The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
ORDER GRANTING PLAINTIFFS' MOTION FOR ATTORNEY'S FEES
On February 10, 2009, the court entered an order granting in part and denying in part plaintiffs Jeff Oyen and Randy Johansen's motion to compel defendant Land O'Lakes, Inc.'s responses to previously-served discovery requests. [Docket 57]. As part of the resolution of that motion to compel, the court ordered plaintiffs to file a petition for attorneys fees together with a brief addressing whether the position taken by Land O'Lakes with regard to this discovery dispute was "substantially justified." Plaintiffs have now done so, and Land O'Lakes has filed an objection to plaintiffs' request for attorney's fees and costs.
This action arises out of plaintiffs' purchase of alfalfa seed from defendants that plaintiffs claim did not live up to the warranties and advertising that defendants made about the seed. Plaintiffs' complaint includes claims of: (1) breach of warranty (two counts), (2) fraud/deceit, (3) negligence, (4) a Lanham Act violation, and (5) falsely advertising that their product contained patented genetics.
On February 12, 2008, plaintiffs served Land O'Lakes with the discovery requests that were the subject of plaintiffs' motion to compel. Land O'Lakes objected that the requests called for proprietary information. Thereafter, the parties stipulated to the entry of a protective order. After the entry of the protective order, discovery disputes remained and plaintiffs ultimately filed a motion to compel the responses from Land O'Lakes to eight identified discovery requests.
Many of the eight requests at issue included requests for information from Land O'Lakes about two varieties of alfalfa seed that plaintiffs never purchased from Land O'Lakes, but which Land O'Lakes had advertised similarly to the varieties of seed that plaintiffs did purchase.*fn1 Ultimately, the court denied plaintiffs' request for information about these two varieties that plaintiffs never purchased because plaintiffs had not adequately set forth in their motion what the nexus between the purchased seed and the never-purchased seed was. However, the court denied plaintiffs' request without prejudice to plaintiffs' right to refile a motion on this subject and more adequately address the issues pointed out by the court. Thus, the court concluded not that plaintiffs could never make a showing that would entitle them to the discovery, but only that plaintiffs had not yet done so in the present motion.
As to the portions of the eight discovery requests that involved the varieties of seed actually purchased by plaintiffs, Land O'Lakes's discovery responses consisted of ignoring entirely most parts of those requests. Even in its brief to the court, Land O'Lakes merely asserted that it had answered the discovery requests without acknowledging the missing information or addressing why the missing information was not provided. Also, despite the entry of a protective order in this case, Land O'Lakes interposed a confidentiality objection to three of the discovery requests, without ever providing an explanation to plaintiffs or to the court as to why the existing protective order did not already provide sufficient protection for the disclosure of the requested information.
Pursuant to Fed. R. Civ. P. 37(a)(5) and the court's request, plaintiffs submitted a request for attorney's fees and costs in the amount of $1,394.97.*fn2
Land O'Lakes objects to that request.
A. Whether Land O'Lakes' Position was "Substantially Justified"
Rule 37(a)(5) of the Federal Rules of Civil Procedure states that if the court grants a motion to compel, or if the requested discovery is provided after a motion to compel has been filed, "the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." See Fed. R. Civ. P. 37(a)(5) (emphasis supplied). The award of expenses is mandatory unless the court finds that the moving party failed to confer in good faith with the responding party prior to filing the motion, the responding party's refusal to respond was substantially justified, or other circumstances make an award of expenses unjust. Id.
Land O'Lakes does not dispute that plaintiffs conferred with it in good faith prior to filing their motion to compel. Also, Land O'Lakes does not argue that any other circumstances make an award of attorney's fees against it unjust. Thus, the court need only determine whether Land O'Lakes' position ...