Limone, et al v. United States of, et al
Filing
695
Judge Nancy Gertner: ORDER entered granting in part and denying in part 580 Motion for Attorney Fees; granting in part and denying in part 685 Motion for Attorney Fees; granting in part and denying in part 686 Motion for Attorney Fees; granting in part and denying in part 687 Motion for Attorney Fees; granting in part and denying in part 692 Motion for Attorney Fees. (Gertner, Nancy)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
PETER J. LIMONE, et al.,
Plaintiffs,
)
)
)
v.
) Civil Action No. 02cv10890-NG
)
UNITED STATES OF AMERICA, et al., )
Defendants.
)
GERTNER, D.J.
TABLE OF CONTENTS
MEMORANDUM AND ORDER RE: PLAINTIFFS’ MOTION FOR
RECOVERY OF REASONABLE COSTS AND FEES
August 12, 2011
I.
STATUTORY FRAMEWORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6A.
The EAJA and the FTCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6B.
Relationship Between the EAJA and Sanctions under the Federal
Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8C.
Relationship Between § 2678 and § 2412 . . . . . . . . . . . . . . . . . . . . . -10-
II.
APPLICATION TO THE FACTS AT BAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
The Discovery Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
2004-2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.
Trial Counsel Had No Access to the Unredacted
Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III.
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ATTORNEYS' FEES COMPUTATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22A.
Lodestar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23B.
Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
PETER J. LIMONE, et al.,
Plaintiffs,
)
)
)
v.
) Civil Action No. 02cv10890-NG
)
UNITED STATES OF AMERICA, et al., )
Defendants.
)
GERTNER, D.J.
MEMORANDUM AND ORDER RE: PLAINTIFFS’ MOTION FOR
RECOVERY OF REASONABLE COSTS AND FEES
August 12, 2011
This is the last motion that I must resolve in connection with this Federal Tort Claims Act
("FTCA") case against the United States Government. In this lawsuit, Peter Limone
("Limone"), Enrico "Henry" Tameleo ("Tameleo"), Louis Greco ("Greco"), and Joseph Salvati
("Salvati"), claimed that thirty-nine years ago they were convicted of a crime which they did not
commit -- the murder of Edward "Teddy" Deegan ("Deegan"). Limone, Tameleo, and Greco
were sentenced to die in the electric chair, a sentence reduced to life imprisonment when the
Massachusetts death penalty was vacated. Salvati was also sentenced to life imprisonment.
They accused the United States, specifically, the Federal Bureau of Investigation ("FBI"), of
framing them for Deegan's murder by failing to disclose exculpatory documents and information,
and then, by covering up FBI misconduct, ensuring their imprisonment over the next three
decades. They brought this lawsuit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §
2671, et seq., on a number of grounds.
A lengthy memorandum and order was issued in July of 2007 awarding the plaintiffs
judgment in the amount of $101,750,000.00, which the government appealed. Limone v. United
States, 497 F. Supp. 2d 143 (D. Mass. 2007). The First Circuit affirmed, in part. Limone v.
United States, 579 F.3d 79 (1st Cir. 2009).
Within the appropriate period under the rules, Plaintiffs filed a motion seeking attorneys’
fees and expenses pursuant to 28 U.S.C. § 2412(b) deriving from their contention that the United
States acted in bad faith in the conduct of this litigation. The government opposed, arguing that
there was no bad faith and, in any event, if the Court so found, it should award only fees and
costs traceable to that conduct.
I find that there was bad faith conduct, but not with respect to the government's conduct
in toto. While I emphatically rejected the government's substantive positions -- certain of the
defenses it interposed I labeled "absurd" -- in the light of the First Circuit's decision, I cannot
find them to have been asserted in bad faith. After all, while the First Circuit Court affirmed this
Court's finding of intentional infliction of emotional distress, and the damage award, it agreed
with the government with respect to plaintiffs' claim of malicious prosecution. It concluded that
the FBI was not responsible for the state murder prosecution that victimized these plaintiffs; that
prosecution was attributable to decisions of the state authorities.1
1
On the subject of the relationship between the FBI and the state Deegan murder trial, I found:
The FBI, and not the state, developed Barboza as a witness, knowing that his
false testimony would be used to prosecute the plaintiffs for a crime they did not
commit. They, and not the state, kept their conduct from being discovered by
failing to disclose exculpatory evidence, before, during, and after the trial. They,
and not the state, vouched for Barboza to law enforcement and to the very jury
hearing the murder case, even when all the information they had flatly
contradicted his account.
Limone v. United States, 497 F. Supp. 2d at 154.
And later:
The state investigation of the Deegan case had stalled. Without Barboza there
was no case. Without the FBI there was no Barboza. While the state authorities
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Nevertheless, there was a pattern of bad faith conduct that the First Circuit has not
addressed, with which this Court was intimately familiar -- that is, the government's conduct in
connection with discovery.
This was a document case from start to finish; many of the witnesses were dead or ailing.
The plaintiffs' case had to be painstakingly pieced together through materials that were not
publicly available. Indeed, secrecy -- and secrecy gone awry -- was central to the litigation.
Documents concerning the "Top Echelon Criminal Informant Program" and the abuses
committed in its name, including those that were the subject of this lawsuit, had been
purposefully withheld, not only from state law enforcement, but from other divisions within the
FBI. The program did not become known to the Department of Justice until 1995, during
could corroborate information about the murder -- how it happened, where and
when -- Barboza's testimony was the only link to the plaintiffs. And his
testimony about the plaintiffs could not be corroborated because it was false.
Only the FBI had the means to prove Barboza's falsity, and they were not
talking. Even when Barboza testified that 'the FBI never promised [him]
anything,' they stood mute.
The FBI's role at trial went far beyond the failure to share evidence in their files.
They were a formidable presence through the trial both directly and indirectly.
They cultivated, debriefed and prepared Barboza. They corrected his testimony
only when it was inconsistent with reports the defense was likely to have or
when it made him vulnerable on cross-examination. Condon even testified on
Barboza's behalf attesting to the "purity" of Barboza's false testimony. They
conferred with and controlled major prosecution witnesses before they testified
(Anthony Stathopoulos and John Fitzgerald). They advised Suffolk County
Assistant District Attorney ("ADA") Jack Zalkind ("Zalkind") and his staff
behind the scenes.
Limone v. United States, 497 F. Supp. 2d at 158-59.
Indeed, the FBI in its public statements admitted responsibility for the state prosecution. The "successful
prosecution" of the local murder case was a "direct result" of their "noteworthy development of a pertinent witness."
Limone v. United States, 497 F. Supp. 2d at 206.
True, as the First Circuit found, the FBI did not focus on the Deegan murder, and did not suggest to
Barboza whom he should frame. But that hardly relieved the FBI of responsibility. Their informants were among
Deegan's murderers. Limone, 497 F. Supp. 2d at 163. The reason for their silence was that they did not want the
truth to become known and wreck their investigation.
-3-
extraordinary proceedings before Judge Mark Wolf in United States v. Salemme. United States
v. Salemme, 91 F. Supp. 2d 141 (D. Mass. 1999); Limone v. United States, 497 F. Supp. 2d at
153. The record revealed FBI agents "hiding the ball," not disclosing critical exculpatory
information in the Deegan murder case for nearly forty years, information that would have
exonerated the plaintiffs. As I noted in my decision:
...[T]hat policy [the nondisclosure policy] continued to the present, and
affected the very trial of this case. The attorneys representing the
government were not permitted access to unredacted documents even
though they were obliged to certify that all relevant information had been
turned over under Rule 26, Fed. R. Civ. Pro. That charade ended when I
ordered that lawyers with an appearance in this case had to have access to
all of the information in unredacted form.
Limone v. United States, 497 F. Supp. 2d at 161.
The problem with the government's conduct went beyond mere delay. The government
blocked access to the relevant documents -- hiding behind specious procedural arguments,
baseless motions to stay and "emergency" motions to defer production, culminating in a
frivolous interlocutory appeal. While the government may have had a legitimate concern about
protecting informant identities -- what they insisted was their core concern -- that protection was
hardly absolute and unreviewable. Roviaro v. United States, 353 U.S. 53 (1957) the seminal
case on the disclosure of informant identities contemplates a balance between the public interest
in protecting the flow of information on the one hand, and an individual's right to prepare his or
her case, on the other, a balance which a judicial officer is to strike based on the facts before her.
Until pushed by myriad orders of the Court, the defendants prevented the Court from making a
considered decision. They would not disclose -- even in camera -- until ordered to do so, why,
for example, a deceased informant's forty year old information deserved protection. They
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constantly refused to disclose the facts on which these claims of privilege were based. They
would have this Court, the parties, the lawyers, the public, simply trust that they had previewed
the documents in good faith, and redacted information they simply had to protect.
When, at long last, the Court was on the verge of awarding sanctions against the
defendants, there was an extraordinary admission. The lawyers representing the government,
who had signed the pleadings during the two years of discovery, who were familiar with the
plaintiffs' allegations, and who were subject to the discipline of this court, including the
disciplinary provisions of Rule 11 and Rule 26(g) Fed. R. Civ. Pro. -- had not been given access
to the discovery in its unredacted form at all. See Order to Show Cause, December 12, 2006
(document #494). While Rule 26(g), Fed. R. Civ. Pro., requires that every disclosure be signed
by "at least one attorney of record" who is supposed to make a "reasonable inquiry" that the
"disclosure is complete and correct as of the time it is made," trial counsel was in no position to
make these representations. Only the general counsel of the FBI was able to decide what should
or should not be redacted because only she (and presumably her agents at the FBI) was
authorized to see them. But the FBI's general counsel refused to enter an appearance in the case.
She would not come to court to justify the redaction decisions that had been made, in effect to
demonstrate her good faith. Put simply, the lawyer in front of me lacked the authority to see the
unredacted documents, and the lawyer who had that authority was not in front of me!
On December 12, 2006, over two years from the first discovery motion, I ordered that the
matter be brought to the personal attention of the Director of the FBI, to "answer the Court's
concern that counsel be given the tools they need to defend these charges, namely access, as
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officers of the Court, to the documents relevant to the case at bar." See Order to Show Cause.
And with that Order, the logjam was broken.
Notwithstanding my findings of bad faith, however, I was not able to order an amount of
attorneys fees on the initial attorneys' fees record in front of me. The records that the plaintiffs
provided, while complete and voluminous, did not lend themselves to easily identifying which
conduct was attributable to the bad faith discovery abuses that I found. Accordingly, I issued
this opinion in draft form, and ordered supplemental briefing on the question of which fees were
attributable to the bad faith abuses.2 That briefing is now complete. This memorandum first
describes the statutory framework that applies to the claims and its application to the case at bar,
then the facts and the remedy.
I.
STATUTORY FRAMEWORK
A.
The EAJA and the FTCA
Congress passed the Equal Access to Justice Act ("EAJA") to make certain that "private
parties will not be deterred from seeking review of, or defending against, unjustified
governmental action because of the expense involved in securing vindication of their rights.".
Maritime Mgmt., Inc. v. United States, 242 F.3d 1326, 1331 (11th Cir. 2001) (quoting H.R. Rep.
No. 99-0120, at 4 (1985)). The statute allows a court to award attorneys' fees to parties that
prevail in civil litigation against the government when either 1) the common law or 2) a statute
authorizes such fees. 28 U.S.C. § 2412(b). Courts have recognized certain common law
exceptions to the "American Rule," the rule that each party bears his own fees: the exceptions
are "common fund," "common benefit," "willful disobedience of a court order," and "bad faith."
2
The Government requested an opportunity to supplement their briefing to determine "whether plaintiffs'
submissions are attributable to any bad faith conduct," should the Court find bad faith, as I have.
-6-
Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991); Maritime, 242 F.3d at 1331; Lucarelli v.
United States, 943 F. Supp. 157, 158 (D.P.R. 1996). Specifically, the EAJA, 28 U.S.C. §
2412(b) provides:
Unless expressly prohibited by statute, a court may award
reasonable fees and expenses of attorneys, in addition to the costs,
which may be awarded pursuant to subsection (a), to the prevailing
party in any civil action brought by or against the United States, or
any agency or any official of the United States acting in his or her
official capacity in any court having jurisdiction of such action.
The United States shall be liable for such fees and expenses to the
same extent that any other party would be liable under the
common law or under the terms of any statute which specifically
provides for such an award.
(Italics supplied.)
The EAJA has two attorneys' fees provisions: § 2412(d), under which an award of attorneys' fees
is mandatory in certain cases when the government's position was not "substantially justified;"
and § 2412(b), under which an award of attorneys fees is permitted when authorized by another
statute or by the common law.
Since the former, § 2412(d), expressly excludes "cases sounding in tort,"3 plaintiffs rely
on § 2412(b) and allege bad faith. In Chambers, the Court noted that fees may be awarded when
the losing party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons." 501
U.S. at 33. A finding of subjective bad faith is not necessary so long as the moving party can
demonstrate that the losing party's actions were in fact objectively "frivolous, unreasonable, or
without foundation," Local 285, Serv. Emp. Int’l Union, AFL-CIO v. Nonotuck, 64 F.3d 735,
737 (1st Cir. 1995) (quoting Washington Hosp. Ctr. v. Serv. Emp. Int'l Union, 746 F.2d 1503,
3
The plaintiffs’ claim that § 2412(d)'s preclusion of fees in cases "sounding in tort" does not apply to
constitutional torts is irrelevant here. A suit under the FTCA is clearly not a constitutional tort.
-7-
1510 (D.C. Cir. 1984)). While the First Circuit broadly noted that this power should be used
"sparingly" and should be reserved for "egregious circumstances" Jones v. Winnepesaukee
Realty, 990 F.2d 1, 4 (1st Cir. 1993),4 that characterization is misleading. In the same case, the
Court held that egregious conduct could include a "litigants' repeated efforts to stall a case,
harass other participants, and frustrate the operation of the justice system." Jones, 990 F.2d at 5.
Thus, bad faith conduct, so defined, includes a wide variety of actions that led to the lawsuit as
well as actions during litigation. Roadway Express, Inc. v. Piper, 447 U.S. 752, 765-66 (1980).
And as to all such actions, the plaintiffs bear the burden of showing bad faith. United States v.
Ford, 797 F.2d 1506, 1509 (1984).
B.
Relationship Between the EAJA and Sanctions under the Federal Rules
A court also has the inherent power to award fees for bad faith despite the fact that the
conduct identified -- like discovery abuse -- might also have warranted sanctions under some
other provision of the law. In Chambers for example the Supreme Court concluded:
There is, therefore, nothing in the other sanction mechanisms or
prior cases interpreting them that warrants a conclusion that a
federal court may not, as a matter of law, resort to its inherent
power to impose attorney's fees as a sanction for bad-faith conduct.
This is plainly the case where the conduct at issue is not covered
by one of the other sanctioning provisions. But neither is a federal
court forbidden to sanction bad-faith conduct by means of the
inherent power simply because that conduct could also be
sanctioned under the statute or the Rules.
501 U.S. at 50. See also, United States v. Horn, 29 F.3d 754, 760 (1st Cir. 1994)(". . . even
though a particular abuse is covered by a specific statute or rule, a court may still invoke its
4
As the government notes, the Second Circuit applies a more restrictive test for bad faith: the litigant's
claim or defense must be both "(1) meritless; and (2) brought for improper purposes such as harassment or delay."
Kerin v. United States Postal Serv., 218 F.3d 185, 190 (2d Cir. 2000). The First Circuit law, as described above, is
otherwise.
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supervisory power to address the abuse if the existing remedial provision is inadequate to the
task.").
To be sure, as the Court noted in Chambers, where the bad faith conduct can be
adequately sanctioned under the rules, that is the preferable course. 501 U.S. at 50. But where,
as here, the conduct is beyond the reach of the rules and is "intertwined within conduct that only
the inherent power could address," Id. at 51, I may use the fee shifting provision of the EAJA to
address it. As described below, the civil rules were not adequate here to sanction the
government. The government represented that dire consequences would attend the disclosure of
forty year-old information and -- until ordered to do so -- would not explain why. While the
Court used every procedural device in its arsenal, the government still stalled this case for years,
up until the very eve of trial.
The principle sanctioning tool that the Court had, Rule 11, and even Rule 26(g) (which is
addressed to discovery abuses) was inadequate. Trial counsel for the FBI was not given the
authority to look at the unredacted documents; they were, in effect, classified not only as to the
plaintiffs but also to the entire government trial team. Only her client, the FBI, had access. Trial
counsel's representations to this Court, implying that everything had been turned over that was
appropriate for disclosure, that redactions had been made in good faith, were without basis. She
was simply parroting the representations of the FBI -- a defendant in this case, who - ironically -were being sued for withholding exculpatory information. Crucial decisions in the litigation -what to produce or not produce, what to redact or not redact -- were made by the very party
whose failure to turn over critical, exculpatory, documents over forty years ago led to this
lawsuit. The charade finally ended on December 12, 2006, during the trial when the Court
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entered an Order to Show Cause to insure that the issue of access be brought to the personal
attention of the Director of the FBI. See Order To Show Cause.
C.
Relationship Between § 2678 and § 2412
The FTCA's provision for attorneys' fees, 28 U.S.C. § 2678, provides that "[n]o attorney
shall charge, demand, receive, or collect for services rendered, fees in excess of 25 percentum"
of any FTCA judgment. The government argues that this provision precludes a separate fee
award, apart from a 25% contingency agreement, "under almost all circumstances."
Additionally, the government points to that provision of the EAJA providing for mandatory
attorney's fees when the government's position is not "substantially justified," and argues that it
specifically excludes tort cases, like the case at bar. 28 U.S.C. § 2412(d)(1)(A). As a result, the
government argues, Congress must have intended that the government generally not be held
liable for attorney's fees over and above their 25% share of the recovery.
In Lucarelli, the district court rejected this position, explaining that the 25 % provision
was meant to protect clients, not the government. 943 F. Supp. at 157. Nor does the tort
exception to mandatory fees under § 2412(d) apply to permissive fees under § 2412(b):
The FTCA does not provide for awarding attorney's fees to a
prevailing party. Section 2678 merely limits the amount an
attorney may charge a client to 25 percent of a court settlement or
judgment.. . .
EAJA contains two provisions for awarding attorney's fees, §
2412(b) and § 2412(d)(1)(A). Section 2412(b) is permissive . . . .
Section 2412(d)(1)(A), on the other hand, is mandatory . . . .
Although some courts, without discussing 2412(b), have denied
attorney's fees based on the reasoning that 2412(d)(1)(A) precludes
such an award in tort cases, see In re Turner, 14 F.3d 637, 640
(D.C. Cir. 1994); Campbell [v. United States], 835 F.2d [193,] 196
[(9th Cir. 1987)], we agree with the Eastern District of
Pennsylvania that by the terms of § 2412, the tort exception applies
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only to the mandatory award of attorney's fees. Keller v. Dalton,
No. CIV. A. 95- CV-712, 1995 WL 552978 at *2 (E.D. Pa. Sept.
18, 1995). Section 2412(b), in contrast, contains no such
exception. Consequently, this case falls under 2412(b) . . . .
[U]nder 2412(b), the United States may be held liable for
attorney's fees to the same extent that private parties would be
under the common law or the terms of a statute providing for such
fees.
Lucarelli, 943 F. Supp. at 158; see also Bergman v. United States, 844 F.2d 353, 355 (2d Cir.
1988) (reaching the same conclusion); Havrum v. United States, 204 F.3d 815, 819 (8th Cir.
2000) ("We have held that where the government has acted in bad faith it may be required to pay
attorney's fees under § 2412(b), and we assume, without deciding, that such awards are available
in FTCA actions." (citations omitted)).
I agree with the reasoning in Lucarelli. I hold the FTCA's 25% provision does not limit
the award of attorneys' fees (apart from any contingency fee agreement) where those fees can be
traced to the parties' bad faith conduct.
II.
APPLICATION TO THE FACTS AT BAR
A.
The Discovery Record
The case law appropriately requires a detailed explanation of the bad faith conduct
supporting an award of attorney's fees, Mullane v. Chambers, 333 F.3d 322, 338 (1st Cir. 2003),
which follows here:
Document production was entirely controlled by the FBI. The FBI denied plaintiffs
access to the unredacted versions of the documents, notwithstanding the myriad orders of this
Court. Discovery abuses included the repeated defiance of court orders to produce, the repeated
filing of meritless motions to stay or reconsider discovery orders and last, but not least, the
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redaction of discovery materials without a review by the attorney who signed the pleadings, the
attorney who had entered an appearance in the case.
1.
2004-2005
In 2004, plaintiffs moved for the production of documents that were plainly relevant to
the case. The government's response initially was entirely appropriate. Pls.' Mot. (document
#235). It sought a protective order because the material involved sensitive information on
confidential informants and third parties not involved in the litigation. Pls.' Mem. in Supp. of
Mot. (document #236 at 2). In November 2004, the Court immediately granted the
Government's motion insofar as it set up a procedure for claiming privilege, for objecting to the
claim of privilege and for enabling the parties to litigate the issue before the Court. The problem
was that the government never followed its own order.
Following the November 2004 order, the government sent the plaintiffs carton loads of
documents. The documents were effectively incomprehensible. They were heavily redacted.
Some had nothing more than a heading; sometimes the same document was reproduced
elsewhere with different redactions. It was accompanied by a barely readily log which identified
the category to which the redaction belonged -- informant privilege, etc. -- but not the facts on
which the redaction was based.
The plaintiffs moved to compel production of the unredacted material, the first of many
such motions.5 The government opposed on entirely procedural grounds -- the plaintiffs had not
5
The plaintiffs indicated their concern about whether the Government was acting in good faith:
The plaintiffs contend that, in many instances, the United States is using its
claims of privilege as a shield against appropriate discovery, rather than to
protect material that is actually privileged. First, the United States has failed to
specifically or properly assert the privileges on which it purportedly relies.
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followed the rules, did not confer in advance, filed the request late, etc. They did not address the
merits of the request at all. See e.g., Defs.' Opp'n to Pls.' Joint Mot. to Compel Prod. of Doc.
(document #284); Defs.' Opp'n to Pls.' Second Joint Mot. to Compel Prod. of Doc. (document
#293); Defs.' Opp'n to Pls.' Third Joint Mot. to Compel Prod. of Doc. (document #324).
To be sure, the Government had a right to rely on the procedural rules, to complain about
the failure to confer, or about untimely objections to their submissions – as any party was
entitled to do. But they were hardly without fault. They had turned over 40,000 documents in a
form that, from the perspective of the parties, was impossible to understand and, from the
perspective of the Court, impossible to use for the purpose of coming to reasoned judgments
about what should or should not be protected. As described below, they continued to certify that
the documents redacted or withheld were privileged (informant's privilege) without doing what
parties in discovery are supposed to do – provide the Court with information as to how those
privileges applied to the materials that were provided. It was no surprise that it took months for
the plaintiffs to unscramble the documents they had been sent – to the extent they were able to
do so. (Nor was it any surprise that the plaintiffs required numbers of lawyers and paralegals to
staff the case – as their application for attorneys' fees reflects.)
The government claims in its opposition to plaintiffs' motion for fees, that it was entitled
to withhold documents that were based on the informant's information. After all, it suggest this
Court ultimately upheld the privilege.
Second, and moreover, almost all of the privileges claimed by the United States
are privileges that require the Court to balance the plaintiffs' need for the
redacted information against the government's claim of harm with regard to the
disclosure of that information.
Mem. in Supp. of Pls.' Joint Motion to Compel Prod. of Doc. (document #278 at 4).
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The claim is profoundly disingenuous. The government asserted the privilege with
respect to large numbers of documents, redacted huge swatches of others. With each discovery
wave and order of the Court, the documents as to which it claimed privilege were reduced -- but
this was with substantial effort on the part of the Court and of counsel. It took countless hours to
finally force the government to come to grips with its obligations. And, the government
persisted in refusing to disclose the bases for its claim of privilege -- not the category, but the
facts. It did not do so until 2006, years into the case. Nevertheless, with respect to this period,
2004-2006, I will give the government the benefit of the doubt. I will take responsibility for not
being as clear about the government’s disclosure obligations as I should have been. Accordingly,
I will not find bad faith in connection with pre 2006 discovery.
2.
2006
Finally, on March 26, 2006, the Court specifically ordered the government to provide
"not just the facts of the privilege, but the information on which it is based," if necessary in
camera.
6
See March 26, 2006 (document #352).6 While the government produced some
The Order consisted of the following:
Electronic ORDER entered granting in part and denying in part 277, Motion to
Compel, granting in part and denying in part 288, Motion to Compel, granting in
part and denying in part 313, Motion to Compel : In docket #277, plaintiffs
move this Court to compel defendant to produce certain unredacted documents
in connection with documents concerning the investigation of the murder of
Edward Deegan, or to provide sufficient information to enable the Court to
determine if the redactions are legally required. In docket #288, plaintiffs moves
for similar relief in connection with 1) redactions to the manuals, instructional
documents, and policy documents produced by the United States; 2) redactions
to additional documents produced by the government regarding the investigation
of the murder of Edward Deegan, and not addressed in Plaintiffs? earlier motion
to compel; and 3) redactions to the documents produced by the government to
the United States Congress at the Congressional Hearings relating to the events
at issue in this matter. In the final motion to compel, docket #313, plaintiffs
address documents not covered by the first two motions (accompanied by an
attachment, filed under seal) specifying those documents. The government did
not oppose #277 on the merits, but only in terms of whether the plaintiffs
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documents, on April 27, 2006, it withheld many others, continuing to file motions to block their
disclosure. The docket reflects the numbers of hearings the Court was obliged to hold, and the
successive discovery orders the Court was obliged to issue, each more and more detailed, and
candidly, more and more strident.
First, the government argued that it should be required to produce only those documents
which it deemed relevant to summary judgment with the rest of their production stayed. Then
they suggested that plaintiffs already had all the information they needed, according to the
government's view of plaintiff's case -- that the government already knew that Jimmy Flemmi
was not prosecuted for the Deegan murder, but was involved in it, and that the FBI failed to pass
that information on to the state authorities. The "name of the informant who provided the
information is irrelevant to . . . these theories of liability," the government claimed. Defs.' Resp.
to Order (document #354 at 2). At the same time, the government was insisting that the FBI's
role -- as they characterized it -- was not sufficient to make it responsible for the state
prosecution. Reduced to its essentials was the claim that the plaintiffs did not need the
complied with the discovery rules. It filed more substantive oppositions to the
remaining two motions. The Court resolves these three motions with three
principles in mind: 1) It is up to the Court to balance plaintiffs' need for
information, and the government's claim of the harm that could be caused by the
disclosure; 2) the information requested is at least 30 years old, in some cases,
raising substantial questions concerning whether their disclosure would cause
harm sufficient to warrant denying the motion to compel, and 3) that the Court
entered a protective order, precisely as the government had drafted it, which
governs disclosure of any documents in connection with this case. Accordingly,
1) the parties are to confer about which documents remain in contention, 2) to
the extent that the government continues to assert the privileges it has asserted
thus far, it is ORDERED to supplement its responses to describe not just the fact
of the privilege, but the information on which it is based; 3) to the extent that the
responses disclose information that the government insists cannot be shared with
plaintiffs -- even subject to its protective order -- it will file such information
with the Court in camera. Supplemental responses are to be filed by April 27,
2006.
March 26, 2006, document #352 (Italics supplied).
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information requested because the Court should simply adopt the government's defense as true –
that "all" the government did was to make Barboza available and nothing more. Defs.' Resp. to
Order at 7.
At other times the government insisted that the burden was on the plaintiffs to show why
they needed the unredacted materials. The position made no sense. The plaintiffs could not show
why they needed the documents until they knew what they were looking at. And, in any event,
in order to do an independent investigation, the plaintiffs needed to know who had provided the
information on which the FBI had relied, whether the informants were credible, whether the
informant gave inconsistent tips, or whether their information was contradicted by other
information the FBI had.
These positions necessitated another order (dated July 4, 2006):
On March 26, 2006, in response to a plethora of discovery
motions, I ordered inter alia, that the parties confer for the purpose
of narrowing the documents in contention. Conferring, apparently,
did not work very well. On April 27, 2006, the United States sent
to the Court unredacted copies of an initial set of documents that
the parties agreed were still in contention, together with a chart
describing the document, and the position of the respective parties.
Subsequent correspondence between the parties suggest[ed] that
considerably more than that ‘initial’ set remain in contention. . . .
[P]laintiffs are correct that the operative standard here is not
whether documents are 'relevant for summary judgment purposes,'
as the government suggests. The relevant standard is under Rule
26, Fed. R. Civ. Pro., whether the material 'appears reasonably
calculated to lead to the discovery of admissible evidence.' Some
information relevant under Rule 26 – because it addresses
credibility issues, impeachment of material witnesses, etc. – may
in fact relate more to trial presentations than to summary judgment
presentations.
[W]ith respect to informants' names and file numbers, and insofar
as they concern the specific documents described below, I agree
with the plaintiffs. The malicious prosecution allegations in this
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case include inter alia the failure of the government to disclose
exculpatory information, as well as its efforts to suborn perjury and
fabricate evidence in connection with the prosecutions of the
plaintiffs for the murder of Edward Deegan. The requested
information bears on the question of whether the FBI had reason to
rely on and credit certain information it had received about the
Deegan murder, whether it should have passed that information on
to state authorities, etc. The government argues that this
information is not relevant because the government did nothing
more than transmit the information it had received about the
Deegan murder to the state authorities. Whether or not that
account should be accepted depends upon the facts, see
Memorandum and Order Re: Motion to Dismiss, July 17, 2003, p.
25 et seq., facts which the plaintiffs are entitled to probe.
Moreover, since the information is over forty years old, since a
considerable amount has already been disclosed in litigation in the
District of Massachusetts and in Congress, I do not see how the
informants named in these documents will be harmed. Finally, the
case on which the government relies, Roviaro v. United States, 353
U.S. 52 (1959) provides a balancing test, not a blank check for
informant secrecy no matter what the context. In this case -- with
respect to the documents described below -- that balance shifts in
favor of disclosure of informant names and file numbers. [Listing
of the specific documents and findings with respect to each].
(Italics supplied).
The government's response was to file yet another "Emergency Motion to Stay Order
Compelling Names Pending Resolution of United States’ Summary Judgment Motion." Def.'s
Mot. (document #375).
Over the next several months, as the trial date loomed, although more documents were
produced, the government persisted in claiming that it was entitled to simply announce the
privileges it was asserting, without meaningful explanation of the facts relating to each claim (a
position, sadly, it insists on in its briefing on fees to this day). After the Court denied summary
judgment, and set a trial date, the Court's impatience with the government's position was
palpable. On October 15, 2006, the Court entered the following order:
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[W]ith respect to documents that were ordered produced on July 4,
2006. I originally ordered certain documents produced on that
date, but stayed the order to consider the Declaration of Robert A.
Enriquez, Sr., Special Agent of the FBI. This affidavit does not
affect my ruling on that date. I indicated that Roviaro v. United
States, 353 U.S. 52 (1959) outlines a balancing test, "not a blank
check for informant secrecy no matter what the context." The
Declaration does not meet that test. It is nothing more than a
generalized recitation of the need for informant secrecy, without
regard to the context of this case. The government is ordered to
produce these documents unredacted forthwith. [SPECIFYING
THE DOCUMENTS BY BATES NUMBER AND CATEGORY
WITH A DEADLINE FOR THEIR PRODUCTION]
(Italics supplied).
The government moved for an emergency stay to "assess its appellate options," a position
which this Court once again found to be disingenuous. Defs.' Mot. (document #438). My order,
on October 17, 2006 denying the stay, makes clear the facts why:
FIRST: The government seeks a stay in order to determine whether
or not it will appeal the Court's most recent order. Their position is
disingenuous. The most recent order should not have come as a
surprise. The government should have been addressing its
appellate options long before today. Indeed, in an order dated July
4, 2006, this Court indicated that the usual balance suggested by
the Roviaro decision --against the disclosure of informant
identities - points in a different direction in the case at bar . . .
requiring the defendants to come forward with concrete reasons for
the non disclosure of particular informants. In response, the Court
received a ‘declaration’ from an agent which did little more than
recite the defendants' concerns in the most conclusory terms.
While such a declaration may be sufficient in the usual case, it is
not remotely sufficient here. Likewise, in open court on September
14, and by an endorsed order on September 15, the Court urged the
defendants to demonstrate in camera -- who the informants are and
why they remain vulnerable. SECOND: This Court well
understands the importance of protecting informants' identities.
One only has to read Judge Lindsay's decision in the McIntyre case
(where the Court found the defendants responsible for the release
of information which led to the death of an informant) to fully
appreciate the risks. Likewise, the Court understands the plaintiffs'
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claims that the requested discovery goes to the core of the case.
This case is ABOUT whether the government had information
suggesting that the plaintiffs did not commit the Deegan murder
and that others did, information that obviously includes informant
information. Moreover, a good deal of information about informant
identity has already been disclosed to these plaintiffs and
significantly, to Congress in connection with its report on
informant abuse which focused directly on this case, namely, the
2004 Report of the House Committee on Government Reform,
Everything Secret Degenerates: The FBI's Use of Murderers as
Informants. The information is historical, forty years old. Some of
the informants are long deceased. THIRD, given the allegations in
this case, and their age, not to mention the age of the plaintiffs who
are seeking redress for their decades-long imprisonment, the
burden is on the government to justify non disclosure. The Court
will give the defendants one more opportunity -- not to garner
more time to discuss appellate options it should have considered
long ago, not to provide the Court with unredacted documents
without explanation. But rather, to provide the Court with the
specific, concrete reasons for nondisclosure-- who the informant is
that they wish to protect, why he or she needs protection for
information provided forty years ago. ORDER: The defendants
have until the close of business Monday, October 23 to provide
this information to the Court. Moreover, the defendants shall, in
addition, provide this Court with a statement as to what basis if
any exists for appellate jurisdiction. The trial date will not be
continued.
The Government filed another Emergency Motion for a Stay of Disclosure Orders
Pending Appellate Review both with respect to 1) the specific documents that had been the
subject of this Court's earlier orders and the informants' identities that disclosure involved, and 2)
the remaining documents that had been produced in redacted form (some 7,000 pages). Defs.'
Mot. (document #452).
By October 30, 2006, the plaintiffs moved for evidentiary sanctions, representing that the
FBI had refused to identify the informants whose names were contained in certain specified
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documents. Pls.' Mot. for Sanctions (document #455). On November 2, 2006, the Court declined
to stay the orders one moment more:
[T]he Order will not be stayed. The Court has requested that the
Government identify to the Court in camera, who the informants
are, why continued protection is necessary, etc. (See my earlier
orders.) The Government has refused to do so. With respect to
2)[the remaining documents in contention], the parties are
directed to point out to me in this voluminous record, whether the
Government has ever done what civil litigants are obliged to do -namely to identify document by document, why it believes the
document is not relevant, and which particular privilege is
implicated or rather, the Government persists in its blunderbuss
approach -- e.g. ‘somewhere in this mass of documents are
privileged documents but we won't tell you where or why.’ The
parties are to reply by November 3, 2006.
(Italics supplied.)
The government filed a petition for mandamus which was shortly denied.
Finally, on November 13, 2006, the Government filed a notice of production of
unredacted documents for in camera review, months after they had been ordered to do so. Defs.'
Notice of Pro. of Unredacted Doc. (document #467). Trial began on November 16, 2006, even
though some of the discovery issues remained unresolved.
The government's behavior from March 2006 to December 2006 was unquestionably in
bad faith. The issue is not what ultimately happened – when the government finally met its
obligation to disclose ex parte the basis for its claims of privilege, when it finally narrowed its
objections to a finite set of documents. The issue is how long it took them to get to that point
and how much effort Plaintiffs’ counsel had to expend. That effort should not go
uncompensated.
3.
Trial Counsel Had No Access to the Unredacted Documents
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On November 20, 2006, during a hearing on one disputed exhibit, trial counsel for the
defendants, who had been involved in the discovery disputes for two years, confirmed that she
had never seen the unredacted documents that were supposed to be produced. Only the FBI had
that access -- the very entity charged with failing to turn over exculpatory evidence forty years
before. Small wonder that trial counsel could not respond on the merits to the myriad discovery
motions. She had no idea what was in the unredacted material.
The Court ordered the Government to provide certification that an attorney with an
appearance in this case had reviewed the discovery materials for their compliance with Rule 26.
By December 12, 2006, the Court was compelled to file an Order to Show Cause:
As I indicated in open court, there is a serious problem in the
defense of the above entitled cases.
On the one hand, the lawyers representing the government, who
sign the pleadings, who are familiar with the plaintiffs' allegations,
and who are subject to the discipline of this Court, including the
disciplinary provisions of Rule 11 and Rule 26(g) Fed. R. Civ. Pro.
– have not had access to the discovery at least in its unredacted
form. In a striking admission, they have represented to the Court
that they, attorneys and officers of this Court, are somehow not
authorized by their client, the Federal Bureau of Investigation, to
see the material until the FBI – or its general counsel, apparently –
redacts it. Indeed, Ms. Lipscomb went so far as to compare her
diminished status to that of someone in a national security case
who does not have a security clearance. The analogy was, in a
word, absurd.
On the other hand, the lawyers representing the FBI, the FBI's
general counsel, who ostensibly reviewed the documents,
determined what should or should not be redacted, have not
entered an appearance in the case, and according to a recent
submission are not even permitted to do so. As such, they are not
subject to the discipline of this Court, including the disciplinary
provisions of Rule 11 and Rule 26(g). Nor can I have great
confidence that are familiar with the plaintiffs' allegations in any
great detail. . . .
-21-
True, the FBI and all law enforcement agencies should take all
lawful steps to protect the identity of informants who have
cooperated with the government. But the rule of protection is not
absolute. The Roviaro decision contemplates a balance between
the public interest in protecting the flow of information against the
individual's right to prepare his or her case. . . . True too, that
under Rule 26(g) every disclosure is to be signed by "at least one
attorney of record" who is supposed to make a "reasonable
inquiry" that "the disclosure is complete and correct as of the time
it is made."
. . . [T]he position the FBI is taking is chilling. Time and again
during the course of the litigation, a question will be posed about a
document produced in discovery and government counsel will
have no idea how to answer because they have not been privy to all
of the information, because they have not participated in the
screening decisions – and the answer is delayed. Time and again it
appears that the lawyers representing the Government have simply
not been given the authority that they need to understand the big
picture, trying this case, if you will, with one hand tied behind
their back. This Court is not remotely satisfied. Plaintiffs' have
moved for monetary contempt sanctions for the government's
failure to properly comply with Rule 26(g), which will be taken
under advisement. In order to make that decision, the Court
ORDERS that this matter be brought to the personal attention of
the Director of the FBI, to answer the Court's concern that counsel
be given the tools they need to fairly and properly defend these
charges, namely access, as officers of the Court, to the documents
relevant to the case at bar. Counsel IS ORDERED [to] report to
this Court no later than Monday, December 18, 2006.7
Within a week, the government agreed to comply. Less redacted versions were sent to the
plaintiffs. At the same time, the Government moved for permission to separately file sealed
material to the Court. The Court reviewed the material and issued additional orders requiring
production under the protective order that had been drafted and signed years before. To be sure,
the Court sustained the Government's objections to disclosure but only with respect to a very,
7
Monetary sanctions were never awarded.
-22-
very small number of documents and surely not the voluminous materials as to which the claim
was initially made.
To this day, the government insists that "DOJ trial counsel were entitled to rely upon the
FBI's expertise as to the assertion of the informant's privilege." Defs.' Resp. (document #688 at
1). Relying on the FBI's expertise is one thing. Ceding all control of discovery to one's client,
without informing the court, is quite another.
All told, discovery motions consumed two years, multiple court orders, motions for
sanctions, five motions to stay, four court orders. And it continued even into the trial as the
Court noted:
At the close of the bench trial, I ruled that the parties would be
allowed to reopen the evidence with respect to a narrow set of
issues – namely allow the Plaintiffs to introduce less- redacted
versions of trial exhibits, as well as new exhibits, the relevance of
which only became apparent in light of other lifted redactions,
which had become the subject of a long standing discovery
dispute."
Limone, 497 F. Supp. 2d at 173 n. 69.8
III.
ATTORNEYS' FEES COMPUTATION
There is no doubt that there was bad faith in connection with the government's conduct
during discovery. The government played a shell game – dumping vast numbers of documents
that were so redacted as to be incomprehensible, interposing procedural objections to delay
taking any substantive position, repeatedly filing specious objections to discovery, and then
specious motions for a stay, culminating in the disclosure that trial counsel had no access to the
unredacted documents. To be sure, I do not find that trial counsel made misrepresentations to
8
Indeed, the trial record could not be close because the government discovery was still outstanding. See
docket entries March 7, 2007, and March 8, 2007.
-23-
the Court. In reviewing all of the submissions, and all of the orders, it is clear that trial counsel
never once affirmatively stated that they had personally reviewed the unredacted versions of the
discovery. Nor did they say the opposite.
Nevertheless, it was reasonable for the Court to infer that the lawyers who had entered an
appearance in the case were fully informed about whether the government had fulfilled its
discovery obligations. I appreciate the position trial counsel found itself in, caught between the
proverbial rock and a hard place, a client unwilling to cooperate with them, and a court pressing
them for information. But the finding of bad faith accrues to the government's – here, the client's
– conduct and is fully supported on this record.
As the plaintiffs argue, some courts have held that if a district court makes a bad faith
finding under the EAJA, it may award fees and expenses for the entire litigation. See Gray
Panthers Project Fund v. Thompson, 304 F. Supp. 2d 36, 42 (D.D.C. 2004); see also Comm’r ,
Immigration and Naturalization Serv. v. Jean, 496 U.S. 154, 161-62 (1990) (explaining that
awards for the entire litigation are appropriate under a related provision of the EAJA governing
mandatory awards, § 2412(d), which does not apply here). The government notes that other
courts have concluded that fees awarded for bad faith should be traceable to the bad faith
conduct. See Rodriguez v. United States, 542 F.3d 704, 713 (9th Cir. 2008); Brown v. Sullivan,
916 F.2d 492, 497 (9th Cir. 1990). I agree with the Government and ordered that the plaintiffs
identify that portion of their fees attributable to the bad faith discovery practices of the
Government. They have done so. I will award fees in connection with bad faith discovery
practices from March 2006 to December 2006.
A.
Lodestar
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In evaluating the fees, I am to use the lodestar approach to identify unreasonable,
duplicative, or excessive time spent on the case. See Guckenberger v. Boston Univ., 8 F. Supp.
2d 91, 99-100 (D. Mass. 1998). The plaintiffs' memo sets forth the reasonableness of the hours,
the steps taken to avoid duplicative tasks, reasons to include fees for unsuccessful claims,
justifications for plaintiffs' chosen hourly rates, and a request for inclusion of time spent
preparing the motion for fees, and I so find. Pls.' Mem. (document #581 at 31-39). While the
government objects to payments for multiple lawyers at hearings representing a single client, the
Court can attest to the extraordinary complexity of the case and the need for backup. Indeed, the
trial presentation was remarkably well organized with each set of plaintiffs allocated a certain
time and set of issues.
I find that the plaintiffs' hourly rate to be reasonable and the work of counsel was not
duplicative.
B.
Costs
Plaintiffs request costs regardless of whether there is a finding of bad faith. See 28
U.S.C. 2412(a) ("Except as otherwise specifically provided by statute, a judgment for costs, as
enumerated in section 1920 of this title, but not including the fees and expenses of attorneys,
may be awarded to the prevailing party in any civil action brought by or against the United
States or any agency or any official of the United States acting in his or her official capacity in
any court having jurisdiction of such action. A judgment for costs when taxed against the United
States shall, in an amount established by statute, court rule, or order, be limited to reimbursing in
whole or in part the prevailing party for the costs incurred by such party in the litigation."). The
government opposes certain costs, such as travel, meals, accommodations, and consulting
-25-
services, as unreasonable and excessive. Def.'s Opp'n (document #595 at 44-46); see also Pls.'
Reply (document #601 at 13-18). I adopt the Government's position on costs and have
recomputed the figures accordingly.
I hereby award the following:
Attorney Name
Amount Requested
Amount Granted
Juliane Balliro
$676,541.76 (fees)
$176,619.00 (cost)
$867,910.67 (total)
$532,954.00 (fees)
$87,707.80 (cost)
$620,662.00 (total)
Michael Avery
$34,735.00
$9,225.00
William T. Koski
N/A9
$23,430.00
Joseph B. Burns
$70,791.50
$22,248.00
Victor Garo
$11,070.00
$7,640.00
Richard Bickleman
$37,258.71
$19,334.74
Daniel R. Deutsch
$32,877.35
$14,206.65
This award was calculated based on the time sheets submitted by Plaintiff's counsel. All
redactions and objections were taken into account. In Plaintiff's "Supplemented Motion on
Behalf of the Salvati Plaintiffs For Recovery of Reasonable Fees and Costs,” paralegal TCS was
listed at an hourly rate of $100, however in the submitted time sheet, TCS was billed at an hourly
rate of $120. Pls.' Mem. (document #686-1 at 3); Pls.' Mem (document #686-2 at 2 ). I have
calculated the hourly rate of TCS at $100. Included in the award for Balliro, Bickleman,
Deutsch and Avery is an additional $14, 750, $2,538.87, $2,650 and $3,375 respectively in
9
In "Supplemented Motion on Behalf of Limone and Tameleo Plaintiffs For Recovery of Reasonable Fees
and Costs" (document #685-3), Koski did not include a requested amount. The amount granted was calculated by
computing the cost of service during the stipulated time period as provided by the submitted time sheets.
-26-
response to my June 20, 2011 order, which represents the amount of time spent to prepare the
fees petition.
I have awarded $87,707.80 to Juliane Balliro in costs.10 The remaining Plaintiffs
attorneys did not submit any documents regarding cost and therefore I will not grant costs on
their behalf.
SO ORDERED.
Date: August 12, 2011
BáB atÇvç ZxÜàÇxÜ
NANCY GERTNER, U.S.D.J.
10
While I make this award to Ms. Balliro, I note that Ms. Balliro started the litigation at one firm, and
concluded it at another. I take no position as to which firm is share in the costs awarded to Ms. Balliro.
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