Supreme Court Seal
Supreme Court Seal
South Carolina
Judicial Branch
Marcus S. McCall, ) ORDER
                                    Plaintiff )  
  ) Case No. 2009-CP-23-4694
v. )  
Easlan Communities, LLC, )  
                                    Defendant )  

This matter came before the Court for a hearing on July 15, 2010 upon motion of Plaintiff, Marcus S. McCall (“McCall”), pursuant to SCRCP 37(a)(4), for payment of expenses and attorney’s fees in connection with his successful motion to compel production of financial records of Roper Mountain Apartments, LLC, of which he is a member, from the Defendant, Easlan Communities, LLC, the manager of Roper Mountain Apartments, LLC (“Easlan”).  W. Howard Boyd, Jr. of the firm Gallivan, White & Boyd, P.A. was present at the hearing on behalf of Plaintiff.  Richard H. McDuff of the firm Smith, Moore, Leatherwood, LLP was present at the hearing on behalf of Defendant.

McCall served Interrogatories and Requests for Production on Easlan on September 18, 2009.  Easlan objected and refused to respond to McCall’s discovery requests, and McCall moved the Court for an order compelling production of the information and documents he sought in his discovery requests.  Prior to filing the Motion to Compel, McCall and his counsel attempted to resolve these matters in good faith without court intervention by communicating with Easlan’s counsel and requesting Easlan address the deficiencies in its responses and answers to McCall’s discovery requests.  These efforts were unsuccessful.

McCall’s Motion to Compel was argued before me on April 20, 2010.  I granted McCall’s motion following the hearing, finding that McCall’s requests were reasonable, that Easlan’s reliance on McCall’s competitor status was not a valid basis to deny him access to the records of the LLC, and Easlan’s reliance on the Operating Agreement to withhold LLC records was contrary to the express provisions of the LLC Act, and ordered Easlan to produce responsive documents.  McCall subsequently filed a Motion for Expenses and Attorney’s Fees pursuant to Rule 37 of the South Carolina Rules of Civil Procedure.  The documents at issue have now been produced.

Rule 37(a)(4) of the South Carolina Rules of Civil Procedure states that “if the motion [to compel] is granted, the court shall … require the party … whose conduct necessitated the motion … to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified….”  As McCall’s motion was granted, the critical inquiry is whether Easlan was “substantially justified” in refusing to comply with its obligations under Rules 26, 33, and 34 of the South Carolina Rules of Civil Procedure.  A party is substantially justified in opposing discovery and a motion to compel if “there is a ‘genuine dispute’ as to the proper resolution” of the motion or if “a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact” for his opposition to responding McCall’s discovery requests.  Hill Holiday Conners Cosmopulos, Inc. v. Greenfield, 2009 WL 4111474, *2 (November 23, 2009 D.S.C.) (internal citations omitted).

In granting Plaintiff’s Motion to Compel, I found that Plaintiff’s request for LLC records was reasonable.  Further, I found the reasons Easlan relied upon to withhold LLC records were not valid and unenforceable under the LLC Act.  Easlan adduced no facts, through affidavit or otherwise, prior to or during consideration of the Motion to Compel or by testimony at the hearing of this motion, which would reasonably support its opposition to producing the documents requested or to the motion itself.  I find that Easlan has failed to establish facts or law sufficient to demonstrate that its actions were substantially justified, and Plaintiff’s motion should be granted.

Accordingly, Defendant, Easlan Communities, LLC, shall pay to Plaintiff the expenses and attorney’s fees he incurred in bringing his motion to compel, as outlined in Exhibit A, attached to the motion, in the amount of One Thousand Nine Hundred Seventy-Two and 00/100ths ($1,972.00) Dollars, within fifteen (15) days of the entry of this Order.



Edward W. Miller
Circuit Judge

Dated at Greenville, SC

this 4th day of August, 2010.