Small et al v. University Medical Center of Southern Nevada

Filing 347

ORDER. IT IS ORDERED that UMC shall have thirty days from today's date to pay plaintiffs the attorneys' fees and costs awarded as a sanction pursuant to 308 this court's Amended Order. IT IS FURTHER ORDERED that 317 defendants&# 039; Motion for Leave to Exceed Page Limitation for Defendants' Response to Plaintiffs' Revised Application for Costs and Attorneys' Fees is GRANTED. Signed by Magistrate Judge Peggy A. Leen on 11/5/2018. (Copies have been distributed pursuant to the NEF - ADR)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

DANIEL SMALL, et al.,

8

Plaintiffs,

v.

9

Case No. 2:13-cv-0298-APG-PAL
ORDER
(App Fees and Costs – ECF Nos. 306, 310)
(Mot Excess Pages – ECF No. 317)

UNIVERSITY MEDICAL CENTER, et al.,

10

Defendants.

11
12

Before the court is plaintiffs’ Application for Costs and Attorneys’ Fees (ECF No. 306),

13

plaintiff’s Revised Application for Costs and Attorneys’ Fees (ECF No. 310), and defendants’

14

Motion for Leave to Exceed Page Limitation for Defendants’ Response to Plaintiffs’ Revised

15

Application for Costs and Attorneys’ Fees (ECF No. 317). The court has reviewed the motions,

16

Responses and Declarations (ECF Nos. 318, 319, 320), Objections (ECF No. 321), and Replies

17

and Declarations (322, 323, 324, 325, 326).

18

I.

Background

19

This case involves a dispute over unpaid wages and overtime compensation. Three named

20

plaintiffs filed the case on July 27, 2012 individually and on behalf of all other similarly situated

21

employees of defendant University Medical Center (“UMC”).1 The case was filed as a collective

22
23
24
25
26
27
28

1

This case was originally filed in the unofficial northern division for the District of Nevada and assigned
to District Judge Howard D. McKibben and Magistrate Judge Valerie P. Cooke. The case was subsequently
reassigned to District Judge Miranda M. Du and Magistrate Judge George W. Foley, Jr. on February 25,
2013 (ECF No. 65), and again reassigned on May 3, 2013, to District Judge Andrew P. Gordon for all
further proceedings. (Min. Order in Chambers, ECF No. 91.) Judge Foley recused himself from the case
on May 16, 2013 (Order of Recusal, ECF No. 94), and the case was reassigned to undersigned magistrate
judge shortly thereafter. (See Min. Order, ECF No. 100.) 

1

1

action pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq. (“FLSA”), and initially

2

as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure.2

3

This lawsuit followed a Department of Labor (“DOL”) investigation that addressed

4

substantially similar issues about uncompensated time for hourly employees related to

5

uncompensated meal breaks. The DOL investigated a two-year period between April 1, 2010, and

6

March 30, 2012. Prior to filing the lawsuit, plaintiffs’ counsel made a Freedom of Information

7

(“FOIA”) request to DOL for information related to the investigation. The DOL concluded that

8

the employer violated the record-keeping provisions of the FLSA “by not keeping accurate records

9

of hours worked for all employees due to the fact that employees were not taking lunch breaks,

10

but it was automatically deducted in the pay records.”3

11

The court reluctantly appointed a special master only after a series of hearings over many

12

months made it painfully apparent that UMC, its counsel, and consultants were failing in their

13

efforts to produce electronically stored information (“ESI”) responsive to plaintiffs’ discovery

14

requests. At the hearing before the appointment of the special master, the court warned UMC that

15

if it did not resolve its ongoing problems with preserving, collecting, and producing responsive

16

ESI, a special master would be appointed at UMC’s expense. Not only did UMC fail to correct

17

the problems outlined in the parties’ joint status reports and addressed at length at eight case

18

management and dispute resolution conferences the court conducted over nine months, but UMC’s

19

latest ESI production was largely unusable. ESI was produced to the plaintiffs that did not contain

20

extracted text in pages of undecipherable codes complete with Japanese and Korean characters.

21

The bulk of the production was unintelligible.

22

The court conducted a de novo review of the entire record preceding the appointment of

23

the special master as well as the entire record of the special master’s proceedings. The court

24

considered the parties’ responses to the special master’s report. The special master’s report and

25

supporting exhibits consisted of nearly 1500 pages, which the court personally reviewed in its

26
27
28

2

Any reference to a “Rule” or “Rules” in this Order refers to the Federal Rules of Civil Procedure. All
citations to materials in the record will be enclosed in parentheses.
3
(DOL Letter to Pls.’ Counsel re: FOIA Request, Small 000006, Pls.’ Resp. Ex. H, ECF No. 216-8.)

2

1

entirety. The court found that UMC had repeatedly violated its discovery obligations and its duty

2

to preserve. Its multiple failures to implement timely preservation procedures, and to identify and

3

collect information from relevant responsive repositories, resulted in the destruction of ESI

4

responsive to plaintiffs’ discovery requests. It also resulted in considerable delay of discovery,

5

consumed an extraordinary amount of judicial resources, and cost the parties enormous,

6

unnecessary time and expense.

7

The court determined sanctions were warranted. However, the court did not adopt the

8

special master’s recommendation to impose case-dispositive sanctions. Instead, the court found

9

that giving a jury instruction that allows the jury to consider UMC’s discovery failures and

10

destruction of evidence was a more appropriate alternative to the more severe sanctions

11

recommended by the special master. The court also indicated monetary sanctions in the form of

12

reasonable costs and attorneys’ fees unnecessarily incurred by plaintiffs, including ESI consultant

13

fees incurred in connection with filing plaintiffs’ May 2013 motion to compel, attempts to identify

14

and remedy UMC’s deficient ESI productions, and the cost of participating in special master

15

proceedings would be imposed. Neither side filed objections or appealed the sanctions order, and

16

the time for doing so has long since expired.

17

The order required the application for attorneys’ fees to include:

18

(A)

A reasonable itemization and description of the work performed;

19

(B)

An itemization of all costs sought to be charged as part of the fee award and not
otherwise taxable under LR 54-1 through 54-13;

20
21

(C)

A brief summary of:

22

(i)

The results obtained and the amount involved;

23

(ii)

The time and labor required;

24

(iii)

The novelty and difficulty of the questions involved;

25

(iv)

The skill requisite to perform the legal service properly;

26

(v)

The preclusion of other employment by the attorney due to acceptance
of the case;

27
28

(vi)

The customary fee;
3

1

(vii)

2

(viii) The time limitations imposed by the client or the circumstances;

3

(ix)

The experience, reputation, and ability of the attorney(s);

4

(x)

The undesirability of the case, if any;

5

(xi)

The nature and length of the professional relationship with the client;
awards in similar cases; and

6
(xii)

7
8
9

Whether the fee is fixed or contingent;

II.

Any other information the court may request.

Summary of Parties’ Positions
A. Plaintiffs’ Application

10

Plaintiffs’ revised application for costs and attorneys’ fees seeks costs and attorneys’ fees

11

incurred by plaintiffs, their ESI experts, and consultants in Special Master proceedings and in

12

attempting to obtain compliance by UMC with its ESI obligations in the following categories:

13

1. Briefing one motion to compel with accompanying oral argument;

14

2. Seven discovery status conferences before the court between May 2013, and March

15

2014;

16

3. Research and appointment of Special Master Daniel B. Garrie;

17

4. Five all day in-person hearings before the Special Master;

18

5. Fourteen telephonic hearings before the Special Master;

19

6. Review and analysis throughout the Special Master proceedings of huge volumes

20

of data and data summaries, numerous declarations, supplemental declarations and

21

hearing testimony, and countless written submissions by counsel and ESI experts;

22

and

23
24
25
26
27

7. Dozens of meet-and-confer discussions and conferences with co-counsel, defense
counsel, ESI experts, and the Special Master.
Plaintiffs’ revised application indicated plaintiffs’ counsel itemized their time and expenses
into the following categories:
1. Time and expense related to plaintiffs’ May 2013 motion to compel;

28
4

1

2. Time and expense related to efforts to obtain compliance with the order compelling

2

UMC to produce information responsive to the discovery requests in dispute,

3

including discovery and dispute resolution hearings before the court;
3. Time and expense related to attempts to identify and remedy UMC’s deficient ESI

4

production;

5

4. Time and expense of participating in Special Master proceedings.

6
7

The application is supported by the attached declarations of counsel and time records which

8

plaintiffs assert provide a reasonable description of the work performed relating to the four

9

categories4. Plaintiffs’ counsel undertook representation of this case on a contingency fee basis.

10

However, their hourly rates range from $350/hr. for associates, to $750/hr. for senior attorneys.

11

Plaintiffs’ application claims these rates are reasonable, have been approved by multiple other

12

courts and are consistent with other attorneys engaged in similar complex litigation.

13

Plaintiffs’ application indicates they have incurred expenses related to the motion to

14

compel discovery and Special Master proceedings of $324,548.33. These expenses include travel

15

and ESI expert costs incurred as a direct result of directives issued by the Special Master and are

16

described in the attached declarations of attorneys Marc Godino, John Tostrud and David O’Mara.

17

The application outlines plaintiffs’ position regarding relevant factors for the court to

18

consider. Plaintiffs request that the court approve fees in the amount of $1,725,643.00 and costs in

19

the amount of $324,548.33 as reasonable, and order that UMC pay these costs and fees as a

20

monetary sanction pursuant to court’s order and findings regarding Special Master Proceedings.

21

B. Defendants’ Opposition

22

Defendants UMC and individual defendant John Espinosa’s opposition to the application

23

for costs and attorneys’ fees argues that the rates requested by plaintiffs’ counsel are not reasonable

24

and do not reflect prevailing rates in this district. The opposition notes that plaintiffs seek

25

reimbursement for attorneys’ fees for 10 timekeepers associated with the law firm of Glancy

26
27
28

4

Although plaintiffs’ application indicates counsel itemized their time and expenses by category, the
supporting time records are chronological. Plaintiffs did not separate time spent and costs incurred by the
categories the court indicated would be awarded as a sanction. Defendants’ opposition attempted to break
down the time spent by category. Plaintiffs’ reply brief did not take issue with defendants’ computations.

5

1

Prongay & Murray, LLC, a partner and associate with Tostrud Law Group, P.C., and a partner and

2

two staff members with The O’Mara Law Firm, P.C. Partners from the law firm of Glancy Prongay

3

& Murray, LLC seek fees awarded at the rate of $750/hr., with associates billed at a rate between

4

$350/hr. to $525/hr., and paralegals billed at the rate of $180/hr. to $290/hr., as well as a legal

5

research analyst billing at the rate of $310/hr. Partner John Tostrud from Tostrud Law Group, P.C.

6

seeks reimbursement at the rate of $625/hr., and associate Anthony Carter at the rate of $500/hr.

7

Partner David O’Mara of The O’Mara Law Firm, P.C., seeks reimbursement at the rate of $350/hr.,

8

and reimbursement for two staff members whose positions are not disclosed at the rate of $100/hr.

9

UMC argues that, with the exception of Mr. O’Mara, plaintiffs’ counsel failed to provide

10

any evidence to support a finding by the court that the partner rates requested in the motion are

11

reasonable for lawyers of reasonably comparable skill, experience, and reputation for wage and

12

hour class action cases in this district. However, the defendants agree that the rate sought by Mr.

13

O’Mara appears to be reasonable based on his years of experience as an attorney in Nevada and

14

the level of experience described in his declaration. Because the only evidence of reasonable

15

attorney rates approved for partners in this district comes from Mr. O’Mara’s declaration, the

16

defendants argue that a reasonable rate for all partners involved in this case should be set at

17

$350/hr.

18

With respect to associate rates, the defendants argue there is no evidence in the record to

19

justify the rates for any associate attorney work claimed in this matter. The declarations of Messrs.

20

Godino and Tostrud and exhibits supporting the application for attorneys’ fees do not describe the

21

wage and hour litigation experience or expertise of any of the associates listed which justify the

22

rates requested in the application. The only information provided in the application for the various

23

timekeepers performing services in this case is firm bios and resumes. The defendants therefore

24

request that the court determine a reasonable rate for associate work on this matter in the range of

25

$150/hr. to $240/hr. comparable to rates awarded by Judge Pro in a wage and hour case filed in

26

this district, Tallman v. CPS Sec. (USA) Inc., 23 F. Supp. 3d 1249, 1257 (D. Nev. 2014).

27

With respect to the paralegal rates, defendants argue plaintiffs have also failed to provide

28

any evidence or information justifying the paralegal rates requested or that these rates have been
6

1

approved or considered as reasonable for this type of case in the District of Nevada. Relying on

2

Judge Pro’s decision in Tallman, defendants ask that the court establish a rate of $90/hr. for

3

paralegals performing services in this case.

4

If the court adopts the reasonable rates urged by the defendants, the fees would be reduced

5

from a total of $1,725,643.00 requested by plaintiffs to a total of $888,417.50. Defendants analysis

6

is outlined below:

7

1. Plaintiffs’ Fee Application
Attorney
Total
Hours
Glancy Prongay & Murray, LLC
Marc Godino (Partner)
491.05
Kara Wolke (Partner)
524.65
Christopher Fallon (Associate)
5.0
Elizabeth Gonsiorowski (Associate)
22.05
Rayo Antonio (Associate)
152.45
Jack Ligman (Research Analyst)
6.0
Tia Reiss (Senior Paralegal)
59.85
Harry Kharadjian (Senior Paralegal)
2.5
Samantha Skouros (Paralegal)
9.3
Cameron Sawyer (Paralegal)
4.5

8
9
10
11
12
13
14
15
16
17
18
19
20

Tostrud Law Group, P.C.
John Tostrud (Partner)
Anthony Carter (Associate)
The O’Mara Law Firm, P.C.
David O’Mara (Partner)
Adrian (Staff)
Val Weiss (undisclosed)

Hourly
Rates
$750
$750
$525
$395
$350
$310
$295
$290
$200
$180

$368,287.50
$393,487.50
$2,625.00
$8,709.75
$53,357.50
$1,860.00
$17,655.75
$725.00
$1,860.00
$810.00
Total = $849,378.00

893.9
539.9

$625
$500

$558,687.50
$269, 950.00
Total = $828,637.50

135.45
.5
1.7

$350
$100
$100

$47,407.50
$50.00
$170.00
Total = $47, 627.50
Total Fees = $1,725,643.00

21
22

Costs/Expenses

Total Costs/Expenses - $324,548.33
Grand Total = $2,050,191.33

23
24

Total Amount Billed

+

25
26
27
28
7

2. Defendants’ Reasonable Hourly Rate Proposal

1
2

Attorney

Total
Hours

Defendants’
Proposed Hourly
Nevada
Rate

491.05
524.65
5.0
22.05
152.45
6.0
59.85
2.5
9.3
4.5

$350
$350
$240
$200
$200
$90
$90
$90
$90
$90

$171,850.00
$18.,627.50
$1,200.00
$4,410.00
$30,490.00
$540.00
$5,386.50
$225.00
$837.00
$405.00
Total = 398,371.00

893.9
539.9

$350
$240

$312,865.00
$129,576.00
Total = $442,441.00

135.45
.5
1.7

$350
$90
$90

16

$47,407.50
$45.00
$153.00
Total = $47,605.50
Grand Total = $888,417.50

17

Defendants next argue that the court should further reduce the costs and fees sought by

18

plaintiffs based on an “imbalance of work performed” by partners, associates and paralegals. In

19

this case, the vast majority of work was performed by partners rather than associates, paralegal

20

and other staff members. Many of defense counsel’s firm’s clients expect that approximately 75%

21

of work on cases will be performed by associates and paralegals, and 25% will be performed by

22

partners. Defendants’ opposition is supported by the declaration of Robert Freeman who attests

23

that the billings by plaintiffs’ counsel “are essentially backwards, with the partners billing over

24

70% of the hours.” This imbalance must be remedied by the court to arrive at a reasonable amount

25

of fees.

26

determining an appropriate fee award. Defendants’ proposal is that the court reduce the fees sought

27

by partners performing services in this case to 25% of the total hours billed at a reasonable Nevada

28

rate of $350/hr. If the court did so, that would reduce the total hours billed by partners to 712.20

3
4
5
6
7
8
9

Glancy Prongay & Murray, LLC
Marc Godino (Partner)
Kara Wolke (Partner)
Christopher Fallon (Associate)
Elizabeth Gonsiorowski (Associate)
Rayo Antonio (Associate)
Jack Ligman (Research Analyst)
Tia Reiss (Senior Paralegal)
Harry Kharadjian (Senior Paralegal)
Samantha Skouros (Paralegal)
Cameron Sawyer (Paralegal)

10
11
12
13
14
15

Tostrud Law Group, P.C.
John Tostrud (Partner)
Anthony Carter (Associate)
The O’Mara Law Firm, P.C.
David O’Mara (Partner)
Adrian (Staff)
Val Weiss (undisclosed)

Total Amount Billed at
Proposed Hourly Nevada
Rate

Defendants propose that the court take that imbalance into consideration when

8

1

hours. This would reduce the amount of fees demanded in the revised application for partners

2

from $715,767.05 to $249,270.00. Assuming a 70% to 75% associate-to-paralegal hour ratio at

3

reasonable Nevada rates, the amount of associate and paralegal fees would be increased from a

4

total of $173,267.50 to $458,656.80 for associate work, and $12,819.60 for paralegal work. Thus,

5

defendants argue that at reasonable Nevada rates, and a more reasonable partner-to-

6

associate/paralegal ratio, the maximum attorney’s fees plaintiffs should be able to recover would

7

be reduced to $720,746.40.

8

Defendants also argue that the hours billed for the motion to compel are unreasonable. The

9

May 15, 2013 Motion to Compel (ECF No. 92) addressed 4 interrogatories and approximately 33

10

requests for production that plaintiffs believe were not properly responded to by defendants, and

11

also sought a privilege log and a site inspection. Two hearings were held to address the motion to

12

compel. The court did not rule on the motion to compel at the first hearing on June 25, 2013

13

because of email notification glitches between the court and defense counsels’ firm. The first

14

hearing lasted a total of 27 minutes. The second hearing on July 12, 2013 began at 9:01 a.m. and

15

concluded at 11:03 a.m.

16

Defendants’ review of plaintiffs’ billing entries attached to Exhibit 2 to the Godino

17

declaration, Exhibit B to the Tostrud declaration, and Exhibit 1 to the O’Mara declaration show

18

that a total of approximately 220 hours is sought as reasonable costs and attorneys’ fees for meeting

19

and conferring on discovery disputes, drafting and editing the motion to compel, preparing for

20

hearings and attending the hearings. Defendants argue that this amount is excessive and not

21

necessary or reasonable for the result obtained. Defendants claim that the amount of time spent

22

and unnecessary duplication of effort in review moving and responsive papers should result in a

23

substantial reduction of the attorneys’ fees and costs sought.

24

Defendants also argue that the hours billed for Special Master Proceedings are

25

unreasonable and involve unnecessarily duplicative attendance at Special Master hearings by

26

multiple attorneys.

27

research and drafting a proposed special master report and order which are excessive and should

28

be reduced or eliminated. Similarly, attorneys’ fees sought for reviewing defendants’ opposition

Additionally, plaintiffs’ application contains substantial time billed for

9

1

to the Special Master proposed order, drafting a response and reviewing defendants’ reply are

2

excessive and should be reduced.

3

Defendants argue that plaintiffs’ application reflects that over time several attorneys spent

4

166.3 hours researching the issue of discovery sanctions, drafting a motion for sanctions,

5

reviewing defendants’ opposition, drafting a reply, and drafting other supplemental submissions

6

relative to these sanctions. These hours, it is argued, are excessive.

7

Defendants seek a reduction for what they argue are improperly billed paralegal or clerical

8

hours sought in the application and for “other improper or unnecessary billing” associated with

9

preparing for and traveling to Las Vegas for status conferences before the court, preparing for

10

client meetings, and research on the waiver of attorney/client privilege.

11

Finally, defendants argue that many of the requested expert costs were not caused by the

12

alleged discovery shortcomings by defendants and must be denied. Plaintiffs request costs in the

13

amount of $324,548.33, including $261,612.50 attributable to ESI hosting and experts.

14

Defendants’ review of the entries in the bills from plaintiffs’ ESI experts, International Litigation

15

Services (“ILS”), however reveal a large number of items billed for matters unrelated to Special

16

Master hearings or other issues identified in the court’s order. The hosting charges would have

17

been incurred had there been no discovery disputes between plaintiffs and defendants because the

18

data being hosted by ILS was the data produced by the defendants. Based on defendants’ review

19

of the expert billing records in Exhibit 3 to the Godino declaration, defendants argue that only

20

$78,667.32 in costs billed by the expert would appear to be reasonable and related to Special

21

Master proceedings, rather than the $261,612.50 sought. Consequently, the defendants request

22

that costs and expenses attributed to the ESI experts be reduced by $182,945.18.

23

In summary, based on defendants’ review and calculations of the billing records and

24

information provided by plaintiffs’ counsel, defendants argue reasonable fees at reasonable rates

25

for the District of Nevada for sanctions the court ordered, would result in a fees award of

26

$330,672.40. Reasonable costs for experts and consultants should be reduced by approximately

27

$183,000.00. The remaining costs are attributable to duplicative travel by numerous partners to

28

the same hearings and is not itemized. For purposes of this fee application, all of the $8,544.94
10

1

requested by the Godino firm for airfare, taxi, and hotel is arguably duplicative and should

2

therefore be denied. The $1,769.66 requested by O’Mara should also be denied. Taking the

3

$324,548.33 and reducing it by $183,000.00, $8,544.94 and $1,769.66 results in what defendants

4

argue is a reasonable cost award of $131,233.73. Thus, defendants argue the most the court should

5

award is $330,672.40 in attorneys’ fees, and $131,233.73 in costs for a total of $461,906.13.

6
7

The specific reductions defendants propose are outlined in a spreadsheet prepared by the
court attached as Exhibit A.

8

C. Plaintiffs’ Reply

9

Plaintiffs reply that the court should not consider the defendants’ opposition which was

10

filed in violation of the page limitations of LR 7-3(b) without leave of court. Plaintiffs characterize

11

the opposition as a losing parties’ lament that plaintiffs’ counsel worked too hard in achieving the

12

result reflected in this court’s amended order awarding sanctions. Citing Moreno v. City of

13

Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008), plaintiffs argue that the court should defer to

14

the winning lawyers’ professional judgment as to how much time was required to spend on the

15

case because “after all, he won, and might not have, had he been more of a slacker.”

16

The two salient questions before the court are whether the total number of hours was

17

reasonably expended, and whether the rates are reasonable. Defendants’ opposition criticizes

18

plaintiffs on both points. However, plaintiffs argue that they have expended a fraction of the time

19

defendants’ lawyers have and did so at substantial risk of loss as defendants’ counsel have been

20

paid for their services and they have not. Plaintiffs also argue their rates are verifiably reasonable

21

market rates for employment lawyers in the District of Nevada, citing Lucas v. Bell Trans, 2:08-

22

cv-01792-JAD-NJK. In this case, the district judge approved an hourly rate of $795/hr. for a

23

partner and $525/hr. for a senior associate.

24

Plaintiffs also argue that the circumstances of this case justify an upward adjustment of the

25

fee award. Defendants have no one to blame but themselves. Plaintiffs’ counsel attempted to

26

work collegially with defense counsel to avoid the problems associated with preserving and

27

producing ESI and hard copy documents, suggested less burdensome and more efficient methods,

28
11

1

offered reasonable alternatives, and even provided technical guidance. Defendants’ decisions

2

made matters worse, more burdensome, and costly.

3

Plaintiffs concede that generally, when determining a reasonable hourly rate, the relevant

4

community is the forum in which the district court sits. However, rates outside the forum may be

5

used if local counsel is unavailable either because they are unwilling or unable to perform because

6

they lack the degree of experience, expertise or specialization required to properly handle a case.

7

Plaintiffs’ declarations attest to their normal rates and cite cases in which their rates have been

8

approved in other districts. Affidavits of counsel regarding prevailing fees in the community and

9

rate determinations in other cases are ordinarily satisfactory evidence of the prevailing market rate.

10

The only rebuttal evidence offered by the defendants is the declaration of Robert W. Freeman who

11

attests that the firm negotiated a rate for lawyers doing legal work on behalf of Clark County with

12

partners billing at $190/hr. and associates at $130/hr. This is not evidence of any competitive

13

marketplace of available employment law practitioners in Nevada, but evidence that discounted

14

legal rates are available if a firm is willing to represent Clark County, presumably with the hope

15

of doing a great deal of work for it.

16

The total legal time plaintiffs’ counsel expended resulting from defendants’ evidence

17

destruction and the discovery “fiasco” they created, including participation in the Special Master

18

process, was 2,848.80 hours. This time is reported and attested to in the declarations of Messrs.

19

Godino, Tostrud, and O’Mara. These hours seem eminently reasonable especially in light of the

20

fact that the time period covered by this request is more than 20 months of continuous effort.

21

Plaintiffs dispute that they “overstaffed” the Special Master’s process. Special Master Garrie

22

instituted what amounted to a “production or assembly line” approach to the Special Master

23

process. The first step was to ascertain an agenda which required the submission by both parties

24

of a proposed list of topics and witnesses. This required strategic discussion and collaboration

25

among counsel and research regarding each topic and witness. The second step was agreement on

26

the agenda and list of witnesses. The third step was actual hearings. The fourth step was review

27

and analysis of the transcripts with the fifth step involving drafting a detailed bullet-point summary

28

of each transcript. A summary was sent electronically to Special Master Garrie and the work
12

1

associated with that particular hearing was then completed. This approach kept the process moving

2

forward in a coherent workmanlike fashion and was repeated more than two dozen times and

3

nearly nonstop over the five-month period in which the Special Master conducted hearings.

4

Plaintiffs claim that their efficiency and work rate when compared to defense counsel is

5

demonstrably reasonable. Plaintiffs cite statements made by Mr. Freeman in an October 21, 2014

6

hearing that the Special Master proceedings had cost UMC $2 million dollars. If so, deducting the

7

$400,000.00 that UMC paid to the Special Master plaintiffs figure UMC paid defense counsel

8

between $1.2 and $1.3 million dollars in legal fees.

9

Plaintiffs cite a line of district court decisions in this circuit holding that counsels’ staffing

10

and actual assignments are not appropriate factors for the court to consider in a complex case like

11

this one. Litigating complex cases often requires a team structure and courts do not penalize

12

attorneys for working collaboratively. Courts have also held that duplication of efforts may be

13

appropriate in that it will often result in savings of time by ensuring that all attorneys on a team

14

are kept apprised of important information. The court should therefore ignore the bulk of

15

defendants’ opposition.

16

Plaintiffs also argue that defendants’ criticism of plaintiffs’ counsel for using senior

17

lawyers or partners instead of associates and paralegals makes no sense. Plaintiffs used people

18

who were available to do the work in a timely and professional manner over a twenty-month period

19

in a strongly contested action that included approximately twenty weeks of nearly continuous

20

hearings and work throughout the Special Master process.

21

Finally, plaintiffs argue their expert invoices are reasonable. Plaintiffs’ experts were able

22

to aid the court and the Special Master immensely throughout these proceedings. If defendants

23

had employed such a professional, efficient, and responsible group of experts, it is highly probable

24

that some of the discovery fiasco would have been avoided entirely. However, plaintiffs concede

25

that some of the monthly hosting costs would have been incurred regardless of defendants’

26

discovery problems. Plaintiffs would not have had to host the data for the six years this case has

27

been pending. Based on plaintiffs’ counsels’ experience, a case of this nature often resolves in

28

about two years. The additional four years is a direct result of and would not have occurred but
13

1

for defendants’ misconduct. Nevertheless, plaintiffs are amenable to reduce charges related to

2

hosting by one-third. Plaintiffs do not say what amount they paid in hosting costs, leaving the

3

court to figure it out.

4

Finally, plaintiffs argue the court should approve counsels’ hourly rates and time because

5

all of the time, which was actually spent dealing with defendants’ discovery “chicanery” could

6

have been spent working in jurisdictions where plaintiffs’ counsels’ rates and hours have been

7

approved. None of plaintiffs’ counsels’ time and expense as sought in the fee application would

8

have been incurred but for defendants’ pervasive discovery abuses, violation of this court’s prior

9

orders, and misrepresentations to both the court and plaintiffs’ counsel. Thus, to the extent

10

defendants complain that plaintiffs’ counsels’ hours and rates are too high, “that is the price to pay

11

for their misdeeds.”

12

III.

Discussion

13

The court has conducted a line-by-line review of the timekeeping records and invoices,

14

declarations and other supporting exhibits submitted in support of plaintiffs’ fee and cost

15

application.

16

Both sides agree that the court should assess reasonable costs and attorneys’ fees using the

17

lodestar method, that is, multiplying the hours expended by reasonable hourly rates. Ryan v.

18

Editions Ltd. WP, Inc., 786 F.3d 754, 763 (9th Cir. 2015) (citing Hensley v. Eckerhart, 461 U.S.

19

424, 433 (1983)), cert denied, 136 S. Ct. 267 (2015). The product of this computation is sometimes

20

referred to as the “lodestar figure,” and in most cases it is a “presumptively reasonable fee.”

21

Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013). The district court may adjust

22

the lodestar upward or downward based on a variety of factors. Id. Although plaintiffs suggest

23

that an upward adjustment would be appropriate, they did not specifically request an upward

24

adjustment, but merely point out that the court has the discretion to adjust.

25

A. Reasonable Hourly Rates

26

The parties agree that courts consider the experience, skill, and reputation of the attorney

27

requesting fees when determining the reasonableness of an hourly rate. Webb v. Ada County, 285

28

F.3d 829, 840 at n.6 (9th Cir. 2002). The parties also agree that generally a reasonably hourly rate
14

1

should reflect the prevailing market rates of attorneys practicing in the relevant community. Id.;

2

See also Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008). The relevant

3

community is the district in which the court sits. See Camacho, 523 F.3d at 979. In calculating a

4

reasonable fee award, a district court has discretion to reduce an attorney’s rates to ensure that it

5

is “’in line with those prevailing in the community for similar services of lawyers of reasonably

6

comparable skill, experience, and reputation’.” Chaudhry v. City of L.A., 751 F.3d 1096, 1110

7

(9th Cir. 2014) (quoting Camacho, 523 F.3d at 978). However, the court may consider rates

8

outside the forum if local counsel was unavailable because they lacked the degree of experience,

9

expertise, or specialization required to properly handle the case. Camacho, 523 F.3d at 979 (citing

10

Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997)).

11

The party seeking an award of fees must submit evidence supporting the rates claimed.

12

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also United States v. $28,000.00 in U.S.

13

Currency, 802 F.3d 1100, 1105 (9th Cir. 2015) (requiring proof of market rates in the relevant

14

community, which are “often in the form of affidavits from practitioners”). The movant “ ‘has an

15

initial burden of production,’ to produce ‘satisfactory evidence’ that the fee requested is

16

reasonable.” Beauchamp v. Anaheim Union High Sch. Dist., 816 F.3d 1216, 1224–25 (9th Cir.

17

2016) (quoting $28,000 in U.S. Currency, 802 F.3d at 1105). The movant’s “initial duty of

18

production is not excused by lack of opposition.” Id. at 1225.

19

Once a movant discharges its initial burden of production, the court makes a factual

20

determination whether the requested fee is reasonable. $28,000.00 in U.S. Currency, 802 F.3d at

21

1105 (citing Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577, 582–83 (9th Cir. 2010); Straw v.

22

Bowen, 866 F.2d 1167, 1169 (9th Cir. 1989)). The factual determination typically involves

23

“considering both the proponent’s evidence and evidence submitted by the fee opponent

24

‘challenging the accuracy and reasonableness of the facts asserted by the prevailing party’.”

25

$28,000.00 in U.S. Currency, 802 F.3d at 1105 (quoting Camacho, 523 F.3d at 980).

26

“Affidavits of the plaintiffs’ attorney and other attorneys regarding prevailing fees in the

27

community, and rate determinations in other cases, particularly those setting a rate for the

28

plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.” Beauchamp v.
15

1

Anaheim Union High Sch. Dist., 816 F.3d 1216, 1224 (9th Cir. 2016) (quoting United Steelworkers

2

of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990)). However, declarations of the

3

fee applicant do not conclusively establish the prevailing market rate. Camacho, 523 F.3d at 980.

4

Ideally, a court should consider counsels’ affidavits including information about fee rates

5

of other attorneys in similar practices, awards in comparable cases, counsel’s experience and

6

reputation level, and market rates. See Dang v. Cross, 422 F.3d 800, 814 (9th Cir. 2005).

7

In addition to evidence supporting the rates claimed, the party seeking an award of fees

8

must submit evidence supporting the hours worked. Hensley, 461 U.S. at 433; see also United

9

States v. $28,000.00 in U.S. Currency, 802 F.3d 1100, 1105 (9th Cir. 2015) (noting that the

10

evidence must include “detailed documentation of the hours worked”). Where the documentation

11

of hours is inadequate, the district court may reduce the award accordingly. Hensley, 461 U.S. at

12

433.

13

expenditures’.” Doe v. Keala, 361 F.Supp.2d 1171, 1184 (D. Haw. 2005) (quoting Hensley, 461

14

U.S. at 437 n.12).

“Counsel should, at the very least, ‘identify the general subject matter of his time

15

The district court should also exclude from the initial fee calculation hours that were not

16

reasonably expended. Id. at 433–34 (citation omitted). In other words, the court has discretion to

17

“trim fat” from, or otherwise reduce, the number of hours claimed to have been spent on the case.

18

Edwards v. Nat’l Bus. Factors, Inc., 897 F. Supp. 458, 460 (D. Nev. 1995); see also Gates v.

19

Deukmejian, 987 F.2d 1392, 1399 (9th Cir. 1992).

20

Defendants argue that Mr. O’Mara’s declaration is the only evidence in the record the court

21

should rely upon in determining a reasonable hourly rate in this case. Defendants agree that his

22

rate of $350/hr. is reasonable in Nevada for a lawyer of his experience and expertise. Defendants

23

also cite Judge Pro’s award of attorneys’ fees and costs in the Tallman case as evidence of

24

reasonable hourly rates approved in this district for partners, senior associates and paralegals.

25

Plaintiffs reply argues the rates sought in this case are reasonable market rates for employment

26

lawyers in the District of Nevada, citing Lucas v. Bell Trans, 2:08-cv-01792-JAD-NJK. In that

27

case, Judge Dorsey’s Order of Final Approval and Judgment approved an hourly rate of $795/hr.

28

for partners and $525/hr. for senior associates.
16

1

The declarations of Messrs. Godino, Tostrud, and O’Mara do not address reasonable

2

market rates in this district. Rather, they state what their respective usual and customary rates are.

3

Rate determinations in other cases in the District of Nevada around the time fees were incurred at

4

issue in this application have found hourly rates as much as $450 for a partner and $250 for an

5

experienced associate to be the prevailing market rate in this forum. See, e.g., Marrocco v. Hill,

6

291 F.R.D. 586 (D. Nev. 2013) (finding reasonable hourly rate in community of Nevada to be

7

$375–$400 for partner with over thirty-five years of experience); Agarwal v. Oregon Mut. Ins.

8

Co., 2013 WL 5882710 (D. Nev. Oct. 30, 2013) (finding $300 per partner hour and $260 per

9

associate hour reasonable); Stephens Media LLC v. Citihealth, LLC, 2013 WL 4045926 (D. Nev.

10

Aug. 7, 2013) (finding rates between $400 and $185 to be reasonable); In re USA Commercial

11

Mortg. Co., 2013 WL 3944184 (D. Nev. July 30, 2013) (finding rates between $170 and $420 to

12

be reasonable and $275 to $775 to be unreasonable); Cervantes v. Emerald Cascade Restaurant

13

Sys., Inc., 2013 WL 3878692 (D. Nev. July 25, 2013) (finding $450 to be excessive and reducing

14

it to $275); Plaza Bank v. Alan Green Family Trust, 2013 U.S. Dist. LEXIS 58657 (D. Nev. April

15

24, 2013) (finding $425–$475 for partner time reasonable, but $275-$375 for associate time to be

16

excessive based on the prevailing market rate and adjusting the amount to $250–$325); Aevoe

17

Corp. v. Shenzhen Membrane Precise Electron, Ltd., 2012 WL 2244262 (D. Nev. June 15, 2012)

18

(finding $400 reasonable for a partner in a firm that concentrates on complex intellectual property

19

litigation).

20
21

A rate of $400 per hour has been described as “at the top of the market,” but has been found
reasonable in complex matters. Marrocco v. Hill, 291 F.R.D. 586, 589 (D. Nev. 2013).

22

Four partners from three law firms seek reimbursement for attorneys’ fees expended in

23

connection with the sanctions order. The only information plaintiffs’ counsel provided concerning

24

the experience, background and expertise of partners, associates and staff members are attached

25

firm bios and resumes. Plaintiffs do not claim that local counsel were unavailable because they

26

lacked the degree of experience, expertise or specialization required to properly handle a case of

27

this nature. To the contrary, both sides cite FLSA and wage and hour cases prosecuted and

28

defended by Nevada counsel to support their respective positions. In the court’s experience, there
17

1

are many Nevada lawyers and firms who can, and do, practice competently in this field. The court

2

has had ample opportunity to observe the experience, expertise and professionalism of Mssrs.

3

Godino and Tostrud. The court finds that Messrs. Godino and Tostrud should be compensated at

4

the rate of $450/hr., which judges in this district have found is reasonable for experienced lawyers

5

practicing in this district during the time frame for which fees are sought. The court finds a

6

reasonable hourly rate for partners Wolke and O’Mara is $350.00/hr.

7

the court has about the experience and expertise of the remaining timekeepers is the firm bios and

8

resumes attached as exhibits to the fee application, the court will adopt the defendants’ argument

9

which relies on Judge Pro’s decision in Tallman with respect to their reasonable hourly rates.

As the only information

10

B. Defendants’ Imbalance Argument

11

The Defendants argue that plaintiffs’ fee application should not be approved because the

12

case was “overstaffed” and because four partners performed most of the work in this case rather

13

than delegating 70-75% of the work to associates and paralegals at lower rates. Mr. Freeman’s

14

declaration attests to what his firm’s clients expect. The motion characterizes plaintiffs’ staffing

15

decision as an “imbalance” the court should correct. Defendants ask the court to correct this

16

“imbalance” by allowing only 25% of the attorney’s fees sought at partner rates and increasing the

17

time attributable for various work on the case to associates who did not actually perform that work.

18

The court does not doubt that an institutional client or a municipal entity that contracts with a firm

19

to provide legal services in all or most of its litigation may expect that most work in routine, non-

20

complex cases will be performed by associates and paralegals with significantly less work by

21

supervising partners or senior lawyers5. The court agrees with plaintiffs that it makes no sense to

22

assess reasonable attorneys’ fees by reducing hours actually spent by partners on this case by 75%

23

and increasing the hours for associates and paralegals who did not actually perform the work.

24

The affidavits of Messrs. Godino, Tostrud, and O’Mara do not explain the staffing

25

decisions made which resulted in the application for attorneys’ fees for 4 partners, 4 associates,

26

and 7 paralegals and miscellaneous staff from the initial motion to compel through the conclusion

27
28

5

Defendants do not claim that the rates Clark County pays defense counsel in this and other cases is a
reasonable market rate for cases of this nature in this forum.

18

1

of Special Master proceedings and hearings before the court. The application states that staffing

2

decisions were made based on when people were available to do the work in a timely and

3

professional manner over a 20-month period which included 20 weeks of nearly continuous

4

hearings and work throughout Special Master proceedings.

5

arguments that the court should “correct” a perceived “imbalance” based on the asserted

6

expectations of defense counsels’ clients.

The court rejects defendants’

7

C. The Amount of Time Spent

8

Before the Special Master was appointed, the court inquired of counsel for plaintiffs the

9

amount of damages plaintiffs believed were recoverable in this case. The court did so to assess

10

the proportionality of the discovery plaintiffs were seeking from the defendants. At a hearing held

11

on September 24, 2013, counsel for the plaintiffs, O’Mara, Godino and Tostrud, represented that

12

based on a very conservative estimate, each of the conditionally certified class members missed

13

two meal breaks per week during the statutory period and damages would be “somewhere in the

14

neighborhood of $10 million.” At that time, plaintiffs were pursuing a Rule 23 class action.

15

Plaintiffs have now abandoned their efforts to certify class, and this is a relatively straightforward

16

wage-and-hour case under the FLSA. It is not particularly complex.

17

The declarations of Messrs. Godino, Tostrud and O’Mara do not attest that the complexity

18

of this case or other factors required staffing by 15 timekeepers which include 4 partners, 4

19

associates, a research analyst, 4 paralegals, and 2 staff members whose positions are not disclosed.

20

However, plaintiffs’ initial and revised application and reply advance arguments why this case,

21

especially during Special Master proceedings, required a team effort, a team of lawyers, and a team

22

approach to participation. The court understands and agrees that a team structure and collaborative

23

efforts by multiple attorneys and supporting staff often accomplish efficiencies in complex cases.

24

The court does not doubt that all of the attorneys and staff members for whom attorneys’ fees are

25

sought actually performed work on this case. However, the court is assessing reasonable costs and

26

attorneys’ fees in the context of a sanction for discovery violations. The court is not assessing

27

reasonable attorney’s fees and costs arising out of a fee-shifting statute at the end of the case to a

28

prevailing party.
19

1

The Ninth Circuit affords trial courts broad discretion in determining the reasonableness of

2

costs and fees. Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). “The reasonableness

3

of any fee award must be considered against the backdrop of the ‘American Rule,’ which provides

4

that courts generally are without discretion to award attorneys’ fees to a prevailing plaintiff unless

5

(1) fee-shifting is expressly authorized by the governing statute; (2) the opponents acted in bad

6

faith or willfully violated a court order; or (3) ‘the successful litigants have created a common fund

7

for recovery or extended a substantial benefit to a class’.” In re Bluetooth Headset Products Liab.

8

Litig., 654 F.3d 935, 941 (9th Cir. 2011) (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc.,

9

421 U.S. 240, 275 (1975)); accord Zambrano v. City of Tustin, 885 F.2d 1473, 1481 & n.25 (9th

10

Cir. 1989).

11

As indicated, the court conducted a line-by-line review of the revised fee application and

12

supporting declarations, invoices and exhibits. The court finds that a large amount of the work

13

was performed on tasks not solely related to the motion to compel, efforts to obtain compliance

14

with the court’s orders, and preparation for and attendance at Special Master proceedings. A great

15

deal of the work is work that attorneys would perform in any case such as document review of the

16

defendants’ productions once the Special Master resolved numerous technical problems. As the

17

court indicated in its order assessing sanctions, the Special Master’s extraordinary expertise

18

remedied a great deal of UMC’s discovery failures and resulted in the production of documents

19

and ESI responsive to plaintiffs’ discovery requests which plaintiffs would have reviewed in any

20

event. Moreover, the Special Master hearings examined witnesses who provided discovery useful

21

to the merits of the case in addition to resolving the defendants’ discovery failures. The invoices

22

reflect that a great deal of time was billed reviewing records, reviewing transcripts, and preparing

23

outlines and notebooks that would be useful for deposition and trial.

24

The court reviewed and approved the Special Master’s fees and costs during Special Master

25

proceedings. The parties agreed Special Master Garrie had the expertise as a litigator with special

26

expertise in ESI technology. He agreed to accept an appointment at the rate of $385/hr which the

27

parties agreed was reasonable. The Order appointing the Special Master (ECF No. 152) set his

28

hourly rate at $385/hr. The order also authorized reimbursement for reasonable expenses including
20

1

amounts incurred in employing other persons to provide clerical, secretarial, and stenographic

2

assistance. The Special Master submitted invoices on April 14, 2014, June 13, 2014, July 16,

3

2014, and August 18, 2014, in the total amount of $481,212.32. The parties filed Joint Statements

4

(ECF Nos. 160, 173, 182, 205) accepting the Special Master’s invoices as reasonable. Defendants

5

response to the application for sanctions urges the court to award a maximum of $461, 906.13, or

6

more than $20,000 less than they agreed was reasonable for special master service at a lower rate

7

over a much shorter time-period. Plaintiffs ask for monetary sanctions of more than four times the

8

amount they agreed was reasonable to pay to the special master. Of course the plaintiffs incurred

9

substantial unnecessary costs and fees prior to the appointment of the special master, and also

10

incurred fees after his report and recommendation was filed litigating his findings and

11

recommendations and appropriate sanctions

12

The court has found that two of the partners performing work on this case should be

13

compensated at a higher hourly rate in line with rates that have been approved in this district.

14

Plaintiffs were involved in the discovery disputes and efforts to resolve them prior to the

15

appointment of the special master over a period of many months. Additionally, the court agrees

16

that participating in special master proceedings required preparation and follow up work by

17

counsel for both sides. The court agrees that plaintiffs attempted to work collegially with defense

18

counsel to avoid problems UMC had associated with preserving and producing responsive ESI.

19

The court also agrees plaintiffs suggested less burdensome and more efficient methods,

20

compromised, offered reasonable alternatives, and even provided UMC and its ESI consultants

21

with technical guidance on resolving its ESI preservation and production problems. The court has

22

already found that UMC’s inability and/or unwillingness to remedy the problems caused an

23

enormous amount of unnecessary expenditure of judicial and party resources.

24

However, although the court does not doubt that the timekeepers at issue in this fee

25

application spent the time claimed, the court finds the total number of hours claimed would be

26

excessive to impose as a discovery sanction. The motion to compel was relatively simple and

27

straightforward. It did not involve any novel issues. The seven status and dispute resolution

28

conferences prior to the appointment of the Special Master involved a variety of discovery and
21

1

management issues. The court has and continues to routinely conduct these types of conferences

2

in large or complex cases. They typically resolve discovery and case management disputes without

3

the time consuming an expensive process of formal briefing.

4

The court has found that a great deal of the time spent before during and after special master

5

proceedings was also useful work that would have been performed in discovery and prosecution

6

of this case. A huge amount of time was billed for legal research and preparing a relatively simple

7

motion to compel and a more complex motion for sanctions. A significant amount of time was

8

also spent drafting and preparing a proposed order for the special master which neither the court

9

nor the special master requested. For these reasons, the court will reduce the hours sought for four

10

partners and two associates by 45%. The court will also disallow the 2.2 hours of staff time

11

claimed by the O’Mara firm. The court finds reasonable attorneys’ fees unnecessarily incurred for

12

defendants’ discovery failures which will be imposed as a discovery sanction are as follows:

13
14
15
16
17
18
19
20
21
22
23
24
25

Attorney

Total
Hours

Glancy Prongay & Murray, LLC
Marc Godino (Partner)
491.05
Kara Wolke (Partner)
524.65
Christopher Fallon (Associate)
5.0
Elizabeth Gonsiorowski (Associate) 22.05
Rayo Antonio (Associate)
152.45
Jack Ligman (Research Analyst)
6.0
Tia Reiss (Senior Paralegal)
59.85
Harry Kharadjian (Senior Paralegal)
2.5
Samantha Skouros (Paralegal)
9.3
Cameron Sawyer (Paralegal)
4.5
Tostrud Law Group, P.C.
John Tostrud (Partner)
Anthony Carter (Associate)
The O’Mara Law Firm, P.C.
David O’Mara (Partner)

Hourly
Rate

Total

$450
$350
$240
$200
$200
$90
$90
$90
$90
$90

$220,973 – 45%
$183,628 – 45%

893.9
539.9

$450
$240

$402,255 – 45%
$129,576 – 45%

$221,240.00
$71,267.00
Total = $292,507.00

135.45

$350

$47,408 – 45%

Total = $26,074.00
Grand Total =
$570,885.00

26
27
28
22

$30,490 – 45%

$121,535.00
$100,995.00
$1,200.00
$4,410.00
$16,770.00
$540.00
$5,387.00
$225.00
$837.00
$405.00
Total = 252,304.00

1

D. Plaintiffs’ Costs

2

Plaintiffs seek total costs in the amount of $324,548.00. Plaintiffs’ ESI experts, ILS, billed

3

$261,612.50 for invoices dated from February 23, 2014 through October 31, 2014. A very modest

4

amount was explicitly billed for data hosting. From the court’s review of the invoices, the total

5

amount explicitly billed for data hosting and access to databases was $4,349.70. The ILS invoices

6

reflect significant time spent for project management, coordinating technical support with

7

plaintiffs’ counsel and providing training to plaintiffs’ counsel, creation of files at the request of

8

counsel, document review and loading of documents produced by UMC after the Special Master’s

9

successful remediation.

10

As the court stated in the amended order sanctioning UMC, the court developed a great

11

deal of confidence in plaintiffs’ ESI experts. On every occasion on which the court probed the

12

accuracy of their representations, the court was satisfied that they accurately assessed the nature

13

of UMC’s discovery deficiencies and the technical reasons why UMC’s ESI productions were

14

largely unusable. They offered their assistance in helping to remediate the problems before and

15

during special master proceedings. However, plaintiffs’ counsel retained ILS to assist in the

16

prosecution of this case, not just to assess and attempt to remedy UMC’s ESI deficiencies. Some

17

of the work product contained in the fee application is clearly work ILS would have done on behalf

18

of the plaintiffs in loading documents productions, training counsel, and reviewing, organizing and

19

evaluating UMC’s discovery productions. The court will therefore reduce the total amount sought

20

by 25% or $65,403.00.

21

Finally. plaintiffs also reimbursement for travel costs of $8,545.00 and $1,770.00.

22

However, the travel costs are lump sum entries and are not supported by declaration or any backup

23

documentation. The court will therefore disallow plaintiffs’ request for these costs. As a result,

24

the court awards costs as follows:

25
26

Total Costs Sought
25%
Travel Costs

$324,548.00
<$65,403.00>
<$10,315.00>
Total Costs = $248,830.00

27
28
23

1

IV.

Conclusion

2

Having reviewed and carefully considered the moving and responsive papers, the court

3

awards total attorneys’ fees in the amount $570,885.00 and costs of $248,830.00 for a total

4

monetary sanction against UMC in the amount of $819,715.00.

5

IT IS ORDERED that UMC shall have thirty days from today’s date to pay plaintiffs the

6

attorneys’ fees and costs awarded as a sanction pursuant to this court’s Amended Order

7

(ECF No. 308).

8

IT IS FURTHER ORDERED that defendants’ Motion for Leave to Exceed Page

9

Limitation for Defendants’ Response to Plaintiffs’ Revised Application for Costs and Attorneys’

10
11

Fees (ECF No. 317) is GRANTED.
Dated this 5th day of November 2018.

12
13

PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
24

Exhibit A
Spreadsheet of Defendants' Proposed Reductions by Category
1. Motion to Compel

1

A. The Meet and Confer Process

2
3

If Meet and Confer Process was Not Intended by Magistrate Judge in Award of
Attorney’s Fees, Amounts for Those Fees Should be Reduced

4
5

Attorney

6
7
8

Tostrud (P)
Gonsiorowski (A)

9
10
11

Date(s)

Wolke (P)
Godino (P)

12

Total
Hours

4/2/2013
4/8/2013
4/2/2013
4/4/2013
4/2/2013
4/4/2013
4/7/2013
4/9/2013

2.9

Defts’
Proposed
Nevada Rate
$350

Total to be Reduced
Calculated at Defendants’
Proposed Nevada Rate
$1,022.25

2.5

$200

$500.00

10.1

$350

$3,535.00

1.0
Total = 16.5

$350

$350.00
Total = <5,407.256>

-OR-

13
14

If Meet and Confer Process was Intended as Attorney’s fees, Amounts are Excessive and
Should be Reduced

15
16
17
18
19
20
21

Attorney

Total Hours

Defendant’s Proposed Hours

Tostrud (P)

2.9x $350

1.7 x $350

Total to be
Added/Reduced
<420.00>

Gonsiorowski
(A)
Wolke (P)
Godino (P)

2.5 x $200

5.0 x $200

500.00

10.1 x $350
1.0 x $350
1.0 x $350
0
Total Hours = 16.5 Total Reasonable Hours = 7.7

<$3,185.00>
<$350.00>
Total = <3,455.00>

22
23
24
25
26
27
28

kj

This is the actual amount. Defendants state an amount of $5,400.00 in their opposition.

25

B. Vague or Unrelated Entries

1
2

Attorney

3

Date

Wolke (P)

4/30/2013
5/15/2013
6/14/2013

Gonsiorowski (A)
O’Mara (P)
Reiss (Pa)
Tostrud ((P)

4/19/2013
6/11/2013
4/15/2013
5/16/2013

4
5
6
7
8

Hours to be
Reduced
2.25
1.50
4.00
Total = 7.75
.20
.10
1.00
.40

Proposed Nevada
Hourly Rate

Amount to be
Reduced

$350.00
$200.00
$350.00
$90.00
$350.00

<$2,712.50>
<$40.00>
<$35.00>
<$90.00>
<$140.00>
Total - <$3,017.50>

C. Drafting and Strategy

9

Attorney

10

Total Hours Billed

Tostrud (P)
Godino (P)
Wolke (P)

11
12

$350
$350
$350

Carter (A)
Giansiorowski (A)

13
14

Proposed Reasonable
Hours

$240
$200
Over 50+ Hours Total Hours – 25

Amount to be
Reduced

Total = <8,649.007>

D. Reviewing Defendants’ Opposition

15
Attorney

16
17

Wolke (P)
Tostrud (P)
Godino (P)
O’Mara (P)

18
19
20

Carter (A)

21

Total Hours Billed
8.0 x $350
3.3 x $350
2.5 x $350
.2 x $350
Partner Hours – 14.0

Proposed
Reasonable Hours
1 Partner

1.5 x $240
1 Associate
Associate Hours – 1.5
Total Hours = 15.5 Total Hours – 2.5

Amount to be
Reduced

Total = <$4,735.008>

22
23
24
25
26
27
28

7

Plaintiffs only state that “over 50 hours were spent” between the attorneys. Plaintiffs do not specify how
much each attorney spent individually. It is unknown how plaintiffs calculated these amounts.
8
Plaintiffs only state that 2.5 hours total between a partner and associate is appropriate. They do not specify
how the work should be divided.

26

E. Reply to Motion

1
2

Attorney

3

Total Hours Billed

Wolke (P)
Tostrud (P)
Godino (P)

4

18.00 x $350
2.30 x $350
2.75 x $350
Partner Hours = 23.05

5
Carter (A)

6

Proposed Reasonable
Hours
$350
Partner Hours = 3.25

F. Preparation and Attendance at Hearing

8
9

Attorney

Date

Hours Billed

Hours to be Reduced

10

Carter (A)

6/17/18
through
6/24/2013

20.8 x $240

15.8 x $240

11

Attorney

13

Date

Hours Billed

Hours to be
Reduced
6.2
6.2 x $350
8.0
8.0 x $350
Total = 14.2 Total Hours= 14.2

O’Mara (P) 6/24/2013
7/12/2013

15

Amount to be Reduced
<$2,170.00>
<2,800.00>
Total = <$4,970.00>

Godino (P)

6/24-25/2013
7/11-12/2013

12.9
12.0
Total = 24.9

12.9 x $350
12.0 x $350
Total Hours=24.9

<$4,515.00>
<$4,200.00>
Total = <8,715.00>

Tostrud (P)

6/24-25/2013
7/11-12/2013

7.4
10.3
Total = 17.7

None
None
Total Hours = 0

0
0
Total = 0
Grand Total = <$13,685.00>

17
18

Amount to be
Reduced
Total = <$3,792.00>

G. Travel and Attendance at Hearing

12

16

<$6,930.00>

2.00 x $240.00
$240
Associate Hours = 2.00 Associate Hours = 11.75
$2,340.00
Total Hours = 25.05
Total Hours = 15.00 Total = <$4,590.009>

7

14

Amount to be
Added or Reduced

19
20
21

H. Expenses Related to Travel

22

Attorney

23

O’Mara (P)

24

Tostrud

25

Date

Costs

6/24/2013
7/12/2013
6/24/2013
7/12/2013

Auto rental, airfare,
taxi, and parking.
Auto rental, airfare,
taxi, and parking

26

Amount
$1,769.66
Unknown

Amount to be
Reduced
<$1,769.66>
Tostrud should be
required to provide
more accurate
information

27
28

9

This is the amount calculated by the court. Plaintiffs request the amount be reduced by a total of $4,559.00.

27

2. Special Master Proceedings

1

A. Unnecessary Duplicative Preparation and Attendance at Hearings

2
3
4
5

Date of Special
Master Hearing

Godino (P)
Tostrud (P)
O’Mara (P)

19.00 x $350
26.80 x $350
13.00 x $350
Total = 58.80

4/7/2014

Godino (P)
Tostrud (P)
O’Mara (P)

20.00 x $350
25.00 x $350
13.00 x $350
Total = 58.00

4/10/2014

Godino (P)
Tostrud (P)
O’Mara (P)

4.50 x $350
11.60 x $350
3.10 x $350
Total = 19.20

4/15/201

Godino (P)
Tostrud (P)

7.00 x $350
12.40 x $350
Total = 19.40

4/22/2014

Wolke (P)
Godino (P)
Tostrud (P)

24.75 x $350
30.00 x $350
21.50 x $350
Total = 76.25

5/1/2014

Godino (P)
Tostrud (P)
Carter (A)

4.25 x 350
5.60 x $350
2.60 x $240
Total = 12.45

5/6/2014

Godino (P)
Tostrud (P)
Carter (A)

25.00 x $350
18.60 x $350
2.70 x $240
Total = 46.30

5/29/2014

Godino (P)
Tostrud (P)
Carter (A)

8.00 x $350
27.00 x $350
4.60 x $240
Total = 39.60

6/4/2014

Godino (P)
Wolke (P)
Tostrud (P)
Carter (A)
O’Mara (P)

5.00 x $350
3.00 x $350
11.00 x $350
8.30 x $240
2.60 x $350
Total = 29.90

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Hours Billed

4/4/2014

6
7

Attorney

28

Proposed
Reasonable
Hours
26.80 x $350

25.00 x $350

11.60 x $350

12.40 x $350

21.50 x $350

5.60 x $350

18.60 x $350

27.0 x $350

11.0 x $350

Amount to be Reduced
<$6,650.00>
0
<$4,550.00>
Total = <$11,200.00>
<$7,000.00>
0
<$4,550.00>
Total = <$11,550.00>
<$1,575.00>
0
<$1,085.00>
Total = <2,660.00>
<$2,450.00>
0
Total = <2,450.00>
<$8,662.50>
<$10,500.00>
0
Total = <$19,162.50>
<$1,487.50>
0
<$624.00>
Total = <$2,111.50>
<$8,750.00>
0
<$648.00>
Total = <$9,398.00>
<$2,800.00>
0
<$1,104.00>
Total = <$3,904.00>
<$1,750.00>
<$1,050.00>
0
<$1,992.00>
<$910.00>
Total = <$5,702.00>

1

6/13/2014

Godino (P)
Tostrud (P)

6.25 x $350
13.80 x $350
Total = 20.05

6/16/2014

Wolke (P)
Godino (P)
Tostrud (P)

15.50 x $350
25.50 x $350
24.60 x $350
Total = 65.60

6/26/2014

Godino (P)
Tostrud (P)
Carter (A)

4.00 x $350
13.00 x $350
1.20 x $240
Total – 18.20

7/3/2014

Godino (P)
Tostrud (P)
Carter (A)

4.50 x $350
7.10 x $350
1.20 x $240
Total = 12.80

7/25/2014

Godino (P)
Tostrud (P)
Carter (A)

4.00 x $350
3.90 x $350
1.10 x $240
Total = 9.00

7/28/2014

Godino (P)
Tostrud (P)

4.00 x $350
2.80 x $350
Total = 6.80

8/4/2014

Wolke (P)
Tostrud (P)
Carter (A)

6.50 x $350
10.80 x $350
2.00 x $240
Total = 19.30

8/8/2014

Godino (P)
Tostrud (P)
Carter (A)
O’Mara (P)

3.00 x $350
9.70 x $350
1.20 x $240
1.20 x $350
Total = 15.10

8/15/2014

Godino (P)
Tostrud (P)
Carter (A)

.25 x $350
2.70 x $350
1.00 x $240
Total = 3.95

10/21/2014

Godino (P)
Wolke (P)
Tostrud (P)
Carter (A)
O’Mara (P)

33.00 x $350
54.00 x $350
54.60 x $350
4.00 x $240
10.00 x $350.00
Total = 155.60

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

29

13.80 x $350

24.60 x $350

13.00 x $350

7.10 x $350

3.90 x $350

2.80 x $350

10.80 x $350

9.70 x $350

2.70 x $350

54.60 x $350

Total = 302.50

<$2,187.50>
0
Total = <$2,187.50>
<$5,425.00>
<$8,925.00>
0
Total = <$14,350.00>
<$1,400.00>
0
<$288.00>
Total = <$1,688.00>
<$1,575.00>
0
<$288.00>
Total = <$1,863.00>
<$1,400.00>
0
<$264.00>
Total = <$1,664.00>
<$1,400.00>
0
Total = <$1,400.00>
<$2,275.00>
0
<$480.00>
Total - <$2,755.00>
<$1,050.00>
0
<$288.00>
<$420.00>
Total = <$1,758.00>
<$87.50>
0
<$240.00>
Total = <$327.50>
<$11,550.00>
<$18,900.00>
0
<$960.00>
<$3,500.00>
Total = <$34,910.00>
Grand Total =
<$131,041.00>

B. Research and Draft of Special Master’s Proposed Order

1
2
3
4

Attorney

Amount to be
Reduced

188.75 x $350
19.75 x $350
2.20 x $350
Partner Hours = 210.70

Antonio (A)
Carter (A)

32.50 x $200
38.50 x $240
$240
Associate Hours– 71.00 Associate Hours = 52.50 <$3,140.00>
Total Hours – 281.70
Total Hours = 70.00
Total = <$70,760.00>

7
8

$350
Partner Hours = 17.50 <$67,620.00>

C. Reviewing Opposition to Special Master’s Proposed Order, Drafting
Response and Reviewing Defendants’ Reply

9
10

Proposed Reasonable
Hours

Wolke (P)
Godino (P)
Tostrud (P)

5
6

Total Hours Billed

Attorney

Total Hours Billed

Proposed Reasonable
Hours

Wolke (P)
Godino (P)
Tostrud (P)

67.70 x $350
51.10 x $350
20.20 x $350
Partner Hours = 139.00

Carter (A)
Fallon (A)

15

27.50 x $240
5.00 x $240
$240
Associate Hours– 32.50 Associate Hours = 30.00
Total Hours – 171.50
Total Hours – 40.00

16

Amount to be
Reduced

D. Sanctions Research and Motion for Sanctions

11
12
13
14

17
18
19

Attorney

Total Hours Billed

$350
Partner Hours = 10.00

Proposed Reasonable
Hours

<$45,150.00>
<$600.00>
Total - <$45,750.00>

Amount to be
Reduced

Wolke (P)
Tostrud (P)

24.75 x $350
95.40 x $350
Partner Hours = 120.15

$350
Partner Hours = 10.00

<38,552.50>

Antonio (A)
Carter (A)

1.75 x $200
44.40 x $240
$240
Associate Hours– 46.15 Associate Hours = 30.00
Total Hours – 166.30
Total Hours – 40.00

<3,876.00>
Total - <$42,428.50>

20
21
22
23
24
25
26
27
28
30

E. Improperly Billed Paralegal or Clerical Work

1
2
3

Attorney

Dates

Total Hours
Billed

Antonio (A)

Between 6/6/2014
and 7/10/2014
Between 8/5/2014
and 9/16/2014
Not Stated

75.65 x $200
= $15,130.00
23.00 x $200
= $4,600.00
185.90 x $240
= $44,616.00
14.50 x $350
= $5,075.00

4
5

Carter (A)

6

Tostrud (P)

7

3/21/2014 through
3/28/2014

Proposed
Reasonable
Hours/Rates
50 x $90 =
$4,500.00
23 x $90 =
$2,070.00
185.90 x $90 =
$16,731.00
14.50 x $90 =
$1,305.00

Amount to be Reduced
<$10,630.00>
<$2,530.00>
<27,885.00>
<3,770.00>
Total = <$44,815.00>

8
3. Other Improper or Unnecessary Billings

9
10
11
12

Attorney
Godino (P)
Tostrud (P)

13
14

Carter (A)

Dates
1/20/2014 and
1/21/2014
1/20/2014 through
1/21/2014
3/18/2014
3/31/2014

Total
Hours
Billed
13.25

Hours to be
Reduced

Amount to be Reduced

13.25 x $350

<$4,637.50>

8.7

0

3.6
1.7

3.6 x $350
1.7 x $240

<$1,260.00>
<408.00>
Total = <$6,305.00>

15
4. Requested Expert Costs Not Caused by Alleged Discovery Shortcomings
and Should Be Denied

16
17

Expert

18
19
20
21
22
23
24

ILS Invoice
#2938
ILS Invoice
#2997

Total
Amount
Billed
$36,210.83
$60,941.65

27
28

Pixley
Forrest
Pixley

Proposed Reasonable
Hours/Amount
4.45 hrs. x $350 = $1557.50
45.10 hrs x $350 = $15,785.00
Airfare = $1,975.96

Forrest
ILS Invoice
#2999
ILS Invoice
#3016

0
Total = $17,760.96
0

$16,576.99

J. Peer

$46,833.90

Pixley

24.50 x $350 = $8,575.00
Expenses = 1,768.73

Forrest

1.27 x $350 = $444.50
Total = $10,788.23
yup0

25
26

Expert

ILS Invoice
#3055
ILS Invoice
#3051

$7,511.75

Misc

$44,986.10

Pixley

35.25 x $350 = $12,337.50
Expenses = $839.17
31

Amount to be
Reduced
<$34,653.33>

<$43,180.69>
<$16,576.99>

<36,045.67>
<$7,511.75>

Forrest
ILS Invoice
#3085
ILS Invoice
#3086

$5,573.78

Misc

2.95 x $1,032.50
Total = $14,209.17
0

$8,592.50

Pixley

2.5 x $350 = $875.00

Forrest

ILS Invoice
#3098

$25,010.83

5.12 x $350 = $1,792.00
Total = $2,667.00
13.25 x $350 = $4,637.50

<$5,925.50>

16.35 x $350 = $5,722.50
Total = $10,360.00
9.26 x $350 = $3,241.00

<$14,650.83>

1
2
3
4
5

Forrest

6
7
8
9

ILS Invoice
#3128
ILS Invoice
#3156
ILS Invoice
#317410

10

Pixley

$6,622.50

Forrest

$322.50

Misc

322.50

$2,429.17

Misc

0

<30,776.93>
<$5,573.78>

<$3,381.50>
0

<$2,429.17>
$60,906.3611 Total = <$200,706.14>

$261,612.50

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

10

The invoice was mistakenly referred to as ILS Invoice No. 3128.
Following the relevant costs listed in plaintiffs’ opposition, this is the amount calculated by the court;
however, Plaintiffs state that reasonable costs should be $78,667.32 which reduces the total by $182,945.18.
11

32