Procaps S.A. v. Patheon Inc. et al
ORDER denying without prejudice 415 Procaps' Motion for Attorney's Fees. Procaps may refile its motions by 3/25/2014. Patheon's Response is due by 4/1/2014. Replies due by 4/11/2014. Signed by Magistrate Judge Jonathan Goodman on 3/20/2014. (oim)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12‐24356‐CIV‐GOODMAN
ORDER REGARDING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
RELATING TO THIRD‐PARTY FORENSIC ANALYST’S CONFLICTS
On February 28, 2014, at the parties’ request, the Court ordered plaintiff Procaps
S.A. (“Procaps”) to engage Kroll Ontrack, Inc. (“Kroll”) as a neutral third‐party to
perform a forensic analysis of Procaps’ electronic media. [ECF No. 341]. Prior to this
order, Procaps and defendant Patheon Inc. (“Patheon”) had agreed that Kroll would
conduct the Court‐ordered forensic analysis. The Court played no role in selecting Kroll
as the e‐discovery vendor to perform the forensic analysis.
Since the Court’s order, Kroll and the parties have discovered numerous conflicts
of interest (or apparent or potential conflicts) concerning Kroll and its related (affiliates,
parents, etc.) companies’ work for Patheon and Patheon’s counsel, and Patheon’s
counsel’s representation of Kroll’s parent company. [ECF Nos. 384; 400; 402; 415]. Kroll
has refused to continue with the forensic analysis unless Procaps signs a waiver of the
conflicts (or apparent or potential conflicts). [ECF Nos. 384; 402; 415‐2]. Procaps has
declined to sign the waiver. [ECF No. 412]. As the Court instructed at the March 18,
2014 hearing [ECF No. 408], if Procaps declined to waive Kroll’s conflicts, then the
parties must agree on another company to conduct the forensic analysis before the
March 24, 2014 hearing.
Procaps has now moved for fees and costs relating to the time it spent working
with Kroll before the conflicts were discovered. [ECF No. 415]. After reviewing the
motion, the Court realizes that it will need additional briefing on the issues arising from
the motion. Accordingly, the Court denies without prejudice Procaps’ motion.
It is further Ordered and Adjudged as follows:
By March 25, 2014, Procaps may refile its motion. The refiled motion,
which may be up to 10 pages, shall address the issue of whether the Court may impose
a fees award against Kroll. In addressing this issue, Procaps shall discuss the
significance, if any, of the Court’s order [ECF No. 341] requiring Procaps to specifically
engage Kroll (an e‐discovery vendor selected by the parties, not the Court) as a neutral
third‐party to conduct the forensic examination. Along with its refiled motion, Procaps
shall also file a separate affidavit detailing the specific amount of fees and costs it is
seeking and shall attach all supporting documentation for its request. In determining
the amount of the attorney’s fees it is seeking (if any), Procaps shall use as a guide the
hourly rates set by the Court for Patheon’s counsel. [See ECF No. 223]. In addition,
Procaps’ motion, if refiled, shall also pinpoint the legal authority authorizing the
requested relief. In other words, Procaps must rely on more than a succinct reference to
Federal Rule of Civil Procedure 37 and 28 U.S.C. § 1927. Moreover, in recognition of the
fact that Rule 37 does not authorize a fees award for all discovery disputes, Procaps
shall identify the particular provision of Rule 37 on which it is relying for its fees
By April 1, 2014, Patheon shall file a response of no more than 10 pages.
Kroll may file a memorandum of no more than 10 pages by April 7, 2014 to
address the issues raised in Procaps’ refiled motion and Patheon’s response. To
facilitate Kroll’s ability to file this optional memorandum, Procaps shall immediately
provide Kroll with a copy of this Order, its refiled motion (when filed), and Patheon’s
response (when filed).
By April 11, 2014, Procaps may file a reply of no more than 7 pages to
Patheon’s response and Kroll’s memorandum (if Kroll files one).
If Kroll files a memorandum, then Patheon may file a reply of no more
than 5 pages to Kroll’s memorandum by April 11, 2014.
Procaps shall provide Kroll with a copy of its reply and Patheon’s reply (if
one is filed).
DONE AND ORDERED in Chambers, in Miami, Florida, March 20, 2014.
Copies furnished to:
All Counsel of Record
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