Conduit’s motion to compel may not be warranted until
Conduit evaluated whether Xerox had produced all documents the Court
compelled it to produce in response to Request No. 1.
Rather than leave this decision in the hopper, the Court has de-
termined that the best course is to deny Conduit’s motion with leave to
renew. If Conduit comes to the Court with evidence that Xerox had—yet
did not produce—other documents responsive to Request No. 1, the
Court will likely award fees. Conduit may file either a letter motion or a
formal motion to bring this matter back to the Court’s attention.
* 	* 	*
CONCLUSION
For these reasons, the Court GRANTS Xerox’s motion for fees,
awarding the reduced amount of $42,527.50. The Court directs the
Clerk of the Court to enter judgment for Xerox in the amount of
$42,527.50 against Conduit. Conduit must pay this amount within 30
days of the date of this order. Failure to do so may result in sanctions.
The Court denies Conduit’s motion for fees without prejudice.
The Court is also aware that before issuing its decision on Con-
duit’s motion to compel, and this satellite fees litigation, the parties re-
quested an extension of deadlines. (Letter, ECF No. 72, June 30, 2023.)
The Court requests that the parties propose any new deadlines that they
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47
believe are appropriate and advise the Court of those proposed deadlines
by no later than August 30, 2024. The Court finds good cause to issue
an amended scheduling order and will do so once the parties propose
new deadlines, should any be needed.
SO ORDERED.
Dated: 	July 29, 2024
Rochester, NY 	/s/ Mark W. Pedersen
HON. MARK W. PEDERSEN
United States Magistrate Judge
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