Excellent Home Care Services, LLC v. FGA, Inc.

Filing 108

ORDER GRANTING 97 Motion for Attorney Fees, DENYING 96 Motion for Leave to Electronically File under Seal & ORDER TO SHOW CAUSE re 103 : Having reviewed both the billing records and the time spent litigating this sanctions motion, the Cour t finds that the number of hours billed by FGA's counsel is not excessive. Thus, in light of the rates and hours discussed above, the Court awards $13,967.90 in fees and costs. Additionally, the Court Orders plaintiff to Show Cause by No vember 10, 2017 why the case should not be dismissed, or an order of preclusion entered, based on plaintiff's continued violations of this Court's Orders and its discovery obligations under Rule 37 of the Federal Rules of Civil Procedure. Finally, the Court denies FGA's motion to file its billing records under seal and Orders that FGA re-submit these records and attorney affidavits on the public docket. So Ordered by Magistrate Judge Cheryl L. Pollak on 10/23/2017. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X

EXCELLENT HOME CARE

SERVICES, LLC,
Plaintiff,
ORDER

-against-

13 CV 5390(ILG)
(CLP)

PGA,INC.,
Defendant.
X

POLLAK,United States Magistrate Judge:

On June 5, 2017,this Court issued an Order imposing sanctions in the form of attorney's

fees and costs upon plaintiff Excellent Home Care Services, LLC ("Excellent Home")(the

"Sanctions Order"). This Sanctions Order was based on plaintiffs repeated failure to cure certain
deficiencies in its discovery responses and its failure to comply with an Order ofthis Court issued

on June 16,2016, directing plaintiffto produce certain documents located in plaintiffs warehouse.

On August 31,2017,following plaintiffs appeal to the district court,the district court affirmed the
Sanctions Order. Presently pending before this Court is defendant FGA's application for
reasonable attorney's fees and costs incurred in connection with the filing ofthe Rule 37 motion

for sanctions. In a separate application, FGA continues to complain that despite the clear orders
ofthis Court, Excellent Home still has not produced a single document from the warehouse.

DISCUSSION

As explained in its earlier Sanctions Order, Excellent Home,a home health care provider,
entered into an agreement with FGA,in which FGA agreed to maintain, process and transmit to

insurance companies and government regulators certain patient billing data generated by Excellent

Home for reimbursement. (Am. Compl.'

2, 4, 7). Plaintiff alleges that defendant FGA

breached the agreement by: 1)"[f]ailing to timely and or properly transmit claims on behalf of

[plaintiff], thereby resulting in denials of payment to [plaintiff];" 2)"[f]ailing to monitor claims
and denials;" and 3)"[f]ailing to recognize that [plaintiffs] claims were being denied and that such
claims were not resubmitted to the Carrier." (Id ^ 10). Plaintiff claims that it suffered damages
of$7,000,000 on account of this breach of contract. (Id H 21).

On January 20,2017, defendant filed a letter seeking sanctions pursuant to Rule 37 ofthe
Federal Rules of Civil Procedures based on plaintiffs "continuing failure to cure specific

deficiencies in its document production despite substantial efforts to voluntarily have [plaintiff]

cure these deficiencies." (1/20/17 Def.'s Ltr.^ at 1).^ Specifically, defendant complained that
plaintiff had: 1)failed to reference specific documents responsive to defendant's Document

Requests 19 through 24; 2)failed to produce so-called "warehouse documents" that the Court
previously Ordered plaintiff to produce; and 3)failed to provide specific responses to
interrogatories seeking itemized computations of plaintiffs damages claims.
In its Sanctions Order, the Court found that plaintiff had failed to identify the documents

responsive to Requests 19-24, and had failed to Bates stamp the electronically stored information.
(Sanctions Order at 17). With respect to the warehouse documents,this Court had previously

'Citations to "Am. Compl." refer to the Verified Amended Complaint,filed on September 24,
2014.

^Citations to "1/20/17 Def.'s Ltr." refer to defendant's letter, filed on January 20,2017.

^Also on January 24, 2017, plaintiff filed a letter seeking to have the Court disqualify defendant's
counsel on the grounds that defendant's counsel had previously represented plaintiffin a state
court action, and thus had a conflict ofinterest. (1/24/17 PL's Ltr. at 1). That motion was denied
in an Order dated September 29, 2017.
2

directed plaintiff to "produce(1) Bates stamped copies of documents in warehouse ... within 30

days." (6/16/2016 Minute Entry^). As ofJune 5,2017,this Order,issued almost one year earlier
on June 16, 2016, had been ignored. (2/6/17 Def.'s Ltr., Ex. F). Even though defendant

indicated that it was only "interested in the documentation that supports the claims asserted by

plaintiff (id, Ex. Q at 1), plaintiff took the position that it was up to defendant to review the
22,000 patient files that were stored in the warehouse. (1/27/17 Pl.'s Ltr. at 2 n.l). Not only had
the Court Ordered plaintiff to produce the documents, but plaintiff conceded that it had not

produced the documents, nor had plaintiff sought reconsideration ofthe Order or explained to the
Court that the documents were irrelevant and burdensome to produce. Thus,the Court found that

plaintiff had violated its discovery obligations and this Court's June 16,2016 Order by failing to

produce any documents from its warehouse that are relevant either to its damages calculations or to
defendant's document requests. (Sanctions Order at 20-21). Accordingly, in its Sanctions
Order, the Court ordered plaintiff to produce documents from the warehouse by July 20,2017.
(Id.) The Court also recommended sanctions in the form of attorneys' fees to be awarded to

defendant's counsel based upon plaintiffs violation of Rule 37 ofthe Federal Rules of Civil

Procedure. (Id at 25). The Court also indicated that further noncompliance may result in a
recommendation of further sanctions, such as an order of preclusion or adverse inference. (Id at
21).

In an Order dated August 30,2017,the Honorable I. Leo Glasser affirmed this Court's
Sanctions Order.

* Citations to "6/16/2016 Minute Entry" refer to the Minute Entry for Telephone Conference proceeding held on
6/16/2016, ECF No. 62.
3

A.

FGA's Request for Attorneys' Fees

In its application dated July 7, 2017, FGA requests an award of $13,969.70 in connection
with its efforts to secure Excellent Home's compliance with its discovery obligations and with this
Court's prior Orders.

On July 21, 2017, plaintiff filed a motion for an extension oftime to file its response to

defendant's request for attorney's fees. In light ofthe amount oftime these discovery issues have
been ongoing,the Court denied this extension on the same day. The Court confirmed that
plaintiff had until July 28, 2017 to file its response.

After hearing nothing from plaintiff regarding defendant's fee requests for almost two

months, on September 18,2017,this Court sua sponte set a hard deadline of September 22,2017

for a response. Plaintiff still chose not to respond, nor did plaintiff request another extension.
Accordingly, this Court proceeds to consider defendant's fee request.
Ofthe total $13,969.70 sought by defendant,$13,894.50 represents 51.1 hours in

attorneys' fees expended in connection with defendant's Rule 37 motion for sanctions. The
remaining $75.20 represents court costs and disbursements.
In accordance with New York State Ass'n for Retarded Children. Inc. v. Carev, 711 F.2d

1136,1148(2d Cir. 1983), defendant's counsel has submitted the Declarations of Jonathan E.

Meer, Esq.("Meer DecL"), and David S. Sheiffer, Esq.("Scheiffer Decl."), along with

contemporaneous billing records,^ setting forth the dates and amount oftime during which
services were rendered,the hourly rate at which the services were charged, along with the name of

the attorney performing the work and a description ofservices performed. (See Meer Deck, Ex.
^Defendant FGA submitted a motion to file these billing records under seal. That motion is
addressed below.
4

A).

In determining whether a fee request is "reasonable," courts employ the "lodestar" method,

multiplying the number of hours reasonably spent by counsel on the matter by a reasonable hourly
rate. See Perdue v. Kenny A.,559 U.S. 542,546,551-52(2010); Millea v. Metro-North R.R. Co.,

658 F.3d 154, 166(2d Cir. 2011); Arbor Hill Concerned Citizens Neighborhood Ass'n v. County
of Albany. 522 F.3d 182, 183(2d Cir. 2008); Cowan v. Ernest Codelia. P.C.. No. 98 CV 5548,

2001 WL 30501, at *7(S.D.N.Y. Jan. 12, 2001), affd. 50 F. App'x 36(2d Cir. 2002). Although

there is a "strong presumption that this amount represents a reasonable fee," the resulting lodestar

figure may be adjusted based on certain other factors. Cowan v. Ernest Codelia. P.C.. 2001 WL
30501 at *7; Ouaratino v. Tiffany & Co.. 166 F.3d 422,425(2d Cir. 1999).

1) Reasonable Hourly Rate

In determining a reasonable fee, the Court is afforded considerable discretion in

determining reasonable hourly rates, in part based on its experience and an understanding ofthe
course ofthe litigation. See, e.g.. Matusick y. Erie Cty. Water Auth.. 757 F.3d 31,64(2d Cir.

2014)(explaining that "[w]e afford a district court considerable discretion in determining what
constitutes reasonable attorney's fees in a giyen case, mindful of the court's 'superior

understanding ofthe litigation'")(quoting Barfield y. N.Y.C. Health & Hosps. Corp., 537 F.3d
132, 151 (2d Cir. 2008JL Chen y. JP Standard Constr. Corp.. No. 14 CV 1086,2016 WL 2909966,
at *15(E.D.N.Y. Mar. 18, 2016), report and recommendation adopted, 2016 WL 2758272

(E.D.N.Y. May 12, 2016)(observing that the "[cjourt can and should exercise broad discretion in
determining a reasonable fee award").

To calculate the presumptively reasonable fee, a court must first determine a reasonable

hourly rate for the legal services performed. See Arbor Hill Concerned Citizens Neighborhood
Ass'n V. Countv. of Albanv. 522 F.3d at 183. In Arbor Hill, the Second Circuit adopted the

following factors to guide the court's inquiry as to what constitutes a reasonable hourly rate:
1) the time and labor required; 2) the novelty and difficulty of the
questions; 3)the level of skill required to perform the legal service
properly; 4) the preclusion of employment by the attorney due to
acceptance of the case; 5)the attorney's customary hourly rate; 6)
whether the fee is fixed or contingent; 7) the time limitations
imposed by the client or the circumstances; 8)the amount involved
in the case and the results obtained; 9) the experience, reputation,
and ability of the attorneys; 10)the "undesirability" ofthe case; 11)
the nature and length ofthe professional relationship with the client;
and 12) awards in similar cases[.]

Id at 187 n.3 (citation omitted). A number ofcourts within the Second Circuit have applied these

factors when awarding attorney's fees. See, e.g., Manzo v. Sovereign Motor Cars. Ltd.. No.08
CV 1229,2010 WL 1930237, at *7(E.D.N.Y. May 11, 2010); Adomo v. Port Auth. ofNew York
& New Jersev. 685 F. Supp. 2d 507, 511 (S.D.N.Y. 2010); Cruz v. Henry Modell & Co.. Inc.. No.
05 CV 1450, 2008 WL 905351, at *3(E.D.N.Y. Mar. 31, 2008).
Courts are also instructed to balance:

the complexity and difficulty ofthe case, the available expertise and
capacity ofthe client's other counsel(if any),the resources required
to prosecute the case effectively..., the timing demands ofthe case,
whether the attorney might have an interest (independent of that of
his client) in achieving the ends ofthe litigation or might initiate the
representation himself, whether the attorney might have initially
acted pro bono . . ., and other returns (such as reputation, etc.) the
attorney might expect from the representation
Arbor Hill Concerned Citizens Neighborhood Ass'n v. Countv of Albanv,522 F.3d at 184; see_
also Hens Chan v. Sung Yue Tung Corp.. No. 03 CV 6048,2007 WL 1373118, at *2(S.D.N.Y.

May 8, 2007).

In this case, plaintiffs were represented by the firm of Wilson, Elser, Moskowitz, Edelman
& Dicker LLP (the "Firm"). In moving for fees, defendant seeks an hourly rate of$275 per hour
for David Sheiffer, a partner with the Firm,admitted to practice in 1987,and Jonathan Meer,also a

partner with the Firm, admitted to practice in 2007. (Sheiffer Deck

4,6; Meer Decl.

4, 6).

Based on the Court's knowledge of the rates generally charged in this district by partners,

Mr. Sheiffer's and Mr. Meer's requested rate of$275 per hour is consistent with or lower than the

rates generally awarded to partners in this district. See, e.g.. Hall v. ProSource Techs.. LLC,No.
14 CV 2502, 2016 WL 1555128, at *12(E.D.N.Y. Apr. 11,2016)(holding that a partner with

twelve years of experience in litigating FLSA and NYLL wage and hour lawsuits should be
awarded an hourly rate of$450); Bosoro v. American Comprehensive Healthcare Med. Grp.. No.
14 CV 1099, 2015 WL 5676679, at *9(E.D.N.Y. Aug. 31, 2015), report and recommendation

adopted. 2015 WL 5686481 (E.D.N.Y. Sept. 25, 2015)(stating that "prevailing hourly rates in the
Eastern District of New York [are] between $350 and $400 for law firm partners"); Bodon v.
Domino's Pizza. LLC.No.09 CV 2941,2015 WL 3889577, at *8(E.D.N.Y. June 4,2015), report

and recommendation adopted sub nom. Bodon v. Domino's Pizza. Inc., No.09 CV 2941,2015
WL 3902405(E.D.N.Y. June 24, 2015)(holding that "recent cases have held that partners are

generally entitled to recover $300 to $450 per hour"); Hui Luo v. L&S Acupuncture. P.C.. No. 14
CV 1003,2-15 WL 1954468, at *2(E.D.N.Y. Apr. 29,2015)(observing that the prevailing hourly

rates for partners in this district ranges from $300 to $400), affd. No. 15 CV 1892,2016 WL
2848646(2d Cir. May 16, 2016); Griffin v. Astro Moving & Storage Co. Inc.. No. 11 CV 1844,
2015 WL 1476415, at *8(E.D.N.Y. Mar. 31,2015)(collecting cases and awarding a partner at a

law firm with 27 years of employment litigation experience an hourly rate of$400 after a jury
trial); Lesser v. U.S. Bank Nat. Ass'n. No.09 CV 2362,2013 WL 1952306,at *10(E.D.N.Y. May

10,2013)(awarding $425 per hour in straightforward commercial litigation to lead partner with 28

years of experience ); Ferrara v. CMR Contracting LLC,848 F. Supp. 2d 304, 313(E.D.N.Y.
2012)(observing that "[i]n recent years, courts in this district have approved hourly fee rates in the
range of$200 to $450 partners,$100 to $300 for associates and $70 to $100 paralegal assistants");
Toussie V. Countv ofSuffolk,No.01 CV 6716,2011 WL 2173870, at *2(E.D.N.Y. May 31,2011)

(approving fees at the rate of$450 per hour for a partner with 34 years' experience).
In this case, plaintiff has not filed any opposition to defendant's fee request. Thus,the
Court has not only considered the rates found reasonable in other cases, but has also considered the
time and effort needed on the part of counsel based in part on plaintiffs own conduct. Based on
these factors, the Court finds that the hourly rate of$275 for Mr. Sheiffer and Mr. Meer is
reasonable.

2) Reasonable Number of Hours Billed

In awarding attorney's fees, it is necessary for the Court to determine the reasonableness of
the number of hours expended by counsel on the case. See, e.g., LaBarbera v. Empire State
Trucking.Inc., No.07 CV 669,2008 WL 746490,at *4-5(E.D.N.Y. Feb. 26,2007). In reviewing

a fee application,the court"should exclude excessive,redundant or otherwise unnecessary hours."
Bliven v. Hunt, 579 F.3d 204, 213(2d Cir. 2009)(quoting Henslev v. Eckerhart,461 U.S. 424,

433-35,440(1983)). If the court finds "that some ofthe time was not reasonably necessary ...it
should reduce the time for which compensation is awarded accordingly." Louis Vuitton

Malletier. S.A. v. LY USA.Inc.,676 F.3d 83,111 (2d Cir. 2012);see also Struthers v. City ofNew
York. No. 12 CV 242, 2013 WL 5407221, at *8-9(E.D.N.Y. Sept 25, 2013)(reducing fees

because the fees requested for responding to motion papers were "excessive"); Jemine v. Dennis.

901 F. Supp. 2d 365, 393(E.D.N.Y. 2012)(reducing requested fees by 10% because the "quality
and complexity ofthe submissions and calculations" did not reflect the hours expended); Ehrlich
V. Roval Oak Fin. Servs.. No. 12 CV 3551,2012 WL 5438942, at *3-4(E.D.N.Y. Nov. 7, 2012)

(reducing attorneys' fees because the attorney's litigation ofthe suit made apparent his "lack of

experience" and for duplicative entries); Ouinn v. Nassau Cntv. Police Den't.. 75 F. Supp. 2d 74,
78(E.D.N.Y. 1999)(reducing one attorney's fees by 20% and another's by 30% for unnecessary
and redundant time); American Lung Ass'n v. Reillv. 144 F.R.D. 622,627(E.D.N.Y. 1992)

(finding that the "use of so many lawyers for relatively straightforward legal tasks was excessive
and led to duplication of work," and deducting 40% of plaintiffs' lawyer's hours).
Rather than itemizing individual entries as excessive, the court may make an

"across-the-board reduction, or percentage cut, in the amount of hours." T.S. Haulers. Inc. v.
Cardinale, No.09 CV 451,2011 WL 344759, at *3(E.D.N.Y. Jan. 31,2011)(citing Green v. Citv

of New York. 403 F. App'x 626,630(2d Cir. 2010)). Similarly, courts routinely apply
across-the-board reductions for vague entries. See, e.g.. Kirsch v. Fleet St. Ltd.. 148 F.3d 149,

173(2d Cir. 1998)(affirming district court's 20% reduction in attorneys' fees for "vagueness,
inconsistencies, and other deficiencies in the billing records"); Moore v. Diversified Collection
Servs.. Inc.. No.07 CV 397,2013 WL 1622949, at *4(E.D.N.Y. Mar. 19, 2013)(reducing

attorney's fees by 10% due to the "vagueness and incompleteness" ofsome ofthe entries); Tucker
V. Mukasev. No.03 CV 3106,2008 WL 2544504, at *2(S.D.N.Y. June 20, 2008)(reducing fees

by 30% in part because although some entries were detailed, others were vaguely worded or
inconsistent); Marisol A. ex rel. Forbes v. Giuliani. 111 F. Supp. 2d 381,396-97(S.D.N.Y. 2000)
(concluding that "the vagueness ofsome ofthe time records prevents the Court from determining

why plaintiffs were required to expend so many hours on these tasks" and accounting for this
factor by reducing fees by 15%); Cabrera v. Fischler. 814 F. Supp. 269, 290(E.D.N.Y. 1993)

(reducing fees by 30% for vague entries with insufficient descriptions of work performed),revMin
part & remanded on other grounds. 24 F.3d 372(2d Cir. 1994), cert, denied, 513 U.S. 876(1994).
As noted above, defendant's counsel has submitted contemporaneous billing records,

setting forth the dates and amount oftime during which services were rendered, the hourly rate at
which the services were charged, and the names ofthe individuals who provided these services,

along with a description ofthe work performed. In total, Mr. Meer billed 31.6 hours of work,and
Mr. Sheiffer billed 19.5 hours. (Meer Decl. H 6, Ex. 1; Sheiffer Decl. H 6). The records indicate

that between January 17, 2017 and January 27,2017, while FGA's counsel was preparing the
motion for sanctions, reviewing Excellent Home's opposition papers, and preparing FGA s reply,

counsel expended a total of 12.7 hours. (Meer Deck, Ex. 1). The Court finds this amount to be
reasonable.

FGA's counsel also prepared for and attended the January 30,2017 Show Cause hearing

set by this Court, which plaintiffs counsel failed to attend. Indeed, when the Court contacted
plaintiffs counsel, who had been listed as counsel of record since the beginning ofthe case,
counsel indicated that he had no knowledge ofthe matter. Thus,the Court finds that FGA is
entitled to be reimbursed for the ten hours of wasted time spent by its counsel in preparation for a

hearing that did not occur as scheduled due to plaintiffs counsel's failure to appear. (Id)
10

Thereafter, between January 31 and March 23, 2017, defendant's counsel prepared a

supplemental motion for sanctions as directed by this Court at the January 30, 2017 conference.
This amounted to 28.2 hours spent preparing defendant's submission and reviewing plaintiffs
response. (IdJ

The Court notes that plaintiff was given ample opportunity to cure its defective discovery

and simply ignored the requests from defendant and the Orders from this Court. Had it complied,
the number of hours spent by defendant in an effort to obtain discovery would not have been as

high. Since plaintiff has not challenged the reasonableness ofthe hours expended and based on
the Court's own review of the billing records, the Court finds no reason to reduce the requested

fees based on any concern that counsel inflated the number ofhours or that there was a duplication
of hours. Accordingly, the Court Orders plaintiff to reimburse defendant FGA for $13,894.50 in

attorneys'fees as a sanction for plaintiffs failure to comply with its discovery obligations and with
this Court's prior Orders.

FGA also seeks $75.20 in court costs and disbursements incurred in connection with the

efforts to obtain discovery in this case. According to the invoices attached to the Meer
Declaration, counsel for defendant incurred $73.40 in Pacer Service Center costs between
December 12,2016 and March 23,2017. In addition, counsel seeks $1.80 in Pacer Service

Center costs incurred on July 28, 2016 and August 12, 2016. (IdJ Since counsel has failed to

explain why these expenses, which were incurred before the motion to compel was filed, should be
subject to reimbursement in connection with this sanctions order,the Court awards only $73.40 as
the reimbursable amount for costs.

Accordingly, the Court awards FGA $13,967.90 in fees and costs incurred with the
11

sanction Order of June 5, 2017.

B.

FGA's Renewed Motion to Compel

By letter dated August 21,2017, defendant FGA complains that plaintiff, despite the clear
orders from this Court, has still failed to provide a single Bates stamped "warehouse document."

(Def.'s 8/21/17 Ltr^ at 1). According to defendant, rather than producing the 22,000 relevant
documents that plaintiff admitted in its July 16,2016 letter, plaintiff is now taking the position that
there are "no relevant warehouse documents." (Id at 2). Defendant represents that plaintiff has

simply provided Bates stamped "lists" of 33,000 patient claims, which at times provide the
claimed reasons and amounts ofthe bills, but which are duplicative in many instances and which

lack confirmation that Excellent Home was actually entitled to collect on these claims. (I^

Defendant argues that plaintiff should not be allowed to raise "spurious objections, or claim such
documents are in FGA's possession," given that the records that FGA has received indicate clearly

that plaintiff has access to documents that should have been produced. (Id.) Indeed, defendant
questions whether plaintiff actually reviewed its own records. (Id.)
Defendant also complains that despite this Court's Orders, plaintiff still has not provided
an itemization ofits damages calculations. (Id.) According to FGA,plaintiff has not produced a

"single document demonstrating it has any ofthe necessary supporting evidence required to have
obtained payment for the billings it contends FGA failed to correctly handle." (Id.) Although

plaintiff provided a list of 30,000 patient billing records, defendant contends that it is unclear
which ofthese 30,000 patients are at issue in this case. (Id) Defendant contends that under the

^ Citations to "Def.'s 8/21/17 Ltr" refers to the defendant's letter motion, dated August 21, 2017.
12

holdings in Cine Forty Second Street Theater Corp. v. Allied Artists Pictures Corp.,602 F.2d 1062
(2d Cir. 1979)and National Hockey League v. Metropolitan Hockey Club. Inc.,427 U.S.639,642
(1979),the appropriate sanction for plaintiffs continued failure to comply with its discovery
obligations and this Court's Orders is entry ofa preclusion order barring any evidence ofdamages,
or "outright dismissal." (Id at 3,4).

In its Sanction Order,this Court Ordered plaintiffto provide the warehouse documents that

plaintiff claims establish defendant's liability and/or damages. (Sanctions Order at 20-21, 25).
The plaintiff was also explicitly Ordered to provide an itemized computation of damages.(Id)
Although plaintiff has had two months to respond to defendant's motion to preclude or dismiss,

plaintiff has not filed any response to the defendant's August 21, 2017 letter.
Accordingly, because the sanction sought by defendant is case dispositive, the Court

Orders plaintiffto Show Cause by November 10,2017 why the case should not be dismissed, or an

order of preclusion entered, based on plaintiffs continued violations ofthis Court's Orders and its
discovery obligations under Rule 37 ofthe Federal Rules of Civil Procedure.

C.

FGA's Motion to File Documents Under Seal

On June 30, 2017,FGA filed a motion for leave to file its attorney declarations and billing

records under seal. According to FGA,these billing records and entries "include confidential
information." (6/30/17 Mot.^ at 1).
Pursuant to Federal Rule of Civil Procedure 26(c), the Court may issue a protective Order

allowing documents to be filed under seal upon a showing of good cause. In re Agent Orange
''Citations to "6/30/17 Mot." refer to FGA's Motion for Leave to File Under Seal,filed on June 30,
2017.
13

Prod. Liability Litig.. 821 F.2d 139, 145(2d Cir. 1987). "Ordinarily, good cause exists 'when a

party shows that disclosure will result in a clearly defined, specific and serious injury.'" In re
Terrorist Attacks on Sent. 11. 2001. 454 F. Supp. 2d 220,221 (S.D.N.Y. 2006)(quoting Shingara
V. Skiles. 420 F.3d 301, 306(3d Cir. 2005)).

There is a longstanding tradition in the judicial system of maintaining public access to

judicial records, which creates a "presumption of access" to the public. Lugosch v. Pyramid Co.
ofOnondaga.435 F.3d 110(2d Cir. 2006). In Lugosch v. Pyramid Co. ofOnondaga,the Second

Circuit specified several factors that weigh in favor of granting public access to a document: 1)
the document must be "judicial," meaning "'the item filed must be relevant to the performance of

the judicial function and useful in the judicial process,'" id at 119(citing United States v.
Amodeo,44 F.3d 141,145(2d Cir. 1995)); 2)the court must determine the relevance ofthe

material at issue to a proper adjudication ofthe case,id at 119; and 3)the court must balance these
considerations against countervailing factors including "the danger ofimpairing law enforcement

or judicial efficiency" and "the privacy interests ofthose resisting disclosure." Id. at 120.
The Court finds that FGA has not met its burden of demonstrating "good cause" for filing

its billing records under seal. First, FGA has redacted all ofthe billing entries that do not relate to
the motions at issue in this opinion. (Meer Decl., Ex. 1). Furthermore,FGA has redacted certain
confidential information within the billing entries for amounts it requests. (Id) Having

reviewed the billing records provided by FGA,the Court has found no examples of documents

which might reveal attorney-client communications. If these documents,in their un-redacted
form, ever did reveal attorney-client communications, the redactions already made by FGA's
counsel are sufficient to solve this issue.
14

Balancing the fact that FGA's billing entries are already redacted so as to not reveal any

potentially privileged communications, with the public's right of access to information, the Court
denies FGA's request to file its billing records and attorney affidavits under seal. Accordingly,
the Court Orders that FGA re-submit these records and affidavits on the public docket.

CONCLUSION

Having reviewed both the billing records and the time spent litigating this sanctions
motion,the Court finds that the number of hours billed by FGA's counsel is not excessive. Thus,

in light ofthe rates and hours discussed above,the Court awards $13,967.90 in fees and costs.
Additionally, the Court Orders plaintiff to Show Cause by November 10, 2017 why the case
should not be dismissed, or an order of preclusion entered, based on plaintiffs continued
violations of this Court's Orders and its discovery obligations under Rule 37 of the Federal Rules

of Civil Procedure. Finally, the Court denies FGA's motion to file its billing records under seal
and Orders that FGA re-submit these records and attorney affidavits on the public docket.

The Clerk is directed to send copies ofthis Order to the parties either electronically through
the Electronic Case Filing(ECF)system or by mail.
SO ORDERED.

Dated:

Brooklyn, New York

October

^ a

,2017

/s/ Cheryl Pollak

Cheryl u.iPollak

United/^tes Magistrate Judge
Eastern District of New York

15