Centennial Archaeology, Inc. v. AECOM, Inc.

FILED United States Court of Appeals Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 1 Tenth Circuit

July 27, 2012 PUBLISH Elisabeth A. Shumaker UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

CENTENNIAL ARCHAEOLOGY, INC., a Colorado corporation,

Plaintiff - Appellee, v. No. 11-8000 AECOM, INC., a Delaware corporation,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING (D.C. NO. 2:09-CV-00101-WFD)

Andrea Richard, The Richard Law Firm, P.C., Jackson, Wyoming, for Defendant - Appellant.

Donald I. Schultz, Schultz & Schultz LLP, Cheyenne, Wyoming, for Plaintiff - Appellee.

Before HARTZ, O’BRIEN, and MATHESON, Circuit Judges.

HARTZ, Circuit Judge.

AECOM, Inc. hired Centennial Archaeology, Inc. to perform cultural-

resources survey work in connection with a wind-energy project. When AECOM

refused to pay Centennial for some of its work, Centennial brought suit against Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 2

AECOM in the United States District Court for the District of Wyoming.

Centennial prevailed on several claims and the parties ultimately settled on appeal

the issues raised with respect to the merits of the litigation. This appeal concerns

the parties’ dispute about the district court’s postjudgment order requiring

AECOM to pay Centennial $58,361.51 in attorney fees for misconduct in the

course of discovery.

We have jurisdiction under 28 U.S.C. § 1291 and affirm. The magistrate

judge and district court reasonably found that AECOM had frustrated the

discovery process and stalled the resolution of this case. And the amount of the

fee award was proper. In particular, Centennial was entitled to an award under

Fed. R. Civ. P. 37 even though its attorneys were working for a fixed fee.

I. BACKGROUND

A. Events Leading to Litigation

Power Company of Wyoming (PCW) hired ENSR Corporation in 2008 to

prepare an environmental-impact statement for a 1000-turbine wind-energy

project south of Rawlins, Wyoming. ENSR and Centennial had previously

entered into a written consulting-services agreement (the Consulting Agreement).

AECOM later purchased ENSR, and under the Consulting Agreement it issued

Centennial a $674,900 purchase order for work relating to the environmental-

impact statement. Soon after beginning work on the project, however, Centennial

notified AECOM that it was experiencing higher costs than anticipated. The

-2- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 3

parties agreed that Centennial should complete its field work before submitting a

request for a change order to increase the contract price, even though the

Consulting Agreement apparently required advance approval of a change order.

When Centennial submitted the request, AECOM forwarded it to PCW, but PCW

refused to approve it. AECOM then issued a stop-work order and informed

Centennial that it would not pay expenses exceeding the purchase-order price.

Centennial sued, claiming that it was entitled to payment for all work

performed and costs incurred before AECOM issued the stop-work order because

AECOM had waived the change-order requirement. It later added claims for

tortious interference with prospective business relationships and trade

disparagement. AECOM disclaimed liability for all but the purchase-order price

and counterclaimed that Centennial had breached the Consulting Agreement in

various respects, although it later voluntarily dismissed the counterclaims. The

case was tried to a jury, which returned a verdict in Centennial’s favor on its

breach-of-contract claim and on one of its tortious-interference claims.

B. Discovery Disputes

During pretrial proceedings Centennial and AECOM were repeatedly

unable to resolve their discovery disputes without court intervention. Centennial

filed three motions to compel discovery, two of which were followed by AECOM

motions for protective orders. For the most part Centennial received its requested

relief. We summarize the disputes.

-3- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 4

1. AECOM’s Privilege Log and the April 12, 2010, Order

Centennial’s first request for production sought records of certain AECOM

internal communications. AECOM produced some documents but refused to

produce documents listed in a two-page privilege log as protected by the attorney-

client privilege and the attorney-work-product doctrine. Centennial’s counsel

sent a letter dated January 8, 2010, asking AECOM’s counsel for a more detailed

log and for reconsideration of the assertions of privilege. AECOM’s counsel

revised the log but did not disclose additional documents, leading Centennial’s

counsel to write a second letter, dated February 16; and on March 1 Centennial

filed a motion to compel AECOM to produce more than 200 emails. AECOM

opposed the motion and filed a motion for a protective order and a motion to

strike the motion to compel because of Centennial’s failure to confer on the

matter.

After reviewing in camera the withheld emails, the magistrate judge

granted Centennial’s motion in part in an order on April 12 (the April 12 Order).

The judge ruled that no email listed as a “communication in anticipation of

litigation” was protected by the work-product doctrine and ordered AECOM to

produce those documents. Aplt. App., Vol. I at 426. Although the judge upheld

most of AECOM’s claims of attorney-client privilege, he rejected some and

ordered AECOM to disclose those unprivileged emails. On April 16 AECOM

-4- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 5

produced a number of emails and filed a notice of compliance with the April 12

Order.

2. The April 27, 2010, Order

The parties also disagreed about the discoverability of evidence related to

their previous interactions (course-of-dealing evidence) and the adequacy of

AECOM’s discovery responses. Centennial’s initial disclosures listed nine

occasions on which AECOM had paid Centennial without requiring advance

approval of a change order, and a letter accompanying the disclosures asked

AECOM to provide a list of any previous occasions when AECOM had refused to

pay Centennial for lack of such advance approval. When AECOM failed to

respond, Centennial sought the advance-approval information in its first and

second discovery requests. AECOM objected to the requests on various grounds,

including relevance, and filed a motion to exclude course-of-dealing evidence

from trial. The district court effectively denied the motion in a March 23, 2010,

order denying Centennial’s motion for summary judgment, which stated that

evidence of the parties’ previous dealings was relevant to whether AECOM had

waived the advance-approval requirement for change orders.

On March 26 Centennial filed a motion to compel production by AECOM

of course-of-dealing evidence and to impose sanctions, including exclusion of any

course-of-dealing evidence offered by AECOM. At the April 19 hearing on the

motion, Centennial also made an oral request for attorney fees. On April 27 the

-5- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 6

magistrate judge issued an order (the April 27 Order) that AECOM fully respond

by May 11 or be precluded from offering course-of-dealing evidence. But he

denied without prejudice the request to impose other sanctions or to award

attorney fees, explaining (1) that evidentiary sanctions were not appropriate

because postponement of the trial enabled AECOM to cure much of the prejudice

to Centennial by now responding fully to discovery requests and (2) that he would

not consider imposing attorney fees because AECOM had not been provided a

reasonable opportunity to respond to Centennial’s oral request.

AECOM appealed the magistrate judge’s order shortly before its

supplemental discovery responses were due. The district court affirmed, stating

that the magistrate judge had “conducted a careful and thorough review of

[AECOM’s] discovery responses and the tortured discovery history in this case.”

Id., Vol. II at 690. On May 11 AECOM filed a notice of compliance with the

April 27 Order, representing that it had supplemented its responses “as directed

by the Court.” Id. at 527.

3. Leave to Amend, Expedited Discovery, and the June 9, 2010, Order

After AECOM produced several internal emails in response to the April 12

Order, Centennial moved on May 14, 2010, to amend its complaint, claiming that

the emails revealed for the first time that AECOM had deliberately interfered with

Centennial’s ability to obtain other projects and that this information supported

-6- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 7

several business-tort claims. Centennial also filed a motion for expedited

discovery. AECOM opposed the amendment, arguing that Centennial had failed

to offer a valid explanation for waiting until the eve of trial (trial had been

rescheduled for June 22) to amend its complaint. On May 20 the magistrate judge

found that AECOM had made it difficult for Centennial to obtain discovery,

granted leave to amend, and ordered the parties to complete discovery on the new

claims by June 15. AECOM appealed the magistrate judge’s decision to the

district court, but the district court affirmed.

On May 21 Centennial sought written discovery on its new claims, and

proposed a deposition schedule to AECOM’s counsel. But the parties could not

reach agreement. On June 4 Centennial moved to compel discovery, and on June

4 and 5 AECOM filed a motion to continue the trial and five motions for

protective orders opposing depositions noticed by Centennial.

On June 9 the district court granted Centennial’s motion to compel and

denied AECOM’s motions for protective orders (the June 9 Order). On the same

day, but in a separate order, the court denied AECOM’s motion to continue. The

June 9 Order required AECOM to cooperate in arranging depositions and to

respond to Centennial’s written discovery requests by June 11. It stated that

AECOM and its counsel had created scheduling pressures by failing “to properly

comply with discovery obligations throughout this case.” Aplee. Supp. App.,

Vol. II at 2048.

-7- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 8

C. Centennial’s Sanctions Motions

Centennial filed three pleadings seeking sanctions. The pleadings accused

AECOM of violating both the April 12 and April 27 Orders and sought monetary

and evidentiary sanctions for those violations and other discovery abuse. Of

particular relevance to this appeal are Centennial’s requests for attorney fees. It

sought $52,870 for its counsel’s work in (1) seeking “discovery by consultation

and correspondence,” Aplt. App., Vol. II at 719; (2) preparing (a) its March 1

motion to compel, (b) a reply brief in support of that motion, (c) an opposition to

AECOM’s motion for protective order, (d) its March 26 motion to impose

sanctions and compel discovery, (e) a reply brief in support of that motion, (f) an

opposition to AECOM’s renewed motion to exclude evidence, (g) an opposition to

AECOM’s appeal to the district court of the April 27 Order, and (h) its motion for

leave to amend the complaint; and (3) preparing for and attending the April 19

hearing on its March 26 motion. Centennial also sought $24,752.50 in attorney

fees for expenses incurred as a result of AECOM’s violation of the April 27 Order

and for expenses in preparing, filing, and arguing (1) Centennial’s June 4 motion

to compel depositions, (2) the opposition to the five motions for protective order,

(3) the opposition to AECOM’s motion to continue, and (4) Centennial’s second

sanctions motion.

D. The District Court’s Sanctions Order

-8- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 9

The district court entered judgment on October 15, 2010, after the jury

returned a verdict in Centennial’s favor on its breach-of-contract claim and on

one of its tortious-interference claims. On December 3 the court granted

Centennial’s motions for sanctions. It found that AECOM had violated both the

April 12 Order and the April 27 Order. Because it also found that each of

Centennial’s motions to compel had resulted in either compliance with the

discovery request or an order to compel, it said that Centennial was entitled under

Fed. R. Civ. P. 37(a)(5)(A) to attorney fees incurred in making the motions.

According to the court, “[AECOM’s] pattern of obstructive discovery behavior

ha[d] been pervasive and persistent throughout the entire course of written

discovery and detrimental to the function of the judicial process,” and had

“evinced a cavalier disregard for [Centennial’s] rights, the Rules of Civil

Procedure governing discovery, and Orders of this Court seeking to enforce those

rules.” Aplt. App., Vol. II at 1402–03. Because of “[t]he willfulness of the

discovery misconduct, coupled with the prejudice to [Centennial],” the court

awarded attorney fees to Centennial. Id. at 1404. The court reviewed

Centennial’s accounting of the hours expended on activities required to obtain the

needed discovery, and concluded that the hours were reasonable. But it adjusted

the two attorneys’ hourly rates of $375 and $275 down to $250 each, resulting in

an award of $58,361.51.

-9- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 10

AECOM’s principal argument on appeal is that Centennial’s fixed-fee

arrangement with its counsel precludes an award of attorney fees. It also

perfunctorily raises a number of meritless issues that we dispose of summarily.

II. DISCUSSION

Fed. R. Civ. P. 37 contains two separate provisions that allow, and often

require, the district court to award attorney fees for discovery misconduct. Under

Rule 37(a)(5) the district court must ordinarily order a party to pay the opposing

party’s reasonable expenses, including attorney fees, incurred in filing or

opposing a discovery motion if the opposing party’s discovery motion is granted,

the party provided discovery only after a motion to compel was filed, or the

party’s discovery motion was denied. See Fed. R. Civ. P. 37(a)(5)(A), (B); id.

26(c)(3). Rule 37(b) requires the district court ordinarily to order a party that has

failed to obey a discovery order “to pay the reasonable expenses, including

attorney’s fees, caused by the failure.” Id. 37(b)(2)(C). The district court’s

sanctions order awarded attorney fees under both provisions. It did not, however,

specify how much of the award fell under Rule 37(a) and how much under Rule

37(b).

We review for abuse of discretion the district court’s decision to award

Rule 37 attorney fees and the amount of the award. See Lancaster v. Indep. Sch.

Dist. No. 5, 149 F.3d 1228, 1236–37 (10th Cir. 1998). We review underlying

-10- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 11

factual findings for clear error. See id. at 1237. With these standards in mind, we

consider AECOM’s arguments on appeal.

A. Fixed-Fee Arrangement

Under Rule 37 the district court may award the prevailing party in a

discovery dispute the “[party’s] reasonable expenses incurred . . . , including

attorney’s fees” in making or opposing a discovery motion, Fed. R. Civ. P.

37(a)(5)(A), (B), or “the reasonable expenses, including attorney’s fees, caused

by the failure” to obey a discovery order, id. 37(b)(2)(C). AECOM argues that it

should not have to pay an attorney-fee award because none of the actions for

which it was sanctioned increased the amount that Centennial had to pay its

attorney. Centennial had originally agreed to pay its counsel by the hour, and

paid over $11,000 in fees under that arrangement; but Centennial and its counsel

later modified the agreement so that Centennial would pay a fixed fee of $50,000

for all work after June 1, 2009. All discovery motions were filed after June 1,

2009. Thus, says AECOM, no attorney fees were either “incurred in making [a]

motion,” id. 37(a)(5)(A), or “caused by [a] failure” of AECOM to comply with a

court order, id. 37(b)(2)(C). We disagree.

In fee-shifting statutes the term attorney fees (or its equivalent) has become

a term of art. In common usage an attorney fee is what one pays to or owes one’s

attorney. In other words, it is the amount incurred by a client for the attorney’s

services. The literal language of fee-shifting statutes is consistent with this

-11- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 12

usage. For example, the fee-shifting statute for civil-rights actions, enacted in

1976, provides that “the court, in its discretion, may allow the prevailing party

. . . a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988. Because

the statute declares the fee to be a “cost,” the natural reading would be that the

fee should be treated the same as other costs, which are “limited to actual outlays

or obligations,” Neil v. Honeywell Inc., 191 F.3d 827, 833 (7th Cir. 1999).

Indeed, the statute governing verification of bills of costs, which has been in

effect since 1948, states: “Before any bill of costs is taxed, the party claiming

any item of cost or disbursement shall attach thereto an affidavit . . . that such

item is correct and has been necessarily incurred in the case.” 28 U.S.C. § 1924

(emphasis added). A reader limited to considering only the statutory language in

isolation would conclude that the “attorney fee” recoverable by a prevailing party

under § 1988 is limited to what the party owes or has paid (“necessarily

incurred”).

That statutory interpretation, however, would be contrary to Supreme Court

precedent. To give but one example, in Blum v. Stenson, 465 U.S. 886 (1984), the

Supreme Court considered a fee award under § 1988 to a prevailing plaintiff

represented by the Legal Aid Society of New York. The district court had

awarded attorney fees based on prevailing market rates for the work performed by

the Society. The defendant and the Solicitor General argued that reimbursement

at such rates created a windfall and subsidized the Society because “market rates

-12- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 13

incorporate operating expenses that may exceed the expenses of nonprofit legal

services organizations, and include an element of profit unnecessary to attract

nonprofit counsel.” Id. at 893. The Court rejected the argument. Relying on

legislative history, it said that “Congress did not intend the calculation of fee

awards to vary depending on whether plaintiff was represented by private counsel

or by a nonprofit legal services organization.” Id. at 894. Perhaps more striking,

the Court did not even concern itself with the pro bono nature of the services

provided and the plaintiff’s having no actual outlays or obligations for attorney

fees. Although the attorney-fee award is to the party, not the lawyers, the Court

presumed that the award would ultimately go to the Society.

Blum is but one of countless examples that the courts construe the term

attorney fees to mean, not the amount actually paid or owed by the party to its

attorney, but the value of attorney services provided to the party. As stated in

Blanchard v. Bergeron, 489 U.S. 87, 93 (1989), “[A] ‘reasonable attorney’s fee’

[is] reasonable compensation, in light of all the circumstances, for the time and

effort expended by the attorney for the [party], no more and no less.” In other

words, an “attorney fee” arises when a party uses an attorney, regardless of

whether the attorney charges the party a fee; and the amount of the fee is the

reasonable value of the attorney’s services. The payment arrangement for an

attorney can vary widely—hourly rate, flat rate, salary, contingency fee, pro

-13- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 14

bono. What the client pays or owes the attorney may not accurately reflect the

reasonable value of the services.

This interpretation of attorney fees is “an interpretation of [a fee-shifting]

statute that is reasonable, consistent, and faithful to its apparent purpose.” Id. at

100 (Scalia, J., concurring). As we understand it, that purpose—generally shared

by fee-shifting statutes and rules—is to protect and further legal rights by

removing a disincentive to vindicating those rights (namely, the cost of retaining

attorneys to pursue the rights) and creating a disincentive to violating them or

failing to compensate victims for violations (namely, the cost of paying for the

victims’ attorneys). See id. at 93 (“the purpose of § 1988 was to make sure that

competent counsel was available to civil rights plaintiffs”); cf. Roadway Express,

Inc. v. Piper, 447 U.S. 752, 764 (discovery sanctions “deter those who might be

tempted to [sanctionable] conduct in the absence of such a deterrent” (internal

quotation marks omitted)).

The Supreme Court has treated in the same manner attorney fees under the

Civil Rights Act, 42 U.S.C. § 1988, see Blanchard, 489 U.S. at 88–90 (affirming

fee above amount owed under contingency-fee arrangement), and under the Clean

Air Act, 42 U.S.C. § 7604(d) (permitting court to “award costs of litigation

(including reasonable attorney fees . . .) to any party”), see Pennsylvania v. Del.

Valley Citizens’ Council for Clean Air, 478 U.S. 546, 568 (1986) (using lodestar

method to calculate attorney-fee award). And the courts of appeals have done

-14- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 15

likewise under various other statutes. See, e.g., Turner v. Comm’r of Soc. Sec.,

Nos. 11-5012, 11-5681, 11-6033, 2012 WL 1889306 (6th Cir. May 25, 2012)

(Equal Access to Justice Act; contingency fee); Pickett v. Sheridan Health Care

Ctr., 664 F.3d 632, 641 (7th Cir. 2011) (Title VII; contingency fee); Murkeldove

v. Astrue, 635 F.3d 784, 791 (5th Cir. 2011) (Equal Access to Justice Act;

contingency fee); Tire Kingdom, Inc. v. Morgan Tire & Auto, Inc., 253 F.3d 1332,

1337 (11th Cir. 2001) (Lanham Act; below-market hourly rate); Raney v. Fed.

Bureau of Prisons, 222 F.3d 927, 929 (Fed. Cir. 2000) (en banc) (Back Pay Act;

union staff counsel); Gotro v. R & B Realty Grp., 69 F.3d 1485, 1487–88 (9th Cir.

1995) (removal statute; contingency fee); Kean v. Stone, 966 F.2d 119, 120 (3d

Cir. 1992) (Merit System Protection Board; salaried union counsel); Am. Fed’n of

Gov’t Emps., AFL-CIO, Local 3882 v. FLRA, 944 F.2d 922, 923 (D.C. Cir. 1991)

(Back Pay Act; union staff counsel); Cornella v. Schweiker, 728 F.2d 978, 985–87

(8th Cir. 1984) (Equal Access to Justice Act; pro bono legal organization); Jordan

v. U.S. Dep’t of Justice, 691 F.2d 514, 523–24 (D.C. Cir. 1982) (Freedom of

Information Act; unpaid law students). But cf. Assessment Techs. of WI, LLC v.

Wiredata, Inc., 361 F.3d 434, 438–39 (7th Cir. 2004) (in copyright case, award of

fees to prevailing party could not exceed fixed fee set in attorney-client contract).

We see no reason to impose a different construction on the language of

Rule 37—either the language of Rule 37(a)(5)(A) and (B) (“reasonable expenses

incurred in making [or opposing] the motion, including attorney’s fees”) or that of

-15- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 16

Rule 37(b)(2)(C) (“reasonable expenses, including attorney’s fees, caused by the

failure [to obey an order]”). As stated in the 1970 advisory committee’s note to

Rule 37(a)(4):

[T]he rules should deter the abuse implicit in carrying or forcing a discovery dispute to court when no genuine dispute exists. And the potential or actual imposition of expenses is virtually the sole formal sanction in the rules to deter a party from pressing to a court hearing frivolous requests for or objections to discovery.

The purpose of Rule 37 attorney-fee sanctions would be thwarted if a party could

escape the sanction whenever opposing counsel’s compensation is unaffected by

the abuse, as when the fee arrangement is a contingency fee or, as here, a flat

rate. See Textor v. Bd. of Regents of N. Ill. Univ., 711 F.2d 1387, 1394–97 (7th

Cir. 1983) (permitting attorney-fee award for work of salaried in-house counsel

caused by opposing party’s willful abuse of the judicial process); Dixon v.

Comm’r, 132 T.C. 55, 101 (T.C. 2009) (sanction for fraud on the court included

attorney fee for work by pro bono counsel). Although we agree that in the usual

case, “[t]he best evidence of the value of the lawyer’s services is what the client

agreed to pay,” Assessment Techs., 361 F.3d at 438, we refuse to assume that

Centennial believed that extra efforts by its attorney caused by AECOM’s

violations of rules and orders were worthless. The fixed-fee arrangement was

undoubtedly based on the assumption by both attorney and client that the attorney

would be performing typical services in litigation conducted under the governing

-16- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 17

law. The fixed fee is irrelevant to the value of the services performed because of

AECOM’s misconduct.

We recognize that on a few occasions circuit courts have indicated that

when a fee-shifting statute allows recovery only for attorney fees “incurred” by a

party (as in Rule 37(a)(5) but not Rule 37(b)(2)(C)), the party must actually have

paid or owe the fee to qualify for reimbursement. See, e.g., In re Espy, 338 F.3d

1036, 1038–39 (D.C. Cir. 2003) (Ethics in Government Act); Wisconsin v. Hotline

Indus., Inc., 236 F.3d 363, 366–68 (7th Cir. 2000) (28 U.S.C. § 1447(c)—removal

statute); Marre v. United States, 38 F.3d 823, 828–29 (5th Cir. 1994) (26 U.S.C.

§ 7430(c)(1)(B)(iii)—tax statute). But even though some, or all, of those cases

may have been correctly decided because of the purposes served by the particular

fee-shifting statute at issue, we disagree with the reliance on the word incurred.

First, as previously noted, the adjective incurred adds nothing (except,

perhaps, emphasis) when modifying the term attorney fee, because in common

usage a fee is something incurred. Thus, although the Supreme Court has never

squarely stated that the inclusion of the word incurred in a fee-shifting statute

does not affect when a fee is recoverable, it has repeatedly inserted the word

incurred in its description of the meaning of fee-shifting statutes that do not

contain the word. In the recent decision in Fox v. Vice, 131 S. Ct. 2205 (2011),

the Court interpreted the frequently litigated civil-rights fee-shifting statute,

42 U.S.C. § 1988 (in which the word incurred does not appear), as permitting an

-17- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 18

award to a defendant “for costs that the defendant would not have incurred but for

. . . frivolous claims,” id. at 2211 (emphasis added), while requiring the defendant

to pay “for the attorney’s fees that the plaintiff reasonably incurred in remedying

a breach of his civil rights,” id. at 2214 (emphasis added). In Arlington Central

School District Board of Education v. Murphy, 548 U.S. 291 (2006), the Court

similarly interpreted the fee-shifting provision of the Individuals with Disabilities

Education Act, 20 U.S.C. § 1415(i)(3)(B), which does not contain any version of

the word incur, as “simply add[ing] reasonable attorney’s fees incurred by

prevailing parents to the list of costs that prevailing parents are otherwise entitled

to recover.” Id. at 297 (emphasis added). Likewise, in Missouri v. Jenkins,

491 U.S. 274 (1989), the Court held that an attorney-fee award against a State

under § 1988 did not violate the Eleventh Amendment because the award

“constituted reimbursement of expenses incurred in litigation seeking only

prospective relief.” Id. at 278 (emphasis added, internal quotation marks

omitted). And the Court has even described two fee-shifting statutes—one with

and one without the word incurred—as using “virtually identical language.”

Astrue v. Ratliff, 130 S. Ct. 2521, 2529 (2010) (referring to § 1988 and the Equal

Access to Justice Act provision, 28 U.S.C. § 2412(d)(1)(A)).

Second, and we think dispositively, the fee-shifting statutes that one might

wish to distinguish because they do not use the word incurred generally provide

that such fees are to be awarded as costs; and a party is not entitled to recover a

-18- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 19

cost without submitting an affidavit that it was “necessarily incurred.” 28 U.S.C.

§ 1924.

This is not to say that all fee-shifting statutes must be interpreted

identically. See Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) (holding that under

the Copyright Act fee-shifting statute, 17 U.S.C. § 505, defendants and plaintiffs

are to be treated the same, contrary to the Court’s interpretation of § 1988). But

in interpreting such statutes, courts should look to their statutory purposes rather

than focusing on the inclusion of a word (incurred) that, in ordinary usage, would

be read into the statute in any event. In light of the clear purposes of the

fee-shifting provisions of Rule 37, we believe that Centennial is entitled to an

attorney-fee award even though its lawyers were working under a fixed fee. See

Ed. A. Wilson, Inc. v. Gen. Servs. Admin., 126 F.3d 1406, 1408–11 (Fed. Cir.

1997) (Equal Access to Justice Act; awarding fee when insurer paid the fee even

though statute limited award to “expenses incurred by [the] party” (internal

quotation marks omitted)).

B. Arguments Disposed of Summarily

1. Criminal Sanctions

Centennial’s motion for sanctions relied only on Rule 37 as ground for the

sanctions; and the district court cited only that Rule in support of its award.

AECOM argues on appeal, however, that the district court’s angry comments, its

award of fees for attorney work other than gathering information, and the timing

-19- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 20

of the award (five months after trial) all show that the award was really a sanction

for criminal contempt. Because the procedures for criminal contempt were not

followed, it contends that the sanctions order should be reversed. AECOM relies

on Law v. Nat’l Collegiate Athletic Ass’n, 134 F.3d 1438 (10th Cir. 1998). In that

case we reversed an order imposing a noncompensatory monetary sanction for a

discovery violation, stating that the noncompensatory sanction was a criminal-

contempt order.

We reject AECOM’s argument. Law, whatever its merits, is not apposite

because the award here was undoubtedly intended to be compensatory. The

record is clear that the sanction was imposed under Rule 37. Of course, if

AECOM could show that the court did not follow proper procedures under that

Rule or imposed sanctions not permitted by the Rule, it may obtain relief. But, as

we hold in this opinion, it has failed to make such a showing.

2. Timeliness and Necessity of Centennial’s Motions to Compel

AECOM argues that the district court erred in awarding sanctions because

Centennial’s motions to compel were untimely. The argument is colorable

because the discovery deadline was December 18, 2009, yet Centennial did not

file its motions to compel until March 2010, when trial was set for April 26.

Ordinarily, however, we defer to the discretion of the district court in deciding

whether a motion is too tardy to be considered. See Norton v. City of Marietta,

-20- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 21

432 F.3d 1145, 1156 (10th Cir. 2005) (per curiam) (district court had discretion to

deny motion to compel as untimely); United States ex rel. Becker v. Westinghouse

Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002) (“The district court has

discretion to consider an untimely motion to compel if the movant offers an

acceptable explanation for the motion’s tardiness.” (brackets and internal

quotation marks omitted)). We see no abuse of discretion here. As the district

court stated, neither it nor the Federal Rules set a deadline to move to compel and

Centennial had delayed filing a motion as it sought voluntary compliance from

AECOM.

AECOM also argues that Centennial’s motion to compel was unnecessary

because AECOM had agreed to provide the requested documents without a court

order and Centennial already possessed the information that it sought. But the

magistrate judge rejected the first argument, finding that AECOM had failed to

meet the agreement’s deadline and that its later attempt to respond to Centennial’s

discovery request was inadequate. AECOM did not challenge that finding in its

opening brief. See Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011)

(appellant abandons arguments not made in opening brief). And AECOM’s

second argument is likewise meritless. As the magistrate judge recognized,

Centennial had a right to request any course-of-dealing evidence that AECOM

possessed, even if it would prove to be duplicative of information in Centennial’s

-21- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 22

possession. We therefore reject the arguments that Centennial’s motion was

unnecessary.

3. Privileged Status of AECOM’s Internal Emails

AECOM argues that the district court should not have awarded sanctions

based on AECOM’s failure to produce its internal emails because the withheld

emails were privileged. It contends that the magistrate judge was wrong to

conclude otherwise and that the district court was wrong to accept the magistrate

judge’s erroneous conclusion.

We reject this claim of error because the issue is not properly before us.

AECOM did not appeal to the district court the magistrate judge’s order finding

the emails not privileged, so the issue is waived. See Pippinger v. Rubin, 129

F.3d 519, 533–34 (10th Cir. 1997); Ayala v. United States, 980 F.2d 1342, 1352

(10th Cir. 1992). Moreover, AECOM has not provided a sufficient record on

appeal for review of its argument. Although scores of emails were at issue, the

sole evidence that AECOM presents consists of two pages of emails on which

only a few words survived redaction. See In re City of New York, 607 F.3d 923,

948 (2d Cir. 2010) (“To assess both the applicability of the privilege and the need

for the documents, the district court must ordinarily review the documents in

question.”); FDIC v. United Pac. Ins. Co., 152 F.3d 1266, 1276 n.6 (10th Cir.

1998) (“The party seeking to invoke the attorney-client privilege has the burden

of establishing its applicability. To satisfy this burden, it is insufficient for the

-22- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 23

[party invoking privilege] merely to contend that documents contain privileged

information.” (citation omitted)).

4. Compliance with April 12 and April 27 Orders

AECOM argues that because it never violated either of the discovery orders

of April 12 and April 27, the district court erred in awarding fees under Rule 37.

We reject the argument.

To begin with, AECOM violated the April 12 Order. Its brief admits as

much when it acknowledges that it failed to produce an email until May 20, after

Centennial had twice brought the error to AECOM’s attention. Moreover, even

though the email may not have been particularly important, AECOM has not

shown that any part of the fee award was based on a violation of the April 12

Order, and Centennial’s counsel at oral argument claimed that the missing email

was not a basis for any attorney fees. AECOM has shown no basis for relief on

this ground.

As for the April 27 Order, it required that AECOM “fully and adequately

respond to” Centennial’s discovery requests by May 11, 2010. Aplt. App., Vol. I

at 496. Although AECOM did timely supplement its discovery responses, the

district court found the responses incomplete and inadequate. AECOM’s opening

brief provides no response to the district court’s specific findings except to argue

that it had not improperly delayed production of notes taken by assistant project

manager Mark Degner. AECOM now suggests that the notes were properly

-23- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 24

withheld as privileged; but its argument below was only that “Degner’s notes

were inadvertently not produced.” Id., Vol. II at 1036. AECOM provides no

reason for this court to consider an argument not raised below. See Carpenter v.

Boeing Co., 456 F.3d 1183, 1198 n.2 (10th Cir. 2006) (“[O]ur general rule is not

to address arguments that were not first presented to the district court.”). We also

reject AECOM’s argument that Degner’s notes were not covered by the April 27

Order. The district court found that the notes were responsive to Centennial’s

first document request, and the April 27 Order required AECOM to supplement

fully its discovery disclosures. AECOM presents no argument to the contrary.

5. Centennial’s Motion to Amend and AECOM’s Motion to Continue the Trial

AECOM contends that the district court’s sanctions order was improperly

based on AECOM’s resistance to Centennial’s amendment to the complaint, its

belief that AECOM’s attorney had misrepresented that she had a scheduling

conflict, and its displeasure with AECOM’s June motion to continue the trial. We

disagree.

The portions of the record referenced by AECOM do not support its

contention that the district court imposed a sanction for AECOM’s opposing

Centennial’s amendment to its complaint. Nor have we found support elsewhere

in the record. Also, the record does not support the contention that the court

believed that AECOM’s attorney had misrepresented a scheduling conflict. After

-24- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 25

counsel told the court that she had a conflicting trial setting in state court, the

district court contacted the state judge, who said that another trial had priority so

the potential conflict would not materialize.

As for AECOM’s motion to continue, the district court’s sanction included

Centennial’s attorney fees to oppose the motion because the court characterized

the motion as “in effect a motion for a stay of or to delay [ongoing] discovery.”

Aplt. App., Vol. II at 1399. AECOM’s opening brief does not challenge that

characterization. And the characterization is on its face reasonable because the

court had previously made it clear that the trial date was set in concrete and the

motion to continue was filed as AECOM was obstructing discovery necessary for

Centennial to be prepared for that trial date. The continuance motion was

apparently designed solely to relieve AECOM of its burden to comply with its

discovery obligations.

6. Miscellaneous Inadequately Presented Arguments

AECOM argues that the district court abused its discretion by imposing

both evidentiary and monetary sanctions. But AECOM’s opening brief fails to

point to anything in the record supporting its claim that the district court imposed

evidentiary sanctions. In any event, nothing in Rule 37 precludes a district court

from imposing both evidentiary and monetary sanctions. See Fed. R. Civ. P.

37(b)(2)(C) (payment of expenses is required “[i]nstead of or in addition to” the

sanctions enumerated in Rule 37(b), which include evidentiary sanctions).

-25- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 26

AECOM asserts that the district court “awarded substantial fees for

numerous tasks that were not related to discovery or . . . supposed violations of

the [discovery orders],” and therefore were not permissible under Rule 37. Aplt.

Br. at 38. In support of this assertion it cites, without any further explanation,

five pages of the appendix, each of which is a page from Centennial’s billing

records containing multiple entries. This “effort” by AECOM does not suffice to

present any issue for review in this court. A party cannot impose on the court the

burden to search for error. We have no obligation or inclination to examine each

entry and assess, without any guidance from AECOM, whether it reflects work

compensable under Rule 37. See Reedy, 660 F.3d at 1275 (“Issues not adequately

briefed will not be considered on appeal.”).

AECOM contends that the district court should not have awarded fees

because Centennial failed to confer on the issues. But the magistrate judge’s

April 27 Order found that Centennial “ha[d] made multiple good faith attempts to

get [AECOM] to adequately respond to its discovery requests” and that

“[AECOM] ha[d] hindered those attempts at every turn.” Aplt. App., Vol. I at

487. The record supports the finding and AECOM’s brief does not even attempt

to point to contrary evidence or otherwise to rebut the judge’s findings.

AECOM’s opening brief also asserts that its failure to admit matters in

response to a request for admissions “cannot be used as a basis for the District

-26- Appellate Case: 11-8000 Document: 01018887151 Date Filed: 07/27/2012 Page: 27

Court’s sanctions on June 17, 2010.” Aplt. Br. at 36. But the brief fails to

identify a sanction imposed on that date, and we have found none.

C. Motion to Supplement the Record

AECOM has filed a motion with this court seeking to file a supplemental

appendix. We deny the motion because every document in the proposed

supplemental appendix is either a duplicate of a document already contained in

the record or was never presented to the district court.

III. CONCLUSION

We AFFIRM the district court’s order awarding attorney fees.

-27-