Morgan Hill Concerned Parents Association v. California Department of Education

Filing 209

ORDER signed by Magistrate Judge Allison Claire on 7/18/2016 DENYING 207 Request for Leave to File Invoices In Camera. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MORGAN HILL CONCERNED
PARENTS ASSOCIATION, et al.,
Plaintiffs,

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ORDER
v.

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No. 2:11-cv-3471 KJM AC

CALIFORNIA DEPARTMENT OF
EDUCATION, et al.,

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Defendants.

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Plaintiffs have filed a motion for monetary sanctions, and have noticed it to be heard

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before the undersigned on August 10, 2016. ECF No. 206.1 In connection with that motion,

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plaintiffs have now filed a “Request for Leave To File Invoices In Camera” in support of their

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motion for sanctions. ECF No. 207. According to plaintiffs, they wish to submit invoices in

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support of their motion, and wish to “preserve their rights with respect to privilege and work

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product immunity.” ECF No. 207 at 1. In asserting legal support for this request, plaintiff state:

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The Ninth Circuit has long endorsed the in camera procedure to
protect invoices submitted in support of motions for fees. See, e.g.,
Fed. Sav. & Loan Ins. Corp. v. Ferm, 909 F.2d 372, 374-75 (9th
Cir. 1990).

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ECF No. 207 at 2.
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The district judge presiding over this case has referred this matter to the undersigned. ECF
No. 204.
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I. ANALYSIS
According to the Ninth Circuit, “[t]he conclusion that the amount, date, and form of legal

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fees paid is not a confidential communication protected by the attorney-client privilege is a mixed

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question of law and fact.” Tornay, 840 F.2d at 1426. Here, plaintiffs have shown no legal or

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factual basis for their blanket assertion of the privilege, and such a blanket assertion does not

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appear to be warranted by Ninth Circuit law:

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The district court awarded the fees, amounting to $80,881, after it
had received the defendants’ lawyers’ timesheets in camera. No
reason appears why the timesheets should not have been made
available to MGIC [plaintiff] and MGIC given the opportunity to
challenge them. We remand for the sole purpose of a hearing in
which MGIC may challenge the reasonableness of the fees
awarded. The court may withhold from MGIC any information it
finds protected by the lawyer-client privilege.
MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986) (emphasis added).

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Despite plaintiffs’ claim that the Ninth Circuit “has long endorsed the in camera

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procedure” in connection with motions for attorneys’ fees, they have cited no cases that actually

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support that proposition, or illustrate this alleged long endorsement. Ferm, the one case plaintiffs

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do cite, only undermines plaintiffs’ claim. According to Ferm, “[f]ee information is generally not

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privileged.” Ferm, 909 F.2d at 374 (emphasis added) (citing Tornay v. United States, 840 F.2d

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1424, 1426 (9th Cir.1988)). In turn, Tornay states that “[p]ayment of fees is incidental to the

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attorney-client relationship, and does not usually involve disclosure of confidential

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communications arising from the professional relationship.” Tornay, 840 F.2d at 1426.

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In fact, Ferm has nothing to do with protecting invoices that, as plaintiffs claim, were

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“submitted in support of motions for fees.” To the contrary, Ferm did not even involve a motion

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seeking fees. In that case, the district court entered a preliminary injunction freezing defendant’s

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assets during the pendency of the lawsuit against her. Ferm, 909 F.2d at 373. Later “the district

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court modified the injunction, permitting Ferm to withdraw funds to pay for reasonable attorney’s

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fees.” Id. Later still, the court further modified the preliminary injunction by issuing an

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“accounting order” that required defendant’s attorneys to submit to the court “all invoices for

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legal services and expenses rendered in connection with Ferm’s defense . . . for an in camera
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review, so that the district court could determine whether the firm’s fees were reasonable.” Id.

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The accounting order was appealed to the Ninth Circuit, which affirmed. Id. at 375.

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The in camera review in Ferm was intended solely to ensure that defendant did not

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improperly dissipate frozen assets in violation of the court’s preliminary injunction:

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the district court’s accounting order protects already frozen assets
from possible excessive dissipation due to unreasonable attorneys’
fees. It ensures compliance with the preliminary injunction’s
requirement that otherwise frozen funds be used solely for fees
which are “reasonable.”

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Id. at 374 (emphasis added). The review had nothing to do with any determination of a motion

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for attorneys’ fees.

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II. CONCLUSION
For the reasons stated above, plaintiff’s Request (ECF No. 207), is DENIED.
DATED: July 18, 2016

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