Knoth v. Keith et al

Filing 146

ORDER granting in part and denying in part 124 Motion for Attorney Fees. Signed by Magistrate Judge Michael T. Parker on September 30, 2020. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
STEPHANIE S. KNOTH

PLAINTIFF

v.

CIVIL ACTION NO. 5:18-cv-49-DCB-MTP

DR. STEPHEN P. KEITH, ET AL.

DEFENDANTS
ORDER

THIS MATTER is before the Court on the Motion for Attorney’s Fees [124] filed by
Defendant Apollo Endosurgery US, Inc. On June 1, 2020, Defendant deposed Plaintiff, and on
July 10, 2020, Plaintiff filed an errata sheet, documenting changes to her deposition testimony.
See Notice [116].1 According to Defendant, most of the changes made to the testimony were
substantive. Thereafter, the parties agreed to re-opening Plaintiff’s deposition. The parties,
however, disagreed about the amount Plaintiff should pay to Defendant for the attorney’s fees
associated with reopening the deposition.2
On August 6, 2020, Defendant re-deposed Plaintiff and, thereafter, filed the instant
Motion for Attorney’s Fees [124], seeking $1,760.00. Defendant submitted an affidavit from its

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Fed. R. Civ. P. 30(e) provides as follows:
(1) Review; Statement of Changes. On request by the deponent or a party before the
deposition is completed, the deponent must be allowed 30 days after being notified by the
officer that the transcript or recording is available in which:
(A) to review the transcript or recording; and
(B) if there are changes in form or substance, to sign a statement listing the changes and
the reasons for making them.

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Courts that have allowed substantive changes under Rule 30(e)—including this Court—have
employed remedial measures to limit the potential for abuse, including reopening the deposition
for limited purposes and requiring the deponent to pay the costs of reopening the deposition. See
Riley v. Ford Motor Co., 2011 WL 3157204, at *3 (S.D. Miss. July 26, 2011).
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counsel stating that the attorney’s fees incurred in re-deposing Plaintiff include 8.8 hours at a rate
of $200.00 per hour. See Declaration [124-2]. Counsel described the time expending as follows:
1.4 hours

Review Plaintiff’s errata sheet, deposition transcript, and exhibits in
preparation to draft Plaintiff’s deposition outline

2.4 hours

Draft deposition outline for Plaintiff’s deposition

1.2 hours

Research and analyze case law pertaining to attorney-client
privilege and permissible deposition questions during reconvened
deposition due to substantive errata sheet changes.

0.4 hours

Prepare and organize exhibits for Plaintiff’s deposition by tabbing,
highlighting, and super-imposing page number of non-paginated
documents.

0.3 hours

Corresponded with Plaintiff’s counsel and court reporting service
regarding logistics for Plaintiff’s deposition

3.1 hours

Attend re-deposition of Plaintiff Stephanie Knoth on behalf of
Defendant Apollo Endosurgery.

Id.
In her Response [132], Plaintiff does not object to defense counsel’s hourly rate or the
last three entries which total 3.8 hours. Plaintiff, however, argues that the first three entries,
totaling 5 hours, represents billing which was “unnecessary, unreasonable, and/or unrelated to
the reopened deposition.” Courts must consider whether specific hours claimed were reasonably
expended. “The Fifth Circuit has emphasized that district courts should reduce attorneys’ fees
awards where attorneys do not exercise billing judgment, i.e., exclude ‘unproductive, excessive,
or redundant hours.’” Brown v. Ascent Assurance, Inc., 191 F. Supp. 2d 729, 733 (N.D. Miss.
2002) (quoting Walker v. United States Dep’t. of Hous. and Urban Dev., 99 F.3d 761, 770 (5th
Cir. 1996)). Hours which “are excessive, redundant, or otherwise unnecessary,” or which result
from the case being “overstaffed,” are not hours “reasonably expended” and are to be excluded
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from the lodestar calculation. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). The Court is
mindful, though, that its “goal . . . is to do rough justice, not to achieve auditing perfection.” Fox
v. Vice, 563 U.S. 826, 838 (2011) (emphasis added).
Plaintiff argues that the time billed for reviewing the errata sheet and deposition
transcript would have been incurred regardless of whether Plaintiff was re-deposed, that the time
billed for legal research was unnecessary because the submission of an errata sheet does not open
the door to privileged communications, and that the time billed for preparing a deposition outline
for a re-opened deposition was unreasonable “busy work.” Plaintiff asserts that the Court should
limit the attorney’s fees to $760.00.
Defendant counters that spending 1.4 hours reviewing the 5-page, 26-entry errata sheet
and cross referencing the testimony changes to Plaintiff’s transcript was efficient and necessary
to prepare for the second deposition. The Court finds that this time was reasonably expended.
Concerning the time spent drafting a deposition outline, Defendant argues that this time
was well spent and beneficial to all parties because it ensured a complete, well-organized, and
efficient deposition. Considering that the deposition was limited in scope, the Court finds that
the number of hours expended drafting an outline exceed what is reasonable. The Court finds
that 1.0 hour was reasonably expended.
Finally, concerning the research on the issue of attorney-client privilege, Defendant
points out the this Court has previously held that, during a second deposition necessitated by an
errata sheet, a deponent “may be asked about the reasons for the changes and the source of the
changes, such as whether they came from him or his counsel, as well as follow-up questions to
the changed responses.” See Walker v. George Koch Sons, Inc., 2008 WL 4371372, at *3 (S.D.
Miss. Sept. 18, 2008) (internal quotations and brackets omitted). Defendant argues that research

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regarding the proper bounds of questioning was necessary. The Court finds that a half an hour of
research was reasonably expended. Accordingly, the Court finds that 6.7 hours at a rate of
$200.00 is a reasonable amount of time at a reasonable rate and that Defendant should be
awarded $1,340.00.
IT IS, THEREFORE, ORDERED that:
1. Defendant’s Motion for Attorney’s Fees [124] is GRANTED in part and DENIED in
part.
2. Plaintiff shall pay to Defendant Apollo Endosurgery US, Inc., through Defendant’s
counsel, the sum of $1,340.00 on or before October 30, 2020.
SO ORDERED this the 30th day of September, 2020.
s/Michael T. Parker
UNITED STATES MAGISTRATE JUDGE

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