Opinion
Case No: 2:01 CV 595 TC.
June 30, 2004
ORDER REGARDING SANCTIONS
This order adjudicates sanctions related to Defendant Ford Motor Company's failure to respond to discovery.
Factual Background
In August 2003 the magistrate judge entered an order granting Plaintiffs' motion to compel adequate responses to production requests propounded to Ford Motor company. At issue were three requests for production of documents, served as early as June 2002. The order denied a request for sanctions at that time, because the issue, at least on one set of requests, was "honestly debatable."
Plaintiffs' Motion to Compel Adequate Responses to Their Third Production Requests . . . and for Sanctions, docket no. 106-1, filed May 29, 2003.
Order Granting Motion to Compel . . ., docket no. 121, filed August 27, 2003.
See Plaintiffs' First Request for Production of Documents to Ford Motor Company, served in June 2002 (attached as Exhibit A to Plaintiffs' Memorandum in Support of Motion to Compel ("Plaintiff's Memorandum"), docket no. 107, filed May 29, 2003). Plaintiffs' Second Request for Production of Documents to Ford Motor Company, served in January 2003 (attached as Exhibit B to Plaintiffs' Memorandum). Plaintiffs' Third Request for Production of Documents . . . to Ford Motor Company (date of service of request not stated in parties' filings, but Ford Motor Company's Responses attached as Exhibit D to Plaintiffs' Memorandum).
Order Granting Motion to Compel, at 6. The order specifically noted that "Ford should, however, have disclosed the vehicle in the answers to the First Request and Second Request, along with appropriate objections" but declined to impose monetary sanctions at that time. Id.
Ford appealed the magistrate judge's order to the district judge. On October 28, 2003, the district judge held a hearing on Ford's objection and, during the hearing, reaffirmed the magistrate judge's August order from the bench. At that point, Ford's obligation to answer the discovery was clear.
On March 8, 2004, Plaintiffs filed their motion seeking a final deadline for compliance and also seeking sanctions. In that motion, Plaintiffs contended there were significant categories of documents that Defendant had not yet produced. On March 9, 2004, the Court set an accelerated briefing schedule on Plaintiffs' motion, entered an order to show cause and set the matter for hearing on March 23, 2004.
Docket no. 129, filed March 8, 2004.
Docket no. 132, filed March 9, 2004.
On the eve of the March 23rd hearing, Ford produced over 4,000 documents. The magistrate judge's order of April 23, 2004, recounted the history of the belabored production; concluded that Ford had demonstrated it did not take Plaintiffs' discovery requests or the court's orders seriously; and found that the service of massive amounts of documents so near the hearing was not fair to the Plaintiffs nor to the judicial system. The order established a final production deadline of April 30, 2004, and set a review hearing on May 12, 2004. The court ordered that before the review hearing Plaintiffs file a detailed summary of the documents and materials not yet produced to make sense of the late-arriving avalanche of documents. Between March 23rd and April 30th, Ford produced another 5,500 documents.
Docket no. 148, filed April 23, 2004.
At the May 12th hearing, the court noted that Ford had produced the overwhelming majority of its responsive documents only when the threat of judicial intervention was immediate and ordered "a sanction of attorney's fees and costs associated with the filing of the motion for a final deadline and for sanctions." Plaintiffs' counsel submitted an affidavit of expenses incurred in the motion, Ford responded and Plaintiffs replied.
150 documents were produced before year end 2003; a total of about 1,700 documents had been produced after disputes over a protective order were resolved in January 2004; and by the March 2004 hearing about 5,800-5,900 documents had been produced, with most produced on the eve of the hearing. By April 30, 2004, about 11,500 total documents had been produced. Transcript of Hearing May 12, 2004, at 4-5.
Docket no. 154, filed June 2, 2004. See Transcript at 8-9.
Affidavit of Paul J. Komyatte, docket no. 153, filed May 26, 2004.
Ford Motor Company's Response . . . (Ford's Response), docket no. 155, filed June 9, 2004.
Reply Brief . . ., docket no. 156, filed June 16, 2004.
Discussion
The Affidavit of Paul J. Komyatte frankly admits that his "law firm does not maintain hourly time records," so that none were kept in this case. He claims that his "fairly accurate estimates of time" created "by referring to [his] calendar, emails . . . sent and received as well as [his] own memory" allowed him to make "good faith, conservative estimates" of the amount of time he spent. He says he spent 131.1 hours in 9 major categories: Task Time th rd rd th th th Letters seeking compliance with the order to compel 1 hour Preparation of motion filed March 8 and related 47 hours papers Preparation for March 23 hearing 7 hours Travel to and from and attendance at March 23 15 hours hearing Drafting, arguing and revising proposed order 8 hours Conferring with local counsel regarding May 12 1.1 hours hearing Reviewing Ford's production received March 24 20 hours through April 30, 2004 Preparation of summary of documents for May 12 19 hours hearing Travel to and from and attendance at May 12 hearing 13 hours TOTAL 131.1 hours Komyatte also spoke with local counsel and recapped his time, though he does not say whether local counsel kept time records: Task Time th rd th th Review of motion filed March 8 and related papers 1.2 hours Preparation for and attendance at March 23 hearing 2 hours Conferring with lead counsel regarding May 12 1.1 hours hearing Preparation for and attendance at May 12 hearing 2.5 hours TOTAL 6.8 hours Komyatte recites that his hourly rate is $275.00 per hour and local counsel's hourly rate is $225.00 per hour. He also claims his consulting engineer devoted 17.5 hours of work billed at $150.00 per hour, providing engineering assistance in determining the precise technical documents responsive to the discovery order, and claims travel expenses of $847.40 for the airline tickets for the two trips to Salt Lake City for the March 23rd and May 12th hearings.Hours
Ford claims that "estimates" of time spent do not meet standards imposed by the Tenth Circuit in its cases considering awards of statutory attorney's fees in civil rights cases. It is true that many courts require strict time accounting to support an award of statutory fees. "Casual after-the-fact estimates of time expended on a case are insufficient to support an award of attorneys' fees. Attorneys who anticipate making a fee application must maintain contemporaneous, complete and standardized time records which accurately reflect the work done by each attorney." But this standard has not been universally applied in this circuit, which has permitted reconstructed records to support a statutory award, if the records are scrutinized. And even in the circuit which stated the stringent standard for time records quoted above, percentage adjustment of claimed hours is used as a remedy, rather than outright denial of fees.
Ford's Response at 4. See Reply Brief at 2 for Plaintiffs' critique of these cases.
Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.3d 1319, 1327 (1982).
Anderson v. Sec'y of Health and Human Servs., 80 F.3d 1500, 1506 (10th Cir 1996).
Total denial of requested fees as a purely prophylactic measure . . . is a stringent sanction, to be reserved for only the most severe of situations, and appropriately invoked only in very limited circumstances. Outright denial may be justified when the party seeking fees declines to proffer any substantiation in the form of affidavits, timesheets or the like, or when the application is grossly and intolerably exaggerated, or manifestly filed in bad faith. Jordan v. U.S. Dep't of Justice, 691 F.2d 514, 518 (D.C. Cir. 1982).
More to the point, such specificity should not be required in the assessment of expenses, including attorney's fees, imposed as a sanction under Rule 37 of the Federal Rules of Civil Procedure. These sanctions restore the integrity of the judicial process by (a) penalizing the sanctioned party for non-compliance with disclosure and discovery obligations and (b) reimbursing the aggrieved party for the expense of obtaining compliance. The court will not reject Plaintiffs' claim for expenses because of the lack of contemporaneous records.
Ford makes several specific objections to the number of hours claimed, which will be dealt with in turn:
Travel Time: Ford claims that Mr. Komyatte seeks to recover 28 hours of travel time related to the May 12th and March 23rd hearings. It is clear from Komyatte's affidavit that the 28 hours actually includes the time spent in the hearings. Ford further characterizes the claims as a "15 hour day" and a "13 hour day" when the affidavit does not state the travel and hearings occurred in one day. Further, Ford ignores the collateral preparation for the hearings. After those mischaracterizations, Ford argues that travel time should be reduced to 4 hours for each round trip, including one hour for flight time from Denver, and one hour for travel time to the airport and back. Komyatte, for his part, admits that the calculations include some "time that Plaintiffs' counsel was necessarily from his office and unable to work on other matters."
Ford's Response at 6.
Since there are four one-way trips to or from the airport associated with each round trip flight, Ford's math does not check out. On Ford's assumptions, 5 hours of travel time would be required for each round trip flight. Ford also assumes no advance arrival at any airport which does not seem possible in this post 9-11 world.
Reply Brief at 6.
Considering all the foregoing, and Komyatte's lack of contemporaneous records, the 28 hours claimed for the hearings and travel will be reduced by 50%.
Additionally, Ford claims that a party hiring out of state counsel must bear the cost of counsel's travel time and cannot impose any fees related to travel time upon the opposing party. The court will not summarily reject travel time for counsel, as Plaintiffs' counsel has demonstrated expertise in the technical subject matter of the case. It cannot be assumed that Plaintiffs are confined to selection of local counsel. Moreover, the need for the hearings, and thus the travel time incurred to attend the hearings, was due to Ford's non-compliance with the discovery requests. Accordingly, travel time will not be excluded.
Duplicate Time among Co-Counsel: Ford objects to any time Plaintiffs' counsel spent "consulting" together and assumes all this work is duplicative. True, they were in court at the same time and conferred, but it would likely be foolish not to use their respective abilities in the case. From observation at the hearings and the amounts of hours claimed, the court concludes that there was not a duplication or redundancy in efforts of co-counsel.
Ford's Response at 7.
Hours Spent Reviewing Documents: Ford claims that any time Plaintiffs' counsel spent reviewing Ford's produced documents was not related to Ford's non-compliance with discovery orders, but essential to the case in chief. Komyatte is correct in stating that he had to spend time reviewing thousands of documents to submit an accurate summary of what he believed was missing, but Ford's position on review time is essentially correct. The review Komyatte made after the order to compel would have largely been made in the course of a voluntary production. Komyatte itemizes 20 hours for that review which will not be allowed. The summaries, of course, would not have been required if Ford had been compliant with the requests or the orders. Komyatte itemizes 19 hours for the summaries required to be prepared for the May 12th hearing. That claim will be allowed.
Id.
Reply Brief at 6.
Hours Related to the May 12th Hearing: Ford objects to inclusion of any fees related to the May 12th review hearing, taking the position that the court only ordered that expenses relating to the motion to compel compliance (heard March 23rd) were ordered. The May 12th hearing and documents submitted in preparation for that hearing were all required by reason of Ford's failure to comply with the order compelling discovery entered in 2003. The voluminous, well written and meticulously documented materials submitted for this hearing were essential in determining if Ford was making serious efforts to comply with the order compelling discovery and were apparently prime motivators for Ford's increased level of compliance after the motion was filed March 8th . The court believes that all hours worked preparatory the May 12th hearing were essential in resolving the March 8th motion. At the May 12th hearing, the court found that Ford was still required to make some further productions sought by Plaintiffs. Most of Ford's production occurred between the March 23rd hearing and the May 12th hearing.
Ford's Response at 7.
The order required Ford to make further productions in some areas, as Ford agreed.
Hours on Preparation of Motion, Related Papers and Reply:
Ford argues that Plaintiffs' claim of 69 hours to brief and argue the motion is excessive. The figure Ford uses is inflated by travel and hearing time, already discussed. Exclusive of travel and hearing time, Komyatte claims 54 hours for the preparation of the original motion, related papers, and reply materials (47 hours), and preparation for the hearing (7 hours). Again recognizing that these time estimates are not contemporaneous, and after careful review of these materials as filed with the court and provided for chambers review, the court will reduce the hours claimed for preparation of the papers and preparation for the hearing by approximately 33%. Ford's suggestion that Plaintiffs' counsels' work on the extensive, well-documented and carefully written materials submitted on this motion could have been accomplished in 8 hours (less than 20% of the 47 hours claimed for drafting) is not at all credible. Ford is correct that few legal authorities are included in the memoranda, but ignores the nature of this motion as document intensive, and that both parties' submissions were supported by many exhibits which were extremely helpful in the court's decision making. The 36 hours awarded, 31.5 for the papers and 4.5 for preparation, is appropriate.
Id. at 10.
Rate
Ford "concede[s] that the rate is not entirely unreasonable" but "asks the Court to use its discretion to determine the reasonableness of the rate" without offering any evidence of what rates should apply. The court does not find that the rates proposed are unreasonable.
Costs
Ford did not object to the assessment of travel costs.Ford objects to the assessment of any expenses related to the services of Plaintiffs' consulting engineer, and the court agrees that this review of documents was likely necessary with regard to the merits of the case, and not precisely linked to this motion.
Id. at 8.
Summary
In summary, the court will allow the following claimed hours and expenses: Task Komyatte Local Time Counsel Time th rd rd th th th fn_ $24,129.90
includes preparation and attendance.
ORDER
IT IS HEREBY ORDERED that Defendant shall pay the sum of $24,129.90 to Plaintiffs.