Gonzales v. Physician Health Partners et al

Filing 229

ORDER by Magistrate Judge Kristen L. Mix on 4/26/19. Motion for Attorneys' Fees and Costs Against Defendant CoreCivic Pursuant to Rule 37(a)(5) 206 is GRANTED in part. (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03084-RM-KLM
TIM GONZALES,
Plaintiff,
v.
CORRECTIONAL HEALTH PARTNERS, LLC, a Colorado corporation,
JENNIFER A. MIX, D.O., in her individual capacity, and
CORRECTIONS CORPORATION OF AMERICA a/k/a CoreCivic, Inc. d/b/a Bent County
Corrections Facility,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Attorneys’ Fees and Costs
Against Defendant CoreCivic Pursuant to Rule 37(a)(5) [#206]1 (the “Motion”).
Defendant CoreCivic filed a Response [#217] in opposition to the Motion [#206], and
Plaintiff filed a Reply [#220]. The Court has reviewed the Motion, the Response, the Reply,
the entire case file, and the applicable law, and is sufficiently advised in the premises. For
the reasons set forth below, the Motion [#206] is GRANTED in part.
On August 13, 2018, Plaintiff served his First Set of Discovery on CoreCivic. The
three requests relevant to the present Motion [#206] were as follows:
Request for Production No. 2: Please produce any documents relating to the

1

“[#206]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.

-1-

PPMU’s [i.e., “Private Prison Monitoring Unit”] audits of Defendant
CoreCivic’s facilities in Colorado, including any and all documents provided
to the PPMU for those audits since April 2011.
Request for Production No. 4: Please produce any and all documents relating
to the provision of medical care from April 2011 to present in Defendant
CoreCivic’s facilities.
Request for Production No. 5: Please produce copies of all medical necessity
appeals submitted, and the responses received, in all of Defendant
CoreCivic’s Colorado facilities from April 2011 to present.
Defendant CoreCivic objected to these requests on the grounds that they were vague,
overly broad, overly burdensome, sought irrelevant information which was not proportional
to the needs of the case, and were not calculated to lead to the discovery of admissible
evidence. Additionally, Defendant CoreCivic also objected to Requests 4 and 5 on the
grounds that they sought highly confidential medical and private information about
countless inmates.
Subsequent discussion between the parties to resolve these disagreements failed,
and thus, on November 9, 2018, the Court held a discovery hearing. See [#177]. As a
result, Defendant CoreCivic was ordered to respond to substantially revised and narrowed
versions of Requests 2, 4, and 5. See id. at 1-2. On November 30, 2018, Defendant
CoreCivic produced its Supplemental Response to Plaintiff’s Requests for Production.
Defendant CoreCivic produced some documents responsive to Request 2. Defendant
CoreCivic also produced documents responsive to parts of Request 4, but objected to
providing “documents relating to complaints made by patients or others relating to the
provision of medical care” on grounds that the request, as modified, was still vague, overly
burdensome, sought inadmissible evidence, and sought privileged medical and private
information of inmates. Defendant CoreCivic also objected to Request 4 for “documents
-2-

relating to fines regarding medical services” on grounds of vagueness. In response to
Request 5, Defendant CoreCivic continued to object on the same grounds set forth above,
but in support submitted the affidavits of two employees with personal knowledge of
Defendant CoreCivic’s facilities concerning the processes that would be undertaken and
the estimated resources to be expended producing the requested documents. These
employees estimated it would take Defendant CoreCivic’s staff 56-63 hours to produce
Step 1 grievances at Bent County Correctional Facility (“BCCF”) and Crowley County
Correctional Facility (“CCCF”) (part of Request 4), and up to 60-80 hours to produce the
appeals letters (Request 5).
In the present Motion [#206], Plaintiff seeks an award pursuant to Fed. R. Civ. P.
37(a)(5) for fees and costs expended on these issues for the following period, i.e., between
December 3, 2018, and January 23, 2019. See also Reply [#220] at 1. On December 12,
2018, Plaintiff’s counsel sent a letter asserting certain deficiencies in the Supplemental
Response, although also agreeing that his discovery requests should be further narrowed
in several ways. First, Plaintiff revised Requests 4 and 5 to apply just to BCCF and CCCF,
not all of Defendant CoreCivic’s facilities in Colorado. Second, with respect to the request
for “documents relating to complaints” under Request 4(a), Plaintiff’s counsel modified the
request to seek only Step 1 Grievances at these two facilities from April 2011 to present.
Third, Plaintiff clarified that Request 4(c) was intended to mean “documents related to
contractual remedies.” However, Defendant CoreCivic asserts that Plaintiff’s counsel also
sought to expand the scope of Request 2, to require Defendant CoreCivic to produce eight
new types of documents which were referenced in the PPMU reports, but not created by
PPMU as part of the audit or even by CoreCivic in response to a concern raised in the audit
-3-

report.
In a December 21, 2018 letter to Plaintiff’s counsel, Defendant CoreCivic’s counsel
agreed to produce certain documents and reiterated her concern that Plaintiff’s continued
reformulations of the discovery requests amounted to “trying to recommence the discovery
process with all new discovery requests,” given that the discovery deadline had expired in
October 2018. With respect to Request 2, Defendant CoreCivic argued that requiring it to
produce any documents referenced in the PPMU audits went beyond the reasonable
meaning of “relating to PPMU audits,” and further demonstrated how the revised request
was vague and overly broad. Additionally, Defendant CoreCivic maintained that, even as
narrowed, the significant burden of responding to Requests 4 and 5 did not outweigh the
likely benefit under F.R.C.P. 26(b)(2)(C)(iii), and that the requests continued to seek
privileged confidential information.
Plaintiff’s counsel renewed his same objections to the responses to Requests 2, 4,
and 5 in a letter dated December 28, 2018, and subsequently requested a second
discovery hearing with the Court, which was held on January 23, 2019. The Court granted
Plaintiff’s Request 2 “as narrowed” and required Defendant CoreCivic to produce the
additional categories of documents referenced in the PPMU audits. The Court also ordered
Defendant CoreCivic to produce medical-related Step 1 Grievances at BCCF and CCCF,
redacted for privilege, in response to Request 4 and appeals letters in response to Request
5. The Court noted, but did not hold, that the burden of producing these responses might
outweigh any benefit. The Court ordered Defendant CoreCivic to tender an invoice
regarding the cost to comply with the Order, and provided that Defendant CoreCivic could

-4-

file a written motion to shift costs to Plaintiff.2
Pursuant to Fed. R. Civ. P 37(a)(1), “a party may move for an order compelling
disclosure or discovery.” Pursuant to Fed. R. Civ. P. 37(a)(5)(A), “[i]f the motion is granted
. . . the court must, after giving an opportunity to be heard, require the party . . . whose
conduct necessitated the motion, the party or attorney advising that conduct, or both to pay
the movant’s reasonable expenses incurred in making the motion, including attorney’s
fees.” However, “the court must not order this payment if: . . . (ii) the opposing party’s
nondisclosure, response, or objection was substantially justified; or (iii) other circumstances
make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A). Defendant CoreCivic
does not contest the applicability of the first portion of Fed. R. Civ. P. 37(a)(5) but asserts
that the two exceptions listed above apply here. Response [#217] at 7.
Regarding substantial justification, “[a] party is substantially justified in opposing
discovery . . . if there is a genuine dispute, or if reasonable people could differ as to the
appropriateness of the contested action.” DCD Partners, LLC v. Albracht, 17-mc-00007CMA-KLM, 2018 WL 6061295, at *4 (D. Colo. Nov. 20, 2018) (internal quotation marks
omitted). The test is objective, and no showing of bad faith is required. Id.
The Court has thoroughly reviewed the briefs and the entire audio recording of the
January 23, 2019 discovery hearing. With respect to Request 4 and Request 5, the Court
cannot find that Defendant CoreCivic’s argument was not substantially justified. Although
Defendant CoreCivic was ultimately unsuccessful, at minimum it made a colorable
argument regarding undue burden, as evidenced by the Court’s lengthy discussion with

2

Such a motion has not yet been filed and is not at issue in the present Motion [#206].

-5-

counsel about the issue at the hearing. Accordingly, the Motion [#206] is denied with
respect to Plaintiff’s request for fees and costs in connection with Request 4 and Request
5.
With respect to Request 2, Plaintiff narrowed his request in a letter to Defendant
CoreCivic’s counsel on December 12, 2018. As the Court noted at the January 23, 2019
hearing, the scope of Request 2 clearly encompassed the documents at issue. Although
the initial request may have been overly broad, by December 12, 2018, Plaintiff’s counsel
had voluntarily narrowed the request to a specific, manageable level of production. Thus,
the Court granted this request in full at the hearing, noting that it could find “no legitimate
reason” that the request should not be granted, as narrowed. See [#206-6] at 19-20.
Accordingly, the Court cannot find that Defendant CoreCivic’s argument after December
12, 2018, was substantially justified.
Pursuant to the third exception of Rule 37(a)(5)(A), a court may not order an award
of fees and costs if “other circumstances make an award of expenses unjust.” Fed. R. Civ.
P. 37(a)(5)(A)(iii). The Advisory Committee to the 1970 amendment of Rule 37 explained
that this exception gives the court “necessary flexibility” as the court “retains the power to
find” that specific circumstances make an award of expenses unjust—“as where the
prevailing party also acted unjustifiably.” Here, the Court finds that no circumstances exist
to make an award of expenses unjust with respect to Request 2. To the extent Defendant
CoreCivic argues here that it “spent significant amounts of time deciphering what discovery
would be responsive to these requests” and that the requests “have changed substantially
from the discovery requests initially served on August 13, 2018,” the Court has taken this
into consideration in connection with the amount of fees granted below.
-6-

To determine a reasonable fee award,3 the Court must conduct a lodestar calculation
as set forth in Hensley v. Eckerhart, 641 U.S. 424, 433 (1983). Anchondo v. Anderson,
Crenshaw & Assocs., LLC, 616 F.3d 1098, 1102 (10th Cir. 2002). A lodestar calculation
requires multiplying the number of attorney hours expended to resolve an issue or perform
a task by a reasonable hourly billing rate. Hensley, 641 U.S. at 433. To determine the
number of hours expended, the Court reviews counsel’s billing entries to ensure that
counsel exercised proper billing judgment. Case v. Unified Sch. Dist. No. 233, Johnson
Cty., Kan., 157 F.3d 1243, 1250 (10th Cir. 1998) (internal quotation marks omitted). Once
the Court determines the lodestar, it may “adjust the lodestar upward or downward to
account for the particularities” of the work performed. Phelps v. Hamilton, 120 F.3d 1126,
1131 (10th Cir. 1997).
“Billing judgment consists of winnowing the hours actually expended down to the
hours reasonably expended.”

Case, 157 F.3d at 1250.

“In determining what is a

reasonable time in which to perform a given task,” an attorney submitting billing entries
should consider the following factors: (1) the complexity of the case; (2) the number of
reasonable strategies pursued; (3) the responses necessitated by the maneuvering of the
other side; and (4) “the potential duplication of services” caused by the presence of multiple
attorneys when one would suffice. Ramos v. Lamm, 713 F.2d 546, 554 (10th Cir. 1983)

3

Defendant CoreCivic “does not address the excessive time included in Plaintiff’s request,
nor the excessively high rates sought for his generally inexperienced counsel.” Response [#217]
at 7 n.4. “Should the Court be inclined to grant any portion of Plaintiff’s Motion, CoreCivic reserves
its right to challenge and contest both.” Id. The Court rejects this statement outright. Plaintiff’s
Motion [#206] appropriately prepared and included all of the necessary information pursuant to
D.C.COLO.LCivR 54.3 against which Defendant CoreCivic was obligated to respond at the same
time as it responded to all of Plaintiff’s other arguments.

-7-

(overruled on other grounds by Pennsylvania v. Delaware Valley Citizens’ Council for Clean
Air, 483 U.S. 711, 725 (1987)). The burden is on the party requesting fees to prove that
its counsel exercised proper billing judgment. Case, 157 F.3d at 1250 (“Counsel for the
party claiming the fees has the burden of proving hours to the district court by submitting
meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are
sought, all hours for which compensation is requested and how those hours were allotted
to specific tasks.”). Therefore, counsel must make a good faith effort to exclude hours or
costs that are “excessive, redundant or otherwise unnecessary.” Hensley, 461 U.S. at 434.
According to the billing records provided, three attorneys worked on this discovery
dispute (Gail Johnson, Aurora Randolph, and Haley DiRenzo),4 each at a rate of $220.50
for a total of 43.1 hours of requested time.5 This creates a lodestar of $9,503.55. With
respect to costs, Plaintiff’s counsel assert a total of $346.16 for parking, travel, Westlaw
fees, copy charges, and transcript fee. See [#206-2] at 5.
The Court exercises its “discretion in making this equitable judgment” and does not
“apportion the fee award mechanically” by considering each claimed expense and
determining its reasonableness overall. Hensley, 461 U.S. at 436-40 (holding that the
Court “should make clear that it has considered the relationship between the amount of the
fee awarded and the results obtained”); see also White v. GMC, Inc., 908 F.2d 675, 684-85
(10th Cir. 1990) (noting that the amount of fees accumulated to secure the desired result

4

Gail Johnson is the managing partner of Johnson & Klein, PLLC, and Aurora Randolph
and Haley DiRenzo are associate attorneys at the same firm. Decl. of Johnson [#206-1] ¶¶ 2, 4.
5

Counsel assert that they spent an additional 17.5 hours of time on this dispute for which
they did not bill here. Decl. of Johnson [#206-1] ¶ 13.

-8-

must be reasonably related to the type and significance of issue in dispute). Here, the
Court has considered a wide variety of factors in determining the amount of an award to
Plaintiff, including, but not limited to, the history and timing of the various events underlying
this dispute; the fact that all of Plaintiff’s requests at the discovery hearing were granted but
that only one of Defendant CoreCivic’s defenses was not substantially justified; and which
costs and fees would have been expended regardless even had only Request 2 been
brought to the Court’s attention for the January 23, 2019 hearing.

Based on the

undersigned’s thirty-three years of combined private and judicial experience and careful
consideration of the briefs and attached exhibits, the Court finds that payment of $2,094.62
for attorneys’ fees and $326.15 in costs is reasonable here.
Accordingly, the Motion [#206] is GRANTED in part. Defendant CoreCivic shall pay
Plaintiff’s counsel $2,094.62 for attorneys’ fees and $326.15 in costs within thirty days of
entry of this Order.

DATED: April 26, 2019

-9-