Strauch et al v. Computer Sciences Corp

Filing 560

ORDER denying Class Counsel's 521 Motion for Protective Order and to Seal 522 Exhibit Q to Declaration of Jahan C. Sagafi. The Court directs the Clerk to unseal 522 Exhibit Q. Signed by Judge Janet Bond Arterton on 4/9/20. (Gutierrez, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOSEPH STRAUCH and TIMOTHY COLBY,
individually and on behalf of all others similarly Civil No. 3:14-cv-956 (JBA)
situated,
Plaintiffs,
April 9, 2020
V.
COMPUTER SCIENCES CORPORATION,
Defendant.
RULING ON MOTIONS TO SEAL AND MOTION FOR PROTECTIVE ORDER

Plaintiffs and their counsel ("Class Counsel") seek leave to file under seal a "compendium
of confidential and non-public detailed time records" that has been submitted as Exhibit Q [Doc.
# 522] to their Motion for Attorneys' Fees and Expenses. (Pls.' Mot. for Protective Order and
Sealing [Doc.# 521] at 2.) 1 They also move "for a protective order limiting use of the detailed time
records only for the purpose of defending Class Counsel's Motion for [Attorneys'] Fees and
Expenses." (Id. at 3.) Defendant Computer Sciences Corporation ("CSC") objects on both points.
For the reasons that follow, the Court denies Plaintiffs' Motion.
I. Class Counsel's Request to Seal Time Records

The Court's Standing Protective Order explains that documents filed with the Court are
"public documents" which will be sealed not automatically but "only upon motion and in
accordance with applicable law." Any order to seal issued by the Court must include

Defendant Computer Sciences Corporation has also filed related motions [Docs. ## 529,
542,548] to seal documents that quote from Class Counsel's time records "until such time that the
Court orders Plaintiffs' Exhibit Q to Declaration of Jahan C. Sagafi, Docket Entry No. 522,
unsealed." (Def.'s Mots. to Seal [Doc.# 529] at 1, [Doc.# 542] at 2, [Doc.# 548] at 2.) The Court
will address those motions separately.
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"particularized findings demonstrating that sealing is supported by clear and compelling reasons
and is narrowly tailored to support those reasons." D. Conn. L. Civ. R. S(e)(3). For a document to
be properly sealed, the Court must determine the weight of the presumption of public access to
that document and balance against it any competing considerations, such as the privacy interests
of those resisting disclosure. See United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995) ("[T]he
weight to be given the presumption of access must be governed by the role of the material at issue
in the exercise of Article III judicial power and the resultant value of such information to those
monitoring the federal courts.").
Class Counsel assert that the "voluminous, detailed time records Plaintiffs seek to file under
seal contain confidential descriptions of communications with clients, particular areas of research,
and other details of the work performed by attorneys in this case that are protected by the attorneyclient privilege and the work product doctrine." (Pls.' Mot. for Protective Order and Sealing at 3.)
They further claim that there are clear and compelling reasons to seal these time records as these
records "disclose confidential case strategies, including a detailed accounting of the work
performed and the attorneys who performed that work" and "contain communications between
counsel and class representatives (as well as class members who requested that their identities not
be shared with Defendant)." (Id. at 4.) Class Counsel compare their time records to a novel, stating
that"[w]hile the plot ... may not be evident from eleven sentences, it is certainly clear when the
whole novel is revealed." (Pls.' Reply [Doc.# 540] at 5.) They claim that these "time records tell the
story of this litigation" and that the individual entries-even those that "may appear to be vague
and unimportant"-reveal "timing, resources, and attorneys dedicated to specific tasks [that]
provide insights into Class Counsel's confidential strategy and the nature of the services provided."
(Id.) Class Counsel contend that sealing these time records in their entirety is "a 'narrowly tailored'
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remedy," because Class Counsel have publicly filed other exhibits to their attorneys' fees motion
and because the redaction of "the privileged information throughout the detailed billing records[,
which] span [s] more than five years" and totals 743 pages, "would be overly burdensome and
impractical." (Pls.' Mot. for Protective Order and Sealing at 6.)
Defendant opposes Class Counsel's motion to seal, "in light of the generally applicable
presumption against sealing court documents and the enhanced public interest in access to class
action records." (Def.'s Opp. [Doc.# 531] at 3.) 2 Defendant contends that there is no compelling
reason for sealing, as Class Counsel's "vague time entries are not protected under the attorneyclient privilege or work-product doctrine, nor as confidential business information.'' (Id. at 7.)
Defendant asks that "if this Court finds that any of the time entries are privileged, it should require
redaction of those select entries instead of granting Plaintiffs' motion.'' (Id. at 9). Defendant asserts
that "this should not be an excessively time-consuming task given that all, or at the very least a
healthy majority, of the entries are not privileged.'' (Id. at 11.)

On reply, Class Counsel ask the Court to disregard Defendant's opposition on the grounds
that "CSC filed its opposition seven days late, despite having three weeks to respond to a five-page
motion," in violation of Local Rule 7(b )(1). (Pls.' Reply at 1.) The Court agrees that untimely filings
are "antithetical to efficient case management.'' A Slice of Pie Prods., LLC v. Wayans Bros. Entm't,
487 F. Supp. 2d 33, 39 (D. Conn. 2007) (striking expert report that "was not served until more than
eight months late[], ... after the filing of the pending summary judgment motions"). However, the
Court observes that, in making this request, Class Counsel violated Local Rule 7(a)(5), which
provides that "memoranda shall be double-spaced.'' An examination of their ten-page reply
memorandum demonstrates that Class Counsel instead used 1.5-line spacing, circumventing the
District's length requirements.
2

Rather than strike both briefs for rules violations, the Court will, in the interest of justice,
consider their respective arguments on the merits.
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The Court begins by addressing Class Counsel's claimed basis for sealing. "With respect to
the attorney-client privilege, it is well-settled within the Second Circuit that the attorney-client
privilege may be a sufficiently compelling reason to defeat the public's right of access to judicial
documents." Travelers Indem. Co. v. Excalibur Reinsurance Corp., No. 3: ll-CV-1209 CSH, 2013
WL 4012772, at *5 (D. Conn. Aug. 5, 2013) (citing Lugosch v. Pyramid Co. of Onondaga, 435 F.3d
110, 125 (2d Cir. 2006) ). "But where the communication is not confidential and is not necessary to
obtain informed legal advice for the client, no privilege exists." In re Grand Jury Subpoena Served
Upon Doe, 781 F.2d 238,247 (2d Cir. 1986) (en bane). Accordingly, "absent special circumstances,

client identity and fee information are not privileged," as "their disclosure does not inhibit the
ordinary communication necessary for an attorney to act effectively, justly, and expeditiously." Id.
at 247-48. Applying this principle, "courts in this circuit have found" that administrative
documents such as "time records, diary entries, time sheets, [and] billing reports .. . fall under the
attorney-client privilege only if they reveal litigation strategy or other confidential information."
Bernstein v. Mafcote, Inc., 43 F. Supp. 3d 109, 114 (D. Conn. 2014); see also Bria v. United States,

2002 WL 663862, at *5 (D. Conn. Mar. 26, 2002) ("Similarly, 'the attorney-client privilege does not
extend to billing records and expense reports."' (quoting Chaudhry v. Gallerizzo, 174 F.3d 394,402
(4th Cir.1999))); Loftis v. AmicaMut. Ins. Co., 175 F.R.D. 5, 10 (D. Conn. 1997) ("Billing statements
from an attorney to a client which do not reveal a client's confidential communications are not
protected by the attorney-client privilege.").
Class Counsel have not identified any exemplar entries from the 743-page document that
they claim to be privileged. Instead, to support their request for blanket sealing, Class Counsel
make broad claims that the entries-read individually and as a whole-reveal their strategy and
provide descriptions of their confidential client communications. Lacking any specific direction as
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to what exact portions are claimed to be protected, the Court summarily reviewed these entries for
evidence of confidential and privileged information. However, the Court was unable to readily
identify any entries clearly subject to the attorney-client privilege. Indeed, the vast majority of the
22,278 entries are too vague to "reveal litigation strategy or other confidential information."3

Bernstein, 43 F. Supp. 3d at 114. As such, their disclosure would "not inhibit the ordinary
communication necessary for an attorney to act effectively, justly, and expeditiously." In re Grand

Jury Subpoena, 781 F.2d at 248.
Importantly, the Court notes that nothing precluded Class Counsel from redacting or
editing times entries that they considered privileged prior to submitting their time records. When
petitioning for attorneys' fees, a party is required to provide "billing time records in a manner that
will enable a reviewing court to identify distinct claims." Hensley v. Eckerhart, 461 U.S. 424, 437
(1983). "[C]ounsel, of course, is not required to record in great detail how each minute of ... time
was expended," as it is enough to "identify the general subject matter of [the] time expenditures."

Id. As such, courts have allowed counsel to "redact[] certain entries in the time records" that
contain privileged information, so long as the court "can discern the activity that took place." Balu

v. City ofNew York, No. 12 CIV. 1071 (KPF), 2016 WL 884666, at *7 (S.D.N.Y. Mar. 8, 2016). Here,
Class Counsel had, in the first instance, the opportunity to omit any information that they believed
to be privileged. However, apparently deeming the task to be "overly burdensome and
impractical," Class Counsel instead submitted their complete and unedited time records. (Pls.'
Mot. for Protective Order and Sealing at 6.) This was a voluntary and intentional decision, not one

For example, variations on the entry "doc review" appear 201 times. Variations of the
entry "trial prep" appear 276 times. Of the more than 2,000 entries describing e-mail work, only a
fraction specify the subject or recipient-typically another attorney-of the e-mail.
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that was inadvertent or that Class Counsel was compelled to take. 4 The mere fact that Class Counsel
considered the task of redacting these documents to be cumbersome does not now entitle them to
blanket sealing from the public or to entirely shift this review function to the Court.
Thus, even if some time entries contain attorney-client privileged information, the Court
finds that the privilege is waived. See Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC, 314 F.R.D.
85, 90 (S.D.N.Y. 2016) ("Both the attorney-client and work product privileges may be waived if a
party puts the privileged communication at issue by relying on it to support a claim." (citing In re

Grand Jury Proceedings, 219 F.3d 175, 191 (2d Cir. 2000))). 5

For this reason, Class Counsel's reliance on Ringv. Commercial Union Ins. Co., 159 F.R.D.
653 (M.D.N.C. 1995), and Nesse v. Pittman, 202 F.R.D. 344,346 (D.D.C. 2001), is misplaced. Both
of these cases involved discovery disputes, and in neither did the party asserting the privilege
intentionally docket the information that it sought to protect.
4

Class Counsel's argument that the time records are wholly protected by the work-product
doctrine fails for similar reasons. As the Second Circuit has held, a "party impliedly waives work
product protection if it places the substance of the documents for which the protection is claimed
at issue." N. Y. Times Co. v. U.S. Dep't of Justice, 939 F.3d 479,494 (2d Cir. 2019) (cleaned up). A
motion for attorneys' fees necessarily places documentation of litigation time records at issue.
Moreover, documents such as time records generally fall "outside the scope of the work-product
doctrine," as they are prepared in the regular course of business, rather than in specific anticipation
of litigation. Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., 2017 WL 1361308, at *11 (N.D.
Ind. Apr. 14, 2017); see also Monroe's Estate v. Bottle Rock Power Corp., 2004 WL 737463, at *11
(E.D. La. Apr. 2, 2004) ("[I]nformation relating billing, ... hourly rates, hours spent by attorneys
working on the litigation, and payment [of] attorney's fees does not fall within either the attorneyclient or the work product privilege."); Leach v. Quality Health Servs., 162 F.R.D. 499, 502 (E.D.
Pa. 1995) ("We find it unlikely that the billing records would be protected by the attorney work
product doctrine .... Billing records are commonly created in the regular course of business, which
removes them from this doctrine's coverage.").
5

Class Counsel's alternative argument that the time records should be sealed entirely
because they are confidential business records is also unavailing. Time records prepared in the
course of litigation are not the sort of "[confidential business] records which would aid
'[c]ommercial competitors seeking an advantage over rivals"' which "may outweigh the public's
6

Because the Court concludes that the time records are not privileged, Class Counsel's
motion to seal is denied.
II. Class Counsel's Request for Protective Order

Class Counsel also move under Federal Rule of Evidence 502(d) for "a protective order
limiting the use of their detailed time records to solely litigation regarding Class Counsel's PostTrial Motion for Attorneys' Fees and Costs." (Pls.' Mot. for Protective Order and Sealing at 1).
Class Counsel contend that "[a]bsent the Court's intervention," there is a risk that "CSC may
receive key insights into Class Counsel's litigation strategy and gain an undue advantage in a
pending class action for which Defendant already filed a notice of appeal." (Id. at 5.) Class Counsel
further contend that because "Plaintiffs do not even have access to Defendant's counsel's detailed
time records[,] [i]t is only fair that Defendant should not have unlimited use of Plaintiffs' counsel's
detailed time records." (Id.)
Defendant opposes the granting of such a protective order "[f]or the same reasons
established above in the context of sealing the time records," arguing that the "time records are not
protected by attorney-client privilege or the work-product doctrine as alleged by Plaintiffs,
therefore, their disclosure and use will not result in 'serious injury' or any injury whatsoever.''
(Def.'s Opp. at 13.)
Under the Federal Rules of Evidence, a "federal court may order that the privilege or

protection is not waived by disclosure connected with the litigation pending before the court-in
which event the disclosure is also not a waiver in any other federal or state proceeding.'' Fed. R.

presumption of access.'' SEC v. Ahmed, No. 3:15CV675 (JBA), 2018 WL 4266079, at *3 (D. Conn.
Sept. 6, 2018). If Class Counsel's argument were accepted, all time records submitted in any case
in support of attorneys' fees motions would be entitled to sealing as a matter of course.
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Evid. 502( d) (emphasis added). But having concluded that the time records are not privileged, the
Court lacks any basis to grant such a protective order. 6
III. Conclusion
Accordingly, Class Counsel's Motion for Protective Order and Sealing [Doc. # 521] is
DENIED. The Court directs the Clerk to unseal Document 522.

IT IS SO ORDERED.
s
Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 9th day of April 2020.

Additionally, the Court has doubts that such an order would be appropriate even if the
time records were privileged. Illustrating the unusual nature of Class Counsel's request, the Court
was able to find only one case addressing the applicability of Rule 502 in the context of a postjudgment motion for attorneys' fees. In Jeanbaptiste v. Wells Fargo Bank, N.A., the court
interpreted the Rule and posited that the "plain language of Rule 502( d) and its legislative history
suggest that it was designed to protect disclosures made in the context of discovery," not
intentional disclosures made post-trial. No. 3:14-CV-0264-K, 2014 WL 6790737, at *3 (N.D. Tex.
Dec. 1, 2014); see Fed. R. Evid. 502(d) advisory committee's note (explaining that Rule 502 was
"designed to enable a court to enter an order ... that will allow the parties to conduct and respond
to discovery expeditiously, without the need for exhaustive pre-production privilege reviews, while
still preserving each party's right to assert the privilege to preclude use in litigation of information
disclosed in such discovery"); S. Rep. No. 110-264, at 3 (Feb. 25, 2008) ("The bill provides a new
Federal Rule of Evidence 502 to limit the consequences of inadvertent disclosure, thereby relieving
litigants of the burden that a single mistake during the discovery process can cost them the
protection of a privilege."). This Court agrees with Jeanbaptiste's analysis that Congress intended
Rule 502(d) to apply to inadvertent disclosures made during discovery, as opposed to intentional
disclosures made post-trial as here.
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