In theory, the prevailing party on a motion to compel in California usually should recover their reasonable attorney’s fees. In reality, attorneys who win the discovery war often lose the fee battle, seeing their requests either denied entirely or dramatically reduced. Why does this happen?
Here are some of the most common reasons:
Inadequate Meet and Confer Efforts—or the Appearance Thereof
Most attorneys understand that parties are required to meet and confer in good faith in an effort to resolve their discovery disputes before bringing it to the court. But many underestimate courts’ ability to sniff out superficial meet and confer efforts. Moreover, numerous courts have implemented local rules mandating the parties undertake specific meet and confer efforts before a motion to compel may be filed. Separately, even extensive and good-faith meet and confer efforts may not be enough if the well-meaning attorney does a poor job documenting their reasonable efforts.
Failure to Submit Proper Evidence with the Motion
Another common reason why fees requests are reduced or denied is because they are not adequately or timely evidenced. Courts are unlikely to award fees unless they have evidence showing how much was billed and for what. In federal court, counsel bear the burden of submitting detailed time records justifying the hours claimed to have been expended. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). Similarly, in state court, a motion to compel must be accompanied by a declaration setting forth facts supporting the amount of the monetary sanction sought. Cal. Code Civ. Proc. § 2023.040. Vague or otherwise-thin evidence supporting a fee request may be rejected. See, e.g. Weinstein v. Blumberg, 25 Cal. App. 5th 316, 321 (2018); Hernandez v. Welcome Sacramento, LLC, No. 2:20-CV-02061-KJM-JDP, 2024 WL 4520145, at *7 (E.D. Cal. Oct. 17, 2024). Counsel should provide clear and accurate records of the time spent preparing the motion to compel and supporting documents, and the amount billed for that time.
Timing matters, too. It is tempting to tell the court in an opening brief that you will submit evidence with your reply brief, when you know the full amount of hours expended (at least before oral argument). But counsel who waits until their reply brief to in evidence of fees may be out of luck, as the court may find that such delay improperly deprives the non-moving party of their ability to contest the amount.
Overreaching or Inflated Requests
Courts considering fee requests typically evaluate them for reasonableness. Actual fees incurred by a party often are an important part of determining their reasonableness, but not the only part. Was the number of hours spent reasonable? The number of attorneys working on the matter? Courts are not shy about giving haircuts for any perceived duplicative work, excessive hours, or overstaffing. See, e.g., Cash v. County of Los Angeles, 111 Cal. App. 5th 741 (2025). Courts also pay attention to billing rates; are they reasonable given the experience of the attorneys, their practice area, the expertise needed for the case, and the local market? Parties who submit comprehensive evidence supporting the reasonableness of their request have a leg up.
Be careful, too, in deciding which hours of work to represent to the court were necessary for the motion at issue. For example, courts may be loathe to award fees for time spent reviewing discovery responses, since that work would have been done regardless of whether a motion to compel was filed. See Doe v. Cnty of Sacramento, 2024 WL 2022871, at *2 (E.D. Cal. May 7, 2024). Likewise, time spent on the meet and confer process will typically not be included in a fee award. Id.
Takeaways for Winning the Battle and the War
Fee-shifting in discovery motions is not automatic. To maximize your chances of recovering fees on a motion to compel, counsel should:
Engage in a thorough and well-documented meet and confer process
Submit detailed and timely evidence of fees, and their reasonableness, with their first brief
Only ask for fees to which they are entitled
For more information regarding Alto Litigation’s litigation practice, please contact one of Alto Litigation’s partners: Bahram Seyedin-Noor, Bryan Ketroser, Joshua Korr, or Kevin O’Brien.
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