author: PYLE, Judge. CRONE, Judge,

text:
    Anthony Scott BRATCHER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 90A02-1301-CR-3.
    Court of Appeals of Indiana.
    Nov. 19, 2013.

      Stacy R. Uliana, Bargersville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Anthony Seott Bratcher ("Bratcher") appeals his sentence, following his guilty plea, for Class B felony child molesting. Bratcher also challenges the sex offender probation conditions that restrict his access to the internet and that limit his contact with children, arguing that they are vague, overbroad, and unconstitutional as applied to him.

We affirm.

ISSUES

1. Whether Bratcher's sentence is inappropriate pursuant to Indiana Appellate Rule 7(B).
2. Whether the trial court abused its discretion by imposing sex offender probation conditions that restrict Bratcher's access to the internet and his contact with children.

FACTS

On June 4, 2012, eighteen-year-old Bratcher pulled down the pants of a five-year-old neighbor girl, A.E.D., and then touched and kissed her "pee pee" or vaginal area. (Tr. 27). AE.D. immediately reported the molestation to her parents, who called the police. When the police interviewed Bratcher, he admitted that he had touched and kissed A.E.D.'s vagina and stated that it "excite[d] him" when he did so. (Tr. 28). Additionally, Bratcher told police that he had also kissed A.E.D. on the lips.

The State charged Bratcher with Class B felony child molesting. On October 19, 2012, Bratcher pled guilty as charged without a plea agreement. The trial court held a sentencing hearing on December 10, 2012. The presentence investigation report ("PSI") revealed that Bratcher, who was nineteen years old at sentencing, has a history of juvenile adjudications, including an adjudication for Class B felony child molesting if committed by an adult. Bratcher's juvenile adjudications began at age twelve and required placement in a juvenile facility from age thirteen to eighteen.

Specifically, in August 2005, when Bratcher was twelve years old, he was adjudicated as delinquent for running away from home and committing eriminal mischief. He spent one month in the Allen County Juvenile Center ("the juvenile center") and was then released to juvenile probation. Two months later, while still on probation, Bratcher received his second adjudication, this time for Class D felony theft if committed by an adult. Bratcher spent another month at the juvenile center, was placed on probation for this theft adjudication in December 2005, and then released from probation in August 2006. One month after being released from probation, Brateher received his second adjudication for Class D felony theft if committed by an adult.

In January 2007, while on probation for theft, thirteen-year-old Bratcher admitted to molesting an eight-year-old neighbor boy and was adjudicated a delinquent for Class B felony child molesting if committed by an adult. Bratcher spent the next four plus years on probation in various juvenile placement facilities for this child molesting adjudication. After two and one-half years in a more restrictive placement, Bratcher was transitioned to a less restrictive group home placement. However, due to interacting and socializing problems in this setting, he had to be moved back to a more structured placement to "ensure he was not a danger to the community." (App. 157). During the four plus years of juvenile placement, he violated probation seven times and also received a reprimand for Class A misdemeanor battery. An addendum to the PSI reveals that Bratcher violated probation by writing a sexually explicit letter to a teacher, pushing a duress button at school, breaking the leg of a chair and threatening staff with it, destroying property, engaging in inappropriate behavior, and failing to comply with staff requests.

While Bratcher was in these juvenile placement facilities, he participated in groups to address "sex offending issues, anger management, addiction issues, thinking errors, and daily living skills." (Tr. 182). As part of his placement, he was placed in the Aftercare Phase of the Adolescent Sex Offender Program. In late October 2011, eighteen-year-old Bratcher was released from placement from his child molestation adjudication and was returned to the custody of his mother. Approximately seven months later, Brateher committed the molestation at issue in this appeal.

During the sentencing hearing, the State presented testimony from the probation officer regarding Bratcher's scores on various risk assessment instruments. The probation officer explained that the Indiana Risk Assessment System ("IRAS") was an instrument for assessing all offenders by using broad categories while the STATIC 99 was a specific tool for assessing a sex offender's risk of reof-fending. The probation officer explained that Bratcher's score on the IRAS indicated a moderate risk to reoffend while his score on the STATIC 99 revealed a high risk of reoffending on sex offenses.

During the hearing, Bratcher stated that the majority of the time he spent in the juvenile placement facilities was focused mainly on anger and social interaction issues and not as much on sex offender therapy. He claimed that he did not participate in sex offender therapy until the last few months of his placement.

The trial court found the following mitigating factors: (1) Bratcher immediately confessed to the crime; and (2) Bratcher's guilty plea, which spared the victim from testifying at trial. The trial court found the following aggravating circumstances: (1) Bratcher's juvenile delinquent history; (2) the victim's young age of five years old; (3) Bratcher's history of violating juvenile probation. When sentencing Bratcher, the trial court stated:

Concerning the Court is that this is now the second victim [Bratcher] has created. First victim being eight years old when the offense was committed, the second one now five, it concerns the Court the he commits this offense within six months or more, very short period of time of being released from in placement, that's concerning. Also concerned that based on what I read in the presen-tence investigation report[,] Mr. Bratcher does not have the family and social support when he is release and my concern, I have two concerns, one for Mr. Bratcher in that he is going to exit the prison gates with literally no support, second concern is he is going to exit the prison gates with very little education or training or counseling for his offenses here that apparently now have shown a little bit of pattern and my concern is he will reoffend if he does not receive some type of treatment. I realize [Bratcher's] counsel's concern that this sets him up for, sets him up for failure if he is given any time on probation, but I also think that without some type of counseling it also sets him up for failure and also places the community at risk because now we have someone who has now twice violated small children and he's going to be a very young man when he is released and will be placed in the community with little or no support system in place.
The concern to the Court is and I'm not surprised by the moderate risk on the IRAS assessment based upon this Court's experience with individuals charged with sex crimes to be a situation where they do have little or no criminal history and so the Court's not entirely surprised with the IRAS assessment. I think the STATIC 99 indicator is a little more appropriate as well as it shows he would be a high risk to reoffend. I think the State's position reflects the concerns the Court has that 1) the Defendant be held accountable for his actions; and 2) that gives him potentially the resources he'll need to be part of society because ultimately he's going to be back in society in this community onee he's finished serving his sentence and so hopefully he can put an end to his behavior and stop victimizing individuals and potentially become a productive adult and do what he needs to do to manage the urges and things that he apparently has here.

(Tr. 40). The trial court then imposed a twenty (20) year sentence, with fifteen (15) years executed in the Department of Correction and five (5) years suspended to probation.

The trial court also issued an Order of Probation, which contained general conditions of probation, and an Addendum Order of Probation, which contained "special conditions" of probation "as a result of [Brateher's] sex offense conviction[.]" (App. 39). These special conditions included the following, which Bratcher challenges in this appeal:

15. You shall have no contact with any person under the age of 16 unless you receive court approval or successfully complete a court-approved sex offender treatment program, pursuant to IC 35-38-2-24. Contact includes face-to-face, telephonic, written, electronic, or any indirect contact via third parties.
# # * *# a *
17. You shall not participate in any activity which involves children under 18 years of age, such as, but not limited to, youth groups, Boy Seouts, Girl Scouts, Brownies, 4-H, YMCA, YWCA, or youth sports teams, unless given permission by the Court.
* *# * * * *
21. You shall not access the Internet or any other on-line service through use of a computer, cell phone, iPod, Xbox, Blackberry, personal digital assistant (PDA), pagers, Palm Pilots, televisions, or any other electronic device at any location (including your place of employment) without prior approval of your probation officer. This includes any Internet service provider, bulletin board system, e-mail system or any other pub-lie or private computer network. You shall not possess or use any eneryption technique or program. -
*# * *# * * . *t
28. You are prohibited from accessing or using certain web sites, chat room, or instant messaging programs frequented by children. You are prohibited from deleting, erasing, or tampering with information on your personal computer with intent to conceal an activity prohibited by this condition. *Required as a condition of probation by IC 35-38-2-2.2(4). .

(App. 40-41). The trial court read these probation conditions to Bratcher during the sentencing hearing, and he did not object to them. Bratcher did, however, ask the trial court if the condition regarding restricted access to the internet was to apply at all times or only during probation. The trial court responded that it applied while he was on probation and instructed him that he could speak to his probation officer about obtaining internet . access. Bratcher replied that he would need access to the internet for employment purposes because applications were "all online now." (Tr. 47). The trial court responded that Bratcher would be able to talk with his probation officer about "how [he could] do that in the future[.]" (Tr. 47). Bratcher signed the Addendum Order of Probation and agreed to comply with "special probation conditions." (App. 41). Bratcher now appeals his sentence and these special probation conditions.

DECISION

1. Sentence

Bratcher contends that his sentence for his Class B felony child molesting convietion is inappropriate. Specifically, Bratcher argues that the trial court's imposition of the "maximum" sentence was inappropriate because it was his first adult convietion and because he pled guilty. (Bratcher's Br. 7). He also suggests that the trial court erred by considering his risk assessment scores on the STATIC 99. Bratcher asks this Court to revise his sentence to the advisory term of ten (10) years with four (4) years suspended to probation.

We may revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). The defendant has the burden of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006). The principal role of a Rule 7(B) review "should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived 'correct' result in each case." Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008). Whether a sentence is inappropriate ultimately turns on "the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given ease." Id. at 1224. Additionally, "[uJnder Indiana law, several tools are available to the trial court to use in fashioning an appropriate sentence for a convicted offender." Sharp v. State, 970 N.E.2d 647, 650 (Ind.2012). These "penal tools"-which include suspension of all or a portion of the sentence, probation, home detention, community corrections program placement, executed time in a Department of Correction facility, concurrent rather than consecutive sentences, and restitution and fines-"form an integral part of the actual aggregate penalty faced by a defendant and are thus properly considered as part of the sentence subject to appellate review and revision." Id. (citing Davidson v. State, 926 N.E.2d 1028, 1025 (Ind.2010)).

When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence "is the starting point the Legislature has selected as an appropriate sentence for the crime committed." Childress, 848 N.E.2d at 1081. Here, Bratcher pled guilty as charged to the Class B felony child molesting charge without a written plea agreement The sentencing range for a Class B felony is between six (6) and twenty (20) years, with the advisory sentence being ten (10) years. I.C. § 35-50-2-5. The trial court imposed a twenty (20) year sentence, with fifteen (15) years executed and five (5) years suspended to probation.

We first address Bratcher's contention that his sentence is inappropriate because it was a "maximum" sentence. We have previously explained that "for purposes of Rule 7(B) review, a maximum sentence is not just a sentence of maximum length, but a fully executed sentence of maximum length" and that "[alnything less harsh, be it placement in community corrections, probation, or any other available alternative to prison, is simply not a maximum sentence." Jenkins v. State, 909 N.E.2d 1080, 1085-86 (Ind.Ct.App.2009), trans. demied. Here, the trial court suspended a portion of Bratcher's sentence and placed him on probation. Thus, Bratcher did not receive a maximum sentence for purposes of Appellate Rule 7(B). See id.

Moving to the nature of Bratcher's offense to which he pled guilty, we can see from the record before us, which includes the police report that was attached to the PSI, that A.E.D. was playing with other children at a neighbor's house where Bratecher was staying. After the other children left, Bratcher went inside the house with A.E.D. Bratcher kissed the five-year-old girl on the lips, pulled down her pants, and kissed and touched her vaginal area. Bratcher told police that he thought AE.D. was eight or nine years old. Bratcher also told police that he was going to touch A.E.D.'s butt under her pants and that he stopped when AE.D.'s father knocked on the door.

Bratcher attempts to minimize the nature of his offenses by arguing that his offense was "not more egregious than the average molest" because he was not in a position of trust and did not physically harm or threaten to harm A.E.D. (Bratcher's Br. 7). Citing to Tyler v. State, 908 N.E.2d 463, 469 (Ind.2009), Bratcher argues that "the nature of [his] offense is more in line with the advisory sentence as contemplated by the legislature." (Bratcher's Br. 8). In Tyler, our Indiana Supreme Court revised the defendant's two enhanced Class A felony child molesting sentences to the advisory term based on the defendant's lack of position of trust, the lack evidence showing physical foree to the victims, and the defendant's lack of criminal history for child molesting or any other sex offense. Tyler, 9038 N.E.2d at 469. Here, however, Bratcher does have a eriminal history that specifically involves a prior child molesting.

Indeed, in turning our foeus to Bratcher's character, we see from the record that Bratcher-who was eighteen years old at the time of his offense-has amassed a criminal history consisting of five juvenile adjudications that began at age twelve and required placement in a juvenile facility from age thirteen to eighteen. Most troubling is that Bratcher has a juvenile adjudication for Class B felony child molesting, which is the same offense he committed here against A.F.D. When Bratcher was thirteen years old and on probation for theft, he was adjudicated a delinquent for Class B felony child molesting for molesting an eight-year-old neighbor boy. He spent the rest of his juvenile life in various juvenile placement facilities for this child molesting adjudication. During this time, he violated probation seven times and received a reprimand for committing battery. As part of his placement, he was placed in the Aftercare Phase of the Adolescent Sex Offender Program. Bratcher was released from juvenile placement to the cuétody of his mother when he was eighteen years old. However, approximately seven months after his release, he committed the child molestation at issue in this appeal.

Arguing that he is not the worst of the worst offenders, Bratcher urges this Court to look at his young age, his willingness to plead guilty, and his troubled childhood when assessing his character. Bratcher argues that his guilty plea "reflect[ed] significantly on his character" and seems to suggest that it was not given proper consideration by the trial court. (Bratcher's Br. 10). The record, however, reveals that the trial court recognized Bratcher's age when sentencing him and specifically found his willingness to confess to the crime and plead guilty as mitigating circumstances. Furthermore, to the extent that Bratcher is challenging the weight of the significance that the trial court allocated to guilty plea, we reject such argument. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007) (explaining that the relative weight assigned to mitigators is not subject to appellate review), clarified on reh'g, 875 N.E.2d 218 (Ind.2007).

We acknowledge that the PSI reflects that Bratcher has had a troubled childhood. Bratcher reported to the probation officer who compiled the PSI that he had been physically abused by his mother and stepfather and that he had been molested by his brother when he was eight years old. Bratcher further reported that he had previously taken medication for attention deficit hyperactivity disorder, conduct disorder, and depression. Bratcher also reported that his mother and stepfather informed him that he was not welcome at their home upon his release from incarceration.

While Bratcher's troubled childhood that resulted in juvenile adjudications and placement in juvenile facilities is a consideration in a review of his character, so too is his behavior while in those juvenile facilities. Bratcher repeatedly violated probation under his various dispositional orders. Most significant of all these violations was that Bratcher committed child molesting while on juvenile probation for theft.

Finally, we reject Bratcher's suggestion that the trial court erred by referring to Bratcher's risk assessment scores on the STATIC 99. Our Indiana Supreme Court has explained that scores on a probation department's risk assessment instrument "are not intended to serve as aggravating or mitigating cireumstances nor to determine the gross length of sen- Malenchik v. State, 928 N.E.2d 564, 575 (Ind.2010). Instead, these "offender assessment instruments are appropriate supplemental tools for judicial consideration at sentencing" and can be used by the trial court "in formulating the manner in which a sentence is to be served." Id.

Here, the trial court used Bratcher's risk of reoffending assessment when formulating Bratcher's sentence and in deciding to place Bratcher on probation. Thus, the trial court did not err by considering Bratcher's risk of reoffending when crafting his sentence. Indeed, the record before us indicates that Bratcher is not just at a risk for reoffending; he did reoffend. Moreover, he committed the current child molesting offense within mere months of being released from juvenile placement from his adjudication for child molesting. Furthermore, the PSI indicates that Bratcher received sex offender therapy, although he elaims that his juvenile placements did not focus on sex offender therapy until the last few months. No matter what intensity or duration of therapy he received, the record supports that he did indeed receive sex offender therapy but that such treatment did not result in effective rehabilitation.

Bratcher has not persuaded us that his sentence is inappropriate. Therefore, we affirm the trial court's sentence.

2. Probation Conditions

Bratcher contends that four of his sex offender probation conditions are "unconstitutional as applied to him." (Bratcher's Br. Specifically, Bratcher argues that the two probation conditions that restrict his contact and interaction with children (conditions 15 and 17) are vague or overbroad and that the two conditions relating to restrictions on his internet usage {conditions 21 and 23) are unduly intrusive. Bratcher asks that we order the trial court to vacate these four probation conditions.

"Probation is a criminal sanction wherein a convicted defendant specifically agrees to accept conditions upon his behavior in lieu of imprisonment." Carswell v. State, 721 N.E.2d 1255, 1258 (Ind.Ct.App.1999). Trial courts have broad dis-eretion in determining the appropriate conditions of a defendant's probation. Hevner v. State, 919 N.E.2d 109, 113 (Ind.2010). "This discretion is limited only by the principle that the conditions imposed must be reasonably related to the treatment of the defendant and the protection of public safety." Stott v. State, 822 N.E.2d 176, 179-80 (Ind.Ct.App.2005), trans. denied. Thus, "our review is essentially limited to determine whether the conditions placed on the defendant are reasonably related to attaining these goals." Carswell, 721 N.E.2d at 1258. We will not set aside a trial court's probation terms unless it has abused its discretion. Collins v. State, 911 N.E.2d 700, 707 (Ind.Ct.App.2009), trans. denied.

" individuals do not enjoy the same constitutional protections as law-abiding eitizens(,]'" and "probation conditions that intrude upon constitutionally protected rights are not necessarily invalid." Taylor v. State, 820 N.E.2d 756, 761 (Ind.Ct.App.2005) (quoting Johnson v. State, 659 N.E.2d 194, 200 (Ind.Ct.App.1995), reh'g denied), trams. denied. See also Gaither v. Indiana Dep't of Correction, 971 N.E.2d 690, 695 (Ind.Ct.App.2012) (explaining that "probation conditions may impinge upon a probationer's right to exercise an otherwise constitutionally protected right"). Where, as here, a defendant contends that a probation condition is unduly intrusive upon a constitutional right, the following three factors must be balanced: (1) the purpose sought to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be afforded to probationers; and (8) the legitimate needs of law enforcement. Smith v. State, 779 N.E.2d 111, 117 (Ind.Ct.App.2002), trams. denied.

A. Waiver

Before turning to our review of Bratcher's challenged probation conditions, we first address the State's waiver argument. The State argues that Bratcher has waived any challenge to his probation conditions because he did not object to them at sentencing and because he signed the special probation condition form, agreeing to comply with the conditions. In support of its waiver argument, the State cites Hale v. State, 888 N.E.2d 314, 319 (Ind.Ct.App.2008), trams. denied, and Stott, 822 N.E.2d at 179.

We acknowledge that our Court has issued differing opinions regarding whether a defendant's lack of objection to probation conditions at the trial level will waive an appellate challenge to those conditions. Indeed, in Hale and Stoft, two panels of our Court held that the individual defendants in those cases had waived appellate review of their probation conditions by failing to object to the probation conditions at the sentencing hearing. Hale 888 N.E.2d at 319; Stott, 822 N.E.2d at 179. See also Patton v. State, 990 N.E.2d 511, 514 (Ind.Ct.App.2013) (citing Hale, 888 N.E.2d at 319).

However, in Piercefield v. State, 877 N.E.2d 1213, 1218 (Ind.Ct.App.2007), trans. denied, another panel of this Court, rejected the State's argument that a defendant had waived his challenge to a probation condition by failing to object to the condition and by signing the probation condition form. The Piercefield Court analogized an appeal of probationary conditions to an appeal of a sentence, "which we may review 'without insisting that the claim first be presented to the trial judge' " and held that a challenge to probs-tionary conditions need not be raised before the trial court to permit appellate review. Piercefield, 877 N.E.2d at 1218 (quoting Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind.2005)). The Piercefield Court also held that the defendant's signature on the probation form did not constitute a waiver of the issue on appeal. Id.

We agree with the logical reasoning of Piercefield and conclude that Bratecher has not waived appellate review of his probation conditions. Thus, we will review Bratcher's challenge to the conditions of his probation.

B. Contact with Children

Bratcher challenges the following two sex offender probation conditions that limit or restrict his contact with children:

15. You shall have no contact with any person under the age of 16 unless you receive court approval or successfully complete a court-approved sex offender ' treatment program, pursuant to IC 35-38-2-2.4. Contact includes face-to-face, telephonic, written, electronic, or any indirect contact via third parties.
17. You shall not participate in any activity which involves children under 18 years of age, such as, but not limited to, youth groups, Boy Scouts, Girl Scouts, Brownies, 4-H, YMCA, YWCA, or youth sports teams, unless given permission by the Court.

(App. 40).

Bratcher argues that these probation conditions are vague and overbroad, suggesting that they are not sufficiently clear to inform him of what conduct would result in a violation of probation. The State contends that both conditions are sufficiently clear and asserts that probation conditions with similar restrictions have already been upheld by this Court and should be again in this matter.

Our Court has previously observed that "child molesters molest children to whom they have access." Smith, 79 N.E.2d at 117 (citing Corswell, 721 N.E.2d at 1259). As a result, "probation conditions that reduce the potential for access to children are reasonable." Id. Nonetheless, probation conditions must be sufficiently clear such that they "describe with clarity and particularity the misconduct that will result in penal consequences." Hunter v. State, 888 N.E.2d 1161, 1163 (Ind.2008). See also McVey v. State, 863 N.E.2d 434, 447 (Ind.Ct.App.2007) ("A probationer has a due process right to conditions of supervised release that are sufficiently clear to inform him of what conduct will result in his being returned to prison."), reh'g denied, trans. denied. A probation condition is considered vague "only if individuals of ordinary intelligence would not comprehend it to adequately inform them of the conduct to be proscribed." Patton, 990 N.E.2d at 516. The probation condition "need not list, with itemized exactitude, every item of conduct that is prohibited." Id.

Turning to Bratcher's challenge to probation condition 15, we reject Bratcher's suggestion that we should overturn his probation condition as we did the probation conditions in McVey or Collins. In McVey, we held that the probation condition that prohibited the defendant from being alone with or having contact-including, "face-to-face, telephonic, written, electronic, or any indirect contact via third parties"-with minors was reasonably related to the treatment of the defendant and the protection of public safety, but we overturned the probation condition because it required the defendant to report "incidental contact" with minors, which we determined to be overbroad. See McVey, 863 N.E.2d at 449. See also Collins, 911 N.E.2d at 715 (remanding probation condition based on its inclusion of language prohibiting "incidental contact" with minors).

Here, however, Bratcher's probation condition 15 contains no prohibition against "incidental contact." Instead, we find Bratcher's probation condition substantially similar to the probation condition we upheld in Rexroat v. State, 966 N.E.2d 165 (Ind.Ct.App.2012), trans. denied. In Rexroat, the defendant challenged the probation condition that provided that he "shall have no contact with any person under the age of 18 unless approved by probation. Contact includes face-to-face, telephonic, written, electronic, or any indirect contact via third parties." Rexroat, 966 N.E.2d at 167. In Rexroat, we pointed out that the probation condition at issue did not explicitly prohibit incidental contact, and we refused to construe the probation condition to include a prohibition against incidental contact with minors, especially since we had already held in Smith that the statute upon which the probation condition was based, Indiana Code § 35-838-2-2.4, could not be construed to prohibit a probationer from inadvertent or unintentional contact with minors. Id. at 178 (citing Smith v. State, 727 N.E.2d 763, 768 (Ind.Ct.App.2000)). Thus, in Rexroot, we held that the probation condition prohibiting contact with minors was neither vague nor overbroad. Rex-roat, 966 N.E.2d at 178.

Brateher's probation condition 15 is reasonably related to Bratcher's treatment and to the protection of public safety. Additionally, just as in Rexroat, we conclude that Bratcher's probation condition restricting his contact with minors is not vague or overbroad. See also Smith, 779 N.E.2d at 117 (upholding the defendant's probation conditions that restricted him from being alone with minors and from participating in activities involving minors where those conditions were reasonably related to the treatment of the defendant and protection of public safety and children); Stott, 822 N.E.2d at 179-80 (holding that the defendant's probation condition that restricted his contact with minors was a protective measure for children and would assist the defendant in his rehabilitation). Thus, we conclude that the trial court did not abuse its discretion by imposing probation condition 15.

Bratcher suggests that the language of probation condition 17, which restricts him from "participat[ing] in any activity which involves children under 18 years of age," is unconstitutionally vague or overbroad and contends that it would prohibit him from constitutionally-protected activities, such as attending church services. As Bratcher acknowledges, our Court has already upheld this exact probation condition in Collins. In Collins, we acknowledged that some of the language, when take in isolation, was vague but explained why the condition was nevertheless acceptable.

[Wle conclude that [the probation condition at issue] consists of somewhat vague language that might otherwise be inadequate were it not sufficiently clarified elsewhere in the stipulation. While we acknowledge that "any activity which involves children under 18 years of age" would, if standing alone, provide for no predictable standard for behavior, the stipulation also included a list of prohibited activities, including "Boy Scouts, Brownies, 4-H, YMCA, YWCA, or youth sports teams[,]" which are all examples of organized youth activities typically supervised by adults We conclude the above list sufficiently clarifies that Collins is not to be one of those adults in a supervisory role in the named or similar organizations. So, contrary to [the de- . fendant's]} assertion, we conclude that [the probation condition] would not prevent him from attending activities such as church services, but that it would prevent him from teaching Sunday School or supervising a youth group at the church. The language in [the probation condition] is adequate to provide [the defendant] with a predictable standard for his actions in this regard.

Collins, 911 N.E.2d at 716. Just as in Collins, we conclude that the restricting language of Bratcher's probation condition 17 provides him with a predictable standard and is not impermissibly vague. Thus, Brateher's challenge to condition 17 is without merit. See, eg., id. See also Smith, 779 N.E.2d at 117 (upholding probation condition specifying that probationer could "not participate in activities that involve children under the age of eighteen, such as Boy Scouts and Girl Scouts" and explaining that this probation condition was a protective measure for children and would assist the probationer in his rehabilitation). As a result, we conclude that the trial court did not abuse its discretion by imposing probation condition 17.

C. Internet Usage

Bratcher also challenges the following two sex offender probation conditions that limit or restrict his internet usage:

21. You shall not access the Internet or any other on-line service through use of a computer, cell phone, iPod, Xbox, Blackberry, personal digital assistant (PDA), pagers, Palm Pilots, televisions, or any other electronic device at any location (including your place of employment) without prior approval of your probation officer. This includes any Internet service provider, bulletin board system, e-mail system or any other pub-lie or private computer network. You shall not possess or use any encryption technique or program.
23. You are prohibited from accessing or using certain web sites, chat room, or instant messaging programs frequented by children. You are prohibited from deleting, erasing, or tampering with information on your personal computer with intent to conceal an activity prohibited by this condition. *Required as a condition of probation by IC 835-38-2-2,2(4) []

(App. 40-41).

Bratcher contends that these probation conditions that restrict his internet usage are overbroad, unduly intrusive, and violate his First Amendment rights because they place an "entire blanket prohibition" on his access to the internet. (Bratcher's Br. 14). Bratcher acknowledges that probation conditions containing a similar internet restriction have been upheld in McVey; nevertheless, he asserts that the holding in McVey should be "reconsidered" in light of the holdings in Harris v. State, 985 N.E.2d 767 (Ind.Ct.App.2013), trams. denied, and Doe v. Marion County Prosecutor, 405 F.3d 694 (7th Cir.2013). (Bratcher's Br. 15). Bratcher suggests that, based on Doe, his probation conditions should be "narrowly tailored so as not to overly restrict his First Amendment right to free speech." (Bratcher's Reply Br. 8).

In Doe, a certified class of Marion County residents-who were required to register as sex offenders but who had already completed any probation or parole and were not subject to any form of supervised release-filed a suit challenging Indiana Code § 35-42-4-12 as unconstitutional and seeking a permanent injunction against enforcement of the statute. Doe, 705 F.3d at 696. The version of this statute in effect at the time the defendant class filed its suit provided that it was a Class A misdemeanor if a sex offender knowingly or intentionally used social networking sites, instant messaging, or chat room programs that the offender knew were accessible by a person less than eighteen years old. See Ind.Code § 35-42-4-12(e). Applying an intermediate level of serutiny to the content neutral statute, the Seventh Circuit Court held that Indiana Code § 35-42-4-12 was unconstitutional because it was "not narrowly tailored to serve the state's interest" as it "broadly prohibitfed] substantial protected speech rather than specifically targeting the evil of improper communication to minors." Id. at 695. The Doe Court, however, cautioned that its opinion should not be interpreted as setting limits on courts when setting probation conditions:

Finally, this opinion should not be read to affect district courts' latitude in fashioning terms of supervised release ... or states from implementing similar solutions. Our penal system necessarily implicates various constitutional rights, and we review sentences under distinct doctrines. Terms of supervised release, for instance, must be reasonably related to the [sentencing] factors and involvel[ ] no greater deprivation of liberty than is reasonably necessary. Thus, in assessing the need for incapacitation, a court could conceivably limit a defendant's Internet access if full access posed too high a risk of recidivism. The alternative to limited Internet access may be additional time in prison, which is surely more restrictive of speech than a limitation on electronies. This option is not without limits, but terms of supervised release or parole may offer viable constitutional alternatives to the blanket ban-imposed outside the penal system-in this case.

Doe, 705 F.3d at 703 (internal citations and quotation marks omitted).

In Harris, a defendant was convicted, under Indiana Code § 35-42-4-12, of a Class A misdemeanor sex offender internet offense. Harris, 985 NE.2d at 773-74. On appeal, the defendant challenged the constitutionality of the statute, arguing that the ban of his use of social networking websites impermissibly restricted his First Amendment rights. Id. at 774. Our Court concluded that the State had "significant interests associated with the regulation of sex offender internet usage" but, relying on the analysis and holding in Dog, we held that Indiana Code § 35-42-4-12 was not narrowly tailored because it prohibited speech that did not involve harmful interactions with minors. Id. at 779-80. Finding that the statute was unconstitutional as applied to the defendant, we reversed his conviction under the statute. Id. at 781.

The State argues that the holdings in Doe and Harris do not apply to this case because Bratcher, as a sex offender on probation, is in "a significantly different position" than the offenders in Doe and Harris. (State's Br. 17). The State also contends that "the Doe Court [has] disavowed attempts such as Bratcher's to use Doe's holding to undermine the validity of probation conditions imposed by a trial court." (State's Br. 16).

A panel of this Court recently agreed with the State's argument about the inapplicability of the holding and analysis of Doe to probation conditions that limit internet access to sex offenders on probation. See Patton, 990 N.E.2d at 515 In Patton, the defendant/sex offender had the exact same probation condition as Bratcher's condition 28. We rejected the defendant's reliance on Doe to argue that his First Amendment rights were violated by his probation condition and held that the probation condition was neither overbroad nor vague. Specifically, we explained:

In this case, Patton is a sex offender on supervised release that places him in a significantly different position than the class of sex offenders in Doe and renders the holding in that case inapplicable to him. Time and again, we have observed that conditions of probation may impinge upon a probationer's right to exercise an otherwise constitutionally protected right because "probationers simply do not enjoy the freedoms to which ordinary citizens are entitled." Purdy v. State, 708 N.E.2d 20, 22 (Ind.Ct.App.1999).
Here, Patton's internet restriction specifically applies to websites that are "frequented by children." 1.0. § 35-38-2-2.2(4). In our view, this internet restriction while Patton is on probation is reasonably and directly related to deterring Patton from having contact with children and to protecting the public. See United States v. Zinn, 821 F.3d 1084, 1093 (11th Cir.2003) (recognizing that "the concomitant dangers of the internet and the need to protect both the public and sex offenders themselves from its potential abuses"). Also, Patton's internet restriction is tailored to him as a sex offender and serves the legitimate needs of law enforcement to monitor and restrict his activities with children for this initial period following his conviction. On the other hand, we note that the internet restriction as applied to Patton does not prohibit him from searching for employment, gaining additional education, or reading a newspaper. The condition prohibits Patton from accessing only those internet-related activities used by children, which are directly related to his position as a sex offender on probation. N.E.2d 267, 275 (Ind.Ct.App.2005) (holding that an internet restriction on a parolee reasonably related to the State's goals of reintegrating the parolee into his community, protecting the general public, and preventing future crime does not unduly infringe upon the parolee's First Amendment rights). See Harris v. State, 836

Patton, 990 N.E.2d at 515-16.

Just as in Patton, we conclude that the holding and analysis of Doe is inapplicable to Bratcher's challenge of his probation conditions. Additionally, we conclude that Bratcher's probation conditions 21 and 23 are neither overbroad or vague and that they are reasonably related to attaining the goals of rehabilitation and protecting the public Indeed, our Court has explained that because "child molesters molest children to whom they have access[,]" conditions of probation that "reduce the potential for access to children are reasonable." Smith, 779 N.E.2d at 117 (citing Carswell, 721 N.E.2d at 1259). Finally, contrary to Bratcher's argument, neither condition imposes a complete prohibition on his use of the internet or social networking websites. Condition 21 simply requires him to acquire the approval of his probation officer, and condition 23 specifically applies to websites "frequented by children." Accordingly, we conclude that the trial court did not abuse its discretion by imposing probation conditions 21 and 28. See, eg., Patton, 990 N.E.2d at 515-16 (upholding sex offender's probation condition that prohibited him from accessing websites frequented by children); McVey, 863 N.E.2d at 450 (holding that the defendant/child molester's probation condition-which restricted his internet access unless he had prior approval of his probation officer-was reasonably related to his reintegration into the community and to protecting the public); Smith, 779 N.E.2d at 118 (holding that the trial court did not err by restricting the defendant/child molester's gaccess to computers and online computer services). See also Harris v. State, 836 N.E.2d 267, 275 (Ind.Ct.App.2005) (holding that a parole condition, which restricted a parolee's access to the internet unless he had prior approval of his parole officer, was reasonably related to reintegrating the parolee into his community and protecting the general public and did not violate parolee's First Amendment rights).

Affirmed.

BARNES, J., concur.

CRONE, J., concur in part, dissent in part with opinion.

CRONE, Judge,

concurring in part and dissenting in part.

T concur in the majority's opinion except for the affirmance of probation condition 17. Consistent with my position in Collins, I believe that condition is unconstitutionally vague. Therefore, I respectfully dissent as to that issue.

      . Ind.Code § 35-42-4-3(a).

      . We note that Indiana Code § 35-35-3-3(a) requires that a plea agreement on a felony charge be made "in writing" and "before the defendant enters a plea of guilty." Recently, we explained that " '[tlhe purpose behind [Indiana Code § 35-35-3-3] is to insure that a defendant does not base his guilty plea upon certain promises made by the prosecutor where the judge has in fact not accepted the [Sitate's recommendation.'" Gil v. State, 988 N.E.2d 1231, 1234 n. 2 (Ind.Ct.App.2013) - (quoting Davis v. State, 418 N.E.2d 256, 260 (Ind.Ct.App.1981)). . However, we also explained that "failure to reduce an agreement to writing need not itself be deemed a sufficient ground for rejection" of a defendant's guilty plea. Gil, 988 N.E.2d at 1234 n. 2 (quoting Centers v. State, 501 N.E.2d 415, 417-18 (Ind.1986)).

      . While Bratcher argues that these probation conditions are unconstitutional "as applied" to him, we note that an "as applied" challenge generally applies only to a challenge to statutes or regulations. See Harris v. State, 985 N.E.2d 767, 774 n. 1, (Ind.Ct.App.2013) ("An 'as applied' challenge asks a reviewing court to declare the challenged statute or regulation unconstitutional on the facts of the particular case."), trans. denied. Some of Bratcher's challenged probation conditions are based on statutes that require the imposition of certain restrictions for sex offenders. See, e.g., Ind.Code §§ 35-38-2-2.2; 35-38-2-2.4. Bratcher, however, does not challenge the statutes underlying the probation conditions.

      . Indeed, even the Hale and Stott panels of our Court reviewed the defendants' challenges to their probation conditions despite holding that the defendants had waived appellate review by failing to object. See Hale, 888 N.E.2d at 319; Stott, 822 N.E.2d at 179. See also Patton, 990 N.E.2d at 515.

      . We note that one member of our panel dissented to the probation condition in Collins, concluding that it was "unconstitutionally vague." See Collins, 911 N.E.2d at 716 (Crone, J., dissenting).

      . Ind.Code § 35-38-2-2.2(4) provides that "[als a condition of probation for a sex offender ... the court shall ... prohibit the sex offender from:
      (A) accessing or using certain web sites, chat rooms, or instant messaging programs frequented by children; and
      (B) deleting, erasing, or tampering with information on the sex offender's personal computer with intent to conceal an activity prohibited by clause (A).

      . Indiana Code § 35-42-4-12 at issue in Doe was enacted in 2008 by P.L. 119-2008, Sec. 18. After Doe, the statute was subsequently amended by P.L. 247-2013, Sec. 8, effective July 1, 2013, and by P.L. 158-2013, Sec. 448, effective July 1, 2014.

      . The opinion in Patton was issued just after briefing was completed in this appeal.


source: Caselaw Access Project

author: BAILEY, Judge.

license: Public Domain

text:
    INTERNATIONAL BUSINESS MACHINES CORPORATION, Appellant-Cross-Appellee, v. ACS HUMAN SERVICES, LLC, Appellee-Cross-Appellant.
    No. 49A02-1301-PL-49.
    Court of Appeals of Indiana.
    Nov. 26, 2013.

      Steven D. McCormick, Jonathan C. Bunge, Douglas G. Smith, Kirkland & Ellis, LLP, Chicago, IL, Andrew W. Hull, Daniel K. Burke, Hoover Hull, LLP, Indianapolis, IN, Attorneys for Appellant.
    L. Alan Whaley, Michael A. Wukmer, Melanie A. Harris, Jenny R. Buchheit, Ice Miller, LLP, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

International Business Machines Corp. ("IBM") and the State of Indiana ("the State") filed lawsuits against one another related to the State's Family and Social Services Administration ("FSSA") modernization initiatives,. The trial court ordered IBM to pay $709,398.95 in costs related to discovery and production of documents incurred by a nonparty, ACS Human Services, LLC ("ACS"). Later, the trial court imposed sanctions totaling $425,178.85 against ACS in favor of IBM.

IBM and ACS each appeal. IBM seeks vacation of the costs assessed against it in favor of ACS. ACS cross-appeals, seeking an increase in the costs assessed against IBM and vacation of the sanctions assessed against it in favor of IBM.

We affirm.

Issues

IBM presents several issues, which we restate as:

I. Whether the trial court abused its discretion when it ordered IBM to pay costs associated with third-party discovery to ACS, because:
A. ACS, though not joined as a party in the litigation, was so central to the litigation with interests so closely connected to those of the State as to not be entitled to payment of costs related to third-party participation in discovery; and
B. The court's determination of the amount of costs awarded was not supported by sufficient evidence in the record.

ACS presents several issues in its cross-appeal, which we restate as:

II. Whether the trial court abused its discretion when it awarded ACS less than its total claimed costs: and
III. Whether the trial court abused its discretion when it assessed sanctions against ACS in favor of IBM because
A. IBM waived its right to seek sanctions by failing to timely pursue sanctions before the trial court;
B. The Indiana Trial Rules do not permit an award of discovery sance-tions against a non-party in ACS's position;
C. ACS did not engage in sanctiona-ble conduct; and
D. The sanctions awarded to IBM were not supported by sufficient evidence in the record.

Facts and Procedural History

This appeal arises from the State's engagement of IBM and numerous subeon-tractors, including ACS, to modernize the process used to determine eligibility for social services ("the Modernization Project"). ACS had been closely involved with the State's prior social services eligibility systems, and was retained as a subcontractor to IBM, which the State engaged as a primary contractor for developing and implementing a more automated process for receiving and resolving applications for social services.

After problems occurred in the development and deployment of the work product of the Modernization Project, on May 13, 2010, the State and IBM each filed suit against one another in Marion Superior Court No. 10. ACS was not named as a party in either case. The two causes were consolidated on May 14, 2010; ACS remained a non-party to the suit.

On March 15, 2011, IBM sent to ACS a subpoena duces tecum, seeking production of documents on a number of subject matters related to the suits filed by the State and IBM against one another. The requests encompassed not only physical doe-uments, but electronically stored information ("ESI"). The subpoena included the following statement:

You are entitled to security against damages or payment of damages resulting from these requests for production and may respond to any request by submitting to its terms, by proposing different terms, by objecting specifically or generally to any request by serving a written response to the Requesting Party [here, IBM] within thirty (80) days, or by moving to quash as permitted by Rule 45(B) of the Indiana Rules of Trial Procedure.

(Appellant's App'x at 2837.) The letter IBM enclosed with the subpoena provided that "ACS may limit its search of e-mail ... at this time" to a list of ten custodians and limited document production to certain subject matters. (Appellant's 2d App'x at 2578.) However, IBM indicated that it might make "more targeted requests" on those subject matters "in the future." (Appellant's 2d App'x at 2578.)

On May 13, 2011, the trial court entered several closing dates for various aspects of the discovery process. The earliest of these, August 1, 2011, was to conclude the "fact discovery" process. (Appellant's App'x at 90.) The latest of these was November 10, 2011, which provided a final date for completing depositions of expert witnesses.

On July 19, 2011, the trial court set the case for a four-week bench trial to com-menee on February 27, 2012.

Over the course of the litigation, IBM filed motions to compel production from ACS on May 27, 2011, October 20, 2011, and January 31, 2012; several of these, including January 31, 2012's emergency motion to compel production of documents and witnesses, were granted by the trial court. On January 18, 2012, ACS sought and was denied certification of a discretionary interlocutory appeal of one of the orders. In addition, from December 19, 2011 through March 1, 2012, the trial court closely supervised ACS's participation in the discovery process, describing the task as having had to "ride herd" over the discovery process as it related to ACS. {Appellant's App'x at 480.)

During a hearing on February 3, 2012, the trial court recognized that ACS was "bending over backwards to try to accommodate" IBM, (Appellant's App'x at 465) and observed that ACS was "at the mercy of whoever these people [ACS's document management vendor] are in Texas," (Appellant's App'x at 459) but also stated that "ACS probably does need[] to work as hard as everybody else is working." (Appellant's App'x at 465.) Further, the court warned ACS of the possibility of sanctions if it failed to act diligently upon discovery requests.

A six-week bench trial was conducted and concluded in late April 2012 Production of documents was ongoing throughout the trial. On February 29, 2012, IBM filed a motion to compel discovery, which the trial court granted.

After the conclusion of the bench trial, on July 18, 2012, the trial court issued seventy-three pages of findings of fact and conclusions of law, and entered judgment in favor of IBM on the merits of the underlying case.

On August 23, 2012, ACS filed a motion seeking an award of costs and attorneys' fees associated with its response to IBM's subpoena of March 15, 2011. ACS's motion for costs sought reimbursement of expenses totaling $355,328.95 associated with the loading and management of documents into a database provided by a third-party e-discovery software vendor, $1,222,112.45 for the work of outside counsel to review and redact documents for production, and $94,042.60 for the work of counsel to oppose IBM's motions to compel production. Thus, ACS requested a total of $1,671,484.00 in damages from IBM, and in addition sought payment of costs incurred in calculating and establishing the amount of the damages. (Appellant's App'x at 2825.)

On October 22, 201%, the trial court granted in part and denied in part ACS's motion for costs. The court granted ACS's costs with respect to the work of its e-discovery vendor, awarding ACS $355,328.95 The court also granted ACS's costs related to the work of a dedicated document review team, which ACS had fixed at $708,140.00, but reduced this amount by half in light of ACS's "largely unexplained" delay in producing documents and based upon principles of "general equity." (Appellant's App'x at 158.) Thus, the trial court awarded ACS a total of $709,398.95 in damages related to its production of what the trial court recognized were an "extraordinary number of requested documents." (Appellant's App'x at 158.) The trial court denied all other costs for which ACS sought payment from IBM. In doing so, the court concluded that ACS was not entitled to the additional requested amounts due to ACS's dilatory conduct, its close relationship to the State through the various contractual arrangements associated with the Modernization Project, and its failure to demonstrate that it engaged in "reasonable resistance" to IBM's discovery requests as required by Indiana Trial Rule 34(C)(8). . (Appellant's App'x at 159.)

Nearly one month later, on November 19, 2012, IBM moved for sanctions against ACS for its conduct during the discovery process. IBM's request sought a total of $891,956.17 in sanctions against ACS, claiming these were attributable to payment of attorneys' fees and lost efficiency in the discovery and trial process. (Appellant's App'x at 120.)

On February 28, 2013, the trial court granted IBM's motion for sanctions as to the payment of attorneys' fees, observing that "neither ACS nor the record show that the failures or delays producing discovery were substantially justified or that other cireumstances make an award of fees unjust." (Appellee's App'x at 105.) Thus, the trial court awarded IBM sanctions totaling $425,178.85, but denied IBM's request for sanctions in all other respects. (Appellee's App'x at 105.)

An appeal was taken from the trial court's judgment on the merits of the underlying lawsuits. Subsequently, IBM appealed the trial court's award of damages to ACS; ACS cross-appealed, challenging both the amount awarded as damages in its favor against IBM and the court's entry of sanctions in favor of IBM. On January 17, 2013, this Court granted IBM's motion seeking separation of the instant appeal from an appeal of the trial court's entry of judgment in favor of IBM on the merits of the underlying lawsuits.

Discussion and Decision

Standard of Review

Both IBM's appeal and ACS's cross-appeal challenge certain of the trial court's discovery rulings. Trial courts exercise "broad discretion" in making discovery rulings. Vernon v. Kroger Co., 712 N.E.2d 976, 982 (Ind.1999). Thus, "an appellate court will interfere only when the appealing party can show an abuse of that discretion." Id. " Discretion is a privilege afforded a trial court to act in accord with what is fair and equitable in each case.'" Id. (quoting McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind.1993)). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and cireum-stances before the court, or if it misinterprets the law. Id.

"Because of the fact-sensitive nature of discovery issues, a trial court's ruling is given a strong presumption of correctness." Smith v. Smith, 854 N.E.2d 1, 4 (Ind.Ct.App.2006). This presumption extends as well to the trial court's determinations with respect to violations of discovery orders and attendant sanctions, which should not be overturned "[albsent clear error and resulting prejudice." Id. at 4 (citing, inter alia, Vernon, 712 NE.2d at 982). We are, as ever, mindful that "[the purpose of the discovery rules is to allow for minimal trial court involvement and to promote liberal discovery." Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind.2012).

Award of Damages to ACS

We turn first to IBM's contention on appeal that the trial court abused its discretion when it awarded ACS damages to be paid by IBM as a result of ACS's costs incurred in the discovery process. This argument takes two forms. First, IBM argues that the trial court abused its discretion when it awarded damages to ACS as a non-party. Second, assuming there was no abuse of discretion associated with a finding that ACS was entitled to damages, IBM argues that the trial court's determination of the amount of damages was arbitrary and thus must be reversed. In its cross-appeal, ACS argues that the trial court abused its discretion in setting damages by awarding too little of the costs submitted to the trial court.

Whether ACS was Entitled to Damages Associated with Non-Party Discovery

We turn first to IBM's argument that ACS was not entitled to treatment as a non-party for purposes of payment of costs and attorneys' fees associated with discovery.

Generally, discovery from a non-party is governed by Trial Rules 34 and 45. Rule 34 governs the production of documents and electronically stored information, including how to make requests for production, timelines for responses to requests, and the formats in which electronic information may be produced. T.R. 34(A) & (B). Rule 34(C) applies to the production of such information by "[a] witness or person other than a party." TR. 34(C)(1). The rule also provides for the procedure by which a non-party from whom a party seeks discovery may oppose producing the requested information and receive security for and/or payment of damages for the costs associated with production:

The request shall contain the matter provided in subsection (B) of this rule. It shall also state that the witness or person to whom it is directed is entitled to security against damages or payment of damages resulting from such request and may respond to such request by submitting to its terms, by proposing different terms, by objecting specifically or generally to the request by serving a written response to the party making the request within thirty (30) days, or by moving to quash as permitted by Rule 45(B). Any party, or any witness or person upon whom the request properly is made may respond to the request as provided in subsection (B) of this rule. If the response of the witness or person to whom it is directed is unfavorable, if he moves to quash, if he refuses to cooperate after responding or fails to respond, or if he objects, the party making the request may move for an order under Rule 37(A) with respect to any such response or objection. In granting an order under this subsection and Rule 37(A)(2) the court shall condition relief upon the prepayment of damages to be proximately incurred by the witness or person to whom the request is directed or require an adequate surety bond or other indemnity conditioned against such damages. Such damages shall include reasonable attorneys fees incurred in reasonable resistance and in establishing such threatened damage or damages.

T.R. 34(C)(8).

Looking to Rule 34, IBM contends that the trial court did not go far enough when it decided that ACS's participation in discovery was integral to adjudication of the issues in the underlying case between IBM and the State, because the trial court stopped short of concluding that ACS should be treated as a party for discovery purposes. IBM argues that ACS was for all- intents and purposes as much a party to the litigation as the State, and thus is not entitled to the payment of damages under Rule 34(C). Further, IBM asserts that ACS's involvement in parallel litigation in federal court deprives them of any right to recover much of their costs for engaging in discovery in the litigation in Marion Superior Court between IBM and the State.

IBM contends that this Court's opinion in Brown v. Dobbs required the trial court to conclude that ACS was in a "symbiotic" relationship with the State so that ACS was, in effect, a party to the litigation and thus is not entitled to any compensation for involvement in discovery. 691 N.E.2d 907 (Ind.Ct.App.1998). In Brown, Dobbs, the plaintiff, sought as discovery from Brown answers to interrogatories and production of documents from Brown's insurer, State Farm, and Biodynamics Research Corporation, a business that State Farm had retained to analyze the effect of collisions like those in Brown. Id. at 908. Brown sought a protective order, arguing that responding to Dobbs's discovery requests would be overly burdensome and not relevant to Dobbs's claims. Id. at 908-09. Dobbs's response to the motion seeking a protective order included "excerpts from depositions with Biodynamiecs's employees describing the symbiotic relationship between State Farm and Biodynam-ies." Id. at 909. The trial court ultimately denied Brown's motion for a protective order as to Dobbs's discovery requests. Id. at 908.

We affirmed the trial court, observing that the order denying Brown's motion

[made it] apparent that the trial court determined that even though Brown was named as the defendant, State Farm was the actual party providing the defense. Accordingly, discovery directed to Brown was discovery directed to State Farm. It is also apparent that the trial court determined that State Farm and Biodynamies would effectively prevent Dobbs from obtaining needed information through conventional discovery. Accordingly, the trial court determined that it was necessary to place the onus and cost of producing materials upon State Farm and Biodynamics.

Id. at 909. Biodynamics, though also not a named party to the litigation, was so "symbiotic[ally]" connected to State Farm as to warrant that both State Farm and Biody-namics be required to participate in discovery as though they were named parties to the litigation. Id.

Applying Brown in this case the trial court found:

ACS and the State are contracted together in the same endeavor that is at issue here, although not necessarily for payment of costs like the insurer in Brown .... But it cannot be concluded that there is not an interdependent relationship that far exceeds the more typical non-party production scenario, nor that ACS is not integrally involved in the lawsuit and its outcome. ...
On the other hand, the Court balances ACS's Trial Rule 34 entitlement, and its burden in producing the extraordinary number of requested documents.

(Appellant's App'x at 158.) That is, the trial court here found that though ACS and the State are far more closely connected than the typical party and non-party would be, that relationship was not so close that ACS was actually providing the State's defense, nor would ACS be required to sustain the costs of defense and any damages assessed against the State as a result of the litigation, and thus ACS was entitled to treatment as a non-party-albeit a crucial one-for discovery purposes. We cannot conclude that the trial court abused its discretion either as to the facts and cireumstances before it or as to the correct interpretation of the law. First, we do not think that this Court's prior ruling in Brown amounts to a holding that relationships like that between ACS and the State are as a matter of law so symbiotic as to require treatment of such non-parties as parties to litigation in all cases. This would be tantamount to inappropriately second-guessing the unique familiarity of trial courts with the specific facts of the cases before them.

Further, unlike the plaintiff in Brown, IBM has produced no evidence demonstrating that ACS was responsible financially for any of the State's costs of defense or liability. IBM, as the prime contractor on the Modernization Project, entered into an agreement with ACS separate from any agreement between ACS and the State. And while IBM advances as a basis for denial of ACS's motion for costs the State's representation to the trial court that it would have sought substantially the same discovery from ACS as IBM did, that the State would have had to specifically request discovery weighs in favor of concluding that ACS and the State were not so symbiotically connected as IBM argues; that is, the information was not readily shared between ACS and the State. Finally, while IBM contends that ACS's involvement as a party in parallel litigation in Federal court concerning the Modernization Project should prevent a recovery for production of discovery in the lawsuit at issue here, IBM directs us to no evidence that would indicate so substantial an overlap in the necessary discovery as to require the trial court to reach IBM's desired conclusion on that point.

Sufficiency of the Evidence for the Amount of Costs Awarded-IBM's Appeal

Having found no abuse of discretion in the trial court's determination that ACS was entitled to damages as a non-party under Trial Rule 34, we turn now to IBM's contention that the trial court abused its discretion when it set the amount of damages to which ACS was entitled.

Trial Rule 34(C) provides that a non-party shall receive security against damages "to be proximately incurred by the witness or person to whom the request is directed." TR. 34(C)(@8). "Such damages shall include reasonable attorneys' fees incurred in reasonable resistance and in establishing such threatened damage or damages." Id.

The parties to this appeal do not direct this Court to any reported Indiana decisions interpreting the damages provisions of Trial Rule 34(C), and this Court has been unable to find any such decisions itself. However, given the nature of the damages awarded here-that is, damages awarded to reimburse a non-party's production of information during discovery-we apply the same discretionary review as in other discovery matters.

Here, IBM takes no issue with the trial court's finding that ACS's efforts to resist engaging in discovery were not "reasonable resistance," for which Trial Rule 34(C) provides recovery of related attorneys' fees. However, IBM challenges the trial court's award of $355,328.95 for ACS's costs related to a third-party e-discovery vendor and $354,070.00 in attorneys' fees, all as damages incurred from the work of a document review team to review and produce discovery responsive to IBM's requests. Specifically, IBM contends that the trial court's order lacked sufficient supportive evidence and that ACS would, in any event, have been required to incur the costs in associated litigation in Federal court.

First, we disagree with IBM's contentions concerning the sufficiency of the evidence supporting the trial court's determination of ACS's costs. IBM argues, complete with the use of "scare quotes," that the only " 'support' ACS provided for its motion was a heavily-redacted and self-serving spreadsheet purporting to 'summarize' ACS's fees and costs." (Appellant's Br. at 17). IBM further argues that "many of the costs that ACS was awarded have no narrative" due to redaction, and points to 212 entries that are completely redacted. (Appellant's Br. at 17.) Yet our review of the evidence submitted in support of ACS's motion for costs reveals that ACS submitted numerous vendor invoices and more than one hundred pages of individual time entries for members of the document review team, with almost all such entries including a sentence-length or longer description of the work done. (Appellant's App'x at 2411-521.) And while IBM argues that ACS was not entitled to payment of costs associated with unnecessary redaction of records, separate litigation in federal court, or errors incurred by ACS's third-party data provider, ACS was in fact awarded less than its total claimed costs. IBM does not indicate how there was clear error associated with the court's decision to award ACS some, but not all of its costs.

Simply put, we find no dearth of evidence from which the trial court could assess the costs and attorneys' fees imposed upon IBM. IBM's arguments would require us to reweigh evidence or second-guess the trial court's assessment of the evidence before it in light of the court's experience with the entire course of the litigation, and we decline to do so.

Sufficiency of the Evidence for the Amount of Costs Awarded-ACS's Cross-Appeal

We turn now to ACS's argument in its cross-appeal concerning the trial court's assessment of damages arising from discovery. ACS argues that the trial court abused its discretion by awarding too little compensation for its participation in discovery. Specifically, ACS contends that the trial court's determination of the costs associated with the document review team was correct, but that the court "then abused its discretion by applying a 50% reduction for inapplicable factors and 'general equity.'" (Appellee's Br. at 17.) The trial court, ACS contends, further erred by "summarily refusing to award the remainder of ACS's costs," including attorneys' fees incurred by outside counsel in opposing discovery, which ACS argues "are specifically contemplated by Rule 34." (Ap-pellee's Br. at 17.)

We disagree.

While we have no prior case law directly interpreting the damages provisions of Trial Rule 34(C)(B), we observe that in all other cases, it is incumbent upon an individual seeking the payment of fees and costs to prove their entitlement to such an award. See, eg., Nance v. Miami Sand & Gravel LLC, 825 N.E.2d 826, 838-39 (Ind.Ct.App.2005) (seeking attorneys' fees and costs under I.C. § 34-24-3-1 after suffering a loss from conversion), trans. demied; Buschman v. ADS Corp., 782 N.E.2d 423, 481 (Ind.Ct.App.2008) (reviewing a claim for attorneys' fees under I.C. § $4-52-1-1 for frivolous litigation, and stating that "[the party requiring assessment of attorney's fees has the burden of proof at trial"). A party that has unsue-cessfully sought an award of fees is in the position of one appealing from a negative judgment, and we will not reverse such a judgment unless it is contrary to law. Buschman, 782 N.E.2d at 431.

Here, ACS failed to meet deadlines set by the trial court and resisted providing discovery that was ultimately determined to be necessary for the trial. The trial court issued numerous discovery orders pertaining to ACS. While ACS informed the trial court that it was making efforts to comply with discovery orders, the trial court was not persuaded by any of the proffered explanations for ACS's shortcomings. ACS does not contend that the trial court's rulings on those matters were incorrect-only that its resistance to IBM's discovery requests was reasonable, and that the court lacked discretion to award any amount other than what ACS submitted.

Trial Rule 34 requires a requesting party to provide security against damages "proximately incurred" by a non-party from whom discovery is sought. TR. 34(C)(@B). While we lack prior case law to decide this point, and the parties do not direct us to any cases interpreting this portion of the Trial Rule, we note that the rule uses language harkening to the concept of "proximate cause" in tort law. In that area of law, damages have their proximate cause in an alleged breach of care when "the injury was a natural and probable consequence of the negligent act, which; in light of the attending cireum-stances, could have been reasonably foreseen or anticipated." Carey v. Ind. Physical Therapy, Inc., 926 N.E.2d 1126, 1129 (Ind.Ct.App.2010), trams. denied. And, as in assessing proximate cause, it is plain that under Trial Rule 34(C)(8) some fact-finding is necessary to determine what damages were incurred in responding to a discovery request. See id. Moreover, we observe that equitable considerations are within the seope of the trial court's discretion in reaching decisions on discovery matters. Vernon, 712 N.E.2d at 982.

Thus, Trial Rule 34(C)(@8) does not by its plain language require that the trial court order payment for all damages a non-party might incur. To hold as much, absent an express statement in the Rule requiring such a conclusion, would be to undermine the trial court's exercise of discretion in discovery matters. Thus, ACS was not as a matter of law entitled to full compensation of all its costs and fees by operation of Trial Rule 34(C) alone.

As to ACS's claim that the trial court should have awarded it all of its attorneys' fees incurred in resisting IBM's discovery requests, we note that the trial court ultimately denied very few of IBM's requests and, as IBM points out, the State indicated that it would have sought much the same discovery from ACS had IBM not pursued the discovery independently. While the trial court acknowledged the very large amount of information associated with ACS's discovery production-and the extent of the related costs-the court also expressed frustration that ACS did not explain delays and caused the court to "ride herd" over the discovery process as it pertained to ACS. (Appellant's App'x at 480.) We thus cannot conclude the trial court abused its discretion when it declined to award ACS with compensation for its attorneys' fees in resisting IBM's discovery requests.

Nor can we conclude that the trial court abused its discretion when it reduced the total amount of costs ACS incurred related to document review and production. The trial court reviewed the invoices and time sheets ACS submitted in support of its motion for payment of costs by IBM. The court awarded ACS all of the costs it paid to a third-party e-discovery vendor, but out of considerations of "general equity" cut in half the remaining amount of fees and costs associated with document review and production. (Appellant's App'x at 158.) Equitable considerations fall within the seope of a trial court's discretion. Ver-mon, 712 N.E.2d at 982. And here, the trial court noted that much of the evidence concerning which ACS claimed privilege was not properly subject to such protection. C

Under these cireumstances, we cannot conclude that the trial court abused its discretion when it awarded attorneys' fees and costs less than the total amount sought in ACS's motion.

ACS's Cross-Appeal on Sanctions

We turn now to the other issue ACS raises on appeal, whether the trial court erred when it assessed discovery sanctions against it. ACS raises a number of arguments; we address each in turn.

Whether Sanctions May Properly Have Been Imposed on ACS

We turn first to a threshold matter, whether sanctions may properly have been imposed upon ACS as a non-party to the underlying litigation between IBM and the State. IBM contends that ACS's interests and conduct were so closely aligned with the State that ACS is, effectively, a party to the litigation; we have already rejected this argument, supra. ACS contends that because it is a non-party, the provisions of Trial Rule 37 do not contemplate the imposition of sanctions against it, and thus the trial court abused its discretion by granting IBM's motion to assess discovery sanctions.

Trial Rule 37 provides, in relevant part, that "if a party or witness or other person, in response to a request submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order ... compelling inspection in accordance with the request." TR. 37(A)(2). "If the motion is granted, the court shall ... require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay the moving party the reasonable expenses incurred in obtaining the order." TR. 37(A)(4).

Further, sanctions for failure to comply may be ordered "[i}f a party or an officer, director, or managing agent of a party or an organization ... fails to obey an order to provide or permit discovery, including an order made under subdivision (A) of this rule." TR. 37(B)(2). Such sanctions may include, for parties, orders that preclude the introduction of evidence or limit the presentation of claims or defenses. TR. 37(B)(2)(a)-(e). In lieu of such procedural sanctions, "the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney's ° fees, caused by the failure, unless the court finds that the failure was substantially justified or that other cireumstances make an award of expenses unjust." TR. 37(B)(2)(e).

Discovery sanctions are imposed "'not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.!" Whitaker, 960 N.E.2d at 115 (quoting Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976)). "[Thhe regular practice is to fashion progressive sanctions ... when it is possible to do so." Id. at 116.

ACS argues that Trial Rule 37(B)(2) does not include language that permits the imposition of sanctions against non-parties, and indeed claims that Trial Rule 37(A)(1) mentions non-parties only in the context of a non-party deponent. Thus, ACS claims, the Trial Rules did not permit the trial court to assess sanctions, and the court abused its discretion when it did so.

We do not agree. ACS's approach parses the language of Rule 37(B) too finely, and adopting that interpretation would un-dereut the purposes behind the imposition of discovery orders and sanctions: punishment and deterrence of noncompliance and compensation of damages incurred by a discovering party as a result of a compelled party's unjustified noncompliance with a discovery order.

First, as noted above, non-parties are mentioned in numerous places in Trial Rule 37, as in Trial Rule 37(A)(2), which refers to "a party or witness or other person," and Rule 37(B)(2), which refers to "a party or an officer, director, or managing agent of a party or an organization." TR. 37(A)(2) & 37(B)(2) (emphasis added.) The discovery rules thus clearly contemplate their application-including the applicability of the provisions governing sanctions-to non-parties. And while, as we have noted, the usual practice is to impose progressive sanctions, this applies only when possible;, here, the sanctions contemplated by Trial Rule 37(B)(2)-ex-cept for a finding of contempt of court or the imposition of monetary sanctions-were unavailable to the trial court because those sanctions can be applied only to parties.

We note also that ACS argues that IBM could not seek sanctions based, in part, upon IBM's status as the prevailing party-that is, IBM did not establish prejudice as a result of any noncompliance with discovery on ACS's part. Yet the language of Trial Rule 37 uses the word "shall," that is, the rule requires the trial court to assess sanctions for disobedience unless the defying party's disobedience was substantially justified or sanctions would otherwise be unjust. TR. 37(B)@)(e); eof. Chapo v. Jefferson Cnty. Plan Comm'n, 926 N.E.2d 504, 508 (Ind.Ct.App.2010) (noting that the use of "shall" in T.R. 41(E) deprives courts of discretion to act in a manner contrary to the rule).

The trial rules do not require the discovering party to have suffered substantial prejudice in order for sanctions to be assessed, and ACS identifies nothing in our trial rules or case law that establishes the proposition that discovery sanctions are unavailable to the prevailing party in underlying litigation. The trial court did not conclude that either ACS's resistance to or failure to comply with the discovery orders was substantially justified, and thus, based upon the plain language of Rule 37, the trial court was required to assess sanctions against ACS.

Finally, we cannot conclude, as ACS contends, that the absence of any specific provision allowing sanctions against a non-party for failure to comply with a discovery order entirely precludes a trial court from assessing any penalties for noncompliance. For trial courts retain their capacity to assess sanctions in the form of findings of contempt of court where an individual or organization, party to litigation or not, acts contrary to court order, and Trial Rule 37(B)(2)(d) expressly provides for a finding of contempt of court where an individual or organization fails to comply with a discovery order.

On either basis-Trial Rule 37s provisions permitting sanctions against non-parties, or the inherent power of a court to enforce its orders-the trial court did not lack the authority to assess sanctions against ACS for failure to comply with discovery orders, and thus the trial court did not abuse its discretion in this respect.

Timeliness of IBM's Motion

ACS also contends that IBM's motion for sanctions was not timely, and thus the trial court erred in granting that motion and assessing sanctions against ACS. This argument takes two forms: one, that IBM failed to move for a continuance as a result of any failure on ACS's part to comply with the discovery orders, and thereby waived any right to sanctions; and, two, that IBM filed its motion for sanctions several months after the trial court entered judgment, and thus simply filed its motion too late for the trial court to properly grant relief.

In support of the first of these arguments, ACS points to IBM's failure to object at trial and seek a continuance in order to avoid prejudice from ACS's discovery violations, and relies on cases from this Court and our supreme court. See Farley Neighborhood Ass'n v. Town of Speedway, 765 N.E.2d 1226, 1231 (Ind.2002) (holding as waived for appeal a claim of unfair surprise as to evidence first provided the night before trial, where there was no objection to admission of the evidence at trial nor motion for continuance); Everage v. NIPSCO, 825 N.E.2d 941 (Ind.Ct.App.2005) (concluding that Everage waived for appeal the exclusion from evidence of certain testimony, where Everage did not contemporaneously object and failed to request a continuance upon denial of his belated objection).

The concept of waiver of an issue for appeal is inapposite here. Discovery in the present case extended over a number of months, and ACS was ordered on several occasions-including three pre-trial orders and the trial court "riding herd" during the latter part of 2011 and the beginning of 2012-to participate in discovery throughout this period, but failed to fully comply. Thus, ACS's failure to comply with discovery orders extended over a period of time well in advance of trial, and IBM sought relief from the trial court by means of moving for discovery sanctions. With discovery dragging on throughout the course of the trial itself, IBM's decision not to immediately seek sanctions did not result in waiver.

Turning now to ACS's broader argument concerning the timeliness of IBM's motion, Trial Rule 37 does not impose an express time limit upon a party's decision to seek discovery sanctions; thus, whether a request for sanctions is timely is left to the discretion of the trial court. Pointing to federal case law, ACS argues that sanctions cannot be sought after judgment is entered on the merits of a case.

While our courts may, in the absence of Indiana cases interpreting our trial rules, turn to federal case law interpreting the Federal Rules of Civil Procedure, we need not do so when there is instructive Indiana case law. See Ealy v. State, 685 N.E.2d 1047, 1051 (Ind.1997) (noting that "in the absence of our own case law ,.. we may be informed by looking to federal case law"). Here, our supreme court's holding in Witt v. Jay Petroleum, Inc., 964 N.E.2d 198 (Ind.2012), is instructive on the question ACS raises concerning the timeliness of the trial court's imposition of discovery sanctions. In Witt, the trial court imposed a temporary restraining order that required all work to cease on property Witt owned, pending further discovery proceedings. Id. at 201. More than a year later, the trial court found Witt, his attorney, and an environmental remediation contractor Witt had hired in contempt of court after they took actions that the trial court held violated the restraining order. Id. at 202. The trial court subsequently imposed more than $ 100,000.00 in sanctions upon Witt and his agents. Id. On transfer, our supreme court held that there was no abuse of discretion when the trial court imposed sanctions for contempt of court upon Witt and 'his agents, and reaffirmed that such orders are reviewed for an abuse of discretion, even after a special judge had been appointed to the case and more than a year had passed since the violation of the court order. Id. at 204.

Guided by our supreme court's holding in Witt, we find no abuse of discretion associated with the timing of IBM's motion and the trial court's decision, several months after the conclusion of the trial in this case, to impose sanctions against ACS.

Whether ACS's Conduct was Sanctionable

We turn now to ACS's argument that its conduct was not sanctionable and that the trial court's decision to the contrary was an abuse of discretion. Some of ACS's argument in this regard points to various facets of discovery that occurred near to or during trial as a result of new requests from IBM. ACS also points to its submission of verified reports about the progress of ACS's document production, contends that the reports were creditable explanations for delay, and argues that the trial: court abused its discretion when it concluded otherwise.

While aspects of document production and discovery continued during the bench trial in this case, the court did not award IBM all of the sanctions it sought. It thus appears to us that the trial court took into account some of the issues in controversy when it determined the sanctions it imposed upon ACS. Our review of the verified status reports ACS submitted to the trial court did not reveal explanation for delays in production except as to a handful of document custodians.

IBM filed multiple motions to compel ACS to produce documents, the trial court found that ACS's opposition was not reasonable, and the trial court intervened numerous times in the discovery process to secure ACS's compliance. ACS does not directly challenge any of these rulings, and to the extent ACS's argument seeks a reweighing of the evidence or otherwise asks that we second-guess the trial court's judgment, we decline to do so. We therefore cannot conclude that the trial court abused its discretion when it found that ACS's conduct was sanctionable.

Whether the Trial Court Abused its Discretion in Setting the Amount of Sanctions

We turn now to ACS's last contention in its cross-appeal, that the amount of the sanctions the trial court awarded to IBM was not reasonable in light of the evidence, and therefore the trial court abused its discretion when it awarded IBM sanctions against ACS in the amount of $425,178.85.

Trial Rule 37(A)(4) provides that, where a motion to compel discovery or a motion seeking a protective order is granted, "the court shall, after opportunity for hearing, require" the non-prevailing party to the motion "to pay ... the reasonable expenses incurred ... including attorneys' fees" unless the trial court finds that moving or opposing the motion "was substantially justified or that other cireumstances make an award of expenses unjust." Failure to comply with a discovery order may also result in the assessment of monetary sanctions "to pay the reasonable expenses, including attorney's fees, caused by the failure" unless the trial court finds that failure to comply was substantially justified or that assessment of sanctions would be unjust based upon other cireumstances. TR. 34(B)(@)(e). Moreover, a trial court has authority to impose payment of attorney's fees and other costs associated with proving that an individual's conduct amounts to contempt of court, "and we will reverse an award of damages only if there is no evidence to support the award." City of Gary v. Major, 822 N.E.2d 165, 172 (Ind.2005).

As IBM did in its appeal, ACS points to the large number of time entries IBM submitted in support of its motion for sanctions and contests the amount of the award the trial court granted in favor of IBM. Also as IBM did, ACS singles out specific time records that it contends bear no relationship to ACS's opposition to IBM's motions or to any failure on ACS's part to comply with the trial court's discovery orders. That is, as did IBM, ACS identifies a small number of time entries, speculates that there are larger problems with the trial court's determination of the amount of sanctions, and encourages this court to reweigh the evidence and reassess the trial court's award.

The amount of sanctions specified in the trial court's order is less than the total amount IBM requested, and within the range of the time record evidence IBM submitted in support of its motion for sanctions. Thus, as we did with IBM's appeal, we decline ACS's invitation to see-ond-guess the trial court's judgment, and affirm the trial court's determination of the amount of sanctions to be paid by ACS.

Conclusion

The trial court did not abuse its discretion when it awarded ACS some, but not all, of the damages it requested as a result of its participation in discovery as a non-party under Trial Rule 34. Nor did the trial court abuse its discretion when it awarded IBM some, but not all, of the attorneys' fees and other damages it incurred as a result of ACS's failure to comply with the trial court's discovery orders. We therefore affirm the trial court's orders on both matters.

Affirmed.

MAY, J., and BRADFORD, J., concur.

      . The Chronological Case Summary ("CCS") for this matter does not specify when the bench trial was commenced, concluded, or on what dates testimony was heard. Because IBM and ACS agree on when events occurred vis-a-vis the beginning and end of the trial, these lacunae in the CCS have not affected our review.

      . In an apparent scrivener's error, the text of the court's order sets forth an amount of $335,328.95 for this portion of the award. However, the order provides for no diminution of ACS's requested amount of $355,328.95, and the total amount of damages the trial court awarded to ACS reflects a grant of the entirety of the $355,328.95 paid by ACS to its e-discovery software vendor.

      . While IBM seeks to apply Federal case law concerning the availability of reimbursement of costs to traditional disinterested non-parties who are ordered to engage in discovery, we note that the Federal Rules of Civil Procedure lack any rule with provisions governing third-party discovery and entitlement to security equivalent to those found in Indiana Trial Rule 34(C).

      . As a result of the trial court's decision to reduce the total award for document review by half, the $354,070.00 in costs related to document review represents half of the total cost of $708,140.00 ACS incurred in document review efforts.

      . The term, scare quotes, convey the idea that what is labeled in quotes is " 'so-called-but-not-really.'" Bryan A. Garner, Legal Writing in Plain English: A Text with Exercises 157 (2001).

      . We have already rejected ACS's argument that its opposition was reasonable. See supra.