ALABAMA AIRCRAFT INDUSTRIES, INC., et al., Plaintiffs, v. The BOEING COMPANY, et al., Defendants Case No.: 2:11-cv-03577-RDP United States District Court, N.D. Alabama, Southern Division Signed June 15, 2018 Counsel J. Michael Rediker, Meredith Jowers Lees, Rebecca A. Beers, Peter Tepley, R. Scott Williams, Rumberger Kirk & Caldwell PC, Reginald L. Jeter, Law Office of Celeste P. Armstrong, Roger A. Brown, Haskell Slaughter Young & Rediker LLC, Birmingham, AL, Joshua D. Lerner, Pro Hac Vice, Rumberg Kirk & Caldwell PC, Miami, FL, for Plaintiffs Alabama Aircraft Industries Inc, Alabama Aircraft Industries Inc. Birmingham. Patricia C. Diak, Roger A. Brown, Haskell Slaughter Young & Rediker LLC, Peter Tepley, J. Michael Rediker, Meredith Jowers Lees, Rebecca A. Beers, R. Scott Williams, Rumberger Kirk & Caldwell PC, Reginald L. Jeter, Law Office of Celeste P. Armstrong, Birmingham, AL, Joshua D. Lerner, Pro Hac Vice, Rumberg Kirk & Caldwell PC, Miami, FL, for Plaintiff Pemco Aircraft Engineering Services Inc. Craig S. Primis, Erin C. Johnston, John C. O'Quinn, Tia T. Trout-Perez, Alexia R. Brancato, Pro Hac Vice, Kirkland & Ellis LLP, Washington, DC, John Thomas Richie, Reed Thomas Warburton, Bradley Arant Boult Cummings, LLP, Birmingham, AL, for Defendants. Proctor, R. David, United States District Judge ORDER *1 This matter is before the court on Boeing's Motion to Stay Payment of AAI's Fee Award. (Doc. # 431). The Motion has been fully briefed. (Docs. # 440, 441). On July 20, 2016, AAI filed a Motion for Sanctions based on alleged spoliation of electronically stored information (“ESI”) by Boeing. (Doc. # 227). The Motion alleged two different spoliations: (1) an August 2006 ESI Spoliation (“2006 Spoliation”), and (2) a Spring 2007 ESI Spoliation (“2007 Spoliation”). “On March 9, 2017, the court granted AAI's Motion for Sanctions and held that Boeing ‘shall pay AAI its reasonable costs and expenses incurred in prosecution of its Motion for Sanctions as a sanction.’ ” (Doc. # 311 at 1). The court directed the parties to “work with [the Special Master] to develop a process and schedule for the submission of AAI's petition for reasonable fees and costs.” (Id.). On February 23, 2018, the Special Master recommended that AAI's Application for Attorneys' Fees and Costs/Expenses (“Fee Application”) be granted in part and denied in part. (Doc. # 422 at 1, 28). The court adopted this report and accepted the Special Master's recommendations. (Doc. # 432). In the proceedings before the Special Master, Boeing requested that the Special Master postpone payment of the Fee Award until the Eleventh Circuit affirms the sanctions Order and fee award. (Doc. # 422 at 26-27). Because no motion was pending before him on the issue, the Special Master did not make a recommendation on the merits of the requested postponement. Nonetheless, he noted that “Boeing presents a well-reasoned argument in favor of postponing the fee award.” (Doc. # 422 at 27). The formal Motion to Stay is now before the court. (Doc. # 421). Boeing argues that (1) the court has considerable discretion to decide the timing of a fee award, (2) payment of the fee award should be postponed given the financial conditions of the parties, and (3) there is no evidence that the type of conduct for which it was sanctioned is ongoing or will recur. (Doc. # 421). AAI responds that (1) no cases dictate that the court must stay such an award, (2) there is no certainty that Boeing will be able to make the payment in the future, and (3) an infinite delay of payment of the sanctions would dilute their deterrent effect. (Doc. # 440). A court has discretion in deciding whether to stay payment of an award of sanctions. See, e.g., Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 211 (1999) (citing Richardson–Merrell Inc. v. Koller, 472 U.S. 424, 435 (1985) ); see also Harris v. Hobbs, 2013 WL 12108607, at *1 (N.D. Fla. Feb. 11, 2013) (“I ordinarily defer determination of the amount of a fee award until after resolution of any appeal. This is good case management for several reasons” including that an “appellate decision sometimes affects a party's entitlement to a fee award.”); see also Painter v. Ju-Lin, 2010 WL 1329742, at *2 (E.D. Tenn. Mar. 29, 2010) (finding a sanction appropriate, but delaying “imposition of the sanction until a final resolution of the case.”). *2 Boeing has made it clear that, at the ultimate termination of this case, it intends to appeal the court's imposition of sanctions. Although the court believes its decision imposing sanctions was correct, there is always the possibility that the Court of Appeals could disagree. And, if payment was required now and there was a successful appeal, the question would become whether Boeing could readily be reunited with its money. The Special Master expressed similar concerns in this regard: The primary reason [to stay payment] is the financial status of each party. AAI is a bankrupt entity without the reassurance of sufficient incoming funds. Alternatively, Boeing has extensive ongoing operations. If AAI received the fee award immediately and Boeing's appeal of the sanctions Order and fee award was later successful, there is no reassurance Boeing could recoup its payment from AAI. (Doc. # 422 at 27). The court agrees with some of the arguments made by each party. On one hand, to delay payment of the sanctions would dilute not only the punitive effect of the order, but also its deterrent effect. “The possibility that the award will be reversed on appeal exists in every case in which interlocutory orders are made.” In re HH (US), Inc., 1992 WL 182183, at *2 (Bankr. W.D. Pa. July 23, 1992). On the other hand, there is a very real danger that the parties and the court will not be able to get the cow (or, in this case, the funds) back in the barn. Therefore, to accommodate each of these concerns, while the court will delay actual payment, Boeing must post a bond. (Doc. # 440 at 14-15). Boeing's Motion to Stay Payment of AAI's Fee Award (Doc. # 431) is GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED to the extent that immediate payment to AAI will not be required. The Motion is DENIED in that, within fourteen days of this Order, Boeing SHALL post a cash bond in the amount of $375,000 pending the ultimate resolution of the court's sanctions Order.[1] DONE and ORDERED this June 15, 2018. Footnotes [1] This amount reflects attorneys' fees in the amount of $358,734.00 fees, plus costs in the amount of $16,198.20, for a total of $ 374,932.20, rounded up by $67.80. Interest will be dealt with at a later date, if necessary.