Castro v. Terhune, et al

Filing 474

ORDER REGARDING ATTORNEY'S FEES AND COSTS (whalc2, COURT STAFF) (Filed on 11/14/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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CARLOS CASTRO,

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For the Northern District of California

United States District Court

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No. C 98-04877 WHA

Plaintiff,
v.

ORDER REGARDING
ATTORNEY’S FEES
AND COSTS

CAL TERHUNE, et al.,

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Defendants.
/

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In light of the accompanying order regarding plaintiff’s entitlement to attorney’s fees

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and costs, plaintiff is entitled to an award of fees and costs. The following procedure will be

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used to determine the amount of an award herein. It will be structured to allow meaningful

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evaluation of the time expended.

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1.

No later than DECEMBER 12, 2011, plaintiff’s attorneys must file and serve a

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detailed declaration, organized by discrete projects, breaking down all attorney and paralegal

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time sought to be recovered. For each project, there must be a detailed description of the work,

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giving the date, hours expended, attorney name, and task for each work entry, in chronological

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order. A “project” means a deposition, a motion, a witness interview, and so forth. It does not

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mean generalized statements like “trial preparation” or “attended trial.” It includes discrete

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items like “prepare supplemental trial brief on issue X.” The following is an example of time

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collected by a project.

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PROJECT: ABC DEPOSITION (2 DAYS IN FRESNO)
Date

Timekeeper

Description

Hours x

Rate =

Fee

01-08-01

XYZ

Assemble and photocopy exhibits for
use in deposition.

2.0

$100

$200

01-09-01

RST

Review evidence and prepare to
examine ABC at deposition.

4.5

$200

$900

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01-10-01

XYZ

Research issue of work-product
privilege asserted by deponent.

1.5

$100

$150

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01-11-01

RST

Prepare for and take deposition.

8.5

$200

$1700

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01-12-01

RST

Prepare for and take deposition.

7.0

$200

$1400

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For the Northern District of California

United States District Court

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Project Total:
2.

23.5

$4350

All entries for a given project must be presented chronologically one after the

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other, i.e., uninterrupted by other projects, so that the timeline for each project can be readily

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grasped. Entries can be rounded to the nearest quarter-hour and should be net of write-down for

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inefficiency or other cause. Please show the sub-totals for hours and fees per project, as in the

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example above, and show grand totals for all projects combined at the end. Include only entries

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for which compensation is sought, i.e., after application of “billing judgment.” For each

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project, the declaration must further state, in percentage terms, the proportion of the project

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directed at issues for which fees are awardable and must justify the percentage. This percentage

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should then be applied against the project total to isolate the recoverable portion (a step not

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shown in the example above).

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3.

A separate summary chart of total time and fees sought per individual

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timekeeper (not broken down by project) should also be shown at the end of the declaration.

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This cross-tabulation will help illuminate all timekeepers’ respective workloads and roles in the

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overall case.

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4.

The declaration must also set forth (a) the qualifications, experience and role of

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each attorney or paralegal for whom fees are sought; (b) the normal rate ordinarily charged for

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each in the relevant time period; (c) how the rates were comparable to prevailing rates in the

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community for like-skilled professionals; and (d) proof that “billing judgment” was exercised.
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On the latter point, as before, the declaration should describe adjustments made to eliminate

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duplication, excess, associate-turnover expense, and so forth. These adjustments need not be

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itemized but totals for the amount deleted per timekeeper should be stated. The declaration

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must identify the records used to compile the entries and, specifically, state whether and the

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extent to which the records were contemporaneous versus retroactively prepared. It must state

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the extent to which any entries include estimates (and what any estimates were based on).

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Estimates and/or use of retroactively-made records may or may not be allowed, depending on

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the facts and circumstances.

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5.

Ordinarily, no more than one attorney and one paralegal need be present at a

deposition; more will normally be deemed excessive. Ordinarily, no more than one attorney

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For the Northern District of California

United States District Court

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need attend a law-and-motion hearing; ordinarily, no more than two attorneys and one paralegal

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need be present at trial, more will normally be deemed excessive. To allow for symmetry,

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however, the award will take into account the staffing used by the opposing party.

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6.

If the opposing party doubts the accuracy of the declaration, then the moving

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party must immediately produce the original underlying time records for inspection upon

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request. The opposing party must then file and serve any opposition. In this case, the

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opposition will be due FOURTEEN CALENDAR DAYS after plaintiff’s detailed declaration is filed.

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If the opposing party contends that any item or project was excessive, then the opposition must

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explain why and provide a declaration setting forth completely all time expended by the

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opposing party on the same and on similar projects, in the same format described above, so that

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symmetry may be considered, making available the underlying records for inspection if

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requested. If any billing rates are challenged, then the opposition must state the billing rates

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charged to the opposing party for all professionals representing the opposing party in the case

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and their experience levels. The opposing declaration must also state, as to each project, the

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percentage of the project the opposition contends was directed at issues on which fees are

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awardable, stating reasons for the percentage. This percentage should then be applied against

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the project total to isolate the recoverable portion.

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7.

The opposing submissions may not simply attack the numbers in the application.

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It must also set forth a counter-analysis. The counter-analysis should be in the same format

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required of the applicant, arriving at a final number. The opposition must clearly identify each

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line item in the application challenged as excessive, improper or otherwise unrecoverable and

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explain why. The opposition, for example, may annotate (legible handwriting will be

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acceptable) the applicant’s declaration to isolate the precise numbers at issue.

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8.

With the benefit of both sides’ filings, representatives of the parties with final

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decision authority shall meet in person and confer to try to resolve all differences as to the

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amount. If no agreement is reached, the moving party must file and serve a declaration showing
full compliance with this paragraph, explaining when, where and who met, their decision

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For the Northern District of California

United States District Court

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authority, how long they met, what documents were reviewed together, and the principal points

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of disagreement. This must be done within 28 CALENDAR DAYS of the filing of movant’s

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detailed declaration.

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9.

If no agreement is reached, a special master shall be appointed. If the parties

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cannot agree on a special master, then the Court shall select a special master. The parties must

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so advise the Court on this within 28 CALENDAR DAYS of the filing of movant’s detailed

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declaration.

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10.

The special master shall have all the powers set forth in FRCP 53(c) and

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FRCP 54(d)(2)(D). The parties shall provide the special master with copies of all motion

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papers and other documents relevant to this dispute. The special master shall review the briefs

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and declarations by the parties on the pending motion, hear argument, and then determine a

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reasonable amount to award, including any fees on fees. The special master shall also

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determine the extent to which any discovery should be permitted — with the caution that further

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discovery should be the exception and not the rule. The special master shall then prepare and

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file a report on recommended findings and amount.

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11.

Absent any supplementation allowed by the special master, the foregoing

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submissions (together with the briefs already filed) shall be the entire record for the motion.

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There will be no replies unless allowed later by the special master. Any further submissions for
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the special master’s use should not be filed with the Court. If objections are later made to the

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special master’s report, the objecting party must file a declaration submitting to the Court a

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complete appendix of relevant communications with the special master.

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12.

The Court will allocate the fees of the special master in a fair and reasonable

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manner, taking into account the reasonableness of the parties’ respective positions and the

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special master’s recommendation in this regard. If the movant must pay, then the special

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master’s compensation shall be deducted from the attorney’s fee award. If the opposing party

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must pay the special master, then it shall pay the special master and pay the award. The Court

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will, however, reserve final judgment on allocation of the expense of the special master until a

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For the Northern District of California

United States District Court

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final determination of the fee issue. A final award shall then be entered.
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Plaintiff has submitted a bill of costs. These costs will be determined in strict

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compliance with the local rules. If a review is sought regarding taxable costs, then the issue

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may also be referred to a special master (or may not).

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14.

Plaintiff also seeks costs under 42 U.S.C. 1988. Costs will be determined in

compliance with what is statutorily permitted.

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IT IS SO ORDERED.

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Dated: November 14, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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