Opinion
Case No. 3:01CV7169.
January 2, 2002
Plaintiff — Nicholas S. Staib represented by Barry W. Fissel, Eastman Smith, Toledo, OH. Joseph M. D'Angelo, Matthew A. Szollosi, Cosme, D'Angelo Szollosi, Toledo, OH. Scott D. Newsom, Eastman Smith, Toledo, OH.
Defendant — Vaughn Industries, Inc., and as Plan Administrator represented by Evelyn P. Schonberg, Ross, Brittain Schonberg, Cleveland, OH, Fred Seleman, Ulmer Berne, Cleveland, OH, Kenneth M. Haneline, Kastner, Westman Wilkins, Akron, OH.
ORDER
This is an ERISA case in which the plaintiff's motion for a protective order was overruled. In addition, plaintiff was also awarded attorneys' fees and costs. Pending are motions by the defendant for reconsideration or clarification of the summary judgment order and to set fees at an amount substantially less than the amount being sought by the plaintiff.
For the reasons that follow, the motion for reconsideration or clarification shall be denied, and defendant's objections to the plaintiff's fee request shall be overruled.
The gravamen of defendant's motion for reconsideration is that I should not have overruled plaintiff's motion for summary judgment, without prejudice. The effect of that ruling was to enable plaintiff to renew his motion in the event that, following discovery, grounds appeared to do so.
Principally at issue was the defendant's contention that certain categories of documents being sought by the plaintiff were not in existence. In light of that contention, I held, in part, that plaintiff was not entitled to summary judgment because the defendant could not be ordered to produce something that did not exist. But I also held that plaintiff could renew his motion if further discovery disclosed that such documents did, in fact, exist.
Under the circumstances of this case, which has been contentious from the outset, and in which the defendant has unremittingly resisted the plaintiff's lawful demands for production, giving the plaintiff leave to renew his motion made, and continues to make sense.
Otherwise, to the extent that defendant's arguments and its motion were not expressly addressed, they were resolved implicitly by my rulings on plaintiff's motion for summary judgment. Defendant's motion for reconsideration shall, accordingly, be denied.
Plaintiff seeks in excess of $25,000 in fees and costs incurred in responding to defendant's motion for a protective order. On close consideration of the parties' arguments and the plaintiff's attorneys' time sheets, I conclude that the request for such amount should be granted.
As I held in my earlier decision denying defendant's motion for a protective order, there was no basis for its refusal to provide documents which ERISA required it to disclose on demand (i.e., without the delay, expense, and inconvenience of a lawsuit). Defendant's arguments, as all of us recognized, were novel, and had not been the subject of prior decision — at least none that any of us could find.
Though the answer turned out to be simple, the route to that answer was difficult. Along the way to that answer, defendant's attorneys expended considerable time spinning their wheels and going up blind alleys. That was to be expected, and was, in my view, necessary.
Defendant's contention that plaintiff's pursuit of cases on point should have required the expenditure of about $5,000, rather than more than $25,000, has a certain surface plausibility. But on consideration of the importance of the issue to the parties and its novelty, I am persuaded that the time expended in responding to the motion for a protective order was reasonable.
This litigation has all the earmarks of a bitter contest, in which either side has any desire to give any quarter — which is fine, and is an approach they are entitled to take, if they wish. But such determination and dedication come at a cost, and defendant assumed the risk, when it filed its motion for a protective order, that that cost would be shifted to it. As everyone knows, when a skirmish becomes a battle, casualties mount.
Contrary to defendant's contentions, the hourly rates charged for the opposition to the motion for a protective order are entirely reasonable, and well within the range of rates that would be charged by other lawyers of similar skill and experience in the Toledo area.
Assessment of fee petitions is among the most difficult of a judge's jobs. A judge's view of the litigation is limited to what floats on its surface, in the form of briefs and arguments. There is no principled way by which I can fairly conclude in this case that a certain number of hours was expended unnecessarily. To be sure, less time might have been spent had lead counsel, rather than an associate, been assigned to the initial research. But then the hourly rate would have been higher, and the results, given the lack of precedent directly on point, probably would have been the same.
Nor is there a principled basis for lopping off a certain percentage of the hours. To do so would presume inefficiency where none is otherwise manifest. It ill behooves a judge, as removed as he is from the day-to-day discussions and decisions about allocation of resources and the importance of a particular project, to second-guess counsel's billing judgment where that judgment appears otherwise to have been exercised appropriately.
In that regard, I note and agree with defendant's counsel that they necessarily operated under the restraint of the prospect that their client, rather than the defendant, might well have been required to compensate them for their efforts. I rarely award fees, and do so even less frequently in the context of discovery disputes. I assume plaintiff's counsel were aware of that fact; in any event, they certainly could not have been aware of a practice on my part of routinely shifting fees in discovery matters, because my practice is not to do so.
This case presented, in my view, an egregious situation justifying the rare (for me) shifting of fees to the defendant. The windfall, if any, to the plaintiff comes from that fact, not from the amount being awarded, which I find reasonable and justified under all the circumstances.
It is, therefore,
ORDERED THAT:
1. Defendant's motion for reconsideration or clarification be, and the same hereby is denied; and
2. Plaintiff's petition for an award of fees and costs in the amount of $25,106.50 (twenty-five thousand one hundred six dollars and fifty cents) be, and the same hereby is granted.
So ordered.