Webb et al v. CBS Broadcasting, Inc. et al

Filing 294

MEMORANDUM Opinion and Order. Signed by the Honorable Geraldine Soat Brown on 9/28/2011: Notice mailed by judge's staff (ntf, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JILL and ROBERT WEBB in their own )
proper persons, and as parents and next )
friends of their minor children,
)
)
Plaintiffs,
)
)
v.
)
)
CBS BROADCASTING, INC., a foreign )
Corporation,
)
)
Defendant.
)

Case No. 08 C 6241
Judge Amy J. St. Eve
Magistrate Judge Geraldine Soat Brown

MEMORANDUM OPINION AND ORDER
Geraldine Soat Brown, United States Magistrate Judge
This matter is before the court on defendant CBS Broadcasting Inc.’s (“CBS”) motion for
attorneys’ fees and costs to determine the appropriate amount of sanctions previously ordered.
(Def.’s Mot.) [Dkt 239.] CBS seeks a total sanction amount of $79,336.10. (Id. at 1.) For the
reasons set forth below, CBS’s motion is granted in part and denied in part, and plaintiffs Jill and
Robert Webb (“the Webbs”) and their counsel are sanctioned $76,529.04. The Webbs and their
counsel are jointly and severally liable for that amount, and shall remit payment to CBS within 30
days of this order.

1

Background
Sanctions were imposed against the Webbs and their counsel for the second time in this case
due to their failure to comply with their discovery obligations under the Federal Rules of Civil
Procedure, for providing misleading statements in depositions and false affidavits to the court about
the existence of discoverable information, for the Webbs’ counsel’s active concealment of
confidential CBS documents, and for violation of the court’s order closing discovery. (Mem. Op.
& Order, May 6, 2011.) [Dkt 238.] As a result of that misconduct, CBS was compelled to hire a
computer forensics expert to examine the Webbs’ personal computer and review the results, take
additional depositions of the Webbs, and spend considerable time bringing motions to compel the
return of confidential documents and for sanctions. Accordingly, the Webbs and their counsel were
held jointly and severally liable to pay CBS: (1) the fees and costs charged by computer forensics
expert James Murray in the amount of $3,241.25;1 (2) the additional costs CBS incurred to resume
the Webbs’ depositions in the amount of $414.29;2 and (3) the reasonable attorneys’ fees and costs
incurred by CBS in bringing and briefing the following: CBS’s Renewed Motion for Sanctions;
CBS’s Motion to Compel Return of Confidential Documents and to Dismiss; and CBS’s
Supplemental Memorandum in support thereof, including CBS’s response to the Webbs’ Motions
to Supplement their Reply to the Court’s Query. (Id. at 33.)

1

The Webbs were previously ordered to pay the cost of imaging the hard drive on their
computer in the amount of $885.00. The remaining amount of $2,356.25 is the fee for
conducting the search. (Mem. Op. & Order at 33 n. 16.)
2

In connection with the resumed depositions, CBS sought only the hotel bill incurred for
its out-of-town counsel to stay one additional night in Chicago. (Mem. Op. & Order at 33 n. 17.)
Documentation of the hotel room charge of $414.29 was submitted in support of CBS’s Renewed
Motion for Sanctions. (Def.’s Ren. Mot. Sanctions, Suppl. Larsen Decl., Ex. P.) [Dkt 136.]
2

The court instructed CBS to calculate the amount of the third category and communicate it
to the Webbs’ counsel. (Id. at 33-34.) CBS thereafter sent a letter to plaintiffs’ counsel, John
DeRose, with a calculation of $79,336.07 as a total proposed sanction amount, which included the
aforementioned $3,241.25 for fees charged by Mr. Murray, $414.29 for CBS’s counsel’s hotel bill
necessitated by the additional depositions, and CBS’s calculation of $75,187.10 in attorneys’ fees
and $493.46 in costs for bringing and responding to the various motions. (Def.’s Mem., Ex. A.)
[Dkt 240.] The letter refers to an itemization of the hours worked and hourly fees charged by
attorney and paralegal who worked on the motions. (Id.) CBS represented that the amount requested
was in fact a reduction from the $86,813.06 CBS actually spent in attorneys’ fees and costs. (Id.)
CBS did not receive a response to its letter, and according to Mr. Levine, Mr. DeRose purportedly
indicated he and his clients would not willingly pay any amount during a June 1, 2011 conversation
with CBS counsel. (Def.’s Mem. Mot., Group Ex. B, Aff. Lee Levine ¶¶ 9-10.)
In support of its present motion and fee calculation, CBS has submitted affidavits from four
attorneys and one paralegal who worked on the motions, reflecting the following breakdown of fees
and costs: 36.1 hours for attorney Lee Levine at an hourly rate of $375 prior to January 1, 2011 and
$390 thereafter; 108.4 hours for attorney Ashley I. Kissinger at an hourly rate of $350 prior to
January 1, 2011 and $370 thereafter; 20.6 hours for attorney Brian A. Sher at an hourly rate of $435
prior to January 1, 2011 and $450 thereafter; 12.7 hours for attorney Katherine Larsen at an hourly
rate of $280; and 43.3 hours for paralegal Marla D. Kelley at an hourly rate of $190 prior to January
1, 2011 and $195 thereafter; and $493.46 in travel expenses incurred by Mr. Levine in connection
with appearing before the court on the motions. (Def.’s Mem., Group Ex. B.)
The Webbs have raised specific objections to most of the time CBS’s attorneys spent on these
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motions on the basis that it was duplicative, excessive, and/or unnecessary. (See Pls.’ Resp.) [Dkt
244.] The Webbs also argue that the affidavits CBS’s attorneys provided do not support their hourly
rates because they do not describe their qualifications. (Id. at 2.) Finally, the Webbs request a
hearing before the court for the following purposes: to be heard on the subject of whether sanctions
should be imposed, to inquire of CBS’s counsel about the hours charged and to voice objection that
such claims are inappropriate, and “to explain to this Honorable Court the actions taken by them
during discovery, their attempt to withhold nothing from the defense, their eager cooperation to join
in the search for all relevant material, the unilateral obstruction of the discovery process by CBS, and
the freedom from any contumacious conduct by plaintiffs and their attorney.” (Id. at 12.)

Discussion
The Webbs’ last argument is addressed first: the Webbs have had ample opportunity to be
heard on the subject of whether sanctions should be imposed and to object to CBS’s calculations of
those sanctions, and they will not be granted yet another opportunity to do so at this belated stage.
When CBS filed its initial renewed motion for sanctions, the Webbs filed a response along with
supporting affidavits from Jill Webb and the Webbs’ counsel. [Dkt 156.] After CBS filed its later
motion for dismissal as a sanction, the Webbs and their counsel knew what was potentially at stake:
sanctions up to and including dismissal of the case. This court provided the Webbs with the
opportunity to respond to that motion and explicitly instructed, “[P]laintiffs shall file a response to
defendants’ motion to dismiss showing cause why this Court should not recommend to the District
Judge that this case be dismissed with prejudice as a sanction and why additional sanctions should
not be imposed.” (Order, Feb. 17, 2011.) [Dkt 196.] The Webbs did, in fact, file a response,
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complete with supporting exhibits. [Dkt 202.] After CBS filed a supplement to its motion, the
Webbs were again given the opportunity to respond, with the specific instruction, “Plaintiffs’
response shall also include any argument plaintiffs have as to why the case should not be dismissed.”
(Order, March 24, 2011.) [Dkt 211.] The Webbs responded and were further granted leave to file
supplements to that response on two occasions with additional briefing and supporting exhibits.
[Dkt 213, 225, 231, 233.] At the conclusion of that extensive briefing, CBS’ motions were granted
in a lengthy opinion. (May 6, 2011 Opinion.)
The Webbs chose not to raise any objections to the May 6, 2011 Opinion to the District Judge
within the time allotted under the Federal Rules. See Fed. R. Civ. P. 72(a). As for objections to the
specific amount of sanctions at issue in the present motion, the Webbs were again given the
opportunity to object, and they did. (Order, June 10, 2011; Pls.’ Resp.) [Dkt 242, 244.] The Webbs
have been fully heard on these issues.
Turning to the matter of CBS’s attorney’s hourly rates, the Webbs argue that all of the
claimed rates should be “dismissed out of hand” on the basis that they are not supported by affidavits
sufficiently describing the attorneys’ experience and qualifications. (Pls.’ Resp. at 2.) However, this
court previously found the rates charged by Mr. Levine, Mr. Sher, and Ms. Larsen prior to January
1, 2011 to be reasonable in connection with the prior sanctions order in this case, based on affidavits
they submitted in support of CBS’ earlier motion. (Mem. Op. & Order, Oct. 5, 2010 at 4.) [Dkt
127.] The Webbs did not object to those rates in their response to that motion. (Id.) As for the rates
charged by Ms. Kissinger and Ms. Kelley, they are what CBS was billed for the work performed.
(See Def.’s Mem. Mot., Group Ex. B, Aff. Ashley I. Kissinger ¶ 4, Aff. Marla D. Kelley ¶ 4.) A
court awards an attorney’s hourly rate at the “market rate,” and “the best evidence of the market
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value of legal services is what people pay for it.” TruServ Corp. v. Flegles, Inc., 419 F.3d 584, 593
(7th Cir. 2005). For this reason, the $15 increase in Mr. Sher, Mr. Levine, Ms. Kissinger, Ms.
Kelley’s rates in 2011 is also reasonable. Furthermore, while the Webbs objected to the evidence
establishing CBS’s attorneys’ rates, they did not submit evidence of what their own counsel charged
for his work on the motions.
That leaves the question of whether the time CBS’s legal team spent on the motions was
reasonable. Before addressing the Webbs’ specific objections to the attorneys’ time entries, it is
important to recall that the Webbs’ and their counsel’s misconduct warranting the imposition of
sanctions in the first place resulted in a tangled web of documents, deposition testimony, and
disputes that had to be sorted through in connection with the underlying motions. See May 6, 2011
Opinion at 29: “[T]he Webbs and their counsel have distorted the process of litigating this case
beyond any reasonable relationship to the simple claim that is actually at issue.” With that said, the
Webbs’ specific objections to the hours charged are taken in turn.

1.

Drafting CBS’s Renewed Motion for Sanctions

The Webbs object to much of the time CBS’s legal team spent preparing and drafting its
renewed motion for sanctions on the basis it was excessive, unnecessary, and involved duplication
of effort. (Pls.’ Resp. at 2-4.) First, they object to 2.3 hours Ms. Kissinger, a partner at the law firm
of Levine Sullivan Koch & Schulz, L.L.P., spent reviewing the case history and formulating strategy
for the motion, as well as 26.3 hours Ms. Kissinger spent drafting the motion and supporting
declarations and reviewing and finalizing the attached exhibits. (Pls.’ Resp. at 2-3; Kissinger Aff.

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¶¶ 2, 5 (10/8/10-10/15/10 entries).)3 Although the Webbs claim this time was excessive, the renewed
motion for sanctions CBS submitted to the court included a fourteen-page memorandum, a
declaration from CBS attorney Ms. Larsen with sixteen attached exhibits, and a declaration from
CBS’s computer forensics expert James Murray with three attached exhibits. [Dkt 133, 135, 136,
137.] It is true, as the Webbs point out, that the memorandum is sparse on legal citations; however,
it is largely devoted to untangling the shifting statements the Webbs made in their depositions and
affidavits to the court about relevant discovery documents and reconciling those statements with the
results of the Mr. Murray’s examination of the Webbs computer. [Dkt 135.] Moreover, the
numerous exhibits attached to the motion, which included excerpts from deposition testimony and
representative emails and documents uncovered on the Webbs’ computer, would reasonably
necessitate time to review and edit down. The factual background of CBS’ motion was complex.
The time Ms. Kissinger spent on these tasks was not excessive and will not be denied or reduced.
Second, the Webbs object to 7 hours Mr. Levine, also a partner at Levine Sullivan Koch &
Schulz, L.L.P., spent reviewing and revising the renewed motion for sanctions as duplicative of Ms.
Kissinger’s work. (Pls.’ Resp. at 3; Levine Aff. ¶¶ 2, 5 (10/9/10-10/15/10 entries).) As this court
noted in its previous order imposing sanctions, a modest amount of time spent reviewing another
attorney’s draft is not unreasonable. (Mem. Op. & Order, Oct. 5, 2010 at 4.) Moreover, Mr. Levine
was the attorney appearing on the motion before the court. Given these considerations, 7 hours is
not excessive.
Third, the Webbs object to the 12.7 hours Ms. Larsen, an associate at Levine Sullivan Koch

3

The Webbs calculated Ms. Kissinger’s time spent drafting the motion at 28.1 hours, but
the time entries to which they object total 26.3 hours. (Pl.’s Resp. at 2-3; Kissinger Aff. ¶ 5.)
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& Schulz, L.L.P., spent what the Webbs call “revising” the motion for sanctions. (Pls.’ Resp. at 3;
Def.’s Mem. Mot., Group Ex. B, Aff. Katharine Larsen ¶¶ 2, 5 (10/13/10-10/15/10 entries).)
However, a review of Ms. Larsen’s time entries show that her work primarily involved
communicating with Mr. Murray, reviewing the results of his forensic examination of the Webbs’
computer, reviewing the Webbs’ deposition transcripts, identifying and coordinating inclusion of
exhibits to the motion, and contributing to the preparation of her own and Mr. Murray’s declarations.
(Larsen Aff. ¶ 5.) Again, given the convoluted nature of the timeline here, it is unsurprising and not
unreasonable that an associate would spend this time sorting through the documents and preparing
the supporting exhibits in conjunction with another attorney drafting the brief.4
Finally, the Webbs object to 16.9 hours spent by Marla Kelley, a paralegal at Levine Sullivan
Koch & Schulz, L.L.P., in “research[ing] case histories” for the motion. (Pls.’ Resp. at 3-4; Kelley
Aff. ¶¶ 2, 5 (10/14/10-10/15/10 entries).) If indeed all Ms. Kelley had done was research case
histories, 16.9 hours would be excessive, given that CBS’s memorandum contained only a handful
of legal citations. But Ms. Kelley’s time entries reflect that her time was also spent reviewing
citations and quotations in the memorandum for accuracy and reviewing and preparing the motion,
memorandum, and exhibits for filing. (Kelley Aff. ¶5.) However, because Ms. Larsen also billed
time for preparing the exhibits for filing, and because nearly 17 hours is somewhat excessive for a
paralegal billing at $190 an hour to check the citations in the fourteen-page memorandum submitted
here, Ms. Kelley’s time is reduced to 13 hours.
4

The Webbs also suggest that the time spent on Mr. Murray’s declaration was
unnecessary because the Webbs were cooperative in turning their computer over to CBS for
examination. (Pls.’ Resp. at 10.) However, the Webbs’ cooperation in surrendering their
computer did nothing to lessen the time CBS’s counsel had to spend communicating with Mr.
Murray, reviewing his results, and preparing his declaration to the court.
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2.

Drafting CBS’s Reply in Support of its Renewed Motion for Sanctions

The Webbs object to the time spent on CBS’s reply brief as excessive and duplicative, and
argue it should be denied altogether. (Pls.’ Resp. at 4-5.) First, the Webbs argue the 24.2 hours Ms.
Kissinger spent drafting the reply and supporting declaration and the 5.5 hours Mr. Levine spent
revising and finalizing it was excessive. (Id. at 4-5; Kissinger Aff. ¶ 5 (11/18/10-12/2/10 entries);
Levine Aff. ¶ 5 (11/30/10-12/2/10 entries).) As the Webbs point out, the memorandum ultimately
totaled nine pages. [Dkt 168.] However, given the nature of the Webbs’ response to CBS’s initial
motion, CBS’s counsel had to deal with a theretofore unknown aspect of the case: that the Webbs
and their counsel had been actively concealing a private investigator’s report highly relevant to the
case, purportedly on the basis of attorney-client privilege. [See Dkt 156.] This required Ms.
Kissinger again to untangle the statements the Webbs made in their depositions about this report, as
well as review the cases the Webbs cited and conduct additional legal research. (Kissinger Aff. ¶
5; see also Decl. Ashley I. Kissinger.) [Dkt 169.] The time spent on these tasks, 24.2 hours, was not
unreasonable, nor was the 5.5 hours Mr. Levine spent on revisions, for the reasons stated above.
The Webbs also object that 1.5 hours Mr. Sher, a partner in the law firm of Bryan Cave LLP,
spent revising and emailing about the reply memorandum was duplicative. (Pls.’ Resp. at 5; Def.’s
Mem. Mot., Group Ex. B, Aff. Brian A. Sher ¶¶ 2, 6 (12/1/10 entry).) However, Mr. Sher is local
counsel for CBS, and appeared before the court repeatedly in connection with these motions. This
modest amount of time contributed to the reply was not unreasonable.
Finally, the Webbs object to Ms. Kelley’s 6.2 hours spent checking the citations in the brief
for accuracy and preparing the reply, Ms. Kissinger’s declaration, and exhibits for filing. (Pls.’ Resp.
at 5; Kelley Aff. ¶ 5 (12/2/10 entry).) Given the exhibits and the case citations in the brief, the court
9

does not find this amount of time unreasonable.

3.

Preparation for Hearing

The Webbs object as unnecessary to 0.2 hours spent by Ms. Kissinger turning her “attention
to the preparation for a hearing” and 3.0 hours Ms. Kelley spent identifying, reviewing, and
preparing documents for the hearing. (Pls.’ Resp. at 5; Kissinger Aff. ¶ 5 (12/7/10 entry); Kelley
Aff. ¶ 5 (12/9/10 entry).) Although the Webbs are correct that Ms. Kissinger did not appear at the
hearing, she spent the bulk of the time drafting the motion, and reasonably would need to prepare
Mr. Levine, the senior attorney, for his appearance. Moreover, Ms. Kelley’s time in identifying and
gathering documents for the attorneys to refer to during the motion hearing is not unreasonable given
the plethora of documents involved in the renewed motion for sanctions.

4.

Drafting CBS’s Motion to Compel Return of Confidential Documents and to Dismiss

The Webbs first object to a total of 4.3 hours spent by Mr. Sher in what the Webbs
characterize as drafting a four-page affidavit in connection with CBS’s motion to compel and to
dismiss. (Pls.’ Resp. at 6; Sher Aff. ¶ 6 (2/10/11-2/14/11 entries).) However, the Webbs
mischaracterize these time entries, which were spent not only writing and revising Mr. Sher’s
declaration but also communicating with the Webbs’ counsel about the discovery disputes and court
hearings, reviewing and revising the motion to compel and dismiss, and communicating with CBS’s
counsel regarding the same. (Sher Aff. ¶ 6.) The time Mr. Sher spent on these tasks was not
excessive and will not be reduced.
The Webbs also object to 14.8 hours Ms. Kissinger spent drafting and revising CBS’s motion
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to compel and to dismiss on the basis that the actual motion was only one page long. (Pls.’ Resp.
at 6; Kissinger Aff. ¶ 5 (2/10/11-2/14/11 entries).) However, CBS also submitted a nine-page
memorandum in support of that motion and it is apparent from her time entries that Ms. Kissinger
was also referring to that. [Dkt 191, 192.] That memorandum set out additional misconduct and
discovery abuses by the Webbs and their counsel that came to CBS’s attention after their prior
motion for sanctions had been filed, and CBS argued the whole of their misconduct warranted
dismissal as a sanction. [Dkt 192.] The 14.8 hours Ms. Kissinger spent on drafting was well within
reasonable limits to prepare a motion arguing for such a serious sanction.
The Webbs further object to 3 hours Mr. Levine spent revising the motion to compel and to
dismiss and 0.2 hours he spent reviewing the draft of Mr. Sher’s affidavit as duplicative of Ms.
Kissinger’s work. (Pls.’ Resp. at 6-7; Levine Aff. ¶ 5 (2/11/11-2/14/11 entries).) As discussed
above, not only was Mr. Levine the senior attorney on the case, but he again appeared before the
court on the motion. This modest amount of time on revision and review will not be reduced.
Finally, the Webbs argue that the 3 hours Ms. Kelley spent researching case histories was
duplicative because Ms. Kissinger indicated she reviewed the cite check. (Pls.’ Resp. at 7; Kelley
Aff. ¶ 5 (2/14/11 entry); Kissinger Aff. ¶ 5 (2/14/11 entry).) However, Ms. Kissinger’s time entry
reflects only that she reviewed Ms. Kelley’s cite check while she was finalizing the brief and
preparing it for filing. (Kissinger Aff. ¶ 5.) This was not a duplication of effort, and the time will
not be reduced.

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5.

Drafting CBS’s Reply in Support of its Motion to Compel Return of Confidential
Documents and to Dismiss

The Webbs object that 15 total hours Ms. Kissinger spent drafting and reviewing CBS’s sixpage reply brief in support of its motion to compel and to dismiss was excessive. (Pls.’ Resp. at 8;
Kissinger Aff. ¶ 5 (3/8/11-3/17/11 entries).) That reply not only addressed the arguments the Webbs’
raised in their response to the motion, but raised additional examples of the Webbs’ counsel’s
misconduct in concealing from CBS and the court that he retained confidential CBS documents.
[Dkt 209.] That further misconduct had only become apparent from representations made in the
Webbs’ response. (Id.) The time spent by Ms. Kissinger not only responding to the Webbs’ position
but clarifying these further points in support of the motion was not excessive.
The Webbs also object to the time Mr. Levine (4.8 hours) and Mr. Sher (1.7 hours) spent
reviewing and revising the reply brief. (Pls.’ Resp. at 7; Levine Aff ¶ 5 (3/7/11-3/8/11, 3/14/11,
3/17/11 entries); Sher Aff. ¶ 6 (3/17/11 entry).) For reasons discussed above, this time was not
unnecessarily duplicative, and will not be reduced.
As for the Webbs’ objection to the 6.7 hours Ms. Kelley spent researching case histories,
checking citations, and preparing the documents for filing, this time is somewhat excessive given
that the reply brief contained no case citations. (Pls.’ Resp. at 8; Kelley Aff. ¶ 5 (3/15/11-3/17/11
entries); see also Def.’s Reply Mot. Compel.) [Dkt 209.] However, the brief contained several
citations to documents and it is apparent that Ms. Kelley checked those for accuracy. Therefore, her
time will be reduced to 5 hours.

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6.

Drafting CBS’s Supplemental Memorandum in support of its Motion to Compel
Return of Confidential Documents and to Dismiss

The Webbs object to 5.9 hours Ms. Kissinger spent drafting CBS’s supplemental brief in
support of its motion to compel and dismiss. (Pls.’ Resp. at 8; Kissinger Aff. ¶ 5 (3/21/11-3/23/11
entries).) That briefing became necessary after the Webbs produced to CBS documents they had
subpoenaed in this case without notice to CBS and on a date well beyond the close of fact discovery.
[See dkt 210.] Given the additional issues raised by the Webbs’ discovery violation, Ms. Kissinger’s
time spent laying out the timeline of events and arguing in further support of CBS’s motion was
reasonable.
The Webbs also object to 1.5 hours Mr. Levine spent in reviewing the subpoena and the
supplemental brief. (Pls.’ Resp. at 8-9; Levine Aff. ¶ 5 (3/21/11-3/23/11 entries).) That time was
not unnecessarily duplicative.
Finally, the Webbs object to 4 hours Ms. Kelley spent on what they characterize as
researching case histories, checking case citations, and drafting a declaration for Ms. Kissinger.
(Pls.’ Resp. at 8; Kelley Aff. ¶ 5 (3/23/11 entry).) However, review of Ms. Kelley’s time entries
show that, in addition to those tasks, she also prepared the brief and identified and prepared the three
exhibits for filing. (Kelley Aff. ¶ 5; see also Def.’s Mem. Supp. Mot. Compel.) [Dkt 210.] Given
the various tasks performed, Ms. Kelley’s time was reasonable.

7.

Drafting CBS’s Response to the Webbs’ Motions to Supplement their Reply to the
Court’s Query

The Webbs again object to 12.4 hours Ms. Kissinger spent drafting a reply to the Webbs’
response to the court’s query as excessive. (Pls.’ Resp. at 9; Kissinger Aff. ¶ 5 (4/5/11-4/7/11,
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4/11/11 entries).) That time resulted in an eight-page document in which CBS not only addressed
the various arguments raised by the Webbs in their reply, but also brought to the court’s attention
that the Webbs had potentially violated the Agreed Protective Order in this case by citing
confidential deposition testimony in their publicly-filed brief, for which CBS sought to place the
Webbs’ reply under seal. [Dkt 224.] Ms. Kissinger also spent some of this time drafting her
declaration in support of the response, which was accompanied by several exhibits. (Kissinger Aff.
¶ 5 (4/7/11 entry).) The time Ms. Kissinger spent on these various tasks was far from unreasonable.
Moreover, although the Webbs again object to it as duplicative, the time revising CBS’s
response by Mr. Levine (1.0 hour) and Mr. Sher (1.0) was not duplicative or excessive given their
roles as lead counsel and local counsel in this case.5 (Pls.’ Resp. at 9; Levine Aff. ¶ 5 (4/8/11 entry);
Sher Aff. ¶ 6 (4/9/11 entry).)
Finally, the 3.0 hours Ms. Kelley spent cite-checking and preparing the brief and exhibits for
filing was reasonable given the number of legal and factual citations in the brief and the exhibits
attached to the motion. (Kelley Aff. ¶ 5 (4/11/11 entry); see also Def.’s Opp’n. Mot. Suppl.) [Dkt
224.]

8.

Review of Tracy Reardon Deposition

The Webbs object to 0.8 hour that Mr. Levine spent “reviewing an analysis of the Tracy
Reardon deposition” as unnecessary to CBS’s motion for sanctions, arguing he would have been
required to review the testimony in the course of representing CBS. (Pls.’ Resp. at 9-10; Levine Aff.
5

Although the Webbs object to 1.0 hour of Mr. Levine’s time for this task, his billing
records indicate a block total of 2.4 hours that day for revising the reply and other tasks
associated with the reply. This time was not unreasonable.
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¶ 5 (4/12/11 entry).) However, the Webbs quoted to numerous portions of Ms. Reardon’s deposition
in their Reply to the Court’s Query [dkt 213 at 6-10], which reasonably necessitated re-review in
order for CBS to specifically respond to those portions of the deposition.

9.

Reports to “N. Waltman”

The Webbs object to time sought by Mr. Levine for reports he rendered to an “N. Waltman,”
on the grounds that such an individual has not been identified or filed an appearance in this case.
(Pls.’ Resp. at 10; Levine Aff. ¶ 5 (10/14/10, 12/1/10, 12/16/10, 2/14/11, 3/15/11, 3/23/11 entries).)
While the Webbs are correct that Naomi Waltman has not filed an appearance on behalf of CBS, her
name has appeared on all of the relevant pleadings and documents filed on the docket in this case
as “of counsel,” and CBS represents that Ms. Waltman is CBS’s in-house counsel. (See, e.g., Ans.
at 18; Def.’s Reply at 5.) [Dkt 5, 246.] The time CBS’s in-house and outside counsel spent
consulting about the case was appropriate.

10.

CBS’s Costs

The Webbs have not objected to the $493.46 CBS requests for Mr. Levine’s travel expenses
on December 15 and 16, 2010, which he avers was necessary to attend a hearing before this court
“in connection with the presentation of the filings at issue.” (Levine Aff. ¶ 6 and Ex. A.) CBS has
attached documentation supporting those travel costs. (Levine Aff., Ex. A.) However, the court did
not conduct a hearing on any of the motions relevant here on that date, but rather conducted a status
hearing and hearing on several motions brought by the Webbs. [See dkt 176.] Therefore, these costs
are not added to the total sanction amount.
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Conclusion
For the reasons explained above, CBS’s reasonable attorneys’ fees and costs are awarded in
the total amount of $72,873.50, calculated as follows: (1) a total of $13,818 for attorney Lee Levine
((17.4 hours @ $375 = $6525) + (18.7 hours at $390 = $7293)); (2) a total of $39,046 for attorney
Ashley Kissinger ((53.1 hours @ $350 = $18,585) + (55.3 hours @ $370 = $20,461)); (3) a total of
$9213 for attorney Brian Sher ((3.8 hours @ $435 = $1653) + (16.8 hours @ $450 = $7560)); (4)
a total of $3556 for attorney Katherine Larsen (12.7 hours @ $280); and (5) a total of $7,240.50 for
paralegal Marla D. Kelley ((22.2 hours @ $190 = $4218) + (15.5 hours @ $195 = $3,022.50)). (See
Levine Aff. ¶ 5, Kissinger Aff. ¶ 5, Sher Aff. ¶ 6, Larsen Aff. ¶ 5, Kelley Aff. ¶ 5.) Added to the
previously calculated $3,241.25 in fees and costs charged by CBS’s computer forensics expert and
the $414.29 costs CBS incurred to resume the Webbs’ depositions, the total sanction amount is
$76,529.04. The Webbs and their counsel are jointly and severally liable for $76,529.04, and shall
remit payment to CBS within 30 days of this order.

IT IS SO ORDERED.
___________________________________
Geraldine Soat Brown
United States Magistrate Judge

Dated: September 28, 2011

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