Morgan Hill Concerned Parents Association v. California Department of Education

Filing 373

ORDER signed by Magistrate Judge Allison Claire on 8/22/18 ORDERING that Defendants shall forward the amount of $12,250 ($13,300-$1,050) to the Clerk of the Court within 30 days of this order. Upon receipt of the funds, the Clerk of the Court shall disburse the amount of $12,250 to Kivu Consulting Inc. at the following address: Kivu Consulting, Inc. Attn: Winston Krone, Esq. 44 Montgomery Street Suite 700 San Francisco, CA 94104. The Clerk of the Court is directed to serve a copy of this order on the Financial Department of the Court. (Mena-Sanchez, L)

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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, an
unincorporated association, and
CONCERNED PARENTS
ASSOCIATION, an unincorporated
association,
Plaintiffs,

No. 2:11-cv-03471-KJM-AC

ORDER

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v.
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CALIFORNIA DEPARTMENT OF
EDUCATION, and DOES 1 through 5,

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Defendants.

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This matter is before the undersigned for the adjudication of the payments owed to Special

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Master Winston Krone for services incurred prior to the transfer of this case to the Northern

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District of California, which took place on June 6, 2018. ECF Nos. 368 (order directing the

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Special Master to submit an invoice for outstanding fees in light of case transfer) and 317

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(process for adjudicating special master fees). The court has received defendant’s objections,

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with the June 8, 2018 invoice submitted to defendant by the Special Master attached. ECF No.

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371. For the reasons now explained, the CDE is responsible for $12,250.00 in fees to the Special

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Master.

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I.

BACKGROUND

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On July 2, 2015, the court appointed Winston Krone as Special Master in this action “for

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the limited purpose of facilitating the parties’ development of an electronic discovery protocol.”

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ECF No. 116 at 2. The court concluded that the Special Master’s compensation for that task

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should be paid by defendant, the California Department of Education (CDE). In a minute order

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filed October 16, 2015, the court lifted a stay on discovery, authorized the parties to notice and

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file discovery motions, and authorized the assigned Magistrate Judge to “seek all appropriate

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assistance” from the Special Master in resolution of those motions and extended his appointment

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accordingly. ECF No. 124. In an order filed November 3, 2015, the court approved the

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electronic discovery protocol and directed CDE to meet and confer with the Special Master “to

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confirm whether the CDE has backups of the CASEMIS database,” “on the production

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of email files, file servers, and network shares of custodians marked ‘priority’ by plaintiffs on

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September 14, 2015,” and regarding “the use of deduplication procedures to avoid duplicate

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review for attorney-client privilege.” ECF No. 127 at 2. The order also provided that “[u]ntil the

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Special Master determines the plaintiff has established a secure hosting environment and the court

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receives and approves his certification to that effect, the CDE will not be required to produce

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student data subject to protection under the Family Educational Rights and Privacy Act

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(FERPA).” ECF No. 127 at 3.

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On December 1, 2015, the court issued an order stating that the CDE may object to any

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item in the Special Master’s invoices. ECF No. 132 at 2. On January 25, 2016, the court set forth

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procedures for objecting to the Special Master’s invoices. ECF No. 149. In its January 25, 2016

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order, the court stated that costs for time spent by the Special Master on tasks arising from the

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granting of a discovery motion shall be paid by the party whose conduct required the court order.

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ECF No. 149 at 3. On April 4, 2016 the court ordered the parties to “restrict their

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communications with [the Special Master] to discussions about the production of email and

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network files,” but that he would continue to fulfill his role “by assisting as an independent

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technical expert, including by assisting the assigned Magistrate Judge in any discovery matter she

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deems requires his assistance.” ECF No. 170 at 2. On September 12, 2016, the Court noted its
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expectation that the circumstances in which the Special Master would meet with one party outside

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the presence of the other “will be extremely rare, and will take place only with notice to the other

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party and with prior court approval.” ECF No. 248.

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The Special Master submitted an invoice to the CDE on November 11, 2015 for

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$23,678.88, 28 which the CDE paid in full. ECF No. 371 at 2. The Special Master subsequently

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submitted two invoices on February 6, 2017 totaling $14,262.50. Id. The February 6, 2017

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invoice to the CDE was for $13,300.00, and the February 6, 2017 invoice to the Plaintiff was for

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$962.50. Id. On February 21, 2017, the CDE filed timely objections in camera to the February 6,

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2017 invoice. ECF No. 317 at 1. On April 19, 2017, the Court ordered the CDE to pay the

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invoice without considering the CDE’s objections. ECF Nos. 301-302. That same day, the CDE

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sought reconsideration of this order approving the Special Master’s fees. ECF No. 309. On June

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25, 2017, the court granted reconsideration and acknowledged that it had not considered the

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CDE’s timely objections to the Special Master’s fees due to a failure in its system for lodging

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objections. ECF No. 317. The court instituted a new objections system and ordered the Special

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Master to resubmit his invoice to the CDE. ECF No. 317. Thereafter, the CDE would have

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fourteen days to file any objections. Id.

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On June 6, 2018, the Court transferred this case to the Northern District of California and

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ordered the Special Master to submit within fourteen days all outstanding invoices in accordance

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with ECF No. 317. On June 8, 2018, the Special Master resubmitted the same invoice that he had

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originally served on February 6, 2017 and to which the CDE had timely objected. ECF No. 371,

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Ex. A. The CDE objects to payment of the invoice. Id.

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II.

ANALYSIS

The standards relevant to fixing the compensation of a Special Master are fully set forth in

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the court’s July 2, 2015 order, ECF No. 116 at 2-5, and need not be repeated here. The CDE

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objects to the Special Master fees on five grounds: (1) the total amount billed to date by the

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Special Master is triple the amount originally budgeted; (2) the invoice includes “block” billing,

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which reduces transparency; (3) none of the entries were for tasks arising from the granting of a

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discovery motion; (4) the invoice does not provide sufficient detail to evaluate the Special
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Master’s recommended apportionment of costs and whether the tasks are within the scope of the

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duties outlined in ECF No. 116, as narrowed by ECF No. 170; and (5) the entries reflect the

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Special Master’s work as the court’s technical advisor that should not be billed to the CDE. ECF

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No. 371 at 3.

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A. Projected Budget Was Not Binding, Excess Hours Spent Was Result of Party Conduct

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The CDE’s first objection, that the Special Master’s hours exceeded the initial projected

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budget, does not withstand scrutiny. Although the court considered the Special Master’s

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anticipated protocol as part of his appointment, the court did not adopt it as a binding or limiting

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budget. ECF No. 116 at 2. As the CDE is well aware, discovery in this matter became

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increasingly complex and protracted as the case progressed due at least in part to the conduct of

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the CDE. At no time did the court indicate that the Special Master was bound by his initially

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proposed protocol in the event that the circumstances of the case required more of his time than

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anticipated. The fact that the Special Master exceeded his proposed initial costs because of the

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circumstances of the case is not grounds for eliminating or reducing CDE’s responsibility to pay

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the invoice.

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B. The Special Master Did Not Improperly Block Bill

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The Special Master’s invoice is not impermissibly block billed. In the ordinary course of

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evaluating attorney’s fees, a district court may make targeted reductions to an award if the fee

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applicant “block billed,” meaning the applicant combined multiple tasks per billed hour, making

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it impossible to evaluate reasonableness. Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th

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Cir. 2007). The CDE points to several entries in which the Special Master did, in fact, list more

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than one discrete task per line billed. ECF No. 371 at 4, 13-15. The undersigned has reviewed

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each of these entries, and concludes that their reasonableness can be readily evaluated despite the

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multiple listed tasks per line item. Indeed, although the entries combine distinct tasks, the billed

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items are generally related. For example, the February 26, 2016 bill reflects review of the

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discovery protocol, preparation for a phone call with Judge Mueller, and a phone call with Judge

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Mueller. ECF No. 371 at 14. Again, a thorough review of the Special Master’s invoice reveals

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that the court can determine its reasonableness despite some instances of block billing. The court
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declines to make any reductions to the fees owed based on block billing.

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C. The CDE’s Fee Responsibility is Not Limited to Discovery Orders

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The court rejects the argument that none of the Special Master fees are associated with a

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discovery motion, and therefore the court should not order the CDE to pay the fees. ECF No. 371

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at 5. The CDE argues that in its July 25, 2016 order, the court stated that costs for time spent by

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the Special Master on tasks arising from the granting of a discovery motion shall be paid by the

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party whose conduct required the order. ECF No. 149 at 3. The CDE goes on to argue that none

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of the Special Master’s fees arose from such an order, and because the CDE already paid for the

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fees arising from the creation of the discovery protocol (ECF No. 116 at 4), the CDE cannot be

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assigned further fees. ECF No. 371.

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First, it is not at all clear that none of the items billed were the result of work created by

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motions to compel grated against the CDE. Indeed, the CDE had no fewer than four discovery

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orders entered against it following the July 25, 2016 order. ECF Nos. 150, 229, 287, and 333.

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The CDE’s conclusory one-sentence argument on this point is unconvincing. ECF No. 371 at 5.

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Second, it is not necessary for the court to conclude that billed items resulted from discovery

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orders because the court’s January 25, 2016 order did not conclude that the CDE would only be

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responsible for bills if its conduct necessitated entry of a discovery order against it. ECF No. 149

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at 3. Indeed, that order specifically states that “[f]or the tasks required by the court’s November

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3, 2015 order [setting out the discovery protocol], plaintiffs shall bear the costs of time spent by

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the Special Master determining whether plaintiffs have established a secure hosting environment,

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and CDE shall bear the costs of time spent by the Special Master on the other tasks required by

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that order.” ECF No. 149 at 2 (emphasis added). Thus, the CDE’s argument on this point does

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not merit a fee reduction.

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D. The Special Master’s Invoice is Sufficiently Detailed, With Two Exceptions

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The CDE takes issue with several entries in the Special Master’s invoice for insufficient

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detail. Upon independent review the court finds the invoice adequate overall, but agrees with the

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CDE on two points. First, the second listed February 26 and February 28, 2016 bills should have

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been charged to the plaintiff because they appear to be related to the establishment of a secure
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environment. ECF No. 371 at 6-7, 14. As stated above, plaintiffs are responsible for the Special

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Master’s fees related to the establishment of a secure hosting environment for data. ECF No. 149

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at 2. These billing entries, in the amount of $350.00 and $525.00, should have been directed to

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the plaintiff in accordance with the court’s January 25, 2016 order. Id. Second, two bills for e-

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mail communications between the Special Master and plaintiffs on January 8 and January 9 of

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2016 regarding a “proposed order” should have either been billed to plaintiffs or, in the

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alternative, are too vague for the court to determine that a bill to CDE is appropriate. ECF No.

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317 at 13. These entries, each totaling $87.50, must be deducted from the CDE’s bill.

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Accordingly, a total of $1,050.00 will be deducted from the total amount owed to the Special

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Master by CDE.
The CDE’s remaining objections in this category are not well taken. The CDE argues that

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certain billed entries each reflecting e-mailing with the CDE are duplicates, but there is no

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evidence to support that the Special Master simply did not email the CDE on two separate

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occasions. ECF No. 371 at 6. In the absence of evidence, the court will not assume an error. The

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court also declines to accept the CDE’s objection to the Special Master’s billing for his

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colleague’s attendance at a meeting; it is apparent that the colleague was assisting the Special

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Master in his duties and the court will not assume over-billing in the absence of any evidence. Id.

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at 7. Finally, the court will not deduct a billing entry for the Special Master’s communication

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with plaintiff’s counsel regarding the format of a production; it is apparent from the description in

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the bill that the CDE’s production itself necessitated this contact. Id. at 8.

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E. The CDE is Responsible For The Special Master’s Communication With The Court

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Upon an independent review of the billing entries, the court determines that invoice items

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related to the Special Master’s coordination with the court are properly charged to CDE. The

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CDE objects to paying for time entries associated with conversations between the court and the

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special master on the grounds that they fall outside of the scope of the Special Masseter’s role as

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described in ECF No. 116, and are insufficiently detailed to determine whether they are within the

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scope of the court’s order at ECF No. 170. A particularized review of the invoice indicates that

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the Special Master’s communication with the court falls under the CDE’s responsibility for “costs
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of time spent by the Special Master on the other tasks required by [the November 3, 2015 order]”

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as discussed above. ECF No. 149 at 2. It is in line with the court’s previous orders that the CDE

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should bear responsibility for the time the Special Master spent informing the court of the

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progress and difficulties regarding the extremely complex and protracted electronic discovery

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issues in this case. Thus, the court declines to reduce the CDE’s obligation to pay the Special

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Master invoice based on this argument.

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III.

CONCLUSION

In accordance with the above, IT IS HEREBY ORDERED that:
1. Defendants shall forward the amount of $12,250 ($13,300-$1,050) to the Clerk of the
Court within 30 days of this order;
2. Upon receipt of the funds, the Clerk of the Court shall disburse the amount of $12,250
to Kivu Consulting Inc. at the following address:
Kivu Consulting, Inc.
Attn: Winston Krone, Esq.
44 Montgomery Street
Suite 700
San Francisco, CA 94104.

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3. The Clerk of the Court is directed to serve a copy of this order on the
Financial Department of the Court.
DATED: August 22, 2018

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