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Under Fed.R.Civ.P. 37(a)(4)(C) when a court grants in part and denies in part a motion to compel, the court can “apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.” Whether to impose sanctions lies within the court's discretion. Barnes v. Akal Sec. Inc., No. 04-1350, 2005 WL 3359717, at *6-7, 2005 U.S. Dist. LEXIS 33262, at *21 (D.Kan. December 9, 2005)(citing Nat'l Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976)). The court “must consider on a case-by-case basis whether the party's failure was substantially justified or whether other circumstances make the imposition of sanctions inappropriate.” Id. (citing Starlight Int'l, Inc. v. Herlihy, 186 F.R.D. 626, 646 (D.Kan.1999)). In deciding whether to grant sanctions based on Rule 37(a)(4)(C), the court in Mackey v. IBP, Inc., found that “justice requires that each party be responsible for its own costs and expenses incurred upon the motion [to compel]” because “both parties took legitimate positions on the motion [to compel].” Mackey v. IBP Inc., 167 F.R.D. 186, 207 (D.Kan.1996). See also Lawrence-Leiter & Co. v. Paulson, No. 96-2535, ...
