MERIDIAN FINANCIAL ADVISORS, LTD. D/B/A THE MERIDIAN GROUP v. PENCE et al

Filing 562

ORDER re 481 Application of attnys fees and expenses. The pltf, Meridian Financial Advisors is hereby ordered to pay to deft, Joseph Pence, $87,726.06 in attnys fees and expenses incurred during his representation by Price Waicukauski & Riley. The Court reserves ruling on the Bose McKinney and Evans fees, as well as all fees incurred in litigating the fee issue, until the close of litigation. Signed by Judge Larry J. McKinney on 11/21/2011.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MERIDIAN FINANCIAL ADVISORS,
LTD. D/B/A THE MERIDIAN GROUP,
as Receiver for OCMC, Inc.,
Plaintiff,
vs.
JOSEPH A. PENCE, SCOTT HALL,
NAVICOMM LLC, NAVICOMM, LTD,
ICOE LTD, T3A LLC, RFE LLC,
THE PERISOS GROUP LLC,
Defendants.

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1:07-cv-00995-LJM-TAB

ORDER
This matter comes before the Court following a hearing on defendant, Joseph Pence
(“Pence”), amended application for attorneys’ fees [dkt. no. 481].

The Court has

considered the parties’ arguments and submitted materials and rules as follows.

I. BACKGROUND
On July 12, 2010, following extensive briefing and oral argument, the Court issued
an Order (“Sanctions Order”) granting Pence attorneys’ fees from plaintiff, Meridian
Financial Advisors, Ltd. (“Meridian”), as a sanction for various misconduct. See dkt. no.
470. These sanctions were entered under Federal Rule of Civil Procedure 26 and the
Court’s inherent authority to sanction conduct that abuses the judicial process. Id. at 17,
22. Specifically, the Court found that Meridian committed or contributed to the commission
of the following violations:
•

Failure to timely disclose certain electronically stored information,

including the so-called “Secret Emails”
•

Failure to inform Pence’s counsel that Meridian had seen or potentially
had seen emails protected by attorney-client privilege provided by
former co-defendant Ann Bernard under a secret cooperation
agreement

•

Meridian’s attempted use of and attempt to garner the benefits of Erin
Ray, acting as an agent for Meridian, having accessed and retrieved
Pence’s personal email, including potentially privileged
communications

Id. at 16–17, 22. As a sanction for its conduct, Meridian was directed to “pay Pence’s
attorneys’ fees and costs incurred in filing [the sanctions] motion and bringing Meridian’s
unfortunate conduct to the Court’s attention.” Id. at 16–17. Meridian was further precluded
from using any evidence it failed to produce under Federal Rule of Civil Procedure 23. Id.
at 17. However, despite Pence’s request, the Court determined that dismissal of the suit
was an overly severe penalty, concluding that an award of attorneys’ fees and exclusion
of certain evidence provided a sufficient sanction. Id. at 23.
Over the next year, the parties submitted copious briefing and evidence on the
amount of attorneys’ fees due to Pence as a result of the Sanctions Order, and many of
Meridian’s requests for additional discovery on the issue were granted. See dkt. nos.
473–74, 478–79, 481–83, 495, 500–05, 510, 512–14, 524, 527, 529, 532–35, 537–41,
545–47. In total, Pence requests $567,681.49 in attorneys’ fees and costs resulting from
the Sanctions Order and subsequent litigation on the fees issue. Dkt. Nos. 481, 546.
On November 7–8, 2011, the Court held a hearing on the appropriate amount of
attorneys’ fees. See dkt. nos. 560–61. At this hearing, the parties agreed that the fees in
question can be broken down in three categories: (1) Bose McKinney & Evans fees (“BME
Fees”) incurred between February and September 2008, (2) Price Waicukauski & Riley
2

fees (“PWR Fees”) incurred between March 2009 and August 2010, and (3) all fees
incurred after the Application for Fees was filed (“Fees-on-Fees”). As litigation is ongoing,
Pence refused to provide Meridian with an hourly breakdown of the BME Fees, and
therefore Meridian does not have all the information necessary to challenge the BME Fees.
Additionally, much of the time accounted for in the Fees-on-Fees is dependent on the
reasonableness of the BME Fees. Consequently, the Court ruled that only the PWR Fees
can be determined at this time. The Court reserves judgment on the BME Fees and the
Fees-on-Fees until the end of the litigation.
In his request for the PWR Fees, Pence contends that his attorneys spent 517.9
hours investigating and litigating the conduct set forth in the Sanctions Order, incurring
$133,100.50 in attorneys’ fees and $50,475.02 in expenses. Dkt. No. 473-3 ¶¶ 9–11.
According to Jana K. Strain, Pence’s counsel, this represents slightly over thirty percent of
the total work performed in this case. Testimony of J. Strain. The present Order addresses
the PWR Fees only.
The Court includes additional facts below as necessary.

II. DISCUSSION
When imposing sanctions, the Court must ensure that those sanctions are
reasonable and proportionate to the infraction. Salgado v. Gen. Motors Corp., 150 F.3d
735, 740 (7th Cir. 1998). The Court must ensure that its award adequately sanctions
Meridian for its recalcitrant behavior without requiring Meridian to pay either an excessive
amount or fees unrelated to Meridian’s misconduct. The Court notes that neither party
challenges the reasonableness of the hourly rates for Pence’s counsel—$375.00 for Mr.
3

Waicukauski, $250.00 for Ms. Strain, and either $100.00 or $115.00 for paralegals—and
the Court, therefore, concludes that these rates are reasonable. Instead, the parties
disagree on the specific activities that should be covered. The Court first addresses the
parties’ general arguments then turns to the specific amounts requested.
In his presentation to the Court, Pence suggested that the fees award should act,
in part, to punish Meridian for its unacceptable behavior. Meridian strenuously objected,
contending that punishment is not a proper basis for awarding fees. Meridian further
contended that any fees awarded as “punishment” would amount to a criminal contempt
sanction, requiring a higher standard of review. The Court agrees that punishment is not
a proper consideration for the Court in determining the fee award in this case. See Tyson
v. Trigg, 50 F.3d 436, 445–46 (7th Cir. 1995).

In this case, the Sanctions Order

contemplates a sanction for activity that has ceased rather than a punishment to prevent
future violations. Having said that, the Court finds nothing inherently improper about Pence
and his counsel arguing that punishment should be considered.

See, e.g., City of

Valparaiso v. Iron Workers Local Union No. 395, 118 F.R.D. 466, 471 (N.D. Ind. 1987)
(“Two of the most important purposes of [sanctions] are punishment and deterrence.”). The
Court, however, does not craft its award to punish Meridian.
At the hearing, Meridian argued that a lower award than requested is appropriate
because the misconduct at issue in the Sanctions Order was perpetrated by Meridian’s
former counsel, not Meridian itself. The Court rejects this argument outright. As the Court
noted in the Sanctions Order, non-disclosure of information was part of Meridian’s overall
litigation strategy, not a unilateral decision by Meridian’s counsel:
For strategic reasons, [Meridian] and its attorneys decided not to let the
4

Defendants know that [Meridian] had discovered the ‘secret emails’ from the
OCMC hard drives and email server until the Defendants made formal
discovery requests for the documents. [Meridian] believed that the
Defendants thought that this evidence had been destroyed and [Meridian]
wanted to lock the Defendants into sworn testimony before the existence of
the emails was revealed.
Dkt. No. 470 at 6 (quoting Good Aff., dkt. no. 286-3 ¶ 27). The Court issued its Sanctions
Order against Meridian, not Meridian’s counsel, and the Court remains unconvinced that
the misconduct at issue was the fault of Meridian’s former counsel exclusive of Meridian.
Meridian, both in its briefs and at the hearing, argued that Pence’s fee requests are
unreasonable because they fail to apportion fees adequately. The Court shares Meridian’s
concern over apportioning attorneys’ fees in this case. Given the Sanctions Order’s
admonishment that Pence be able to collect only fees “incurred in filing [the sanctions]
motion and bringing Meridian’s unfortunate conduct to the Court’s attention,” dkt. no. 470
at 16–17, Pence’s total attorneys’ fees must be apportioned such that he does not collect
attorneys’ fees incurred outside the scope of the Sanctions Order. Appointment in this
case is difficult for a number of reasons, including the presence of related litigation involving
the same or similar conduct, representation of multiple individuals and entities, changing
of attorneys and law firms, and the involvement of former co-defendants who settled with
Meridian following some of the discovery at issue in the Sanctions Order. The court
observes that Pence and his counsel have made a concerted effort to limit the requested
attorneys’ fees to work related to investigating and litigating the Sanctions Order. See
generally dkt. no. 473. Although the Court may decide that Pence is not entitled to all the
fees requested, there is nothing to indicate that Pence or his counsel acted in bad faith in
their attempt to separate the relevant and non-relevant fees.
5

Additionally, Meridian takes issue with allowing an award for any work related to
Pence’s Motion for Leave to File Complaint Against the Receiver, filed in related litigation.
See dkt. no. 215, PNC Bank, Nat’l Ass’n v. OCMC, Inc., No. 1:06-cv-755-LJM-TAB (S.D.
Ind. filed Dec. 1, 2009). However, as noted in the Court denial of that motion, the issues
in the two motions are closely related, and one of the Court’s reasons for declining to allow
Pence to file his complaint was that “the sanctions in the related litigation adequately
compensate[] Pence for the misconduct of [Meridian’s] agents[.]” See PNC Bank, Nat’l
Ass’n v. OCMC, Inc., No. 1:06-cv-755-LJM-TAB, 2010 WL 3782157, at *8 (S.D. Ind. Sept.
20, 2010). Although the Court agrees with Meridian that Pence cannot claim fees for
unrelated sections of the motion in related litigation, because issues between the two
motions significantly overlap, the Court concludes that Pence may recover fees for
investigation and legal research applicable to the Sanctions Order and the related litigation
at the same time.
Although fees must be apportioned based on the type of work completed and the
client represented, the Court disagrees with Meridian that any apportionment should be
made based on Pence’s degree of success in his motion seeking sanctions. In challenging
Meridian’s conduct, Pence alternatively requested sanctions or outright dismissal of the
case. See dkt. no. 269. Although the Court imposed sanctions, the Court declined to
dismiss the case. See dkt. no. 470. However, contrary to Meridian’s assertion, the lack
of dismissal does not render Pence’s request less successful. The Court found Meridian’s
conduct improper, and the Court’s choice of remedy does not change Pence’s victory in
that regard. Therefore, no apportionment will be made based on degree of success.
Lastly, Meridian objected to Pence’s use of a summary chart (“Summary Chart”)
6

[dkt. no. 473-4] showing the hours requested without dates. The Court concludes that
Pence’s Summary Chart is proper and may be considered. See FED. R. EVID. 1006.
Pence’s counsel has provided Meridian and the Court with the PWR’s internal records for
all entries in the Summary Chart. See dkt. no. 504-7. There is no evidence that Pence’s
counsel falsified the records in either the Summary Chart or the WIP. The Summary Chart
contains sufficient detail for the Court to determine which entries represent reasonable fees
properly within the scope of the Sanctions Order. Therefore, the Court will consider the
Summary Chart.
The Court reviewed the Summary Chart and grants Pence attorneys’ fees for work
entries that were both reasonable and clearly related to the investigation and filing leading
to the Sanctions Order. A complete list of accepted entries can be found at the Appendix
attached to this Order. The Court excluded all entries that were insufficiently detailed to
determine their connection to the Sanctions Order, as well as entries that the Court
concludes are not within the scope of the Sanctions Order. Additionally, the Court excluded
the fees requested for the depositions of Maggie Good, Michael Von Lehman, and Ann
Bernard, as the Court could not determine what, if any, portions of these depositions were
used for the Sanctions Order as opposed to general discovery in this litigation. In total, the
Court awards Pence $76,733.50 in PWR Fees. The Court denies all other PWR Fees.
Turning to Pence’s requested expenses, the Court concludes that because Rebecca
Hendricks’s computer consulting services were used for a number of computer issues
outside the scope of the Sanctions Order, Pence is not entitled to full collection of the
expenses associated with Hendricks. Therefore, the Court excludes Hendricks’s expenses
for travel to Pittsburgh and imaging the OCMC servers. However, the Court disagrees with
7

Meridian that Hendricks’s work is irrelevant to the Sanctions Order and, therefore, allows
recovery of the expenses for Hendricks’s report and conferences with Pence’s attorneys.
See dkt. no. 507 at PWR_000054. The Court awards Pence $8,217.00 in expenses for
work done by Hendricks, as well as $2775.56 in other expenses,1 totaling $10,992.56 in
expenses. The Court denies all other expenses requested by Pence.

1

In addition to the Hendricks expenses, the Court awards Pence expenses for the following

entries:
•

11/2/2009 Services rendered by Jim Walsh for deposition of Erin Ray on July 9,
2009: $789.00
•
2/16/2010 Witness fee made payable to Erin Ray in February, 2010: $59.00
•
4/1/2010 Professional servises [sic] rendered by Hurley and Associates in March,
2010: $150.00
•
4/30/2009 ACBA Services, Inc. - deposition of M. Good: $1,777.56
See dkt. no. 473-5 at 1.

8

III. CONCLUSION
For the foregoing reasons, plaintiff, Meridian Financial Advisors, is hereby
ORDERED to pay to defendant, Joseph Pence, $87,726.06 in attorneys’ fees and
expenses incurred during his representation by Price Waicukauski & Riley during the period
from March 2009 until entry of the Sanctions Order on July 12, 2010. The Court reserves
ruling on the Bose McKinney & Evans fees, as well as all fees incurred in litigating the fee
issue, until the close of litigation. A separate judgment shall issue.
Pursuant to Federal Rule of Civil Procedure 54(b), the Court, determining that there
is no just reason for delay, declares this to be final judgment as to the Price Waicukauski
& Riley fees for the covered period.
IT IS SO ORDERED this 21st day of November, 2011.

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana
Distribution attached.

9

Distribution to:

George William Bills Jr.
LAW OFFICE OF G. WILLIAM BILLS,
JR.
[e-mail]

Craig Morris McKee
WILKINSON GOELLER MODESITT
WILKINSON & DRUMMY
[e-mail]

Jeffrey R. Gaither
BOSE MCKINNEY & EVANS, LLP
[e-mail]

Stephen S. Stallings
STALLINGS LLC
[e-mail]

Kathleen A. Gallagher
ECKERT SEAMANS CHERIN &
MELLOTT LLC
[e-mail]

Jana K. Strain
Jana K. Strain, Attorney/Mediator
[e-mail]
Ronald J. Waicukauski
PRICE WAICUKAUSKI & RILEY
[e-mail]

Sandy B. Garfinkel
ECKERT SEAMANS CHERIN &
MELLOTT, LLC
[e-mail]

Ann Marie Waldron
[e-mail]

Gregg Heinemann Jr.
ECKERT SEAMANS CHERIN &
MELLOTT, LLC
[e-mail]

John H. Williams Jr.
ECKERT SEAMANS CHERIN &
MELLOTT, LLC
[e-mail]

Max W. Hittle Jr.
KRIEG DEVAULT, LLP
[e-mail]

SCOTT HALL
308 Blue Quail Ct.
Bedford, TX 76021

Carol Nemeth Joven
PRICE WAICUKAUSKI & RILEY
[e-mail]
Thomas Livingston
OFFICE OF THE FEDERAL PUBLIC
DEFENDER
[e-mail]
C. Kent May
ECKERT SEAMANS CHERIN &
MELLOTT, LLC
[e-mail]
10

APPENDIX: ATTORNEYS’ FEES
The following table includes each attorneys’ fee description included in the Court’s
overall fee calculation, noted by location in the chart of Price, Waicukauski, & Riley’s billing
entries found at Dkt. No. 473-4. Entries not included in the table were not included in the
Court’s attorneys’ fee award.
Page/Row

Timekeeper

1/3

JKS

1/7

Description of Work Performed

Hourly
rate

Hours
worked

Worked on issues in preparation for
call with co-defendants’ counsel; read
M. Good Feb. 2009 deposition form
Thermo Credit

$250

5.40

$1,350.00

JKS

Reviewed emails produced by
Meridian showing communications
between Pence and co-defendants
with joint counsel; reviewed
correspondence from Krieg DeVault re
Meridian responses to discovery;
conferred with Joe Pence re discovery
materials and correspondence
received re OCMC, Inc.; conferred with
Staci Henry re creating consolidated
timeline for pleadings index; reviewed
timing issues within same; reviewed
receiver’s answers to first
interrogatories

$250

5.00

$1,250.00

1/8

JKS

Reviewed receiver status report,
conferred with Joe Pence re fact
issues in same; reviewed documents
contradicting status report; conferred
with co-counsel re calls with opposing
counsel re pretrial and motion to
dismiss

$250

3.80

$950.00

1/10

JKS

Dealt with issues re discovery
documents and formatting of Mac
documents; conferred with Joe Pence
re same; continued analysis of
documents related to motion to dismiss

$250

1.30

$325.00

2/5

JKS

Reviewed emails from Steve Stallings
re production of documents; reviewed
files for information re same; reviewed
and responded to emails re document
issues; worked on fact and legal
analysis re Bernard issues

$250

2.80

$700.00

11

Total

2/7

JKS

Worked on arrangements for
document review at warehouse and
continued review of Meridian
document production

$250

0.60

$150.00

2/8

JKS

Reviewed correspondence from PNC
counsel John Leathers re Ann Bernard
emails; conferred with Ron
Waicukauski re same; reviewed pallet
list to identify specific areas for further
fact investigation at warehouse

$250

2.00

$500.00

3/1

JKS

Reviewed and responded to emails re
obtaining copies of Joe Pence’s gmail
and macmail history from providers;
reviewed documents copied to drive
for service to OPC; prepared index re
same; conferred with team re problems
in scanning documents and reviewed
same to assure files had not been
compromised; drafted correspondence
to Jeff McDermott providing copies of
documents scanned at warehouse

$250

5.10

$1,275.00

3/2

JKS

Reviewed emails re documents
obtained from Receiver and continued
fact investigation re Erin Ray; reviewed
documents on discs re same

$250

7.30

$1,825.00

3/3

JKS

Worked on review of documents re
Erin Ray deposition, server corruption
and coordination of data

$250

6.00

$1,500.00

3/4

JKS

Worked on document review and
collection of information to prepare for
Erin Ray deposition; numerous
conferences with counsel and client re
same; worked on matters re timeline of
authorized email access; met with cocounsel and clients to prepare Ray for
depositions

$250

9.80

$2,450.00

3/10

MKR

Drafted Notice of Intent to Serve NonParty Request for Production of
Documents to send to Apple and
Google; conferred with Jana Strain
regarding same

$115

2.00

$230.00

4/1

VAB

Left voice message for Julie Adkins at
Apple re outstanding requests for
production; email to Jana Strain re
same

$100

0.10

$10.00

12

4/2

VAB

Conferred with Jana Strain re Google
subpoenas; began drafting same;
reviewed emails from Jana Strain re
Google addresses; reviewed Google
response to prior subpoena and
request for production; researched
California U.S. District Courts

$100

1.30

$130.00

4/4

JKS

Reviewed correspondence from Apple
re Pence email logs; forwarded same
to Joe Pence; conferred with Joe
Pence re research identifying log
addresses; conferred with Steve
Stallings and David Berardinelli re
results of search; reviewed documents
related to same

$250

2.20

$550.00

4/5

JKS

Reviewed and responded to additional
emails re Apple documents and timing
of Ray’s work for receiver; reviewed
documents re same

$250

2.70

$675.00

4/6

JKS

Prepared and sent correspondence to
OPC re Apple production; reviewed
documents emailed to me by Joe
Pence re Erin Ray access and work
issues

$250

2.10

$525.00

4/8

JKS

Reviewed CERF forensic summary;
emailed Steve Stallings re fact issues
about same and issues re inspecting
apple email server

$250

2.50

$625.00

4/9

JKS

Reviewed depositions for info re M.
VonLehman involvement in issues with
Erin Ray; participated in conference
call with Rebecca Hendricks re same

$250

4.20

$1,050.00

5/1

JKS

Reviewed and responded to numerous
email communications re filing of
motion to dismiss and attempt to
coordinate call with Krieg DeVault
attorneys

$250

0.60

$150.00

5/2

JKS

Prepared for and participated in
conference call re 37.1 (outstanding
discovery) and 7.1 (motion to dismiss
for sanctions) conferences; emailed
summary information to Ron
Waicukauski re same

$250

1.40

$350.00

5/3

JKS

Conferred with co-counsel re motion to
dismiss filing; conducted legal
research re same; conferred with Joe
Pence re discovery and document
issues

$250

2.10

$525.00

13

5/4

JKS

Reviewed and commented on revised
draft brief, reviewed documents and
provided additional factual support and
exhibits re conduct described in Mtn

$250

5.20

$1,300.00

5/5

JKS

Reviewed revised brief for filing;
numerous conferences via email and
telephone with counsel and client re
same

$250

2.90

$725.00

5/6

JKS

Conferred with Steve Stallings re filing
document under seal; contacted court
for direction as to same; prepared
motion for filing under seal and cover
page; reviewed revised document for
fling; conferred with team re document
review

$250

1.90

$475.00

5/8

JKS

Reviewed sealed exhibits and obtained
file copies to correct omissions in our
file; reviewed filings from Meridian;
conferred with team re same; reviewed
and responded to email from
McDermott re reviewing documents at
warehouse and team responses to
same

$250

5.70

$1,425.00

5/9

JKS

Continued work on reviewing and
analyzing Meridian’s response to
motion to dismiss; working on
compiling evidence as to issues raised
to confirm appropriate reply and
shared with team; reviewed and
responded to numerous emails re
response to motion to dismiss and
related evidence issues; worked on
legal research re joint defense and
common interest issues

$250

7.20

$1,800.00

6/1

JKS

Conducted legal research re
professional rules issues; reviewed
numerous emails from Pence searches
re email hacking and other issues; met
with Joe Pence re case status and
organization of electronic discovery;
worked on review and analysis of
response to motion to dismiss and
provided comments to team re same

$250

4.90

$1,225.00

14

6/2

JKS

Worked on analysis of payroll records
for Erin Ray; directed Staci Henry in
preparing charts of information for
easier analysis by team and to confirm
scope of records; worked on timeline
issues in relationship to Ann Bernard
cooperation agreement for use in
additional motion to dismiss briefing;
conducted extensive legal research
and analysis re digital
communications, invasion of privacy,
etc. for reply to issues raised in
Meridian’s brief

$250

7.90

$1,975.00

6/4

JKS

Reviewed emails from Steve Stallings
and Joe Pence re IP searches and
affidavit in support of reply on motion
to dismiss; reviewed documents re
same

$250

1.90

$475.00

6/5

JKS

Reviewed and responded to various
emails re documents and searched
Meridian production re same; reviewed
notes of call with McDermott for
affidavit issues; conferred with Steve
Stallings and Joe Pence re Amex
charges for Macmail account; reviewed
Meridian documents for fact
development and evidence purposes;
conference call with co-counsel re
filing issues; drafted Pence affidavit
with Joe Pence; prepared chart of
litigation events during time when
Bernard was cooperating and analyzed
same for brief; reviewed and edited
Stallings affidavit; reviewed drafts
related to the reply brief; conducted
document and legal analysis to assist
with same; worked on document
review and analysis re Erin Ray as
employee v. independent contractor;
worked on receiver payroll analysis

$250

7.90

$1,975.00

6/6

JKS

Worked on editing, compiling exhibits,
analysis of additional issues, etc.,
related to filing of reply brief; worked
on revisions to affidavit for filing in
support; conferred with co-counsel re
page limits and attempted to reduce
brief where possible; draft motion for
leave to file oversized brief and
proposed order re same; reviewed
additional possible exhibits; conducted
additional research as needed

$250

9.40

$2,350.00

15

7/3

JKS

Reviewed filing by Meridian re Erin
Ray facts; reviewed and responded to
emails re same; contacted several
references for information re computer
forensic experts

$250

5.20

$1,300.00

7/5

JKS

Worked on response to motion to
strike Pence affidavit, legal research,
drafting, exhibits for same

$250

4.40

$1,100.00

7/6

JKS

Finalized for filing defendant’s
opposition to motion to strike Pence
affidavit with attachments, including
edits, conference with Pence,
conferences with co-counsel, and
additional legal research re same

$250

3.50

$875.00

7/7

JKS

Reviewed motion and brief filed by
Meridian to exclude Sales Defs from
sanctions hearing

$250

1.60

$400.00

7/8

JKS

Reviewed Meridian’s motion for leave
to file findings & conclusions; emailed
Stallings re response to same;
conferred with Robin burton re
compiling expenses & WIP for possible
use if requested by court for sanctions

$250

0.60

$150.00

7/9

JKS

Prepared and filed joinder in response
re motion for leave to file
findings/conclusions re hearing

$250

0.40

$100.00

7/11

JKS

Worked on legal research regarding
joint defense privilege and ability of
participant to waive as to other
participants

$250

2.10

$525.00

7/12

JKS

Worked on legal analysis re issues
raised in motion to dismiss; conducted
legal research re receiver issues;
conferred with Joe Pence re email
server documents; conferred with cocounsel re McDermott conference

$250

1.80

$450.00

7/13

JKS

Reviewed preliminary draft of fact
portions of motion to dismiss; worked
on legal research re same

$250

4.00

$1,000.00

16

8/5

JKS

Reviewed case law re stored
communications act; reviewed and
responded to emails re Meridian’s
request for enlargement of time for
reply to motion to dismiss and to
emails re scheduling depositions;
worked on legal research and analysis
re invasion of privacy/digital
communications issues

$250

3.90

$975.00

8/9

RJW

Reviewed notice of 30(b)(6) deposition
of Meridian and scheduling order for
hearing on motion for sanctions;
reviewed email from Kathy Gallagher
re extending discovery cutoff

$375

0.20

$75.00

8/10

RJW

Conferred with Jana Strain re plans for
hearing on motion to dismiss and
status of settlement; reviewed emails
re same and deposition designations

$375

0.30

$112.50

8/11

RJW

Reviewed email from Judge
McKinney’s law clerk re exhibits and
witness statements for hearing on
motion to dismiss

$375

0.10

$37.50

8/12

RJW

Reviewed emails in preparation for
hearing on motion to dismiss; reviewed
pleadings re same

$375

2.60

$975.00

8/13

RJW

Reviewed recent filings; reviewed
emails from Jana Strain, Kathy
Gallagher and David Berardinelli;
conferred with co-counsel, witnesses
and clients re preparation for hearing
on motion to dismiss; reviewed file re
same; prepared to address issues on
behalf of Joe Pence

$375

10.70

$4,012.50

9/1

RJW

Continued preparing for hearing;
conferred with clients and co-counsel
re same; attended hearing; conferred
with clients and co-counsel re hearing
and follow-up to same

$375

11.50

$4,312.50

9/2

RJW

Reviewed motion to file proposed
findings and conclusions

$375

0.10

$37.50

9/3

VAB

Reviewed email from Jana Strain;
prepared subpoena to Erin Ray for
March 25, 2010 hearing

$100

0.50

$50.00

9/4

VAB

Prepared draft subpoenas for Jeff
Gaither, Jeff McDermott, Anne Bernard
for March 25 hearing; conferred with
Jana Strain re same

$100

0.70

$70.00

17

9/6

JKS

Prepared for & participated in
conference call with co-counsel re
status, task review, strategy for 3/25
hearing

$250

3.20

$800.00

9/7

JKS

Reviewed subpoenas for Erin Ray, Jeff
Gaither, Jeff McDermott; conferred
with co counsel re same

$250

0.60

$150.00

9/8

JKS

Returned call to Jeff Gaither re
subpoena for hearing; emailed cocounsel re same

$250

0.60

$150.00

9/9

JKS

Reviewed proposed stipulations for
hearing on Motion for sanctions;
participated in various conferences
with co-counsel and with all counsel to
negotiate & finalize stipulations;
reviewed files for exhibits re attorney
client contract with Bose for Pence and
BT&M; conferred with David
Berardinelli re same

$250

4.20

$1,050.00

9/12

JKS

Worked on issues in preparation for
sanctions hearing

$250

1.40

$350.00

9/13

JKS

Worked on legal analysis & additional
exhibit issues for sanctions hearing

$250

3.50

$875.00

9/14

JKS

Returned call to Jeff Gaither re
hearing; preparation; compiled
materials & drafted letter to forward
requested materials for his review in
preparing for hearing; prepared status
report for Ron Waicukauski re
sanctions hearing and related research
issues

$250

2.80

$700.00

9/15

JKS

Worked on compiling exhibits in final
form for hearing; conferred with Ron
Waicukauski re hearing issues

$250

2.00

$500.00

10/1

JKS

Worked on draft deposition
designations for the sanctions hearing;
circulated to co-counsel for comments

$250

7.30

$1,825.00

10/3

JKS

Continued to work on preparation for
hearing, including scheduling witness
preparation, conferring with witnesses
re documents to review before
preparation, and preparing outlines for
hearing; conferred with Kathy
Gallagher re witnesses for hearing

$250

9.00

$2,250.00

18

10/4

JKS

Met with co-counsel to prepare for
hearing; worked on preparation of
witnesses; reviewed exhibits; prepared
exhibit binders for hearing; conducted
legal research on issues that might be
argued at hearing; conferred with
Ronald Waicukauski re issues for
hearing

$250

11.00

$2,750.00

10/5

JKS

Prepared for & participated in
evidentiary hearing on motion for
sanctions in federal court; met with
clients & co-counsel to discuss same
and strategy

$250

9.00

$2,250.00

11/1

JKS

Reviewed and responded to emails re
extending deadlines for filing briefs re
motion to dismiss and consolidation;
reviewed drafts re same

$250

1.20

$300.00

11/5

JKS

Reviewed and responded to emails
and correspondence re motion to
dismiss

$250

1.00

$250.00

11/7

MKR

Researched computer forensic firms
and forwarded information to Jana K.
Strain

$115

0.40

$46.00

11/8

JKS

Conferred with Joe Pence and with cocounsel re computer forensic issues;
conferred with co-counsel re strategy
for further discovery

$250

1.60

$400.00

11/9

JKS

Conferred with co-counsel re server
issues

$250

0.80

$200.00

11/10

JKS

Conferred with co-counsel re expert
consultant re computer issues;
conferred with Joe Pence re same

$250

0.70

$175.00

11/14

RJW

Reviewed and responded to email
from Steve Stallings re computer
expert; reviewed emails and letter from
Jana Strain re expert and discovery
matters

$375

0.20

$75.00

11/15

RJW

Reviewed email from Jana Strain re
retention of computer expert

$375

0.10

$37.50

12/1

VAB

Email exchange with Jana K. Strain re
receipt of document from Apple

$100

0.10

$10.00

12/2

JKS

Participated in conferences regarding
computer expert issues; conferred with
Joe Pence re damages issues

$250

1.50

$375.00

19

12/3

JKS

Conferred with Joe Pence re damages
issues; conferred with Valerie Bloom re
Apple nonparty documents

$250

0.60

$150.00

12/4

JKS

Participated in numerous conferences
via email re computer server

$250

0.80

$200.00

12/6

RJW

Reviewed draft expert report; reviewed
submissions on motion to dismiss

$375

2.50

$937.50

12/7

RJW

Reviewed preliminary expert report of
Rebecca Hendricks and reports from
experts hired by Meridian and PNC;
reviewed emails from Jana Strain re
settlement by Brad Benge and
negotiations with Steve Stallings about
other defendants

$375

1.20

$450.00

12/8

JKS

Conferred with Rebecca Hendricks re
forensic investigation issues &
estimated budget; conferred with Joe
Pence re server issues & most costeffective way to obtain information we
need; conferred with Ronald J.
Waicukauski and Steve Stallings re
cost estimates and Joe Pence’s
thoughts re same

$250

1.20

$300.00

12/9

JKS

Emailed OPC re scheduling computer
consultant to look at OCMC servers;
conferred with Rebecca Hendricks,
Mirror Consulting re forensic
investigation

$250

0.50

$125.00

12/10

JKS

Talked with Joe Pence re technology
consultant and emails re timing of
investigation; reviewed documents re
same; additional analysis of legal
issues re forensic analysis

$250

4.10

$1,025.00

12/11

JKS

Dealt with issues re engaging
computer expert; reviewed response
from Kathy Gallagher re computer
forensic issues; conferred with co
counsel re same; responded to
Gallagher re prior representations re
same

$250

2.10

$525.00

12/12

JKS

Conferred with Rebecca Hendricks re
scheduling forensic examination

$250

0/30

$75.00

12/13

JKS

Conferred with Kathy Gallagher re
forensic computer scheduling; emailed
co-counsel re information obtained and
schedule issues

$250

0.40

$100.00

20

13/2

JKS

Communicated with computer forensic
expert re scheduling and scope of
investigation

$250

0.30

$75.00

13/4

JKS

Compiled information re emails for
Rebecca Hendricks analysis & emailed
same

$250

0.80

$200.00

13/5

JKS

participated in email exchange re
server issues; met with expert, co
counsel and Spencer Zimmerman re
computer issues

$250

2.90

$725.00

13/6

JKS

Participated in phone conference with
Steve Stallings and David Berardinelli
re belated document production;
participated in call with same & with
expert Rebecca Hendricks re
additional investigation; reviewed
discovery requests & responses for
obligations to provide this information

$250

7.30

$1,825.00

13/8

JKS

Conferred with team re completing of
expert reports; obtained copy of
Hendricks final report; drafted letter to
OPC re same; served via email to all
counsel; reviewed reports from
Meridian’s computer expert

$250

5.20

$1,300.00

13/9

JKS

Conferred by phone with Rebecca
Hendricks re expert issues; conferred
by phone with Steve Stallings re same

$250

0.80

$200.00

13/14

JKS

Prepared for and participated in
deposition of Erin Ray

$250

10.00

$2,500.00

14/3

JKS

Emailed team re meeting with
computer consultant; reviewed Ann
Bernard deposition & various affidavit
drafts to prepare for Receiver’s
deposition of Bernard; reviewed
OCMC case documents re same

$250

8.40

$2,100.00

14/5

JKS

Prepared for and participated in
deposition of Ron Pace; participated in
conference call re Pace deposition with
R. Hendricks and team

$250

4.10

$1,025.00

21