Peter Kiewit Sons', Inc. v. Wall Street Equity Group, Inc. et al

Filing 276

MEMORANDUM AND ORDER setting July 17, 2012 deadline for Plaintiff's service of redacted billing statements on the Defendants and for filing, under seal, unredacted billing statements for review by the court. Defendants' response due on or before July 27, 2012.Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PETER KIEWIT SONS', INC.,
Plaintiff,

8:10CV365

vs.
MEMORANDUM AND ORDER
WALL STREET EQUITY GROUP, INC.,
WALL STREET GROUP OF
COMPANIES, INC., SHEPHERD
FRIEDMAN, STEVEN S. WEST,
Defendants.
Currently before the court is Plaintiff Peter Kiewit Sons’, Inc.’s motion for
attorney’s fees, (filing no. 265). Plaintiff has requested attorneys fee and costs in the
amount of $132,760.00. Plaintiffs submitted an affidavit from Michael Coyle which
attests to the amount of fees and general states how much time each of Plaintiff’s
attorneys and paralegals have spent on various discovery motions. However, Plaintiff has
not provided any attorney billing statements. Plaintiff has offered to provide the billing
statements from its attorneys to the court for an in camera review, but alleges its billing
statements are protected from disclosure to Defendants due to the work/product doctrine
and the attorney/client privilege.

In certain circumstances, attorney billing statements may contain protected or
privileged information; however, Plaintiff cannot rely upon a blanket assertion of
work/product protection and attorney/client privilege to prevent Defendants from
reviewing the billing statements to argue the reasonableness of the sought after fees.
See Brennan v. Western Nat. Mut. Ins. Co., 199 F.R.D. 660, 662 (D.S.D. 2001).

Billing

statements are only protected to the extent they “ ‘reveal the motive of the client seeking
representation, litigation strategy, or the specific nature of the services performed, such as
researching particular areas of the law. . . .’ ” Id. (quoting Clarke v. American Commerce
Nat’l. Bank, 974 F.2d 127, 129 (9th Cir. 1992)). Entries contain information regarding

research or other matters where litigation strategy or client motive is not revealed, those
entries will not be protected. See Brennan, 199 F.R.D. at 662. The parting seeking to
avoid production bears the burden of establishing a privilege applies. In re Grand Jury
Proceedings, 791 F.2d 663, 666 (8th Cir. 1986).

Plaintiff has submitted evidence regarding the attorneys and paralegal who
performed legal services, the date on which the services were performed, the billing rate,
and the amount of time billed. However, the court suspects that Plaintiff’s attorneys’
billing sheets likely contain additional discoverable information regarding the nature of
services performed.1 To the extent such information exits, Defendants are entitled to
review billing statements to contest the reasonableness of the requested attorneys’ fees
before the court enters its ruling.

Accordingly,

IT IS ORDERED:

1)

On or before July 17, 2012, Plaintiff shall provide Defendants with copies
of the billing statements for the attorneys’ fees Plaintiffs are seeking to
recovery. The billing statements may be redacted, but only to the extent the
statements contain information regarding client motivation, litigation
strategy or mental impressions of Plaintiff’s counsel. Any billing
statements or entries pertaining to services for which Plaintiffs are not
seeking recovery do not need to be produced.

2)

Plaintiff shall provide the court with unredacted copies of the billing
statements in order for the court to properly assess whether the statements

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For example, an entry claiming “drafted brief re: motion to compel” does not contain
legal advice or mental impressions, and likely would provide valuable information for
Defendants (and the court) to evaluate whether work was duplicated and whether the amount of
time spent on various activities was reasonable. This is simply meant as an illustration as the
court is not familiar with Plaintiff’s counsel’s billing practices. Obviously, the more detailed a
billing statement, the more likely it is to contain protected information.

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contain protected information. The unredacted billing statements can be
filed with the court electronically and under seal.
3)

Defendants shall have until July 27, 2012 to supplement their brief in
opposition to Plaintiff’s motion for attorneys’ fees. Neither party will be
permitted additional briefing absent leave of the court.

Dated this 5th day of July, 2012.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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