New Mexico Oncology and Hematology Consultants, Ltd. v. Presbyterian Healthcare Services et al
Filing
816
MEMORANDUM OPINION AND ORDER by Magistrate Judge Gregory B. Wormuth. The Court awards Plaintiff fees in the amount of $179,840 pursuant to 745 , 753 and 768 . (bni)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
NEW MEXICO ONCOLOGY AND HEMATOLOGY
CONSULTANTS, LTD.,
Plaintiff,
v.
Civ. No. 12‐526 MV/GBW
PRESBYTERIAN HEALTHCARE SERVICES, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court pursuant to the Court’s order that Defendants
pay Plaintiff reasonable expenses incurred in connection with Defendants’ privilege
over‐designation (doc. 745), Plaintiff’s Fee Affidavit seeking $332,243.17 in costs (doc.
753), and Defendants’ Objection to Plaintiff’s Fee Affidavit (doc. 768). For the following
reasons, the Court awards Plaintiff $179,840.
I.
PROCEDURAL HISTORY
The procedural history in this case is extensive, and the Court only recites those facts
relevant to the instant issue here. On January 22, 2016, Defendants produced privilege
and redaction logs to Plaintiff, which identified 4,143 documents that were either
withheld or produced with redactions. Doc. 768 at 4. On March 15, 2016, Plaintiff
objected to 2,831 of these designations. Doc. 753 at 3; doc. 768 at 4.
Defendants responded to Plaintiff’s objections on April 1, 2016 and agreed to re‐
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review the disputed documents on April 8, 2016. Doc. 768 at 4. Plaintiff then began to
prepare a Motion to Compel on April 11, 2016. Doc. 753‐1 at 29‐33. On April 18, 2016,
Defendants produced an additional 1,959 documents. Doc. 768 at 4; doc. 753 at 5.
Plaintiff again reviewed Defendants’ logs and on April 25, 2016 objected to the
remaining 1,312 documents that had not initially been challenged and requested a
Special Master in camera review. Doc. 753 at 6; doc. 768 at 5. That same day, Defendants
agreed to review the remaining 1,312 documents and produced 861 of them by April 30,
2016. Doc. 753 at 6; doc. 768 at 5.
On July 14, 2016, Plaintiff filed a Motion to Compel and for Sanctions, which
included the repeated request that the Court appoint a Special Master. Doc. 445. On
August 11, 2016, the Court denied the Motion to Compel without prejudice and
appointed a Special Master to perform an in camera review all remaining records
withheld or redacted by Defendants and to consider arguments on general and subject
matter waiver. Doc. 470. The parties provided the Special Master with materials in
accordance with the Special Master’s briefing schedule. Doc. 768 at 6. The Special
Master issued his Report and Recommendation on February 17, 2017, finding that
Defendants should be made to produce an additional 197 documents “not protected by
the attorney client privilege or work product doctrine or …. as part of a subject‐matter
waiver.” Doc. 604 at 30. The Court adopted the Report and ordered Defendants to
produce the additional documents. Doc. 606.
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On May 17, 2017, Plaintiff filed a Motion for Sanctions against Defendants, seeking
relief on grounds including Defendants’ privilege over‐designation. Doc. 673. On
August 16, 2017, in his Findings and Recommended Disposition, the Court ordered
Defendants to pay Plaintiff costs associated with Defendants’ “privilege over‐
designation,” including work performed on its Motion to Compel and for Sanctions
(doc. 445), its briefing before the Special Master (doc. 604), and its preparation of
objections to Defendants’ privilege designations throughout the lawsuit. Doc. 745 at 32.
In response, Plaintiff filed its Fee Affidavit on August 26, 2017, seeking $332,243.17 in
costs. Doc. 753. Defendants filed their objections to Plaintiff’s Fee Affidavit on
September 9, 2017, requesting that Plaintiff’s fee award be reduced to $69,629.68. Doc.
768. The matter of the reasonableness of Plaintiff’s Fee Affidavit is now before the
Court.
II.
LEGAL STANDARD
To determine reasonable attorney fees, the Court “must arrive at a ‘lodestar’ figure
by multiplying the hours plaintiffs’ counsel reasonably spent on the litigation by a
reasonable hourly rate.” Jane L. v. Bangerter, 61 F.3d 1505, 1509 (10th Cir. 1995) (citing
Blum v. Stenson, 465 U.S. 886, 888 (1984)).1
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Although the lodestar framework generally applies in the statutory fee award context, courts have also
applied the lodestar calculation to determine whether attorney fees are reasonable in the context of
sanctions. See White v. Gen. Motors Corp., 908 F.2d 675, 684‐85 (10th Cir. 1990).
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It is Plaintiffs’ burden “to prove and establish the reasonableness of each dollar, each
hour, above zero.” Mares v. Credit Bureau of Raton, 801 F. 2d 1197, 1210 (10th Cir. 1986).
“Counsel for the prevailing party should make a good faith effort to exclude from a fee
request hours that are excessive, redundant, or otherwise unnecessary.” Hensley v.
Exkerhart, 461 U.S. 424, 434 (1983). The Court should, therefore, exclude hours not
“reasonably expended,” and although “[t]here is no precise rule or formula for making
these determinations[, t]he court necessarily has discretion in making this equitable
judgment.” Id. at 434‐437. Notably, “a district court does not abuse its discretion in
reducing a plaintiff’s fee request when the request is based on time records that are
rather sloppy and imprecise.” Robinson v. City of Edmond, 160 F.3d 1275, 1284‐85 (10th
Cir. 1998). However, the district court may not merely “eyeball the fee request and cut
it down by an arbitrary percentage.” Id. at 1281 (internal quotations and citations
omitted).
III.
ANALYSIS
A. Plaintiff cannot recover fees unassociated with Defendants’ privilege over‐
designation.
In its Findings, the Court awarded Plaintiff reasonable costs associated with
Defendants’ privilege over‐designation. Doc. 745. Plaintiff is not entitled to fees that
are not encompassed by this category. However, many of the hours reflected in
Plaintiff’s Fee Affidavit fall outside the parameters to which the Court limited its award.
Doc. 753‐1.
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First, Plaintiff seeks $16,425 in fees associated with 86.3 hours of review of what
appears to be its own privilege documents, a task unassociated with Defendants’
privilege over‐designation. See Doc. 768‐1. For example, Plaintiff seeks to recover fees
for 1.5 hours spent on January 5, 2016 devoted to “privilege review.” Doc. 753‐2 at 3.
Defendants did not serve its privilege logs on Plaintiff until January 22, 2016, so the
Court can only conclude that Plaintiff reviewed its own documents during the time in
question. Had Defendants properly produced all of their documents, Plaintiff would
have nevertheless been required to spend an equal amount of time and effort reviewing
and compiling its own privilege and redaction logs; therefore, their award does not
include recovery of fees related to such work.
Similarly, following receipt of Defendants’ privilege and redaction logs but prior to
producing its own logs on Defendants on March 15, 2016, Plaintiff vaguely titled many
entries as “privilege review,” “review privilege log,” or similarly uninformative
designations. See Docs. 753‐1, 753‐2. This ambiguity is especially noteworthy,
considering that many other entry titles mention Defendants’ privilege logs explicitly,
such as “[r]eview Presbyterian’s redacted documents,” and “begin review of
Presbyterian’s privilege log.” See Doc. 753‐1 at 3‐4. This distinction implies that those
entries that do not mention Defendants’ documents instead refer to work related to
Plaintiff’s own privilege and redaction logs. Whether this implication is accurate or not,
it is the Plaintiff’s burden to establish that the referenced billing relates only to the
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review of Defendants’ privilege logs and not its own. During a period where both types
of review were being conducted, generic entries regarding privilege review do not meet
this burden. See Mares, 801 F. 2d at 1210; see also Ramos v. Lamm, 713 F.2d 546, 553 (10th
Cir. 1983). On this basis, $16,425 will be deducted from Plaintiff’s fee award.
Second, Plaintiff seeks $1,715 for 7.5 hours spent conducting generic conference calls
and meetings that Plaintiff does not describe as related to Defendants’ privilege over‐
designation. See doc. 768‐1. For example, Plaintiff billed on March 7, 2016 for time in
which an attorney attended a “conference call with George Sanders and Travis Jackson
regarding status of litigation, ongoing projects to be completed, and deadlines.” Doc.
753‐1 at 17. It is inappropriate for Plaintiff to recover fees for broad meetings unrelated
to the issue of Defendants’ privilege over‐designation. Thus, the Court will deduct an
additional $1,715 from Plaintiff’s fee award.
Third, Plaintiff seeks $2,525 for hours spent reviewing materials related to the
supplemental Mike West document production. Doc. 753‐1 at 80‐81. This work is not
related to Defendants’ privilege over‐designation, because Defendants had failed to
originally produce these documents due to clerical error rather than privilege over‐
designation. Therefore, the Court will reduce Plaintiff’s award by an additional $2,525.
Fourth, Plaintiff seeks to recover $21,295 for hours spent briefing the subject matter
waiver issue before the Special Master. See generally 753‐1, 753‐2. For example,
Plaintiffs attempt to recover for billings such as “[c]ompile documents from Tom Bacon
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regarding subject matter waiver,” and “continue analysis and evaluation of documents
involving attorneys for subject matter waiver argument.” Doc. 753‐1 at 77. Because
these entries fall outside the issue of Defendants’ privilege over‐designation, the Court
hereby reduces Plaintiff’s recovery by an additional $21, 295.
Fifth, Plaintiff seeks to recover $35,140 in attorney’s fees and costs associated with
work performed, after the resolution of all issues before the Special Master in March
2017, to prepare a second sanctions motion. See Doc. 768‐1 at 38‐41. All work on this
second sanctions motion falls outside the fee category for which Plaintiff may recover,
here. As such, the Court deducts in the amount of $35,140 from Plaintiff’s award.
Sixth, Plaintiff seeks to recover fees for fourteen hours of travel time from July 24,
2017 through August 2, 2017 for which an attorney billed at his standard $250/hr rate.
Doc. 768‐1 at 40‐41; doc. 753‐1 at 141, 144. The Tenth Circuit has held that it is proper for
travel time to be compensable at 25% of an attorney’s hourly rate in consideration of its
essentially unproductive nature. Smith v. Freeman, 921 F.2d 1120, 1122 (10th Cir. 1990).
Therefore, in consideration of this standard, the Court deducts an additional $2,625,
75% of the travel time billed, from Plaintiff’s award.
Finally, Plaintiff seeks to recover $12,720 for hours spent reviewing documents
produced by Defendants following its re‐review. See generally, docs. 753‐1, 753‐2, 768‐1.
Specifically, from July 27, 2016, through September 6, 2016, a single attorney reviewed
documents produced by Defendants that were previously identified as privileged. Doc.
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768‐1 at 19‐26. The Court notes that Plaintiff would have had to review these
documents, regardless of Defendants’ privilege over‐designation, and Plaintiff does not
demonstrate that such review was performed in order to address its Motion to Compel,
brief issues before the Special Master review, or object to Defendants’ remaining
privilege over‐designations. Thus, such work does not fall within the fee category for
which Plaintiff may recover. As such, the Court deducts an additional $12,720 from
Plaintiff’s award.
In consideration of the foregoing, the Court deducts a total of $92,445 from Plaintiff’s
original request of $332,232, leaving a total of $239,787.
B. The remaining fees will be reduced to compensate for excessive and imprecise
billing.
“In seeking an award of attorney fees, “[t]he prevailing party must make a good‐
faith effort to exclude from a fee request hours that are excessive, redundant, or
otherwise unnecessary.” Robinson, 160 F.3d at 1281. The Tenth Circuit has suggested
that courts consider the following factors when determining the reasonableness of the
hour expended: “(1) whether the tasks being billed would normally be billed to a
paying client, (2) the number of hours spent on each task, (3) the complexity of the case,
(4) the number of reasonable strategies pursued, (5) the responses necessitated by the
maneuvering of the other side, and (6) potential duplication of services by multiple
lawyers.” Id. (citing Ramos, 713 F.2d at 554) (internal quotations omitted). Further, “[a]s
a part of this reasonableness determination, a district court may discount requested
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attorney hours if the attorney fails to keep meticulous, contemporaneous time records
that reveal all hours for which compensation is requested and how these hours were
allotted to specific tasks.” Id. (quoting Ramos, 713 F.2d at 553) (internal quotations
omitted); see also Carter v. Sedgwick Cty., Kan., 36 F.3d 952, 956 (10th Cir. 1994).
In making this determination, Court’s need not “identify and justify each
disallowed hour” or “announce what hours are permitted for each task.” Case v. Unified
Sch. Dist. No.233, Johnson Cty, Kan., 157 F.3d 1243, 1250 (10th Cir. 1998) (quoting Mares,
801 F.2d at 1202). Rather, “it is neither practical nor desirable to expect the trial court
judge to have reviewed each paper in the massive case file to decide, for example,
whether a particular motion could have been done in 9.6 hours instead of 14.3 hours.
Instead, a general reduction of hours claimed in order to achieve what the court
determines to be a reasonable number is not an erroneous method, so long as there is
sufficient reason for its use.” Id. (quoting Mares, 801 F.2d at 1203)(internal citations and
quotations omitted).
The Court finds that Plaintiff’s Fee Affidavit demonstrates numerous examples of
imprecise and excessive billing by Plaintiff’s attorneys. See generally, doc. 753‐1. For
example, a single attorney spent over twenty hours merely editing Plaintiff’s 38‐page
draft motion to compel and for sanctions. Doc. 753‐1 at 49‐50. This attorney’s efforts, in
conjunction with the editing help of three others attorneys, resulted in approximately
54.7 hours spent merely in the process of finalizing to Motion. Doc. 753‐1 at 49‐55; doc.
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753 at 6. This category of time does not include the additional hundreds of hours that
Plaintiff’s attorneys spent researching and writing the Motion to Compel and for
Sanctions, 135.3 hours of which were billed while Defendants conducted a re‐review of
their own documents, promising to produce to Plaintiff those documents that they
agreed were wrongly designated as privileged. See generally, doc. 753‐1, 753‐2; doc 768‐1.
Defendants did produce many of those documents, requiring Plaintiff to “update [its]
examples [of documents improperly withheld] for [its]motion to compel[,]” revealing
that much of the research that Plaintiff performed during Defendants review was
unnecessary. Doc. 753‐1 at 34.
Despite the fact that Plaintiff spent an enormous amount of hours drafting and
completing Plaintiff’s Motion to Compel and for Sanctions, Plaintiff’s Fee Affidavit
indicates that Plaintiff’s legal team spent an additional 705 hours “for work done in
association with briefing issues resolved by the Special Master’s first Report and
Recommendations.” Doc. 753 at 7. Notably, this briefing largely tracks and generally
recites the arguments already made by Plaintiff in its Motion to Compel and for
Sanctions. Plaintiff’s attempt to bill as much as 705 hours for repetitive work stands as
an illustration of the excessive and redundant billing associated with the Plaintiff’s Fee
Affidavit. This tendency is exacerbated by the fact that thirteen attorneys spread across
two firms worked on this single issue, necessarily leading to duplicative work and
frequent redundant teleconferences and emails.
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In addition to excessiveness, Plaintiff’s Fee Affidavit reveals numerous examples of
imprecise billing. Attorneys provide ambiguous descriptions of their work, such as
“[r]eview documents.” Doc. 753‐1 at 59. In addition, they repeatedly engage in block
billing, listing several tasks completed during a certain period, but failing to delineate
how much time was devoted to each task. See generally, id. For the purposes of
recovering its fee award, Plaintiff estimated in its Fee Affidavit, sometimes over a year
after the hours had been billed, the amount that an attorney had spent on one particular
task within the block bill. Id. This problematic practice undermines the reliability of the
Fee Affidavit. See Flying J Inc. v. Comdata Network, Inc., 322 F. Appx. 610, 617 (10th Cir.
2009) (Block billing is “strong evidence that a claimed amount of fees is excessive.”).
Related to this block billing concern, Plaintiff also seeks to recover its costs associated
with monthly charges for Westlaw research, but does not break down the research
performed by topic. See doc. 753‐1 at 42, 82‐83, 116, 144‐145. This practice leaves the
Court unable to determine what charges were associated with the issues relevant to the
instant fee award.
Where the Court finds, as here, that a prevailing parties’ billing is characterized as
excessive and imprecise, it is appropriate to reduce Plaintiff’s award. See Bangerter, 61
F.3d at 1510 (finding that the District Court’s comprehensive 35% reduction of Plaintiffs’
recovery where “plaintiffs’ time records include unspecified or inadequately specified
‘review’ time, excessive travel time, unnecessary and duplicative time spent in
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conference calls, meetings, and hearings” proper.); Kirsch v. Fleed Street, Ltd., 148 F.3d
149 (2nd Cir. 1998) (affirming district court’s decision to reduce the number of billable
hours by 50% for excessiveness and an additional 20% for vague or inconsistent entries);
Sata GmbH & Co. KG v. Hauber, No. 17‐0294, slip op. (N.D. Okla. Aug. 7, 2017) (reducing
hours billed by 70%). Recognizing a number of problematic categories of billing have
already been excluded above, the Court finds it appropriate to reduce the remaining
fees by 25% due to the excessive and imprecise billing apparent throughout the relevant
entries.
In sum, in consideration of the foregoing, the Court awards Plaintiff fees in the
amount of $179,840.
IT IS SO ORDERED.
_____________________________________
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
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