BASF AGRO B.V. et al v. CIPLA Limited et al
Filing
266
ORDER granting 251 Motion to Compel; granting 251 Motion for Extension of Time. Ordered by Judge Clay D. Land on 07/25/2012 (ajp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
BASF AGRO B.V.,
MERIAL LIMITED, and
MERIAL SAS,
*
*
Plaintiffs,
*
vs.
*
CIPLA LIMITED, et al.,
*
Defendants,
*
VELCERA, INC., and
FIDOPHARM, INC.,
CASE NO. 3:07-CV-125 (CDL)
*
*
Intervenors.
*
O R D E R
In
Limited
a
previous
and
Order,
Intervenors
(collectively,
the
Court
Velcera,
“Velcera”)
in
found
Inc.
contempt
Defendant
and
Cipla,
FidoPharm,
for
Inc.
violating
an
injunction prohibiting infringement of Plaintiffs Merial Limited
and Merial SAS’s (collectively, “Merial”) ‘329 Patent.
In that
Order, the Court concluded that monetary sanctions against Cipla
and
Velcera,
determined
at
including
a
attorneys’
subsequent
damages
fees
and
hearing.
costs,
The
would
Court
be
has
scheduled the damages hearing to begin August 27, 2012, and the
parties are presently conducting discovery regarding the damages
phase of the action.
Pending before the Court is Velcera’s
Emergency Motion to Compel Unredacted Attorneys’ Fees Invoices
and To Extend the Expert Disclosure Deadline (ECF No. 251).
For
the following reasons, Velcera’s motion is granted to the extent
described in this Order.
DISCUSSION
Velcera
argues
in
its
motion
to
compel
that
the
reasonableness of Merial’s attorneys’ fees will be at issue in
the damages hearing, and Velcera asserts that the attorneys’ fee
invoices
that
Merial
has
produced
during
discovery
are
so
heavily redacted that Velcera cannot meaningfully challenge the
reasonableness of the fee requests.
Merial
argues that the
attorneys’ fee invoices are protected by the attorney-client and
work product privileges.
I.
Merial’s Redaction of Its Attorneys’ Fee Invoices
“[T]he starting point in any determination for an objective
estimate of the value of a lawyer’s services is to multiply
hours reasonably expended by a reasonable hourly rate.” Norman
v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir.
1988); see also Sizzler Family Steak Houses v. Western Sizzlin
Steak House, Inc., 793 F.2d 1529, 1534 (11th Cir. 1986) (noting
that “an award of attorney fees to the injured party in a civil
contempt case is within the district court’s discretion” and
that “reimbursement to a prevailing movant may include expenses
reasonably and necessarily incurred in the attempt to enforce
compliance”) (internal quotation marks omitted).
2
Merial, as the
fee applicant, “bears the burden of establishing entitlement and
documenting the appropriate hours and hourly rates.”
Am. Civil
Liberties Union of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir.
1999);
accord Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d
1182, 1195 (11th Cir. 2002) (“Our precedent places the burden of
documenting the appropriate hours and hourly rates on the fee
applicant.”).
“That burden includes ‘supplying the court with
specific
detailed
and
evidence
from
which
determine the reasonable hourly rate.’”
the
court
can
Am. Civil Liberties
Union of Ga., 168 F.3d at 427 (quoting Norman, 836 F.2d at
1303).
Counsel should “maintain[] records to show the time
spent on the different claims, and the general subject matter of
the
time
expenditures
ought
to
be
set
out
with
sufficient
particularity so that the district court can assess the time
claimed for each activity.”
Id. (quoting Norman, 836 F.2d at
1303); see also M.D. Ga. R. 54.1 (requiring a prevailing party
to provide the Court with, among other things, “[a]n itemized
bill in which all segments of time are identified as to the
nature of the work performed”).
Moreover, counsel must exercise
“billing judgment” and must exclude from their fee applications
“excessive, redundant, or otherwise unnecessary” hours.
Hensley
v. Eckerhart, 461 U.S. 424, 434 (1983).
Review of Merial’s attorneys’ fee invoices reveals that the
descriptions of the activities conducted by each attorney are so
3
heavily
redacted
sufficient
that
they
particularity
reasonableness
of
the
do
time
provide
the
for
not
Court
claimed
for
the
to
each
Court
with
assess
the
activity.
For
example, the redacted invoices contain time entries that include
descriptions that say “Prepare REDACTED,” “Review REDACTED” and
“Draft REDACTED.”
E.g., Velcera’s Mot. to Compel Ex. B, Fee
Invoice MER-CIPLA-001336, ECF No. 251-2.
to
evaluate
would
be
whether
Merial
extremely
attorneys’
hours
exercised
difficult
are
to
excessive,
If the Court attempted
“billing
decide
judgment,”
whether
redundant,
or
it
Merial’s
otherwise
unnecessary, because the Court cannot decipher from the redacted
invoices the task that each attorney worked on for each time
entry.
that
See Oxford Asset Mgmt., Ltd., 297 F.3d at 1196 (noting
fee
applications
that
were
“so
redacted
that
it
[was]
impossible to tell (beyond ‘research’) what the attorney was
doing” were likely inadequate because the court “could not have
determined how many hours were spent defending each claim or
accomplishing any particular task,” and the court “could not
have assessed whether any hours should [have been] excluded (as
redundant or unnecessary) or the hourly rate reduced (because
the number of hours submitted for a particular activity was
excessive)”).
conducted
a
Providing
“review,”
or
a
description
“research,”
or
that
an
“drafted”
attorney
a
non-
specified document is too vague to allow the Court to assess
4
whether the time spent on the activity was reasonable.
See id.
at 1197 (cautioning “that where a significant number of entries
are severely redacted or it appears that fee counsel has failed
to use billing judgment, it may be an abuse of discretion to
award fees based on redacted entries”).
Velcera, as the party opposing the fee application, has
obligations as well.
“In order for courts to carry out their
duties in this area, ‘objections and proof from fee opponents’
concerning hours that should be excluded must be specific and
‘reasonably precise.’” Am. Civil Liberties Union of Ga., 168
F.3d at 428 (quoting Norman, 836 F.2d at 1301).
Thus, for
Velcera to satisfy its obligation to specifically and precisely
object to Merial’s fee requests as unreasonable, Velcera must
have
access
to
Merial’s
attorneys’
fee
invoices
without
the
extensive redaction that is currently hindering any meaningful
review of the activities conducted by Merial’s attorneys.
Velcera’s
obligation
to
make
specific
objections
to
Given
Merial’s
invoices, Merial’s concession that it will submit the attorneys’
fee
invoices
Velcera
an
to
the
Court
opportunity
to
in
camera
contest
the
is
inadequate
reasonableness
to
of
give
the
charges.
The Court finds that Merial’s fee invoices that have been
produced to Velcera are so heavily redacted that they do not
provide sufficient descriptions of the activities conducted by
5
Merial’s attorneys to allow Velcera or the Court to conduct a
meaningful review into whether the fees claimed by Merial are
reasonable.
Thus, the Court grants Velcera’s motion to compel
unredacted versions of Merial’s fee invoices and requires Merial
to provide sufficient descriptions of the tasks worked on by
each attorney for each time entry.
II.
Merial’s Claim of
Product Privilege
Attorney-Client
Privilege
and
Work
Merial argues that the fee invoices are protected by the
attorney-client privilege and constitute protected work product.
The general rule, however, is that the receipt of attorneys’
fees is not a privileged matter.
In re Grand Jury Matter No.
91-01386, 969 F.2d 995, 997 (11th Cir. 1992).
Beyond Merial’s
blanket
privileged
assertion
protected
work
that
the
product,
fee
invoices
Merial
has
are
made
no
attempt
and
to
demonstrate that each particular entry is protected by either
the
attorney-client
privilege
or
the
work
product
privilege.
Accordingly, at this point, Merial has failed to demonstrate
that
any
unlikely
of
that
the
entries
any
future
are
protected.
attempt
privilege would be successful.
by
Moreover,
Merial
to
it
is
establish
The Court cannot conceive of any
justification for seeking fees for particular legal work and yet
not being required to describe in reasonable detail the nature
of the work for which compensation is sought.
6
The Court clarifies that in granting the motion to compel,
the
Court
is
not
prohibiting
Merial
from
redacting
clearly
privileged material while also providing the Court and Velcera
with sufficient information regarding the work done to enable
the Court and Velcera to reasonably evaluate the fee request.
The Court finds, however, that Merial’s first redactions are
overly broad.
In conclusion, the Court grants Velcera’s motion to compel
unredacted
versions
of
Merial’s
fee
invoices
sufficient
to
provide Velcera with a description of the task worked on by each
attorney
for
each
time
entry.
To
the
extent
that
Merial
continues to maintain that certain entries are protected by the
attorney client and/or work product privileges, the Court orders
Merial
Velcera
to
minimize
and
performed.
the
its
Court
redactions
to
in
ascertain
a
the
manner
nature
that
of
allows
the
work
Merial shall produce the fee invoices to Velcera
within seven days of today’s Order, and Velcera shall supplement
its
expert
report
within
seven
days
after
receiving
the
production.1
1
Velcera noted in its reply brief that it would serve an initial
expert report if the July 16, 2012 expert report deadline passed prior
to the Court’s ruling on the motion. The Court presumes that Velcera
has done so, and the Court grants Velcera’s motion to extend the
expert report deadline to allow Velcera to supplement, rather than
initially serve, its report.
7
CONCLUSION
For the reasons explained above, Velcera’s Motion to Compel
Unredacted Attorneys’ Fees Invoices and To Extend the Expert
Disclosure
Deadline
(ECF
No.
251)
is
granted
to
the
extent
described in this Order.
IT IS SO ORDERED, this 25th day of July, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
8
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