Friedman v. SThree Plc. et al

Filing 311

RULING. For the reasons set forth in the attached Ruling, the Court GRANTS, in part, Palladyne Defendants' 205 Application for Attorney's Fees and Costs; GRANTS, in part, SThree Defendants' 206 Second Application for Attorney's Fees; and GRANTS, in part, Palladyne Defendants' 225 Motion to Increase Daily Sanction and for Other Relief. Signed by Judge Sarah A. L. Merriam on 9/15/2017. (Kaczmarek, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
DAN FRIEDMAN
:
:
v.
:
:
STHREE PLC., et al.
:
:
------------------------------x

Civil No. 3:14CV00378(AWT)

September 15, 2017

RULING RE: ATTORNEYS’ FEES, COSTS, AND SANCTIONS
Pending before the Court are several motions and
applications for attorneys’ fees and costs by defendants SThree
PLC., SThree Inc., Huxley Associates Ltd., Huxley Associates
Inc., Huxley Associates B.V., and Ivanka Radujko (the “SThree
defendants”); and by defendants Palladyne International Asset
Management B.V., Ismael Abudher, Lily Yeo, Nikolay Tischchenko,
Piedad Alonso Gamo, and Bill Stevens (the “Palladyne
defendants”). For the reasons set forth herein, the Court
GRANTS, in part, SThree Defendants’ Second Application for
Attorney’s Fees [Doc. #206]; GRANTS, in part, Palladyne
Defendants’ Application for Attorney’s Fees and Costs [Doc.
#205]; and GRANTS, in part, Palladyne Defendants’ Motion to
Increase Daily Sanction and for Other Relief [Doc. #225].1

The Palladyne defendants filed both a redacted motion, [Doc.
#224], and an unredacted motion, under seal. [Doc. #225]. The
Court’s references in this Order are to the sealed motion. The
Court hereby terminates Doc. #224 as moot, in light of its
Ruling on Doc. #225.
1

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I.

BACKGROUND
The Court presumes familiarity with the background and

procedural history of this matter, and thus only discusses
information that is necessary to resolution of the motions and
applications before it.
On June 17, 2016, Judge Alvin W. Thompson entered an order
setting out the plan for jurisdictional discovery. See Doc.
#121. The parties were instructed by Judge Thompson to file a
notice with the Court immediately upon becoming aware of a
discovery dispute, rather than filing a motion to compel or for
a protective order. See Doc. #121 at 2. The Order requires each
side to “summarize its position in no more than two pages,” and
states that “the court will hold a telephonic status conference
to resolve the dispute.” Id. (emphasis omitted).
On September 6, 2016, the SThree defendants filed a Notice
of Second Discovery Dispute. See Doc. #157. The Notice asserted
that plaintiff’s jurisdictional discovery production was
deficient; that plaintiff’s representations about existing
discovery were “materially incorrect;” and that the searches
that plaintiff had conducted for responsive documents were
“insufficient and not reasonably calculated to identify all
responsive documents.” Id. at 2. Attached to the Notice were
communications between counsel for plaintiff and the defendants,

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defendants’ discovery requests, and a portion of plaintiff’s
responses. See generally Doc. #157-1 through Doc. #157-9.
Plaintiff filed a response to the SThree defendants’ Notice
on September 12, 2016. See Doc. #160. Plaintiff stated that he
had “no objection to producing the limited number of items
subject to the SThree defendants’ filing.” Id. at 2 (footnotes
omitted). He argued that defendants received timely responses to
their discovery requests, and that reasonable searches had been
conducted. See id. Plaintiff responded to each asserted
deficiency arguing that all responsive documents had been
produced, and “if additional documents are located they will be
produced.” Id. at 2-4. Plaintiff filed a Supplemental Submission
in Opposition on September 14, 2016, noting that additional
searches had been conducted and additional documents had been
produced. See Doc. #162.
On September 16, 2016, Judge Thompson referred this matter
to the undersigned to conduct a discovery conference regarding
the dispute. See Docs. #168, Doc. #169. The Court held an inperson conference on October 7, 2016, and issued an Order that
same day requiring plaintiff “to perform additional searches; to
review the results of each search; to provide a certification
detailing the nature of each search; and to identify any records
that have not been produced on the basis of privilege in a
privilege log[.]” Doc. #182 at 2. The Court imposed a deadline
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for these additional searches and production. Following two
telephonic status conferences and after review of defendants’
responses to plaintiff’s certification, and review of
plaintiff’s response, on October 24, 2016, the Court found that
“plaintiff has failed to adequately respond to the defendants’
discovery requests and to comply with the Court’s orders, and
that sanctions are therefore appropriate.” Doc. #200 at 3. The
Court ordered counsel for defendants to “file an affidavit of
fees and costs with the Court ... showing the costs and fees
incurred in connection with the filing of all notices and
motions related to the instant discovery dispute, as well as the
attendance at and participation in all court proceedings
necessitated by plaintiff’s conduct.” Id. at 21.
Plaintiff did not file an objection to the Court’s Order.2
On November 4, 2016, the Palladyne defendants and the SThree
defendants each filed applications for attorneys’ fees and
costs. See Doc. #205, Doc. #206. On December 9, 2016, plaintiff

Any objection to the Court’s order would have had to be filed
within fourteen days of October 24, 2016. See D. Conn. L. R.
72.2(a). “A party may not thereafter assign as error a defect in
the Magistrate Judge’s order to which objection was not timely
made.” Id.; see also Fed. R. Civ. P. 72(a) (“A party may serve
and file objections to the order within 14 days after being
served with a copy. A party may not assign as error a defect in
the order not timely objected to. The district judge in the case
must consider timely objections and modify or set aside any part
of the order that is clearly erroneous or is contrary to law.”).
2

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filed a Memorandum in Opposition to defendants’ fee
applications, see Doc. #217, and on December 14, 2016, plaintiff
filed an Amended Memorandum in Opposition.3 Doc. #219. On
December 23, 2016, the Palladyne defendants filed a reply to
plaintiff’s objection, see Doc. #223, and on December 30, 2016,
the SThree defendants filed a reply. See Doc. #226.
II.

LEGAL STANDARD
A.

Rule 37 Sanctions

“[S]anctions for discovery abuses are imposed pursuant to
Rule 37.” Doe v. Mastoloni, 307 F.R.D. 305, 311 (D. Conn. 2015)
(citation omitted). “The mildest sanction [available under Rule
37] is the reimbursement of expenses to the opposing party
caused by the offending party’s failure to cooperate, while the
harshest sanction is the order of dismissal and default
judgment.” Martinelli v. Bridgeport Roman Catholic Diocesan
Corp., 179 F.R.D. 77, 80 (D. Conn. 1998) (citation omitted).
Disciplinary sanctions under Rule 37 are intended to
serve three purposes. First, they ensure that a party
will not benefit from its own failure to comply. Second,
Plaintiff’s Amended Opposition was filed without leave of
Court. Plaintiff noted that the opposition was amended because
the original opposition papers “did not include exhibits and
references.” Doc. #219 at 1 n.1. However, a comparison of the
two documents reveals that there were multiple substantive
changes made as well. See Doc. #220-3 (redline comparison of
Doc. #217 and Doc. #219). While the Court does not condone this
behavior, it notes that the defendants had an opportunity to
respond to the amended opposition, and therefore no prejudice
resulted from plaintiff’s untimely, amended submission.
Accordingly, the Court will consider plaintiff’s Amended
Opposition in ruling on the motions before it.
3

~ 5 ~

they are specific deterrents and seek to obtain
compliance with the particular order issued. Third, they
are intended to serve a general deterrent effect on the
case at hand and on other litigation, provided that the
party against whom they are imposed was in some sense at
fault.
Update Art, Inc. v. Modiin Pub., Ltd., 843 F.2d 67, 71 (2d Cir.
1988) (citations omitted).
Pursuant to Rule 37(a), if a motion to compel “is granted
-- or if the disclosure or requested discovery is provided after
the motion was filed -- the court must, after giving an
opportunity to be heard, require the party or deponent 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.” Fed.
R. Civ. P. 37(a)(5)(A). However, the Court “must not order this
payment if: (i) the movant filed the motion before attempting in
good faith to obtain the disclosure or discovery without court
action; (ii) the opposing party’s nondisclosure, response, or
objection was substantially justified; or (iii) other
circumstances make an award of expenses unjust.” Id.; see also
Mason Tenders Dist. Council of Greater N.Y. v. Phase Constr.
Servs., Inc., 318 F.R.D. 28, 43 (S.D.N.Y. 2016) (“If a court
grants a motion to compel, it must, after giving an opportunity
to be heard, impose the moving party’s reasonable expenses
incurred in making the motion on the party who created the need
for the motion, unless the nondisclosure was substantially
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justified or other circumstances make such an award unjust.”
(quotation marks and citation omitted)).
Rule 37(b) provides that if a party “fails to obey an order
to provide or permit discovery,” the “court must order the
disobedient party, the attorney advising that party, or both to
pay the reasonable expenses, including attorney’s fees, caused
by the failure, unless the failure was substantially justified
or other circumstances make an award of expenses unjust.” Fed.
R. Civ. P. 37(b)(2)(A)-(C); see also Martinelli, 179 F.R.D. at
80 (noting that Rule 37 “provides a non-exclusive list of
sanctions that may be imposed on a party for failing to obey an
order to provide or permit discovery” (citation omitted)).
“Provided that there is a clearly articulated order of the court
requiring specified discovery, the district court has the
authority to impose Rule 37(b) sanctions for noncompliance with
that order.” Tucker v. Am. Int’l Grp., Inc., 936 F. Supp. 2d 1,
26 (D. Conn. 2013) (quoting Daval Steel Prods., a Div. of
Francosteel Corp. v. M/V Fakredine, 951 F.2d 1357, 1363 (2d Cir.
1991)). Rule 37(b) “requires that the sanctions must be just;
and the sanction must relate to the particular claim to which
the discovery order was addressed.” Id. at 1366 (citation
omitted).
“A district court has wide discretion to impose sanctions,
including severe sanctions, under Federal Rule of Civil
~ 7 ~

Procedure 37[.]” Design Strategy, Inc. v. Davis, 469 F.3d 284,
294 (2d Cir. 2006); see also Reilly v. Natwest Markets Grp.
Inc., 181 F.3d 253, 267 (2d Cir. 1999) (“Whether exercising its
inherent power, or acting pursuant to Rule 37, a district court
has wide discretion in sanctioning a party for discovery
abuses.”). “Monetary sanctions pursuant to Rule 37 for
noncompliance with discovery orders usually are committed to the
discretion of the magistrate [judge], reviewable by the district
court under the clearly erroneous or contrary to law standard.”
Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d
Cir. 1990) (quotation marks and citations omitted). “Rule 37
sanctions must be applied diligently both to penalize those
whose conduct may be deemed to warrant such a sanction, and to
deter those who might be tempted to such conduct in the absence
of such a deterrent.” Roadway Exp., Inc. v. Piper, 447 U.S. 752,
763–64 (1980) (quotation marks and citation omitted); see also
S. New England Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 149
(2d Cir. 2010) (noting that sanctions may be justified even when
“a party finally (albeit belatedly) complies with discovery
orders after sanctions are imposed” (citation omitted)).
B.

Attorney’s Fees

An award of attorney’s fees pursuant to Rule 37 is
calculated “according to the lodestar formula, in which the
number of hours spent by the attorneys is multiplied by the
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hourly rate normally charged for similar work by attorneys of
like skill in the area.” Bowne of New York City, Inc. v. AmBase
Corp., 161 F.R.D. 258, 266 (S.D.N.Y. 1995) (quotation marks and
citations omitted); see also Congregation Rabbinical Coll. of
Tartikov, Inc. v. Vill. of Pomona, 188 F. Supp. 3d 333, 337
(S.D.N.Y. 2016) (determining that the lodestar is the
presumptively reasonable fee in determining the amount of
attorneys’ fees and costs warranted in connection with a motion
for sanctions); Rahman v. The Smith & Wollensky Rest. Grp.,
Inc., No. 06CV6198(LAK), 2008 WL 1899938, at *2 (S.D.N.Y. Apr.
29, 2008) (“As with the award of statutory attorneys’ fees to a
party that prevails on the merits, an award of fees as a
sanction for discovery abuse begins with a lodestar analysis.”
(citations omitted)).
“The most useful starting point for determining the amount
of a reasonable fee is the number of hours reasonably expended
on the litigation multiplied by a reasonable hourly rate.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The resulting
amount “is only presumptively reasonable; it is still within the
court’s discretion to adjust the amount upward or downward based
on the case-specific factors.” Tyco Healthcare Grp. LP v.
Ethicon Endo-Surgery, Inc., No. 3:10CV60(JBA), 2012 WL 4092515,
at *1 (D. Conn. Sept. 17, 2012) (quotation marks and citation
omitted). “Hence, the process is really a four-step one, as the
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court must: (1) determine the reasonable hourly rate; (2)
determine the number of hours reasonably expended; (3) multiply
the two to calculate the presumptively reasonable fee; and (4)
make any appropriate adjustments to arrive at the final fee
award.” Adorno v. Port Auth. of New York & New Jersey, 685 F.
Supp. 2d 507, 511 (S.D.N.Y. 2010).
“The presumptively reasonable fee boils down to what a
reasonable, paying client would be willing to pay, given that
such a party wishes to spend the minimum necessary to litigate
the case effectively.” Simmons v. N.Y. City Transit Auth., 575
F.3d 170, 174 (2d Cir. 2009) (quotation marks and citation
omitted). Factors that the Court may consider in determining a
reasonable fee are:
(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the level of skill
required to perform the legal service properly; (4) the
preclusion of employment by the attorney due to
acceptance of the case; (5) the attorney’s customary
hourly rate; (6) whether the fee is fixed or contingent;
(7) the time limitations imposed by the client or the
circumstances; (8) the amount involved in the case and
the results obtained; (9) the experience, reputation,
and ability of the attorneys; (10) the “undesirability”
of the case; (11) the nature and length of the
professional relationship with the client; and (12)
awards in similar cases.
Beastie Boys v. Monster Energy Co., 112 F. Supp. 3d 31, 48
(S.D.N.Y. 2015) (citations omitted).
“The district court retains discretion to determine what
constitutes a reasonable fee.” Millea v. Metro-N. R.R. Co., 658
~ 10 ~

F.3d 154, 166 (2d Cir. 2011) (quotation marks and citation
omitted). “However, this discretion is not unfettered,” and “the
district court must abide by the procedural requirements for
calculating those fees articulated by [the Second Circuit] and
the Supreme Court.” Id. “Attorney’s fees must be reasonable in
terms of the circumstances of the particular case[.]” Alderman
v. Pan Am World Airways, 169 F.3d 99, 102 (2d Cir. 1999)
(citation omitted). In determining a reasonable fee, the Court
is mindful that “attorney’s fees are to be awarded with an eye
to moderation, seeking to avoid either the reality or the
appearance of awarding windfall fees.” Tsombanidis v. City of W.
Haven, 208 F. Supp. 2d 263, 270 (D. Conn. 2002) (quotation marks
and citation omitted), aff’d sub nom. Tsombanidis v. W. Haven
Fire Dep’t, 352 F.3d 565 (2d Cir. 2003); see also New York State
Assoc. for Retarded Children v. Carey, 711 F.2d 1136, 1139 (2d
Cir. 1983).
III. DISCUSSION
The Court will address the reasonableness of the hours and
rates sought in each defendants’ pending fee applications, but
turns first to plaintiff’s opposition to the fee applications.
In his response to the defendants’ applications, plaintiff
primarily challenges the Court’s original order, contending that
the sanctions imposed were unwarranted and that plaintiff was
not afforded due process. See Doc. #219 at 2-3. Plaintiff also
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argues that the fees claimed by the defendants are excessive and
cannot fairly be imposed on plaintiff. See id. The Court has
already determined that an award of attorneys’ fees is proper in
this instance, and no timely objection or motion to reconsider
was filed. Accordingly, the Court will not revisit that issue.
However, the Court will briefly address plaintiff’s due process
argument.
“Before imposing sanctions, the court must afford the
person it proposes to sanction due process, i.e., notice and
opportunity to be heard.” Mickle v. Morin, 297 F.3d 114, 126 (2d
Cir. 2002) (quotation marks and citation omitted). “At a
minimum, this means that the delinquent party be provided with
notice of the possibility that sanctions will be imposed and
with an opportunity to present evidence or arguments against
their imposition.” Yong Kui Chen v. Wai Yin Chan, 615 F. App’x
10, 12 (2d Cir. 2015) (quotation marks and citations omitted).
However, “[a]s a general rule, a court is not obliged to give a
formal warning that sanctions might be imposed for violation of
the court’s orders.” Fonar Corp. v. Magnetic Resonance Plus,
Inc., 128 F.3d 99, 102 (2d Cir. 1997) (citation omitted); see
also Daval Steel Prod., 951 F.2d at 1366 (“Parties and counsel
have no absolute entitlement to be ‘warned’ that they disobey
court orders at their peril.”). “[I]n the Rule 37 context, [the
Second Circuit has] declined to impose rigid requirements on
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either the timing or the form of the notice afforded to a
sanctioned party.” Reilly v. Natwest Markets Grp. Inc., 181 F.3d
253, 270 (2d Cir. 1999) (citation omitted).
Here, plaintiff was provided: An opportunity to respond to
defendants’ notices of deficiencies; an opportunity to be heard
at the Court’s October 7, 2016, hearing during which the Court
specifically noted that it assumes “that there will be a motion
for sanctions coming,” Doc. #200 at 69, and that the cost of
continuing to conduct searches until there has been satisfaction
“will not be borne by defendant[s],” Id. at 34; notice of the
Court’s October 7, 2016, Order in which the Court stated:
“Failure to comply fully with the Court’s Orders and deadlines
may result in the imposition of sanctions, including financial
sanctions, preclusion of evidence or claims, or dismissal or
default,” Doc. #182 at 14; an opportunity to object to the
Court’s October 7, 2016, Order; an opportunity to be heard both
at the October 13, 2016, and the October 21, 2016, conferences;
notice of the Court’s October 24, 2016, Order stating that
“[m]onetary sanctions will be imposed at this time. ... Failure
to comply in the future will result in additional sanctions,”
Doc. #200 at 13-14, and that the Court “finds that defendants
are entitled to costs and fees as a sanction for plaintiff’s
conduct,” and inviting counsel for defendants to file an
affidavit of fees and costs with the Court, Doc. #200 at 21; an
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opportunity to object to the Court’s October 24, 2016, Order; an
opportunity to object to the reasonableness of defendants’ fee
applications; an opportunity to object to defendants’ Rule 37
motions for additional sanctions; notice of the Court’s May 17,
2017, Order to Show Cause; and an opportunity to respond to said
Order. In light of the abundant notice that sanctions could be
imposed, and the ample opportunity to be heard, the Court finds
that plaintiff’s due process rights have been protected.
Turning to the amount of the award, the Court will address
the defendants’ applications in turn.
A.

The SThree Defendants’ Second Application for
Attorneys’ Fees [Doc. #206]

The SThree defendants have submitted an application
seeking an award of $52,272.00 in attorneys’ fees and $1,283.52
in costs, reflecting 157.5 hours of work performed by four
attorneys, a law clerk, a litigation support specialist and a
paralegal on the instant discovery dispute. After careful
review, the Court adjusts the fee award and costs as set forth
below.
1.

Hourly Rate

The Court addresses first the hourly rates requested by the
SThree defendants’ counsel. Determination of an appropriate
hourly rate “contemplates a case-specific inquiry into the
prevailing market rates for counsel of similar experience and

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skill to the fee applicant’s counsel.” Farbotko v. Clinton Cty.
of New York, 433 F.3d 204, 209 (2d Cir. 2005). The Court may
take “judicial notice of the rates awarded in prior cases and
the court’s own familiarity with the rates prevailing in the
district.” Id. (collecting cases). This determination “also
requires an evaluation of evidence proffered by the parties.”
Id.
“According to the forum rule, courts should generally use
the hourly rates employed in the district in which the reviewing
court sits in calculating the presumptively reasonable fee.”
Simmons, 575 F.3d at 174 (quotation marks and citations
omitted); see also Congregation Rabbinical Coll. of Tartikov,
Inc., 188 F. Supp. 3d at 338 (“A reasonable hourly rate is based
on the current prevailing market rate for lawyers in the
district in which the ruling court sits.” (quotation marks and
citation omitted)). Thus,
when faced with a request for an award of higher outof-district rates, a district court must first apply a
presumption in favor of application of the forum rule.
In order to overcome that presumption, a litigant must
persuasively establish that a reasonable client would
have selected out-of-district counsel because doing so
would likely (not just possibly) produce a substantially
better net result.
Simmons, 575 F.3d at 175. “Mere proximity of the districts and
brand name or prestige of the attorneys will not overcome the
presumption. The party seeking the award must make a
particularized showing that the selection of counsel was based
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on experience and objective factors and that use of in-district
counsel would produce a substantially inferior result.”
CSL Silicones, Inc. v. Midsun Grp. Inc., No. 3:14CV01897(CSH),
2017 WL 1399630, at *4 (D. Conn. Apr. 18, 2017) (citations
omitted).
Two attorneys performed the majority of work on the instant
discovery dispute: Aneca E. Lasley, a partner at Squire Patton
Boggs in Columbus, Ohio, and Christopher F. Haas, a senior
associate at the same firm. See Doc. #206-1 at 2-3. Attorney
Lasley graduated from law school in 2000. See id. at 2. She
practices complex commercial litigation, and also serves as the
Firmwide Hiring Chair and as the Columbus Office Hiring Partner.
See id. at 3. She bills at a rate of $495 per hour for this
matter. See id. Attorney Haas graduated from law school in 2005,
and also practices complex commercial litigation. See id. His
billing rate in this matter is $315 per hour. See id. Counsel
contends that these hourly rates are “reasonable and are
consistent with the prevailing rates charged in the Columbus
market for similarly complex civil litigation.” Id. at 4.
The Court’s survey of fee awards reveals that the SThree
defendants’ hourly rates are higher than those awarded for
comparable services by attorneys in this District. See, e.g.,
Trustees of the I.B.E.W. Local Union No. 488 Pension Fund v.
Norland Elec., Inc., No. 3:11CV709(CSH), 2015 WL 3581011, at *5
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(D. Conn. June 5, 2015) (finding $250 a reasonable rate for an
attorney with 14 years of experience practicing ERISA law);
Crawford v. City of New London, No. 3:11CV1371(JBA), 2015 WL
1125491, at *3 (D. Conn. Mar. 12, 2015) (noting that “an
examination of more recent attorneys’ fees awards in this
district demonstrates that $450/hour is on the high end and is
generally reserved for particularly distinguished attorneys
successfully taking on difficult or novel cases” (collecting
cases)); Rousseau v. Morris, No. 3:11CV01794(SRU), 2014 WL
941476, at *1 (D. Conn. Mar. 11, 2014) (finding $350 a
reasonable hourly rate for a nationally-recognized attorney with
over 35 years’ experience litigating consumer matters); Parris
v. Pappas, 844 F. Supp. 2d 262, 266 (D. Conn. 2012) (finding
$275 per hour a reasonable rate for an attorney with more than
eleven years of legal experience); Valley Hous. Ltd. P’ship v.
City of Derby, No. 3:06CV1319(TLM), 2012 WL 1077848, at *6 (D.
Conn. Mar. 30, 2012) (finding $400 per hour a reasonable rate
for a civil rights attorney with thirty years of experience, and
$350 per hour reasonable for an attorney with twenty-five years
of civil rights law experience); Bridgeport & Port Jefferson
Steamboat Co. v. Bridgeport Port Auth., No. 3:03CV599(CFD), 2011
WL 721582, at *5 (D. Conn. Feb. 22, 2011) (finding $325 per hour
a reasonable rate for a partner with eighteen years of

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experience, and $275 per hour reasonable for senior associates
with more than eight years of experience).
Counsel for the SThree defendants do not argue any grounds
to overcome the presumption in favor of the application of the
forum rule. Nothing in defendants’ application indicates that
work on this matter required any particular specialization or
resources that could not be provided by counsel in this
District. See Innis Arden Golf Club v. Bowes, No.
3:06CV1352(JBA), 2012 WL 1108527, at *3 (D. Conn. Mar. 30, 2012)
(noting that overcoming the forum rate presumption “requires a
showing of subject matter specialization or law firm resources
needed for the particular case which Connecticut firms could not
adequately provide”). Indeed, counsel for the SThree defendants
have not made any showing, let alone a particularized showing,
that their clients selected them over local counsel based on
their experience and other objective factors, and that the use
of local counsel would have produced a “substantially inferior
result.” Simmons, 575 F.3d at 176.
Accordingly, as defendants have not presented evidence
sufficient to overcome the presumption in favor of the forum
rule, the Court reduces Attorney Lasley’s rate to $375 per hour
and Attorney Haas’ rate to $275 per hour, rates that the Court
finds are reasonable for this District in light of counsel’s
experience.
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The SThree defendants also request fees for time that
Attorney Joseph P. Ashbrook spent on this matter. Attorney
Ashbrook is an associate at Squire Patton Boggs, and graduated
from law school in 2013. See Doc. #206-1 at 3. He bills at a
rate of $240 an hour. See id. The Court hereby reduces Attorney
Ashbrook’s rate to $200 per hour, which is in accordance with a
reasonable hourly rate for an attorney with comparable
experience in this District. See Schuman v. Aetna Life Ins. Co.,
No. 3:15CV1006(SRU), 2017 WL 2662191, at *9 (D. Conn. June 20,
2017) (finding $200 per hour an appropriate rate for a first or
second year associate); Parris, 844 F. Supp. 2d at 267 (finding
$200 per hour a reasonable rate for an attorney with four years
of legal experience).
Local counsel for the SThree defendants, Attorney Mirman,
also seeks payment for his time spent on this discovery dispute;
he bills at $470 per hour. See Doc. #206-2 at 2-3. Attorney
Mirman graduated from law school in 1978, and was admitted to
practice in the District of Connecticut in 1979. See id. at 3.
No additional information is provided as to his expertise,
specialization or experience. See id. Although Attorney Mirman
has been practicing law for close to forty years, there is no
assertion made that Attorney Mirman’s years of experience were
of special value in this matter in his role as local counsel.
The Court therefore reduces his hourly rate to $400 per hour.
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Local counsel for the SThree defendants requests a rate of
$160 per hour for Jo A. Rosinski, a paralegal. See id. No
information is provided about Ms. Rosinski’s experience. Ms.
Rosinki’s rate is reduced to $150 per hour, in accord with the
rate that is generally awarded in this District for the work of
paralegals. See KX Tech LLC v. Dilmen LLC, No. 3:16CV00745(CSH),
2017 WL 2798248, at *9 (D. Conn. June 28, 2017) (awarding $150
per hour for paralegal work, noting that rate is “commensurate
with the hourly rates typically awarded for the work of
paralegals in this District” (collecting cases)).
The SThree defendants also request fees for work performed
by India Scarver, a law clerk, at $205 per hour, and for Kelly
L. Guthleben, a litigation support specialist, at $215 per hour.
See Doc. #206-1 at 3-4. The SThree defendants do not provide any
information to assist the Court in determining what
responsibilities Ms. Scarver and Ms. Guthleben have and whether
their work is more akin to that of a paralegal or that of an
attorney. Ms. Scarver graduated from law school in 2016; the
Court assumes that, based on her title, she had not yet been
admitted to practice law at the time this work was performed. No
information is provided about Ms. Guthleben’s experience or
background. From a review of the billing records, it appears
that Ms. Scarver assisted in reviewing plaintiff’s production to
determine whether documents were missing, and summarizing that
~ 20 ~

information in table and spreadsheet form for Attorney Haas. See
Doc. #206-1 at 36-7. Ms. Guthleben completed similar work that
was more technology-based. See id. The Court has found no
relevant authority in this District –- or in either District in
Ohio –- as to a reasonable fee for a litigation support
specialist; in the Southern District of New York, a court
recently determined that $150 an hour is a reasonable rate for
such work. See TufAmerica Inc. v. Diamond, No. 12CV3529(AJN),
2016 WL 1029553, at *6 (S.D.N.Y. Mar. 9, 2016) (reducing a
litigation support specialist’s rate from $206.85 per hour to
$150 per hour), reconsideration granted on other grounds, No.
12CV3529(AJN), 2016 WL 3866578 (S.D.N.Y. July 12, 2016). The
Court therefore exercises its discretion to reduce both Ms.
Scarver’s rate and Ms. Guthleben’s rate to $150 an hour, which,
as noted above, is commensurate with a reasonable rate for a
paralegal in this District, and is also the rate awarded for
work by a summer associate. See Retained Realty, Inc. v.
Spitzer, 643 F. Supp. 2d 228, 242 (D. Conn. 2009) (finding $150
per hour a reasonable hourly rate for a summer associate); cf.
Doe v. Darien Bd. of Educ., No. 3:11CV1581(JBA), 2015 WL
8770003, at *6 (D. Conn. Dec. 14, 2015) (finding $100 per hour a
reasonable hourly rate for a legal intern or summer associate).

~ 21 ~

2.

Hours Billed

Having determined the reasonableness of the rates
requested, the Court turns next to the reasonableness of the
hours billed. “[T]he fee applicant bears the burden of
establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates.” Hensley, 461 U.S.
at 437. An application for attorney’s fees must be “accompanied
by contemporaneous time records indicating, for each attorney,
the date, the hours expended, and the nature of the work done.”
Marion S. Mishkin Law Office v. Lopalo, 767 F.3d 144, 148 (2d
Cir. 2014) (quotation marks and citation omitted). “The district
court ... should exclude from [its] fee calculation hours that
were not reasonably expended.” Hensley, 461 U.S. at 434
(quotation marks and citation omitted).
In support of the instant fee application, the SThree
defendants submit time records for work performed in connection
with “the deficiencies in Plaintiff’s production after August
11, 2016, which gave rise to the SThree Defendants’ Second
Notice of Discovery Dispute (ECF Doc. 157), and led to the
October 24 Order.” Doc. #206 at 1-2. Thus, the SThree
defendants’ time entries date from August 13, 2016, through
October 24, 2016. See Doc. #206-1 at 35-38. Pursuant to Rule
37(a)(5)(A), the Court awards attorney’s fees for work performed
in connection with the SThree defendants’ Notice of Discovery
~ 22 ~

Dispute. Pursuant to Rule 37(b)(2)(C), the Court also awards
attorney’s fees and costs for failure to comply with the Court’s
October 7, 2016, Order. The Court will address the
reasonableness of the hours expended in relation to each in
turn.
a. Hours Related to Rule 37(a)(5)(a) Sanctions
As discussed above, this discovery dispute was brought to
the Court’s attention by the filing of the SThree defendants’
Notice of Second Discovery Dispute. See Doc. #157. As also noted
previously, Judge Thompson’s Jurisdictional Discovery Order
required that in lieu of filing motions to compel, the parties
file notices on the docket describing any discovery disputes.
See Doc. #121 at 2. Accordingly, the Court construes the SThree
defendants’ Notice of Second Discovery Dispute as a motion to
compel. The Court notes that plaintiff had an opportunity to
respond to said Notice, and indeed, plaintiff did file two
responses. See Doc. #160, Doc. #162.4 Plaintiff further had the

A motion to compel “must include a certification that the
movant has in good faith conferred or attempted to confer with
the person or party failing to make disclosure or discovery in
an effort to obtain it without court action.” Fed. R. Civ. P.
37(a)(1). The SThree defendants’ Notice states that counsel sent
three letters to plaintiff’s counsel “seeking to resolve these
deficient areas of production and received two responses.” Doc.
#157 at 2. Attached to the Notice are copies of a number of
emails and letters between the SThree defendants’ counsel and
plaintiff’s counsel regarding the deficient production, and
evincing the SThree defendants’ attempt to resolve the dispute
4

~ 23 ~

opportunity to be heard on this Notice during the October 7,
2016, in-person conference, during which the Court granted the
relief sought in defendants’ Notice. See Doc. #182. The Court
has already determined that an award of fees is appropriate as a
sanction for plaintiff’s failure to adequately respond to
defendants’ discovery requests. See Doc. #200. Thus, pursuant to
the Court’s authority under Rule 37(a), the reasonable fees
incurred in connection with defendants’ Notice/motion will be
awarded.
Rule 37(a) entitles defendants “only to the costs that
[defendants] would not have incurred but for the other party’s
conduct.” Romeo & Juliette Laser Hair Removal, Inc. v. Assara I,
LLC, No. 08CV442(TPG), 2013 WL 3322249, at *3 (S.D.N.Y. July 2,
2013) (quotation marks and citation omitted), aff’d, 679 F.
App’x 33 (2d Cir. 2017). Thus, in determining the appropriate
fee award, “the dispositive question is whether the costs would
have been incurred in the absence of the other’s conduct.” Id.;
see also 246 Sears Rd. Corp. v. Exxon Mobil Corp., No.
09CV889(NGG), 2013 WL 4506973, at *2 (E.D.N.Y. Aug. 22, 2013).
The Court has reviewed the SThree defendants’ application
for fees associated with the defendants’ Second Notice of
Deficiencies. The Court considers those entries for work
without the Court’s intervention. See Doc. #157 at Exhibits 1-6,
9.
~ 24 ~

performed in connection with the defendants’ Notice, including
those entries for work performed as a result of plaintiff’s
failure to provide complete responses to defendants’ requests,
necessitating the filing of defendants’ Notice. The Court also
considers those entries for such work performed after the filing
of the Notice, as the discovery deficiencies identified in the
Notice were ongoing, and the defendants were required to perform
work to identify said deficiencies. Thus, the Court considers
here those entries from August 13, 2016, through and including
the Court’s conference on October 7, 2016, related to the
instant Notice. The SThree defendants billed a total of 130
hours of time during this period.
A review of the SThree defendants’ fee application during
the relevant time frame reveals certain entries that were not
related to the instant dispute. On September 9, 2016, Attorney
Lasley billed .65 hours to prepare for a hearing with the court
on discovery disputes; to discuss same with Attorney Haas; and
to participate in a conference with the court. See Doc. #206-1
at 35. On the same date, Attorney Haas billed 1.35 hours for
communications with counsel regarding the conference with the
court and discovery issues; preparing for the conference with
the court; and participating in the court’s conference. See id.
However, Judge Thompson’s conference with counsel on September
9, 2016, addressed plaintiff’s Third Notice of Discovery
~ 25 ~

Dispute, concerning a deposition of an SThree defendant witness,
Mr. Kavanaugh. See Doc. #152; see also Doc. #164, Minute Entry
of September 9, 2016, Telephonic Conference; Doc. #183,
Transcript of September 9, 2016, Telephonic Conference. A
separate conference was held with Judge Thompson on September
16, 2016, during which the issues raised in the SThree
defendants’ Notice were discussed. Accordingly, the Court will
not award fees for work related to the September 9, 2016,
conference, reducing the time by 2.0 hours.
The Court also notes that as the presumption in favor of
the forum rule has not been overcome, the time and costs billed
by out-of-state counsel for travel to and from the Court’s
October 7, 2016, conference will not be compensated. “While
expenditures for photocopies, postage, binding, filing, and
travel are routinely recoverable, travel costs may be denied
where a party chooses out-of-district attorneys.” Congregation
Rabbinical Coll. of Tartikov, Inc., 188 F. Supp. 3d at 345
(quotation marks and citations omitted); see also Harty v.
Bull’s Head Realty, No. 3:11CV01760(VLB), 2015 WL 1064630, at
*12 (D. Conn. Mar. 11, 2015) (“As yet another corollary to the
forum rule, expenses and fees related to travel must be excluded
from an award of attorney’s fees if the hypothetical reasonable
client who wishes to spend the least amount necessary to
litigate the matter would have retained local counsel. ... Thus,
~ 26 ~

hours spent traveling by out-of-district attorneys into the
district are not hours reasonably expended where competent
counsel is available within the district.” (quotation marks and
citations omitted)). Attorney Haas billed 5.5 hours to travel to
Connecticut on October 6, 2016, and 4 hours to return on October
7, 2016. See Doc. #206-1 at 30. The SThree defendants also
submitted costs in the amount of $1051.15 for food and travel
disbursements for Attorneys Haas and Lasley. See Doc. #206-1 at
38. The SThree defendants had local counsel in attendance at the
October 7, 2016, conference.5 See Congregation Rabbinical Coll.
of Tartikov, Inc., 188 F. Supp. 3d at 345–46 (“There is no
reason why Defendants should incur greater liability simply
because Plaintiffs retained out-of-district attorneys ... and
insisted that both attend the pre-motion conference, despite the
fact that Plaintiffs had retained competent local counsel, who
also appeared before the Court on April 27, 2015.” (citation
omitted)). Accordingly, the Court declines to award the out-ofdistrict counsel’s time or costs associated with travel on this
matter, reducing the time billed by 9.5 hours, and costs by
$1051.15.

Attorney Mirman billed for his travel time to and from the
October 7, 2016, conference. See Doc. #206-2 at 3.
5

~ 27 ~

b. Hours Related to Rule 37(b) Sanctions
As discussed in its Order dated October 24, 2016, the Court
has also determined that fees are warranted pursuant to Rule
37(b), for violation of the Court’s October 7, 2016, Order. See
Doc. #200 at 3, 5, 20-21. During the October 7, 2016,
conference, the Court ordered plaintiff to perform additional
searches for responsive discovery and to review the results of
each search. See Doc. #182. After review of plaintiff’s
resulting certification, defendants’ notices of deficiencies,
and plaintiff’s response, and after an on-the-record conference,
the Court determined that plaintiff had failed to comply with
the Court’s Order. See Doc. #200. Thus, pursuant to Rule
37(b)(2), the reasonable fees caused by plaintiff’s failure to
comply with the Court’s October 7, 2016, Order will be awarded.
The SThree defendants billed a total of 27.5 hours of time
during this period associated with plaintiff’s failure to
comply.
c. Excessive, Duplicative and Vague Billing
The Court finds certain of the SThree defendants’ billing
entries excessive, duplicative, or vague. See Kirsch v. Fleet
St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (“Hours that are
excessive, redundant, or otherwise unnecessary, are to be
excluded [from a fee award.]” (quotation marks and citation
omitted)); see also Tsombanidis, 208 F. Supp. 2d at 277 (“In
~ 28 ~

determining the number of hours reasonably expended, the Court
must exclude hours that are excessive, redundant, or otherwise
unnecessary.” (citation omitted)). The Court finds that an
overall percentage reduction from the total remaining hours is
warranted.
The SThree defendants’ billing records reveal instances of
excessive time spent on several tasks. For example, Attorney
Haas billed 11.8 hours to prepare for Judge Thompson’s September
16, 2016, conference, which was set to address, in part, the
issues raised in the SThree defendants’ discovery notice. See
Doc. #206-1 at 36. Then, in preparation for the Court’s October
7, 2016, in-person conference -- set to address those same
issues –- the SThree defendants billed a total of 37.65 hours.6
See Doc. #206-1 at 36-7.7 This is excessive. See Doc. #157.8

This figure includes hours billed on the day of the conference
by both Attorney Haas and Attorney Lasley. On October 7, 2016,
Attorney Haas billed 4.2 hours for preparation for the 10:00
a.m. conference. While Attorney Lasley’s billing notation
indicates that she spent 7.8 hours preparing for and attending
the conference, it does not indicate how much time was spent on
each task. The October 7, 2016, conference called for attendance
at 10:00 a.m. and ended at 3:28 p.m. See Docs. ##170, 179, 180.
As the conference lasted approximately five and a half hours,
the Court assumes that Attorney Lasley spent 2.3 hours
preparing.
6

The Court notes that this number is based on entries that
specifically note that the work was performed in connection with
the October 7, 2016, conference.
7

In contrast, the Palladyne defendants billed a total of 4.4
hours of one attorney’s time to prepare for the October 7, 2016,
8

~ 29 ~

The Court also finds that an additional reduction of hours
is warranted for duplicative efforts. The Court’s review of the
billing records reveals several instances where more than one
individual billed for the same work. See, e.g., Doc. #206-1 at
35 (indicating that on August 29, 2016, Attorney Haas billed 2.7
hours to review plaintiff’s response to a deficiency letter, and
to draft a response; the next day, Attorney Lasley billed .2
hours to review the same correspondence); Doc. #206-1 at 24
(indicating that on September 28, 2016, Attorney Haas billed 0.5
hours for “[c]ommunication with K. Guthleben regarding
identification of missing documents in plaintiff’s production”
and the same day, Ms. Guthleben billed an undetermined amount of
time for the same conversation); Doc. #206-1 at 331 (indicating
that on October 19, 2016, Attorney Lasley billed 1.8 hours to
“review correspondence with Plaintiff’s counsel regarding status
of discovery productions; revise notice to Court regarding
plaintiff’s productions; review Palladyne’s filing regarding
deficiencies in Plaintiff’s discovery production” and Attorney
Haas billed 12.1 hours to review plaintiff’s discovery materials
and to “draft notice responding to same;” .2 hours to draft an
email to plaintiff’s counsel; and .2 hours to “review
Palladyne’s notice regarding discovery deficiencies”).
conference. It is not clear why the SThree defendants required
seven individuals to spend eight times the amount of time
preparing for the same conference.
~ 30 ~

More generally, the SThree defendants billed for the time
of two attorneys, a law clerk and a litigation support
specialist to review and analyze plaintiff’s discovery
production. In total, during the relevant time frame, Attorney
Haas dedicated 24.6 hours to this task; Attorney Ashbrook .3
hours; Ms. Scarver 8.1 hours; and Ms. Guthleben 5.5 hours. The
Court finds that this joint effort, while no doubt thorough, was
excessive for the purposes of this fee application. See Retained
Realty, Inc., 643 F. Supp. 2d at 241 (reducing hours billed
“[w]here too many individuals have billed for the same event, or
there are too many billers involved in a particular matter
beyond what the court considers to be reasonable”).
As a further example of duplicative efforts, Attorney Haas,
Attorney Lasley and Attorney Mirman each billed for their
attendance at the October 7, 2016, conference. See Doc. #206-1
at 37; Doc. #206-2 at 3. Additionally, Attorney Haas and
Attorney Lasley each billed for their participation in the
Court’s October 13, 2016, and October 21, 2016, telephonic
conferences. See Doc. #206-1 at 37-8. While counsel may have had
strategic reasons for having multiple counsel present, the Court
will not require plaintiff to compensate the SThree defendants
for the full amount of each attorney’s time. See Congregation
Rabbinical Coll. of Tartikov, Inc., 188 F. Supp. 3d at 342
(noting that “[n]otwithstanding the value of collaboration” it
~ 31 ~

was “unnecessarily duplicative” for three attorneys to attend a
pre-motion conference (collecting cases)).
Likewise, on October 6, 2016, Attorney Mirman billed two
hours to “review pleadings in preparation for discovery
conference.” Doc. #206-2 at 3. Attorney Mirman also billed one
hour on October 19, 2016, to “review plaintiff’s certification,
SThree’s analysis of deficiencies. Comparison to Court order.”
Id. Finally, he billed .6 hours on October 21, 2016, for
“[r]eview [of] Plaintiff’s response to SThree’s notice of
deficiency re: discovery.” Id. Attorney Mirman was not actively
participating in the discovery dispute, and there were several
other attorneys that were actively participating. This appears
to be duplicative.9
The Court also finds that during the relevant time frame,
several descriptions of work are too vague for the Court to
determine whether the work performed was reasonable. “A court
may ... refuse to award fees based on time entries that provide
a vague description of the work performed.” Smart SMR of New
York, Inc. v. Zoning Comm’n of Town of Stratford, 9 F. Supp. 2d

The Court notes that Attorney Mirman was present only for the
morning session of the October 7, 2016, conference, and was
excused at noon. See Doc. #191, Transcript of October 7, 2016,
conference. He did not speak to any discovery issues during the
conference. See id. He also did not participate in the October
13, 2016, or the October 21, 2016, telephonic status
conferences. See Doc. #189, Doc. #211.
9

~ 32 ~

143, 150 (D. Conn. 1998) (citation omitted). “Entries stating
such vague references as ‘review of file’, ‘review of
correspondence’, ‘research’, ‘conference with client’, and
‘preparation of brief’ do not provide an adequate basis upon
which to evaluate the reasonableness of the services and hours
expended on a given matter.” Mr. & Mrs. B. v. Weston Bd. of Ed.,
34 F. Supp. 2d 777, 781 (D. Conn. 1999) (citations omitted). For
example, Attorney Ashbrook seeks fees for time on September 20,
2016, and September 22, 2016, but the Court cannot determine
whether the work performed relates to the instant dispute. See
Doc. #206-1 at 36 (on September 20, 2016: “Email correspondence
with C. Haas and A. Goth regarding discovery strategy”); see id.
(on September 22, 2016: “Telephone conference with C. Haas and
A. Goth regarding discovery strategy”).
Considering the above deficiencies, the Court determines
that an across-the-board 40% reduction of the fee award is
warranted. See Kirsch, 148 F.3d at 173 (affirming the district
court’s judgment to decrease an attorneys’ fees award by 50%,
finding that “the court has discretion simply to deduct a
reasonable percentage of the number of hours claimed as a
practical means of trimming fat from a fee application.”
(quotation marks and citation omitted)). See also Houston v.
Cotter, 234 F. Supp. 3d 392, 410 (E.D.N.Y. 2017) (finding a 50%
across-the-board reduction in hours warranted); Francois v.
~ 33 ~

Mazer, 523 F. App’x 28, 29 (2d Cir. 2013) (finding the district
court “acted well within its discretion” in applying a 40%
across-the-board reduction of fees, which the Court deemed
“reasonable under the circumstances”); Smart SMR of New York,
Inc., 9 F. Supp. 2d at 151–52 (applying a 50% reduction of hours
billed where they were found to be excessive).
Thus, after multiplying the reasonable hourly rates by the
number of hours expended, the Court determines that the lodestar
figure for the 146 hours of work performed by the SThree
defendants in connection with the instant fee application is
$40,827.50. After a reduction of that amount by 40% for vague
entries, excessive hours and duplicative work, the Court
determines that the SThree defendants are entitled to $24,496.50
in attorneys’ fees. The Court determines that the SThree
defendants are entitled to $232.37 in costs.
B.

The Palladyne Defendants’ Application for Attorney’s
Fees and Costs [Doc. #205]

The Palladyne defendants have submitted an application
seeking an award of $20,077.10 in attorneys’ fees for 27.6 hours
of work performed by two attorneys in connection with the
subject discovery dispute. The Palladyne defendants also seek
$153.26 in costs. See Doc. #205 at 2. The Palladyne defendants
did not file a Notice or motion regarding the subject discovery
dispute; accordingly, the Palladyne defendants are entitled only
to fees and costs awarded pursuant to Rule 37(b)(2) for
~ 34 ~

plaintiff’s failure to comply with the Court’s October 7, 2016,
Order.
1.

Hourly Rate

The Court turns first to the hourly rate billed by counsel
for the Palladyne defendants. Two attorneys from the law firm of
Hughes Hubbard & Reed LLP in New York billed time on the instant
matter. See Doc. #205-1 at 2. Amera Z. Chowhan, counsel at
Hughes Hubbard & Reed, graduated from law school in 1997. See
id. She practices complex litigation, including commercial
litigation and cross-border litigation. See id. Attorney Chowhan
has extensive experience in state and federal court, at the
trial and appellate levels. See id. Attorney Chowhan bills this
matter at a rate of $743 per hour, which reflects a 10% discount
from her standard rate. See id. Karen Goldberg was an associate
at the same firm.10 See id. She graduated from law school in
2010. See id. She represented clients in complex federal and
state court litigation, and billed at a rate of $648 per hour on
this matter, which reflects a 10% discount from her standard
rate. See id.
The Court finds that these rates are not reasonable, in
light of the comparable rates charged in this District. See Doe,
2015 WL 8770003, at *4 (finding, in a civil rights case, that

It appears from defendants’ filing that Attorney Goldberg is
no longer with Hughes Hubbard & Reed, LLP.
10

~ 35 ~

“an hourly rate of $650 per hour is unreasonably high and is out
of line with prevailing rates ... in this district” (collecting
cases)). There is no indication that Attorney Chowhan’s
experience is so specialized or so extensive that it would
warrant an hourly fee that is double what comparable attorneys
in this District command. Attorney Goldberg had six years of
experience at the time that this work was performed and requests
a fee that is more than double what comparable attorneys in this
District are typically awarded. Further, the Palladyne
defendants make no showing that “the selection of counsel was
based on experience and objective factors and that use of indistrict counsel would produce a substantially inferior result.”
CSL Silicones, Inc., 2017 WL 1399630, at *4 (citations omitted).
Accordingly, the Court applies the forum rule, and reduces
Attorney Chowhan’s hourly rate to $375 an hour and Attorney
Goldberg’s rate to $250 an hour.
2.

Hours Billed

Turning to the hours requested, the Court first deducts
those entries for work performed prior to the Court’s October 7,
2016, Order. This results in a reduction of 9.4 hours of
Attorney Chowhan’s time. See Doc. #205-2 at 3. Next, a review of
the fee application reveals that an excessive amount of time was
billed in connection with certain tasks. Attorney Chowhan billed
an hour for participating in a fourteen minute telephonic status
~ 36 ~

conference on October 13, 2016. See Doc. #189. The Court
therefore reduces Attorney Chowhan’s time for this call to .3
hours. Further, Attorney Chowhan and Attorney Goldberg billed a
total of 16.1 hours for the drafting of defendants’ Notice of
Deficiencies, Doc. #192. This Notice required the review of
plaintiff’s Certification regarding Discovery, Doc. #190, and a
review of plaintiff’s production. The Palladyne Defendants’
resulting Notice of Deficiencies amounts to approximately five
and a half pages of written response, and nine pages of
attachments. The Court reduces Attorney Chowhan’s time spent on
this notice from 11.6 hours to 7.9 hours, and Attorney
Goldberg’s time from 4.5 hours to 2.9 hours.
The Court has determined that the remainder of the time
billed by the Palladyne defendants is reasonable. Accordingly,
after a total reduction of 15.4 hours, the Court finds that
pursuant to Rule 37(b)(2), the Palladyne defendants are entitled
to $4,212.50 in attorneys’ fees, representing 12.2 hours of time
expended.
Turning to the costs sought, as noted above, the Court
finds that the amount billed by out-of-state counsel to travel
to and from the Court’s October 7, 2016, conference is not
compensable. See Congregation Rabbinical Coll. of Tartikov,
Inc., 188 F. Supp. 3d at 345. Accordingly, the Court declines to
award the travel costs sought by the Palladyne defendants, and
~ 37 ~

awards a total of $4,212.50 in attorneys’ fees for the work
performed in connection with the instant discovery dispute.
C.

The Daily Sanction, and Palladyne Defendants’ Motion
to Increase Daily Sanction and for Other Relief [Doc.
#225]

On October 24, 2016, after several conferences with counsel
and a review of plaintiff’s non-compliance with the Court’s
Orders, this Court found that it was “appropriate, as a
deterrent and an incentive, to impose additional monetary
sanctions for each day that plaintiff’s production of items in
the custody of third parties continues to be deficient.” Doc.
#200 at 21. The Court ordered that, “commencing October 27,
2016, for each business day that the plaintiff fails to produce
either the materials sought or a certification that such
materials are no longer in existence, plaintiff will be
sanctioned $150.” Id. The Order continued:
When plaintiff is confident that production has been
completed in accordance with the Court’s Orders,
plaintiff shall file a status report that contains, as
exhibits, copies of the request made, a description of
the efforts conducted to obtain the records, and a sworn
certification, executed by both counsel and plaintiff
personally, that all responsive records received have
been provided to the defendants.
Id. at 21-22.
Counsel for plaintiff did not file a status report. On
December 23, 2016, the Palladyne Defendants filed a Motion for
Sanctions, seeking: (1) to increase the daily $150 sanction; (2)
the Court’s permission for defendants to seek an adverse
~ 38 ~

inference; and (3) to hold plaintiff’s counsel jointly and
severally liable for all sanctions and expenses. See Doc. #225
at 6. The SThree defendants filed a response to the Palladyne
defendants’ motion, arguing for substantially the same relief.
See Doc. #227. Plaintiff did not file any opposition to the
Palladyne defendants’ motion or to the SThree defendants’
response.
On May 17, 2017, the Court issued an Order to Show Cause,
requiring counsel for plaintiff “to show cause why plaintiff
should not immediately be ordered to pay $20,550, accounting for
a $150 daily sanction for the past 137 days, for failure to
comply with the Court’s October 24, 2016, Order. Specifically,
plaintiff has failed to file a status report in accordance with
the Court’s directives indicating, inter alia, that all
responsive records received have been provided to the
defendants.” Doc. #270. On May 31, 2017, plaintiff filed a
response to the Court’s Order to Show Cause. See Doc. #282. The
response raised several arguments as to why sanctions should not
be imposed, and stated that plaintiff had “substantially
complied with the Court’s October 7 Order” and that “we are not
aware of any unproduced material in any category[.]” Doc. #282
at 2. Plaintiff argued that his “prompt compliance” with the
Court’s Order resulted in complete production of the subject

~ 39 ~

bank and credit card records by November 9, 2016.11 See id. at 7.
On June 5, 2017, plaintiff filed a Status Report and
Certification, indicating that his requests were sent by
certified mail on October 11, 2016, and all responses, other
than those noted, were received by November 8, 2016. See Doc.
#285 at 2.
On June 6, 2017, during a telephonic Status Conference,
after noting that “defendants are free to argue for any relief
they deem appropriate, including adverse inferences, in the
briefing of any motions to dismiss,” Doc. #287, the Court denied
that portion of the Palladyne defendants’ motion that sought to
increase the daily sanction. See Doc. #286. The Court took under
advisement that portion of defendants’ motion that sought to
hold plaintiff’s attorney jointly and severally liable for any
monetary sanctions imposed. See id. The Court confirmed with
plaintiff that his Status Report and Certification, Doc. #285,
constituted plaintiff’s full and final response to the Court’s
24, 2016, Order, and found that it was “appropriate to move on
to the filing of motions regarding jurisdiction at this time, as

Plaintiff acknowledged that he had been unable to obtain his
Discover credit card records, as that file had been transferred
to a collection firm years prior, and the collection firm had
not responded to plaintiff’s multiple requests. See Doc. #282 at
9-10. In a separate response to the defendants’ notice of
deficiencies, plaintiff also acknowledged that he had not
received a response from the Internal Revenue Service to his
submission of form 4506-T. See Doc. #283 at 4.
11

~ 40 ~

it does not appear that further action or delay will result in
any additional compliance or production by plaintiff.” Doc.
#287.
First, the Court addresses the daily sanction. While
plaintiff contends that he “substantially” complied with the
Court’s October 7, 2016, and October 24, 2016, Orders, plaintiff
“acknowledges responsibility for not having filed the
certification” and argues that defendants suffered no harm from
that omission. Doc. #282 at 10. Defendants, in turn, claim that
documents still remain to be produced. See Doc. #273.
The Court imposed this sanction on plaintiff because he
failed to comply with the Court’s Order of October 7, 2016.
Among the deficiencies in production observed by the
Court, plaintiff still has not clearly and unequivocally
explained the scope of his search in response to
defendants’
requests;
has
not
diligently
and
appropriately sought copies of documents in his control
but in the physical custody of third parties; and has
not timely provided all responsive materials to
defendants.
Doc. #200 at 5. The Court discussed plaintiff’s insufficient
efforts to obtain records from third party institutions, and
ordered, on October 24, 2016, that plaintiff “shall immediately
make a renewed effort to obtain his financial records from these
third-party institutions. ... Any request – be it in person, by
phone, by email, by letter, by form, or by some other means –
must be documented and then produced.” Id. at 17. The Court then
reminded counsel that “he is obligated to oversee the discovery
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process on his client’s behalf, and that this aspect of
discovery is no exception.” Id.
Plaintiff and his counsel inexplicably failed to comply
with the Court’s Order. The Court cannot understand why
plaintiff did not file a certification on November 8, 2016, if
plaintiff now contends that production was complete on that
date. Plaintiff certainly was aware of the Court’s Order, and
was also aware of defendants’ filings that indicated that the
daily sanction was continuing to accrue.
Nevertheless, the Court declines to sanction plaintiff for
the 148 business days he failed to comply with the Court’s
October 24, 2016, Order. Sanctioning plaintiff at this point for
the full amount of time would not accomplish any additional
deterrence or provide plaintiff with additional incentive to
comply with the Court’s further orders, and would not be
proportional to the seriousness of the sanctioned conduct.
Accordingly, the Court will sanction plaintiff $150 a day for
nine business days, representing the time between and including
October 27, 2016, and November 8, 2016, crediting plaintiff’s
argument that by that date, he had substantially complied with
the production of materials from third parties. This amounts to
a sanction of $1,350, payable to the Clerk of the Court. See
Miltope Corp. v. Hartford Cas. Ins. Co., 163 F.R.D. 191, 195
(S.D.N.Y. 1995) (“Due regard for the need to vindicate the
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public interest in the sound administration of justice, as well
as the deterrent function of Rule 37 sanctions requires the
imposition of a fine, payable to the Clerk of the Court.”
(quotation marks and citations omitted)).
The final issue to address is whether counsel should be
held jointly and severally liable with plaintiff. While the
Court did not state this specifically in its prior Order, it was
the Court’s intention to hold counsel accountable with his
client. Rule 37 provides that, as a sanction for failing to obey
a discovery order, a court “must order the disobedient party,
the attorney advising that party, or both to pay the reasonable
expenses, including attorney’s fees, caused by the failure,
unless the failure was substantially justified or other
circumstances make an award of expenses unjust.” Fed. R. Civ. P.
37(b)(2)(C) (emphasis added). See also J. M. Cleminshaw Co, 93
F.R.D. at 349 (“[I]t is clear both from the language of Rule 37
and from the cases construing that rule that counsel may be held
personally liable for the expenses, including attorney’s fees,
caused by the failure to comply with discovery rules and
orders.”); Roadway Exp., Inc. v. Piper, 447 U.S. 752, 763 (1980)
(“Both parties and counsel may be held personally liable for
expenses, including attorney’s fees caused by the failure to
comply with discovery orders.” (quotation marks and footnote
omitted)).
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The Court finds that counsel was on notice that failure to
comply with the Court’s orders would subject him to sanctions.
The Court had made it abundantly clear to counsel throughout the
Court’s involvement in this discovery matter that it considered
counsel to be responsible, in part, for his plaintiff’s
failings. See, e.g., Doc. #182 at 11 (“Plaintiff and his counsel
are reminded that a search for responsive materials must begin
by a determination of whether a given item is responsive[.]”);
Doc. #191 at 14-15 (“[T]he obligation of counsel is not at the
last, last, minute. The obligation of counsel is to supervise
the search from the beginning.”); Doc. #200 at 7 (“As the Court
has repeatedly reminded counsel, he has an ongoing duty to
oversee plaintiff’s efforts to comply with discovery requests.”
(citations omitted)); Doc. #200 at 7 (“Plaintiff’s counsel has
made contradictory representations about the discovery conducted
to date, and his involvement therein.”); Doc. #200 at 8
(“Attorneys must take responsibility for ensuring that their
clients conduct a comprehensive and appropriate document
search.”); Doc. #200 at 9-11 (detailing the contradictory
representations plaintiff’s counsel had made to the Court
regarding the searches conducted); Doc. #200 at 11 (“In sum,
plaintiff’s counsel has made it virtually impossible for either
the defendants or the Court to gain a clear understanding of
what searches were conducted, when, and by whom, and whether the
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results of the searches were reviewed for responsiveness, or
privilege, or both.”); Doc. #200 at 20 (“Defendants’ efforts at
obtaining jurisdictional discovery have been repeatedly
frustrated by plaintiff’s counsel’s contradictory
representations, late and incomplete productions, and failure to
oversee the searches and production of discovery.”). Cf.
Sterling Promotional Corp. v. Gen. Acc. Ins. Co. of New York, 86
F. App’x 441, 445 (2d Cir. 2004) (affirming the District Court’s
decision to hold plaintiff and his counsel jointly and severally
liable for monetary sanctions and finding that counsel was aware
that he could be subject to sanctions, because “the court had
made it clear to [plaintiff’s counsel] that it considered
[counsel], and not merely [plaintiff], at fault”); Thomas E.
Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 527 (2d Cir. 1990)
(finding that counsel who was held jointly and severally liable
for monetary sanctions had ample notice where the “proceedings
that led to the district court’s imposition of the sanction
included several conferences before the magistrate [judge],
which resulted in two court orders, the hearing at which the
magistrate[] [judge] imposed the sanction, an appeal of the
magistrate [judge’s] order, and a review of the matter by the
district court. In view of these proceedings, it stretches the
imagination to argue that appellants did not have notice of, or
the opportunity to be heard about, the sanction imposed.”).
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Further, the Court notes that both its October 24, 2016,
Order and the Palladyne defendants’ Motion to hold counsel
jointly and severally liable referenced Rule 37(b)(2), and thus
counsel was aware that he could be held liable for the sanctions
imposed. See Sterling Promotional Corp., 86 F. App’x at 445
(“However, [plaintiff’s counsel] was aware that [defendant]
brought its motion to dismiss under Rule 37, and was thus aware
of the Rule’s provision that ‘the court shall require the party
failing to obey the order or the attorney advising that party or
both to pay the reasonable expenses, including attorney’s fees,
caused by the failure[.]’” (quoting Fed. R. Civ. P. 37(b)(2))).
Notably, as discussed above, plaintiff did not file an objection
to the Court’s Order, and did not submit any opposition or
response to the Palladyne defendants’ motion, despite having the
opportunity to be heard.
The Court finds that counsel for plaintiff “was on notice
that he was under the umbrella of the [C]ourt’s statutory power
to sanction,” Sterling Promotional Corp., 86 F. App’x at 446,
and finds that counsel shall be held jointly and severally
liable for the monetary sanctions imposed by the Court.
Accordingly, the Court GRANTS that portion of the Palladyne
defendants’ motion that seeks to hold plaintiff’s counsel Alan
H. Kaufman jointly and severally liable for the monetary
sanctions, fees and costs that are imposed by this Order.
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IV.

CONCLUSION
Accordingly, for the reasons set forth above, the Court

GRANTS, in part, SThree Defendants’ Second Application for
Attorney’s Fees [Doc. #206] and awards the SThree defendants
$24,496.50 in attorneys’ fees and $232.37 in costs; Court
GRANTS, in part, Palladyne Defendants’ Application for
Attorney’s Fees and Costs [Doc. #205] and awards the Palladyne
defendants $4,212.50 in attorney’s fees; sanctions plaintiff
$1,350.00, payable to the Clerk of the Court; and GRANTS, in
part, Palladyne Defendants’ Motion to Increase Daily Sanction
and for Other Relief [Doc. #225], and holds plaintiff and
plaintiff’s counsel Alan W. Kaufman jointly and severally liable
for the above monetary sanctions.
This is not a Recommended Ruling. This is an order
regarding case management which is reviewable pursuant to the
“clearly erroneous” statutory standard of review. See 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the District Judge upon motion timely made.
SO ORDERED at New Haven, Connecticut, this 15th day of
September, 2017.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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