ResCap Liquidating Trust v. Primary Residential Mortgage, Inc.

Filing 46

ORDER in Response to 41 Defendant's Sealed Letter, 44 Plaintiff's Sealed Letter. (Written Opinion) Signed by Judge Susan Richard Nelson on 10/9/2020. (MJC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

ResCap Liquidating Trust,
Plaintiff

Case No. 0:16-cv-4070 (SRN/HB)

v.

ORDER

Primary Residential Mortgage, Inc.,
Defendant

Isaac Nesser, Heather Christenson, and Peter Calamari, Quinn Emanuel Urquhart & Sullivan,
LLP, 51 Madison Ave., Floor 22, New York, NY 10001; Anthony Alden, Quinn Emanuel
Urquhart & Sullivan, LLP, 865 Figueroa St., Floor 10, Los Angeles, CA 90017; Donald
Heeman, Jessica Nelson, Randi Winter, and Laurie Quinn, Spencer Fane, 100 S. 5th St., Ste.
2500, Minneapolis, MN 55402, for Plaintiff.
Matthew Johnson, Matthew Nicholson, Krista Anderson, and David Keith Clouser, Williams
& Connolly, LLP, 725 12th St. NW, Washington, DC 20005; Elizabeth Kniffen and Rory
Zamansky, Zelle, LLP, 500 Washington Ave. S., Ste. 4000, Minneapolis, MN 55415, for
Defendant.
_________________________________________________________________________
SUSAN RICHARD NELSON, United States District Judge
Before the Court is a dispute regarding materials submitted in support of ResCap
Liquidating Trust’s (“ResCap’s”) Motion for Attorney’s Fees, Costs and Prejudgment Interest
[Doc. No. 22]. (See Def.’s Sept. 24, 2020 Letter [Doc. No. 41]; Pl.’s Oct. 2, 2020 Letter [Doc.
No. 44].) In support of its motion, ResCap has submitted attorney billing invoices, from
which it has redacted information that it believes constitutes attorney work product or is
attorney-client privileged. (See Horner Decl. [Doc. No. 27] & Exs.) Separately, it has
submitted unredacted invoices for the Court’s in camera review. (Pl.’s In Camera Exs. to
Horner Decl. [Doc. No. 31].)

Defendant Primary Residential Mortgage, Inc. (“PRMI”) identifies two bases on
which it claims that Plaintiff’s submissions are insufficient for it to meaningfully respond to
Plaintiff’s motion. First, PRMI and its attorney fee expert, Lewis A. Remele, contend that
the redactions to Plaintiff’s invoices are excessive, making it difficult to assess the tasks that
timekeepers performed on particular days; whether the hours billed to those tasks were
excessive; whether multiple timekeepers billed for duplicative work; and whether
timekeepers with higher hourly rates unnecessarily performed tasks better suited to
timekeepers with lower hourly rates. (Def.’s Sept. 24, 2020 Letter at 1, and Ex. A (Remele
Aff. [Doc. No. 44-1].) As to the redactions, PRMI seeks an order requiring ResCap to “(a)
remove redactions covering non-privileged, non-protected information, and (b) in the event
particular entries are privileged or protected, provide ‘short, general explanation[s] of the
work or task[s] in question.’ ” (Def.’s Sept. 24, 2020 Letter at 1) (quoting Heimerl v. Tech
Elec. of Minn., Inc., No. 12-cv-612 [Doc. No. 114] (D. Minn. Sept. 8, 2014)).
Second, PRMI states that ResCap refuses to produce invoices from January 2019
through October 2019, and April 2020, although it seeks fees for these periods of time. (Id.
at 1–2.)
In response, ResCap notes that counsel for PRMI raised nearly identical objections to
ResCap’s motion for attorney’s fees and costs in ResCap Liquidating Trust v. Home Loan
Center, Inc., No. 13-cv-3451 (SRN/HB) (“HLC”). (Pl.’s Oct. 2, 2020 Letter at 1.) It observes
that in HLC, the Court denied HLC’s requests for unredacted time entries and a privilege log,
and instead required HLC to identify a reasonable number of disputed redactions, for which
it required ResCap to submit the corresponding unredacted entries to the Court for in camera
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review. (Id.) ResCap notes that ultimately, the Court found the redactions proper after
conducting its review. (Id.) (citing HLC Attorney’s Fees Order, 399 F. Supp. 3d 827, 845–46
(D. Minn. 2019), (No. 13-cv-3451 (SRN/HB) [Doc. No. 5132])). ResCap states that here, it
followed the same methodology used in HLC to redact entries that revealed attorney-client
privilege and work product. (Id. at 1–2.) In addition, ResCap states that it provided a fivemonth period of invoices for the period leading up to and covering trial, as it did in HLC. (Id.
at 3.)
ResCap further opposes PRMI’s request for revised redactions and a privilege log
because the parties remain adverse in ongoing litigation, as PRMI intends to appeal the
Court’s rulings and trial findings. (Id.) Also, ResCap asserts that revising the redactions
and/or providing a privilege log would be unduly burdensome, given that the redacted
invoices that ResCap produced to PRMI are 175 pages long. (Id.) Prior to this dispute
reaching the Court, ResCap states it proposed that if PRMI narrowed its request by identifying
specific time periods, time entries or timekeepers for ResCap to review, ResCap would
consider providing additional information about the tasks performed. (Id.) ResCap asserts
that PRMI found the proposal too burdensome, although it filed its 19-page letter only one
day after the parties had last met and conferred, identifying specific entries for the Court. (Id.)
ResCap further opposes PRMI’s request for an additional eleven months’ worth of
redacted invoices (January through October 2019 and April 2020), noting that the parties
provided five months of billing invoices in HLC. (Id. at 4.) Even so, ResCap states that it
offered to provide an additional month of redactions for April 2020, but PRMI rejected the

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offer. (Id.) To the extent the Court grants any of PRMI’s requests, ResCap asks that PRMI
be ordered to provide the same information for the same period. (Id.)
Having considered the parties’ arguments, the Court rules as follows:
The Court directs the parties to continue to meet and confer, guided by the procedures
used in HLC—a case that involved identical legal counsel, in which counsel for HLC raised
the same arguments that PRMI asserts here regarding billing invoices. (Compare HLC’s Jan.
30, 2019 Letter [13-cv-3451, Doc. No. 4970], with Def.’s Sept. 24, 2020 Letter.) While PRMI
relies on this Court’s ruling in Heimerl, No. 12-cv-612, Sept. 8, 2014 Order [Doc. No. 114],
it is distinguishable. In Heimerl, there was no appeal, id. at 9, and therefore no danger that
counsel’s litigation strategy or privileged information could be used to the opposing party’s
advantage. Here, as in HLC, the parties continue to remain adverse, given that PRMI intends
to appeal this Court’s rulings.
The Court finds that the burden of providing a privilege log for 175 pages of billing
entries outweighs the potential benefit. Indeed, “[a] request for attorney’s fees should not
result in a second major litigation,” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983), and
certainly not in a case as heavily litigated as this. Moreover, the Court is concerned that a
privilege log will not resolve PRMI’s concerns. However, the Court is willing to conduct a
limited in camera audit of a subset of the billing entries. PRMI shall identify and submit to
the Court no more than 35 pages of the 175 pages of entries for the Court to audit regarding
ResCap’s claim of attorney-client privilege and work product. ResCap shall submit the
corresponding unredacted entries to the Court for review, in camera. The parties shall meet
and confer to determine the parameters of this review, whether by identifying specific time
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periods, time entries, or timekeepers to review, as ResCap has suggested. (Pl.’s Oct. 2, 2020
Letter at 3.) The Court also directs ResCap to provide PRMI with its redacted invoices for
April 2020, as ResCap had proposed.
Following the Court’s review, if it finds that the redactions were properly made,
ResCap may supplement its fee petition to include the time spent performing this work. If,
however, the Court finds that certain redactions were not appropriate, the Court will consider
discounting the fee petition or requiring additional information from ResCap.
At this time, the Court will not require PRMI to produce a summary of its fees and
costs.

SO ORDERED.

Dated: October 9, 2020

s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

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