Acosta v. Saakvitne et al

Filing 237

ORDER AFFIRMING Magistrate Judge's Order Granting In Part and Denying In Part Defendants Brian J. Bowers and Dexter C. Kubota's Supplemental Motion To Compel (Items 41-3100); ORDER ADOPTING IN PART AND MODIFYING IN PART Magistrate Judge� 39;s Findings and Recommendation With Respect To Related Motion For Attorneys' Fees and Expenses; Exhibit A. The court affirms the challenged portion of the Discovery Order going to what must be produced. The court adopts the Magistrate Judg e's findings and recommendation that fees and costs be awarded, noting that the award of $1,801.20 in costs is not challenged. However, as to the amount of fees to be awarded, the court modifies the Magistrate Judge's recommendation andissues a reduced award of $63,509.25. Signed by JUDGE SUSAN OKI MOLLWAY on 7/21/2020. (Attachments: # 1 Exhibit A) (cib)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
EUGENE SCALIA, Secretary of
Labor, United States
Department of Labor,

)
)
)
)
Plaintiff,
)
)
vs.
)
)
NICHOLAS L. SAAKVITNE, an
)
individual; NICHOLAS L.
)
SAAVITNE, A LAW CORPORATION, )
a California Corporation;
)
BRIAN BOWERS, an individual; )
DEXTER C. KUBOTA, an
)
individual; BOWERS + KUBOTA
)
CONSULTING, INC., a
)
corporation; BOWERS + KUBOTA )
CONSULTING, INC. EMPLOYEE
)
STOCK OWNERSHIP PLAN,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 18-00155 SOM-WRP
ORDER AFFIRMING MAGISTRATE
JUDGE’S ORDER GRANTING IN
PART AND DENYING IN PART
DEFENDANTS BRIAN J. BOWERS
AND DEXTER C. KUBOTA'S
SUPPLEMENTAL MOTION TO COMPEL
(ITEMS 41-3100); ORDER
ADOPTING IN PART AND
MODIFYING IN PART MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATION WITH RESPECT
TO RELATED MOTION FOR
ATTORNEYS’ FEES AND EXPENSES;
EXHIBIT A

ORDER AFFIRMING MAGISTRATE JUDGE’S ORDER GRANTING
IN PART AND DENYING IN PART DEFENDANTS BRIAN J. BOWERS AND
DEXTER C. KUBOTA’S SUPPLEMENTAL MOTION TO COMPEL (ITEMS 41-3100);
ORDER ADOPTING IN PART AND MODIFYING IN PART
MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION WITH RESPECT TO
RELATED MOTION FOR ATTORNEYS’ FEES AND EXPENSES; EXHIBIT A
I.

INTRODUCTION.
Discovery in this case has been very contentious.

Defendants Brian J. Bowers and Dexter C. Kubota now appeal a
Magistrate Judge’s Order Granting in Part and Denying in Part
Defendants Brian J. Bowers and Dexter C. Kubota’s Supplemental
Motion to Compel (Items 41-3100) and Related Motion for
Attorneys’ Fees and Expenses, ECF No. 195 (“Discovery Order”).
Bowers and Kubota are limiting their appeal to the portion of the

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Discovery Order allowing production of redacted versions of Items
41 to 3048 rather than complete versions.

For the reasons set

forth in this court’s order of June 1, 2020, and because Bowers
and Kubota fail to demonstrate that the Magistrate Judge clearly
erred in finding no bad faith by Plaintiff Eugene Scalia,
Secretary of Labor, United States Department of Labor, this court
affirms the Discovery Order with respect to the supplemental
motion to compel.
Scalia is separately challenging the portion of the
Discovery Order addressing attorneys’ fees, arguing that the
award should be rejected or reduced.

This court deems the part

of the Discovery Order granting attorneys’ fees and expenses
under Rule 37(a)(5) of the Federal Rules of Civil Procedure to
represent the Magistrate Judge’s findings and a recommendation to
grant such fees and expenses (“F&R”), notwithstanding its
inclusion in what the Magistrate Judge called an order.

See

Philin Corp. v. Westhood, Inc., 2006 WL 3513655, at *1 (D. Or.
Dec. 4, 2006) (treating a Rule 37 motion for sanctions as a
dispositive order).

Reviewing the F&R de novo, the court adopts

its recommendation to award Bowers and Kubota fees and costs, but
reduces the fee award to $63,509.25.
II.

BACKGROUND.
On January 21, 2019, Bowers and Kubota served Amended

Requests for Production of Documents.

2

See ECF No. 51.

Scalia

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produced some documents in response and, on March 27, 2019,
produced a privilege log.

See ECF Nos. 114-1 and 114-2.

On May 20, 2019, Bowers and Kubota served a Second Set
of Requests for Production of Documents.

See ECF No. 92.

On July 26, 2019, Scalia produced more documents and a
First Supplemental privilege log.

See ECF Nos. 114-3 and 114-4.

On August 29, 2019, Scalia produced a Second
Supplemental Privilege Log.

See ECF No. 114-5.

On September 13, 2018, Scalia served supplemental
responses to the second document request.

See ECF No. 114-6.

On September 14, 2019, Bowers and Kubota filed a motion
to compel discovery from Scalia.

They filed an amended

memorandum in support of the motion several days later.
Nos. 113 and 118.

See ECF

On February 10, 2020, the Magistrate Judge

described in detail what happened after that:
It was not until one month after the Motion
to Compel was filed that the Secretary
produced to Defendants its Third Supplemental
Privilege Log listing 43 Items and produced
the Declaration of Preston Rutledge,
Assistant Secretary of Labor for the Employee
Benefits Security Administration (EBSA), to
support its claims of deliberative process
and investigative files privilege as to many
of those items. See ECF Nos. 121, 121-6.
The Secretary described Items 41, 42, and 43
on the Third Supplemental Privilege Log as
“various” emails and communications that were
withheld from production on the basis of
deliberative process privilege, investigative
files privilege, work product doctrine, and
the attorney-client privilege. See ECF No.
121-5.
3

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At the first hearing on the Motion to
Compel, the Court found that the Secretary’s
Third Supplemental Privilege Log was
deficient and that it appeared from the
limited information provided by the Secretary
that many of the privileges had been too
broadly asserted or were asserted without the
necessary support. See ECF No. 137.
Following the first hearing, the Court
directed the Secretary to reconsider all of
its asserted privileges, to consider whether
redactions to documents were appropriate
instead of withholding entire documents, and
to produce a supplemental privilege log that
fully complied with Local Rule 26.2(d)
requiring information regarding the specific
subject matter of the documents and
communications and separately listed each
document that the Secretary previously
grouped together in Items 41, 42, and 43.
See id. The Court then directed the parties
to meet and confer to narrow the issues that
remained. See id.
Instead of narrowing the issues, the
Secretary provided information that broadened
the scope of the discovery in dispute
significantly. See ECF No. 145. On December
6, 2019, the Secretary produced a Fourth
Supplemental Privilege Log, which provided
some additional information regarding the 40
documents originally at issue and identified
an additional 5,000 documents withheld on the
basis of privilege. See id. Given the
volume of material identified, the Court
continued the further discovery hearing,
directed the parties to meet and confer over
the following three weeks and file
supplemental briefs regarding the issues that
remained. See id. The Court granted the
parties’ requests for three continuances of
the deadline to meet and confer and to file
supplemental briefs. See ECF Nos. 148, 150,
152.
On December 12, 2019, the Secretary
produced an “Addendum” to its Fourth
4

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Supplemental Privilege Log, which identified
10 additional Items. See ECF No. 154-3.
Then, on January 8, 2020, the Secretary
produced a First Amended Fourth Supplemental
Privilege Log. See ECF No. 154-4.
The Secretary filed its Responsive
Supplemental Memorandum on January 21, 2020.
See ECF No. 155. On the last page of its
Responsive Supplemental Memorandum, the
Secretary stated that it planned to submit a
supplemental declaration regarding the
invocation of the privileges asserted in
Items 41 through 3100 by February 3, 2020.
See id. at 16 (“In addition, the Secretary
plans to submit by February 3, 2020, a
Supplemental Declaration of Assistant
Secretary Preston Rutledge with respect to
the invocations of privilege asserted in
Items 41 through 3100.”). To be clear, the
Secretary first asserted these privileges on
October 21, 2019 when it produced its Third
Supplemental Privilege Log. See ECF No.
121-5 at 10-11. The Secretary provided no
explanation regarding why it failed to
provide the required support for its asserted
privilege when those privileges were first
asserted.
Based on the supplemental briefing, the
parties were not able to resolve most of the
issues raised at the prior hearing and have
new disputes as to most of the additional
5000 documents detailed in the Secretary’s
First Amended Fourth Supplemental Privilege
Log, specifically Items 41 through 3100. See
ECF Nos. 154, 155, 158.
On January 23, 2020, the Court issued a
Minute Order because of the Secretary’s
proposed late submission. The Court stated
that it would not be able to address issues
related to Items 41 through 3100 at the
February 7, 2020 hearing. The Court set out
that Defendants could file a separate motion
to compel after the Secretary provides a
supplemental declaration and after the
parties attempt to meet and confer again.
5

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See ECF No. 156. The Court expressly stated
that the issues of waiver and sanctions
should be addressed by Defendants in their
new motion to compel. See id.
On January 30, 2020, the Secretary filed
the Supplemental Rutledge Declaration
purporting to support its claim of
deliberative process and investigative files
privileges for Items 41 through 3100. See
ECF No. 159. The Supplemental Rutledge
Declaration addressed Items 41 through 3100
in a summary fashion and states in two
paragraphs that all of the documents are
properly withheld. See id. ¶¶ 10-11.
ECF No. 162, PageID #s 3163-66.
The parties’ dispute continued, and the Magistrate
Judge ordered Scalia to submit certain documents to the court for
in camera review to allow the court to determine the
applicability of the deliberative process privilege, the
investigative files privileges, the attorney-client privilege,
and the work product doctrine.

See id., PageID #s 3167-71.

The

Magistrate Judge ordered Scalia to produce unredacted documents
from prior investigations into Defendant Nicholas L. Saakvitne,
and his law firm, Defendant Nicholas L. Saakvitne, A Law
Corporation, or to submit those documents to the court for in
camera review of any claimed privilege.
73.

See id., PageID #s 3171-

With respect to the late-produced Items 41 to 3100, the

Magistrate Judge encouraged Scalia to reconsider any assertion of
privilege and allowed supplemental briefing with respect to those
documents.

See id., PageID #s 3163-66.
6

Finally, the Magistrate

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Judge ordered Bowers and Kubota to file a declaration of counsel
supporting any attorneys’ fees request.

See id., PageID # 3175.

On March 2, 2020, Scalia filed a Fourth Supplemental
Privilege Log that indicated that he had produced unredacted
copies of Items 17 to 26, 28, 28(a) to 28(c), 28(e) to (m), 32 to
34, 37, 39, and 40 that had previously been withheld from
discovery.

See ECF No. 163-2.

That privilege log also indicated

that Scalia had produced Items 14, 15, 16, 27, 28(d), 29, 30, 31,
35, 36, 38 with redactions.

Id.

On March 16, 2020, Bowers and Kubota filed a
supplemental motion to compel Items 41 through 3100 and a motion
for attorneys’ fees and costs.

See ECF No. 172.

On April 3, 2020, after further briefing, the
Magistrate Judge issued another discovery order.
184.

See ECF No.

judge.

This order was the subject of a previous appeal to this
In the April 3 order, the Magistrate Judge denied a

request by Bowers and Kubota that the Government be compelled to
produce unredacted versions of Items 16, 27, 28d, 29, 30, 31, 35,
36, and 38.

See ECF No. 184.

The Magistrate Judge reasoned that

those documents were protected by the deliberative process
privilege, which allows the Government to withhold documents that
reveal the deliberative analysis that precedes an agency
decision.

7

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The April 3 order allowed redactions to various
Saakvitne documents, noting that the redactions were authorized
by the investigative files privilege and the deliberative process
privilege.

See id., PageID #s 3754-63.
On April 24, 2020, the Magistrate Judge denied a motion

for reconsideration of the April 3 order.

See ECF No. 191.

Bowers and Kubota took a limited appeal of the order of
April 3, 2020, with respect to Items 16, 27, 28d, 29, 30, 31, 35,
36, and 38, arguing that the Magistrate Judge had failed to
properly weigh the factors set forth in North Pacifica v. City of
Pacifica, 274 F. Supp. 2d 1118 (N.D. Cal. 2003), in balancing
privilege concerns against the requesting party’s need for
discovery.

This court affirmed in an order dated June 1, 2020.

See ECF No. 214.
On May 7, 2020, while the earlier appeal was pending,
the Magistrate Judge issued another discovery order with respect
to Items 41 to 3100.

See ECF No. 195.

of the present challenges.

This order is the subject

In his order, the Magistrate Judge

explained that, on February 28, 2020, Scalia had produced 10,761
pages of discovery (Items 41 to 3100), most with redactions, and
that Bowers and Kubota’s supplemental motion to compel had sought
unredacted versions of those documents.

See id., PageID # 3905.

The Magistrate Judge determined that most of the documents were
protected by the attorney-client privilege or the work product
8

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doctrine.

See id., PageID # 3907.

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However, the Magistrate Judge

asked Scalia to supplement the record to justify redactions with
respect to Items 252, 254, 257, 276, 296, 352, 525, 746, 1555,
1556, 1557, 1558, 1732 through 1743, and 2047.

See id., PageID

# 3907.
The Magistrate Judge rejected Bowers and Kubota’s
argument that Scalia had waived the deliberative process and
investigative files privileges, reasoning that Scalia’s
unreasonable delays and inconsistencies did not rise to the level
of bad faith supporting a finding of waiver.
#s 3908-12.

See id., PageID

Instead, the Magistrate Judge concluded that the

unreasonable delays and inconsistencies supported an award of
attorneys’ fees and costs

See id., PageID # 3912.

The Magistrate Judge then ruled that, with respect to
Items 41 to 3048, redactions were also supported by governmental
privileges:
Defendants Bowers and Kubota made the same
arguments as to Items 14-40. The Court
considered and rejected these arguments in
its prior order. See ECF No. 184 at 10-32.
The Court finds that the same analysis
applies equally to the Items at issue here.
Although the redacted portions may contain
relevant information, Defendants Bowers and
Kubota have failed to demonstrate that their
need for disclosure of the redacted
information outweighs the Secretary’s
interests in maintaining the privileges.
Accordingly, Defendants Bowers and Kubota’s
request to compel the production of
unredacted versions of Items 41 through 3048
is DENIED.
9

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See id., PageID # 3912-13.
Kubota now appeal.

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This is the ruling that Bowers and

See ECF No. 206.

Bowers and Kubota sought an award of $212,316 in
attorneys’ fees and $2,312.97 in costs for Scalia’s discovery
abuses.

The Magistrate Judge recommends an award of such fees

and costs under Rule 37(a)(5)(A) of the Federal Rules of Civil
Procedure.

In calculating reasonable attorneys’ fees, the

Magistrate Judge used the lodestar method, determining that the
attorneys’ requested hourly rates were reasonable (David R.
Johanson @ $500 per hour; Douglas A. Rubel @ $300 per hour;
Gordon E. Billheimer @ $300 per hour; Robert S. Thompson @ $300
per hour; Rachel J. Markun @ $400 per hour; and Teresa Y. Huang
@ $300 per hour).

See ECF No. 195, PageID #s 3917-19.

The

Magistrate Judge then deducted time representing duplicative and
excessive work.

See id., PageID #s 3920-21.

The Magistrate

Judge apportioned the fees under Rule 37(a)(5)(C) of the Federal
Rules of Civil Procedure, reducing the award by 30% to represent
Bowers and Kubota’s limited success with respect to the motion to
compel.

See id., PageID #s 3921-22.

The Magistrate Judge

therefore reduced what would have been an award of $196,800 by
30% to $137,760.

See id., PageID #s 3922-23.

The Magistrate

Judge also recommended $1,801.20 in costs, deducting from the
requested costs amounts relating to computer research and a

10

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dinner meeting.

See id., PageID #s 3923-24.

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Scalia now

challenges this recommended award of fees and costs.
III.

BOWERS AND KUBOTA’S APPEAL OF DISCOVERY ORDER.
A.

Standard of Review.

Under 28 U.S.C. § 636(b)(1)(A), a district judge may
set aside a magistrate judge’s nondispositive order if it is
“clearly erroneous or contrary to law.”

See also Bhan v. NME

Hosp., Inc., 929 F.2d 1404, 1414-15 (9th Cir. 1991) (stating that
§ 636(b)(1) “provides that the magistrate’s decision on a
nondispositive issue will be reviewed by the district judge under
the clearly erroneous standard”).

The Ninth Circuit has

explained, “Pretrial orders of a magistrate under 636(b)(1)(A)
are reviewable under the ‘clearly erroneous and contrary to law’
standard; they are not subject to de novo determination.

The

reviewing court may not simply substitute its judgment for that
of the deciding court.”

Grimes v. City & Cty. of San Francisco,

951 F.2d 236, 241 (9th Cir. 1991) (quotation marks and citations
omitted).
The threshold of the “clearly erroneous” test is high.
“A finding is ‘clearly erroneous’ when although there is evidence
to support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.”

United States v. U.S. Gypsum Co., 333 U.S. 364, 395

(1948); accord Easley v. Cromartie, 532 U.S. 234, 242 (2001)
11

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(stating that, in reviewing for clear error, “a reviewing court
must ask whether, on the entire evidence, it is left with the
definite and firm conviction that a mistake has been committed”
(quotation marks and citation omitted)); Balen v. Holland Am.
Line Inc., 583 F.3d 647, 655 (9th Cir. 2009) (“Review under the
clearly erroneous standard is significantly deferential,
requiring a definite and firm conviction that a mistake has been
committed.” (quotation marks and citation omitted)); Burdick v.
Comm’r Internal Revenue Serv., 979 F.2d 1369, 1370 (9th Cir.
1992) (“A finding of fact is clearly erroneous if we have a
definite and firm conviction that a mistake has been
committed.”).
“‘A decision is ‘contrary to law’ if it applies an
incorrect legal standard or fails to consider an element of the
applicable standard.’”

Green v. Kanazawa, No. CV 16-00054

LEK-KSC, 2018 WL 5621953, at *3 (D. Haw. Oct. 30, 2018) (quoting
Na Pali Haweo Cmty. Ass'n v. Grande, 252 F.R.D. 672, 674 (D. Haw.
2008)).
B.

The Court Affirms the Discovery Order With Respect
to Bowers and Kubota’s Appeal.
1.

The Magistrate Judge’s Rejection of Bowers
and Kubota’s North Pacifica Argument Was Not
Clearly Erroneous or Contrary to Law.

Bowers and Kubota have filed a limited appeal of the
Magistrate Judge’s order of May 7, 2020.

12

See ECF Nos. 195

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(order), 206 (appeal).

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The appeal pertains only to Items 41 to

3048, reasserting the same argument regarding North Pacifica v.
City of Pacifica, 274 F. Supp. 2d 1118 (N.D. Cal. 2003), that
this court previously rejected with respect to Items 16, 27, 28d,
29, 30, 31, 35, 36, and 38.

See ECF No. 214.

For the same

reasons, this court rejects the North Pacifica argument on this
appeal.
As this court previously ruled, courts “balance four
factors in determining whether this exception to the deliberative
process privilege is met: ‘1) the relevance of the evidence;
2) the availability of other evidence; 3) the government’s role
in the litigation; and 4) the extent to which disclosure would
hinder frank and independent discussion regarding contemplated
policies and decisions.’”

Karnoski v. Trump, 926 F.3d 1180, 1206

(9th Cir. 2019) (quoting FTC v. Warner Commc'ns, 742 F.2d at
1161).
On this appeal, Bowers and Kubota once again argue that
the Magistrate Judge did not sufficiently explain how he weighed
factors in determining whether their need for the redacted
material and accurate fact-finding outweighed the Government’s
interest in nondisclosure.

However, the record demonstrates that

the Magistrate Judge effectively weighed the factors set forth in
Karnoski v. Trump, 926 F.3d 1180, 1206 (9th Cir. 2019).

Not only

did the Magistrate Judge have extensive briefing and argument in
13

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this matter, he conducted an in camera review of the redacted
material in dispute.

Indeed, a review of the Magistrate Judge’s

extensive efforts to address the ever-growing multitude of
discovery disputes is enough to engender in any judge
appreciation and admiration for the Magistrate Judge’s fortitude,
persistence, and patience.
Weighing Bowers and Kubota’s need for the redacted
material and accurate fact-finding against the Government’s
interest in nondisclosure, the Magistrate Judge, for the same
reasons set forth with respect to Items 1 through 40, determined
with respect to the redacted material that the Government’s
interest outweighed that of Bowers and Kubota.

That is, the

redactions allowed disclosure of the factual material in it while
protecting the Government’s interest in keeping certain matters
private.

As the Magistrate Judge ruled for items 1 to 40, while

the redacted information may be relevant to Bowers and Kubota’s
statute of limitation defense and to value and loss calculations
(Karnoski’s first factor weighing in favor of disclosure), Bowers
and Kubota could still conduct full discovery into those issues.
In other words, the Magistrate Judge correctly determined that
Karnoski’s second factor weighed in favor of nondisclosure
because the evidence Bowers and Kubota sought was available
through other discovery.
In the earlier discovery appeal, this court ruled:

14

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while the evidence as to when the Government
knew of Defendants’ alleged violations of
ERISA is primarily under the Government’s
control, the Magistrate Judge correctly
determined that such knowledge could be
discovered through other nonprivileged
material. Karnoski’s third factor therefore
weighs in favor of the Government with
respect to the category of redactions going
to any statute of limitation defense. With
respect to these redactions, disclosure would
chill the Government’s frank and independent
discussions regarding contemplated policies
and decisions. Karnoski’s fourth factor also
weighs in favor of the Government, especially
because Bowers and Kubota do not need the
redacted information to support their statute
of limitation defense, given their
opportunity to get other discovery as to that
defense. With respect to redactions relating
to that defense, they show no clear error.
The Magistrate Judge correctly balanced the
factors identified in Karnoski.
To the extent that Bowers and Kubota
seek evidence concerning valuation and loss,
that information is not solely controlled by
the Government. Instead, what Bowers and
Kubota seem to be seeking is information
about the Government’s thoughts and
deliberative process with respect to
valuation and loss. Bowers and Kubota may be
speculating that there might be a statement
against interest in the redacted material.
However, the Magistrate Judge reviewed the
material in camera and determined that the
factual information in it had been
effectively disclosed and that Bowers and
Kubota could conduct discovery as to the
Government’s value and loss calculations.
Karnoski’s third factor therefore weighs in
favor of the Government with respect to
redactions going to value and loss
calculations. Karnoski’s fourth factor also
weighs in favor of the Government with
respect to that subject because what Bowers
and Kubota seek goes to the Government’s
prelitigation discussions about Defendants’
15

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conduct. Allowing discovery of frank
discussions among Government representatives
deciding whether to bring an action would end
up restricting the Government’s policies and
decisions. With respect to redactions going
to valuation and loss calculations, Bowers
and Kubota show no clear error relating to
the Magistrate Judge’s balancing of the
factors identified in Karnoski.
ECF No. 214, PageID #s 4370-71.
present appeal.

That analysis applies to the

Accordingly, for the same reasons, the court

affirms the Discovery Order to the extent it allowed redactions
in Items 41 to 3048.
2.

The Magistrate Judge Did Not Clearly Err or
Rule Contrary to Law in Rejecting Bowers and
Kubota’s Argument that Scalia Should Be
Deemed to Have Waived Governmental
Privileges.

Bowers and Kubota also fail to establish that the
Magistrate Judge clearly erred in determining that Scalia had not
acted in bad faith and that Scalia should have been deemed to
have waived governmental privileges.

Bowers and Kubota cite two

out-of-district cases, Exxon Corporation v. Department of Energy,
91 F.R.D. 26, 43-44 (N.D. Tex. 1981), and United States ex rel.
Poehling v. Unitedhealth Group, Inc., 2018 WL 8459926, *12 (C.D.
Cal. Dec. 14, 2018), for the proposition that litigation counsel
may not be involved in decisions of senior government officials
with respect to the assertion of governmental privileges.
ECF No. 206, PageID # 4084.

See

They then argue that Ruben Robert

16

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Chappa, counsel for Scalia, should not have been involved in
Scalia’s assertion of a governmental privilege.

Id.

The Magistrate Judge rejected this argument, reasoning
that “[n]either of these cases is controlling authority and
neither is persuasive because both are factually
distinguishable.”

See ECF No. 195, PageID #s 3909-10.

The

Magistrate Judge noted that nothing in either decision “suggests
that it is inappropriate for counsel to provide legal advice to
the senior agency personnel in making their determinations
regarding the governmental privileges or that it is inappropriate
for counsel to draft declarations for the senior agency personnel
to review, approve, and sign.”

Id., PageID #s 3910-11.

The

Magistrate Judge did not clearly err on this point.
Bowers and Kubota imply that Exxon Corporation and
Poehling are controlling precedent that this court must follow.
See ECF No. 206, PageID # 4085 (stating that “the Magistrate
Judge’s assertion that such authorities are not controlling is
inconsistent with the Magistrate Judge’s use of other authorities
from similar courts”).

However, as noted in this court’s order

of June 1, 2020, orders of district courts are not binding on
this court.

See ECF No. 214, PageID # 4368 (noting that a

Northern District of California’s order is not binding on the
Magistrate Judge).

District court decisions may provide

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persuasive arguments, not binding ones.

PageID #:

Bowers and Kubota are

incorrect in treating such cases as controlling precedent.
Bowers and Kubota also misapprehend the holding of
Exxon Corporation.

That Northern District of Texas case stated

that only an agency head could assert the deliberative process
privilege and could do so only after having personally considered
the matter.

91 F.R.D. at 43.

Exxon Corporation noted that the

agency head did not need to personally inspect each document, “so
long as he establishes case-specific content guidelines which
will insure appropriate and consistent invocation of the
privilege by the agency.”

Id. at 44.

In relevant part, Exxon

Corporation stated that affirmations of staff attorneys,
particularly those participating in litigation, were insufficient
to support a claim of deliberative process privilege.

Id.

Exxon

Corporation does not stand for the proposition that litigation
attorneys may never counsel an agency head with respect to
assertions of the deliberative process privilege, only that they
may not themselves assert the privilege on behalf of the agency.
Bowers and Kubota cite Poehling with similar ill
effect.

Poehling, a Central District of California case, cited

another California district court order discussing Exxon
Corporation and stating that staff attorneys, particularly those
participating in pending litigation, could not assert the
deliberative process privilege on behalf of an agency.
18

See 2018

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WL 8459926, at *12.

PageID #:

Instead, as Poehling notes, the deliberative

process privilege had to be asserted by the head of the
department.

Id.

Poehling did not hold that the head of a

department could not consult attorneys in asserting the
privilege.
In the present case, Assistant Secretary of Labor
Preston Rutledge asserted the deliberative process privilege.
See ECF No. 121-6.

Rutledge said that, under the Secretary of

Labor’s Order 16-2006, § 4, 71 Fed. Reg. 67,024 (Nov. 17, 2006),
the authority to invoke the deliberative process privilege had
been delegated to him in connection with the Department of
Labor’s enforcement of ERISA.

See Decl. of Assistant Secretary

of Labor Preston Rutlege ¶ 4, ECF No., 121-6, PageID # 1795.
Rutledge noted that Scalia had produced a privilege log in which
he asserted the deliberative process privilege.
# 1800.

Id. ¶ 15, PageID

Rutledge stated that he had personally reviewed Items 16

to 19, and 21 to 43, and concluded that those documents were
protected by the deliberative process and investigative files
privileges.

See id., PageID #s 1800-10.

On January 30, 2020, Rutledge filed a supplemental
declaration, incorporating by reference his earlier declaration.
See ECF No. 159.

He then stated:

My staff has received a copy of each
document withheld under Privilege Nos. 41
through 3100. My staff reviewed each page of
the emails and attachments that comprise
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Privilege Nos. 41 through 3100 (totaling
10,761 pages). For each email, my staff
noted the sender and recipients of the emails
and the subject matter of the email. For
each attachment, my staff noted the author
and subject matter of the document. My staff
reviewed the privileges invoked on the
Secretary's First Amended Fourth Supplemental
Privilege Log for each email and document
withheld under Privilege Nos. 41 through
3100.
Id. ¶ 9, PageID # 3158.
Rutledge said that, on January 29, 2020, his staff
addressed “the nature and scope of the email communications and
attachments withheld under Privilege Nos. 41 through 3100,”
adding:
During the briefing, my staff provided me a
comprehensive summary of the documents
comprising Privilege Nos. 41 through 3100.
This summary included identifying the senders
and recipients of the email communications,
the subject matter and purpose of the email
communications, and the subject matter and
purpose of the email attachments.
Id. ¶ 10, PageID # 3158.

He stated that, based on his staff’s

review of Items 41 to 3100 and briefing, he was asserting the
deliberative process and investigative files privileges.

Id.

¶ 11, PageID # 3159.
Given Rutledge’s declarations and assertion of the
deliberative process and investigative files privileges, it
cannot be said that litigation attorneys, rather than an agency
head, asserted the governmental privileges.

That counsel for

Scalia may have advised Rutledge does not mean that Rutledge
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failed to properly invoke the privileges or that he acted in bad
faith.
Finally, this court determines that the Magistrate
Judge did not clearly err in ruling that Scalia’s delayed
assertion of the privileges was not in bad faith.

As discussed

below in connection with attorneys’ fees, the delay was not
substantially justified.

But that does not amount to bad faith

such that this court should deem the assertion of the
deliberative process privilege to have been waived.
IV.

SCALIA’S OBJECTION TO RECOMMENDED ATTORNEYS’ FEE AWARD.
A.

Standard of Review.

A district judge reviews de novo those portions of a
magistrate judge’s findings and recommendation to which an
objection is made and may accept, reject, or modify, in whole or
in part, the findings and recommendation made by the magistrate
judge.

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Kealoha v.

Totto, 2017 WL 1839280, *2 (D. Haw. May 8, 2017); Paco v. Meyers,
2013 WL 6843057, *1 (D. Haw. Dec. 26, 2013).

In other words, a

district judge “review[s] the matter anew, the same as if it had
not been heard before, and as if no decision previously had been
Freeman v. DirectTV, Inc., 457 F.3d 1001, 1005 (9th

rendered.”
Cir. 2006).

The district judge may accept those portions of the
findings and recommendation that are not objected to if the
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district judge is satisfied that there is no clear error on the
face of the record.

United States v. Bright, 2009 WL 5064355, *3

(D. Haw. Dec. 23, 2009); Stow v. Murashige, 288 F. Supp. 2d 1122,
1127 (D. Haw. 2003).

The district judge may receive further

evidence or recommit the matter to the magistrate judge with
instructions.

28 U.S.C. § 636(b)(1).

While the district judge

must arrive at independent conclusions about those portions of
the magistrate judge’s report to which objections are made, a de
novo hearing is not required.

United States v. Remsing, 874 F.2d

614, 617 (9th Cir. 1989); Kealoha, 2017 WL 1839280, *2.
B.

The Court Reduces the Award of Attorneys’ Fees.
1.

The District Judge Agrees with the Magistrate
Judge That Fees Are Awardable.
a.

Scalia Was Not Substantially Justified
in His Untimely Assertion of the
Deliberative Process Privilege.

Bowers and Kubota’s motions to compel ultimately
resulted in Scalia’s production of thousands of pages of
documents, albeit on an untimely basis.

Under Rule 37(a)(5)(A)

of the Federal Rules of Civil Procedure, when a court grants a
motion to compel or when a party provides the requested discovery
after the filing of a motion to compel, “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

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expenses incurred in making the motion, including attorney’s
fees.”

However, reasonable fees and expenses in making the

motion shall not be awarded 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.

When a motion to compel discovery is granted in

part and denied in part, Rule 37(a)(5)(C) allows this court to
“apportion the reasonable expenses for the motion.”
Scalia initially argues that attorneys’ fees should not
be awarded because his conduct was substantially justified,
meaning “reasonable people could differ as to whether the party
requested must comply.”

Reygo Pac. Corp. v. Johnston Pump Co.,

680 F.2d 647, 649 (9th Cir. 1982).

This court is unpersuaded.

Scalia’s unreasonableness is demonstrated by the untimeliness of
his discovery production, withholding of items without any basis
or based on overly broad assertions of privileges, and provision
of deficient declarations to support claims of privileges, as
carefully detailed by the Magistrate Judge in his order of
February 10, 2020.

See ECF No. 162, PageID #s 3163-66.

While

Scalia characterizes his production of documents as voluntary and
says that he had thousands of documents to review, the record

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does not establish that the lengthy delay necessitating the
filing of the motion to compel should be excused.
Bowers and Kubota served their Second Set of Requests
for Production of Documents on May 20, 2019.

See ECF No. 92.

Nearly four months later, on September 14, 2019, they moved to
compel.

See ECF No. 113.

A month after that motion was filed,

Scalia produced his Third Supplemental Privilege Log and produced
the Rutledge declaration to support claims of deliberative
process and investigative files privileges.

See ECF Nos. 121,

121-6.
On November 22, 2019, the Magistrate Judge held a
hearing on the Motion to Compel.

The Magistrate Judge said he

found the Third Supplemental Privilege Log to be deficient and
viewed many of the privileges asserted to be too broad or without
adequate support.

See ECF No. 162, PageID #s 3163-64.

The

Magistrate Judge therefore ordered Scalia to reconsider the
assertions of privilege and the decision to withhold entire
documents instead of to produce redacted copies.

The Magistrate

Judge ordered Scalia to produce a supplemental privilege log with
more detail, to produce certain documents for in camera review,
and to conduct a meet and confer with Bowers and Kubota to narrow
remaining issues.

See ECF No. 137.

On December 6, 2019, the Secretary produced a Fourth
Supplemental Privilege Log, which provided some additional

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information regarding the 40 documents originally at issue and
substantially broadened discovery by identifying an additional
5000 documents withheld on the basis of privilege.

See ECF No.

145.
On December 12, 2019, the Secretary produced an
“Addendum” to its Fourth Supplemental Privilege Log, which
identified 10 additional Items.

See ECF No. 154-3.

Then, on

January 8, 2020, the Secretary produced a First Amended Fourth
Supplemental Privilege Log.

See ECF No. 154-4.

On January 30, 2020, Scalia produced a Supplemental
Declaration of Assistant Secretary of Labor Preston Rutledge that
purported to support the assertions of government privileges with
respect to Items 41 through 3100.

See ECF No. 159.

Without

explanation as to the delay, this supplemental declaration
finally detailed the assertion of the privileges first asserted
in October 2019 in the Third Supplemental Privilege Log.

See ECF

No. 121-5 at 10-11.
Given these circumstances, Scalia cannot be said to
have established that the untimeliness of his disclosure of
documents and the delay in his assertion of governmental
privileges were substantially justified.

Scalia’s argument that

the multiple declarations and privilege logs were only necessary
because the Magistrate Judge required them is unpersuasive.
Scalia should have submitted those declarations and detailed

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privilege log much earlier.

PageID #:

At a minimum, even if Scalia had a

good-faith belief that he was not required to detail the
privileges asserted with respect to each document, that does not
excuse the failure to produce the redacted documents on a timely
basis.
b.

Scalia Does Not Show That an Award of
Reasonable Fees and Expenses Is Unjust.

Scalia characterizes the late production of documents
as representing a voluntary production.
# 4044.

See ECF No. 205, PageID

On this appeal, however, Scalia does not demonstrate

that the production was voluntary.

Instead, all parties appear

to have been assuming that the documents were indeed responsive
to document requests.

Scalia’s mere assertion of voluntariness

does not demonstrate that the award of reasonable fees and
expenses is unjust.
Scalia also argues that an award of fees and expenses
is unjust because he was “almost wholly vindicated.”

ECF No.

205, PageID # 4050.

While most

The record indicates otherwise.

of Scalia’s assertions of privilege were upheld, he was still
required to produce redacted versions of documents that he had
entirely withheld.

Additionally, the correct assertion of

privilege does not excuse a delay in asserting the privilege.

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c.

PageID #:

Scalia Was Afforded an Opportunity to Be
Heard Before Sanctions Were Imposed.

Scalia contends that he was not afforded an opportunity
to be heard before sanctions were imposed.

That contention is

contradicted by the record.
On February 10, 2020, the Magistrate Judge issued his
Order Following February 7, 2020, Hearing re: Defendants Brian J
Bowers and Dexter C. Kubota’s Motion to Compel Discovery.
ECF No. 162.
dispute.

See

This order documented the discovery sanctions

Ultimately, the Magistrate Judge ordered Bowers and

Kubota to file a supplemental brief regarding Items 41 through
3100 and any requested discovery sanctions, as well as a
declaration of counsel supporting any sanction request.

See id.,

PageID # 3175.
On March 16, 2020, Bowers and Kubota filed their
Supplemental Motion to Compel (Items 41 to 3100) and Related
Motion for Attorneys’ Fees and Expenses.

See ECF No. 172.

They

also submitted a Declaration of Counsel supporting the requested
fees.

See ECF No. 173.

On March 31, 2020, Scalia filed a

response to the supplemental memorandum and related motion for
attorneys’ fees and costs.

See ECF No. 181.

In opposing the

“Related Motion for Attorneys Fees and Expenses,” Scalia had an
opportunity to be heard with respect to the motion.

See Blake v.

Nishimura, 2008 WL 4754858, at *2 (D. Haw. Oct. 24, 2008)
(stating that a party had an opportunity to be heard with respect
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to a discovery sanction under Rule 37(a)(5)(A) “by filing a
memorandum in opposition to the Motion”).

Scalia argued that the

requested hourly rates do not reflect the prevailing market rate
for attorneys in Honolulu of comparable skill, experience, and
reputation.

See ECF No. 181, PageID # 3689.

Scalia also argued

that the requested fees were excessive, redundant, and
unnecessary.

Id., PageID # 3688-89.

These issues were therefore

clearly raised to the court and, given Bowers and Kubota’s reply
memorandum, all parties had an opportunity to brief them.
d.

Scalia’s Other Arguments in Support of
Denying Fees and Costs are Unpersuasive.

Scalia argues that the Magistrate Judge should not have
considered the Declaration of John J. D’Amato, which was attached
to the Reply and declared that the requested attorneys’ fees were
reasonable and appropriate in this jurisdiction.

Scalia is

correct that, under Local Rule 7.2, “[a]ny argument raised for
the first time in the reply shall be disregarded.”
does not mean no fees may be awarded.

However, that

This court is familiar

with the reasonable rates charged by attorneys in this district,
and Scalia certainly could have consulted attorneys in the
District of Hawaii.

Moreover, fee orders issued in other cases

in this district are available on Westlaw such that Scalia is not
the victim of surprise.

The point is that, even if D’Amato’s

declaration is set aside, the fees sought may be reasonable.
Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir.
28

See

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2008) (noting that the prevailing market rate may be demonstrated
by affidavits discussing the market rates or by examining “rate
determinations in other cases”).
Sam K. ex rel. Diane C v. Hawaii Department of
Education, 788 F.3d 1033, 1041 (9th Cir. 2015), also demonstrates
that this court may rely on its own knowledge and case law to
determine the prevailing market rate in Honolulu.

In that case,

the Ninth Circuit specifically noted that recent fee awards by
courts for attorneys of comparable reputation and experience are
useful guides in setting rates.

It stated, “District courts may

also use their own knowledge of customary rates and their
experience concerning reasonable and proper fees.”
(quotation marks and citation omitted).

Id.

Sam K approved of a

reduction in a requested hourly rate based on the court’s
familiarity with the prevailing rates in the community and
citation of specific fee awards in other cases in the district.
Id.
Scalia also contends that this court should not award
fees and costs because the parties did not conduct the meet and
confer required by Local Rule 54.2(d).

That rule states, “Prior

to filing a Fee Motion, the parties involved shall meet and
confer in a good faith attempt to agree on the amount of fees or
related nontaxable expenses that should be awarded.”

While this

court normally requires parties to meet and confer prior to

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filing any fee request, this case presents the unusual
circumstance in which the parties discussed discovery sanctions
with the Magistrate Judge, who told Bowers and Kubota to file its
request for fees and expenses.

Under Local Rule 54.2(h), a

failure to meet and confer “may, in the court’s discretion,
result in the denial of such motions with prejudice.”

The

Magistrate Judge, who was in the thick of discussions about
discovery, apparently thought the discussions warranted a motion.
This court exercises its discretion under these circumstances to
consider the Magistrate Judge’s recommendation even if no meet
and confer occurred.
2.

The Court Reduces the Attorneys’ Fees Award.

The Magistrate Judge awarded $139,561.20 in attorneys’
fees.

Scalia argues that this award should be reduced.

This

court agrees.
“Once a party is found eligible for fees, the district
court must then determine what fees are reasonable.”

Klein v.

City of Laguna Beach, 810 F.3d 693, 698 (9th Cir. 2016) (citing
Hensley v. Eckerhart, 461 U.S. 424, 444 (1983)).

In determining

reasonableness, this court applies the lodestar method, which
involves “multiplying the number of hours the prevailing party
reasonably expended on the litigation by a reasonable hourly
rate.”

Id. (quotation marks and citations omitted).

This court

may then adjust the lodestar amount based on factors articulated
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in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.
1975), so long as those factors have not already been examined in
the lodestar analysis.
a.

Reasonable Hourly Rates.

The determination of a reasonable hourly rate examines
the experience, skill, and reputation of the attorney requesting
fees.

See Webb v. Ada Cty., 285 F.3d 829, 840 (9th Cir. 2002).

That rate is based on the prevailing market rate in the relevant
community, which in this case is Honolulu.

See Prison Legal News

v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010).

Bowers and

Kubota seek the following fees:

ECF No. 173-1, PageID # 3328.
The Magistrate Judge determined that the hourly rates
requested reflect the reasonable rates in this community.
ECF No. 195, PageID # 3919.

See

This court disagrees and modifies

the hourly rates as set forth below, determining that the
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modifications are necessary to comport with established practice.
This court is well aware of the prevailing rates in the Honolulu
legal community for similar services performed by attorneys of
comparable experience, skill, and reputation.

While Bowers and

Kubota’s attorneys have specialized experience with ERISA, the
present dispute involves discovery, for which that specialized
experience would not necessarily be needed.

Some of the

Magistrate Judge’s findings as to reasonable hourly rates are
therefore reduced here.
There are many cases in this district involving the
lodestar calculation.

In Reyes v. Tanaka, for example, an hourly

rate of $500 was sought for a “Principal” attorney with 28 years
of experience, and an hourly rate of $250 was sought for an
“Associate” with 10 years of legal experience.
00143 JAO/KJM, ECF No. 427, PageID # 9328.

See Civ. No. 17-

The court, in an

order dated June 2, 2020, determined that the prevailing rate in
Honolulu for a “Principal” attorney with 28 years of experience
was $400 per hour.

It also determined that the prevailing rate

in Honolulu for an “Associate” with 10 years of legal experience
was $225 per hour.
2020).

See 2020 WL 2857493, at *2 (D. Haw. June 2,

Similarly, in ME2 Productions, Inc. v Pumaras, 2017 WL

4707015 (D. Haw. Oct. 19, 2017), this judge approved an hourly
rate of $250 for an attorney with 17 years of experience.

32

These

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cases are instructive with respect to reasonable hourly rates in
the Honolulu community for general litigation work.
In this case, David R. Johanson is the “Partner-inCharge.”

There is no question that he has extensive and broad

legal experience, as he has been practicing law for 34 years.
See ECF No. 173-3.

While he requests an hourly rate of $500 for

this discovery dispute, this court finds that the reasonable rate
for an attorney in Honolulu with his experience, skill, and
reputation is $425, in line with the “Principal” attorney in
Reyes with 28 years of experience who was awarded $400 per hour.
David A. Rubel is “Of Counsel” and has also been
practicing law for 34 years.

See ECF No. 173-4.

He requests an

hourly rate of $300, which this court finds reasonable.
Gordon E. Billheimer is a former “Partner” with an
unknown amount of experience.
requesting $300 per hour.

See ECF No. 173-4.

He is

Given the dearth of information about

the length of his experience in the record, it is not clear why
he has the same rate as Rubel.

The lack of detail in the record

causes this court to default to the same rate as Huang ($250),
the attorney with the lowest rate in this case.
Robert S. Thompson is a “Partner” with 28 years of
experience.

See ECF No. 173-6.

He requests an hourly rate of

$300, which this court finds reasonable.

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Rachel J. Markun is a “Partner” with 39 years of
experience.

See ECF No. 173-7.

She requests an hourly rate of

$400, which this court finds reasonable.
Teresa Y. Huang is a “Partner” with 15 years of
experience.

See ECF No. 173-8.

She requests an hourly rate of

$300, which this court finds exceeds a reasonable hourly rate for
an attorney with her experience, skill, and reputation in this
community, especially when $300 is the rate assigned to Mr.
Thompson, who has 28 years of experience.

The court instead

assigns Ms. Huang a rate of $250 per hour.
b.

Hours Are Further Reduced to More
Accurately Reflect Excessive, Redundant,
and Unnecessary Work.

A district court should exclude from the lodestar
amount hours that are not reasonably expended because they are
“excessive, redundant, or otherwise unnecessary.”

Van Gerwen v.

Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000).
The Magistrate Judge determined that such deductions were
appropriate.

See ECF No. 195, PageID #s 3920-21.

In reviewing

the matter de novo, this court concludes that the Magistrate
Judge should have made further deductions.

As described in the

attached Exhibit A, the court awards 105.5 hours for Johanson’s
time ($44,837.50 @ $425 per hour), 113.1 hours for Rubel’s time
($33,930 @ $300 per hour), 14.8 hours for Billheimer’s time
($3,700 @ $250 per hour), 1 hour for Thompson’s time ($300 @ $300
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per hour), 19.9 hours for Markun’s time ($7,960 @ $400 per hour),
and nothing for Huang’s time.

The sum of these amounts is

$90,727.50.
As shown in the attached Exhibit A, this court deducts
time that Bowers and Kubota failed to demonstrate was reasonably
incurred in making the motion (Category A).

See F. R. Civ. P.

37(a)(5)(A); Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th

Cir.

1992) (“The fee applicant bears the burden of documenting the
appropriate hours expended in the litigation and must submit
evidence in support of those hours worked.”).

This includes time

entries that were so far removed from the motion to compel that,
having failed to provide sufficient detail, Bowers and Kubota do
not establish were reasonably related to the motion.

This

category also includes time entries for work that would have been
done irrespective of the filing of the motion to compel (e.g.,
analyzing documents and privilege logs).
The court reduces the time to address block billing
(Category B), duplicative work (Category C), ministerial work
(Category D), and excessive work or preparation (Category E).
See Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 763 (9th Cir.
2015) (“The district court may reduce the amount of requested
fees to reflect a party’s limited degree of success, to account
for block billing, or to deduct those hours the court deems
excessive”) (citations omitted); Moreno v. City of Sacramento,

35

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534 F.3d 1106, 1112 (9th Cir. 2008) (stating that courts may
reduce hours for unnecessary duplicative work); Welch v. Metro.
Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007) (recognizing a
court’s authority to reduce hours for block billing); Seven
Signatures Gen. P'ship v. Irongate Azrep BW LLC, 871 F. Supp. 2d
1040, 1055 (D. Haw. 2012) (“As a general rule, the Court does not
permit more than one attorney to bill for attending: (1) a
meeting between co-counsel; (2) a client meeting; or (3) a
meeting with opposing counsel.”); Jeremiah B. v. Dep't of Educ.,
2010 WL 346454, at *5 (D. Haw. Jan. 29, 2010) (“[C]lerical or
ministerial costs are part of an attorney’s overhead and are
reflected in the charged hourly rate.”).
The court deducts the time spent redoing work to comply
with the local rules (Category F).

See United States v. Real

Prop. Known as 22249 Dolorosa St., Woodland Hills, Cal., 190 F.3d
977, 985 (9th Cir. 1999) (excluding time for unnecessary work).
In this case, Bowers and Kubota filed an amended memorandum
supporting their motion to compel because they failed to follow
Local Rule 7.4.

The court deducts the time relating to the

filing of the amended memorandum, as Scalia should not have to
pay for Bowers and Kubota’s mistake.
The Magistrate Judge appropriately apportioned the fee
award pursuant to Rule 37(a)(5)(C) of the Federal Rules of Civil
Procedure to reflect Bowers and Kubota’s limited success,
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including their unsuccessful request for unredacted documents,
failed arguments about privileges, and hours spent on their
rejected waiver argument (Markun requested 0.3 hours for work on
11/4/19, 1.3 hours for work on 2/24/20, and 1.5 hours for work on
2/26/20).

See ECF No. 195, PageID # 3921-22; Ryan, 786 F.3d at

763 (stating that a court may reduce hours to reflect a party’s
limited success).

The reduction of 30% to reflect Bowers and

Kubota’s limited success is reasonable, and the court reduces the
lodestar amount of $90,727.50 by 30%, awarding $63,509.25 in
fees.
V.

CONCLUSION.
The court affirms the challenged portion of the

Discovery Order going to what must be produced.

The court adopts

the Magistrate Judge’s findings and recommendation that fees and
costs be awarded, noting that the award of $1,801.20 in costs is
not challenged.

However, as to the amount of fees to be awarded,

the court modifies the Magistrate Judge’s recommendation and
issues a reduced award of $63,509.25.

37

Case 1:18-cv-00155-SOM-WRP Document 237 Filed 07/21/20 Page 38 of 38
5530

PageID #:

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 21, 2020.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Scalia v. Heritage, et al., Civ. No. 18-00155 SOM-WRP; ORDER AFFIRMING MAGISTRATE
JUDGE'S ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS BRIAN J. BOWERS AND
DEXTER C. KUBOTA'S SUPPLEMENTAL MOTION TO COMPEL (ITEMS 41-3100); ORDER ADOPTING IN
PART AND MODIFYING IN PART MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION WITH RESPECT
TO RELATED MOTION FOR ATTORNEYS' FEES AND EXPENSES; EXHIBIT A

38