Schoolcraft v. The City Of New York et al

Filing 577

LETTER addressed to Judge Robert W. Sweet from Joshua P. Fitch dated February 1, 2016 re: Opposition to Defendants' Request for the Production of Certain Documents/Information and for an Extension of Time to Respond to Fee Application. Document filed by Adrian Schoolcraft. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Fitch, Joshua)

COHEN & FITCH LLP
THE WOOLWORTH BUILDING
233 BROADWAY, SUITE 1800
NEW YORK, NY 10279
TEL: [phone]
FAX: [phone]

February 1, 2016
VIA EMAIL & ECF
Honorable Robert W. Sweet
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
Re:

Schoolcraft. v. The City of New York
10 CV 06005 (RWS)

Your Honor:
We represent plaintiff Adrian Schoolcraft in the above referenced civil rights
action. We write now in response to defendants’ January 28, 2016 letter requesting a
thirty day extension of time to file their opposition to plaintiff's application for attorneys'
fees, and for an order requiring "all counsel to submit contemporaneous fee records in
electronic form." 1 Defendants’ application should be denied for the following reasons.
First, courts in this Circuit have repeatedly and consistently rejected similar
attempts by defendants to obtain “discovery” in opposing attorney’s fee motions. See
e.g., Richards v. New York City Bd. of Educ., No. 83 Civ. 7621 (CBM), 1988 WL
70209, at *9 (S.D.N.Y. June 27, 1988) (rejecting an identical request by the Office of
Corporation Counsel, and holding that such a request was “frivolous” and “worse than
disingenuous,” and imposing a monetary sanction on the City for making such a baseless
request).
Second, defendants’ exhaustive discovery demands – including threats to depose
all of plaintiff’s counsel and the attorneys who provided supporting declarations– are
grossly improper and patently baseless. Notably, the defendants fail to cite one case that
authorizes the discovery demands that the defendants now make.
Third, defendants’ arguments regarding the merits of plaintiffs’ fee application
1

This letter does not address the portion of defendants arguments pertaining to Levine and Gilbert, and
Peter Gleason, Esq. It is anticipated that these attorneys will be submitting their own letter in response.
1

are wholly improper at this stage, and should be made only in defendants’ opposition
brief.
Fourth, defendants’ request for another full month to oppose plaintiff’s
application – when they have already had three full months to respond – is both
premature and wholly unwarranted. Each ground is discussed further below.
I.

COURTS IN THIS CIRCUIT HAVE REPEATEDLY REJECTED
SIMILAR ATTEMPTS TO GET “ORIGINAL” TIME SHEET RECORDS.

The billing records submitted by plaintiff’s counsel in this case ‒ namely,
"typewritten transcriptions of the original handwritten time sheets filled out by the
attorneys" ‒ have consistently been “treated as contemporaneous records" by the Second
Circuit. David v. Sullivan, 777 F. Supp. 212, 223 (E.D.N.Y. 1991). For this reason,
"[o]riginal time sheets [] are not required; computer print-outs of the pertinent entries,
when accompanied with an affidavit, are sufficient." Video-Cinema Films, Inc. v. Cable
News Network, Inc., No. 98 CIV.7128 BSJ, 2004 WL 213032, at *4 (S.D.N.Y. Feb. 3,
2004) (emphasis supplied). Indeed, the Second Circuit has expressly rejected the
argument made by defense counsel herein. See Cruz v. Local Union No. 3 of Int'l Bhd. of
Elec. Workers, 34 F.3d 1148, 1160-61 (2d Cir. 1994):
Local Union No. 3 claims that attorney’s fees should not have been
awarded herein because, inter alia, Davis & Eisenberg did not submit
actual contemporaneous time records, but instead submitted a typed listing
of their hours from their computer records. This argument is unpersuasive.
Id. (emphasis supplied)
Indeed, courts in this Circuit have repeatedly and consistently rejected similar
requests by defense counsel for “original” billing records. See, e.g., Mills v. Capital
One, N.A., No. 14 CIV. 1937 HBP, 2015 WL 5730008, at *10 (S.D.N.Y. Sept. 30, 2015)
("Such transcriptions of contemporaneous time records have been found to satisfy the
requirements set forth above."); Meriwether v. Coughlin, 727 F. Supp. 823, 826-27
(S.D.N.Y. 1989)("chronological computer printouts as satisfy[] the contemporaneous
time record requirement")(citing New York State Association for Retarded Children, Inc.
v. Carey, 711 F.2d 1136, 1154 (2d Cir.1983)); Johnson v. Kay, 742 F. Supp. 822, 837
(S.D.N.Y. 1990)("Where the attorneys have provided the court with affidavits that have
been reconstructed from contemporaneous records and that set forth all charges with
specificity, fees have not been denied.")
Moreover, for nearly three decades the, Second Circuit has recognized that the
contemporaneous records "requirement would certainly not be served by penalizing
plaintiffs for attempting to present the contemporaneous records in a form convenient to
the court." David v. Sullivan, 777 F. Supp. 212, 223 (E.D.N.Y. 1991). Indeed numerous
courts have found that "typed transcriptions of [] handwritten time records[, are] a
welcome convenience for the court." Richards v. New York City Bd. of Educ., No. 83
CIV. 7621 (CBM), 1988 WL 70209, at *9 (S.D.N.Y. June 27, 1988); Koster v. Perales,
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No. CV-82-2892, 1989 WL 79482, at *3 (E.D.N.Y. July 13, 1989) aff'd, 903 F.2d 131
(2d Cir. 1990)("The court will not, as the State would suggest, preclude recovery on this
portion of the fee application because the hand-written time sheets filled out by attorneys
have been replaced by typewritten, easier-to-read versions of precisely the same
information."). As such, there is simply no authority ‒ and defendants have not cited to
any ‒ that would somehow invalidate the records submitted on behalf of plaintiff's
counsel in this case simply because they were reduced to computerized form for the
court's convenience.
II.

COURTS HAVE CONSISTENTLY AND REPEATEDLY REJECTED
SIMILAR “FISHING EXPEDITION” DISCOVERY REQUESTS IN THE
CONTEXT OF ATTORNEY FEE MOTIONS.
A. Defendants’ Discovery Requests Are Palpably Improper and Utterly
Baseless.

While defendants complain about plaintiff’s counsel’s alleged “refusal” to
cooperate with defendants, this portrait is inaccurate and misleading. In fact, defendants
have bombarded plaintiff’s counsel with multiple sets of discovery demands that are
patently improper and wholly unsupported by the law. Worse still, defendants have
coupled their discovery demands with threats to take “the depositions of plaintiff’s
counsel” and all of the “third parties who signed affidavits in support of the fee
application,” as well as “the plaintiff” himself. (Ex. A). In response to these grossly
improper demands, plaintiff’s attorneys have been forced to expend several hours
researching the law in this area, summarizing the applicable law in a five page letter to
defense counsel on January 15, 2016, and preparing this response. 2
Despite the overwhelming authority against their position, defendants continue to
insist that they are entitled to “original” time records from plaintiff’s counsel. However,
defendants have failed to cite to a single case upon which to entertain such discovery
requests in connection with a fee application. 3 Indeed, as the Supreme Court has
cautioned, "'[a] request for attorney's fees should not result in a second major litigation.”
Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of Health & Human Res., 532
U.S. 598, 609 (2001); In re Pall Corp. Class Action Attorneys' Fees Application, No. CV
07-3359 JS GRB, 2013 WL 1702227, at *3 (E.D.N.Y. Apr. 8, 2013) report and
recommendation adopted sub nom. In re Pall Corp., No. 07-CV-3359 JS ARL, 2013 WL
3244824 (E.D.N.Y. June 25, 2013) ("Accordingly, courts have avoided an interpretation
of fee-shifting statutes that would 'spawn a second litigation of significant dimension.'”).
While "[t]he fee applicant ... must, of course, submit appropriate documentation to meet
the burden of establishing entitlement to an award[,] trial courts need not, and indeed
2

It is only now -- after being educated by plaintiff’s counsel about the law in this area – that defendants
have agreed to drop their most oppressive and vexatious demands.
3
The one case which defendants rely upon ‒ Indu Craft, Inc. v. Bank of Baroda, No. 87 CIV.7379
(SHS)(LB), 1996 WL 556935 (S.D.N.Y. Oct. 1, 1996) -- actually rejected an identical claim because
defendants had "not demonstrated ample need for the original time records." Id. at *6 (emphasis added).

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should not, become green-eyeshade accountants.” Spence v. Ellis, No. CV 07-5249 TCP
ARL, 2012 WL 7660124, at *2 (E.D.N.Y. Dec. 19, 2012) report and recommendation
adopted, No. 07-CV-5249 TCP, 2013 WL 867533 (E.D.N.Y. Mar. 7, 2013).
As such, there is simply absolutely "no authority holding that [] counsel must
open its books to objectors for inspection [or engage in discovery] by virtue of filing a fee
motion." Cassese v. Williams, 503 F. App'x 55, 58 (2d Cir. 2012). As the Second Circuit
explained, in rejecting similar demands:
Zolt's demands do not mesh with the policy that '[a] request for attorney's
fees should not result in a second major litigation'... plaintiff submitted a
detailed accounting of over 500 pages containing time records for the
attorneys, summer clerk, and paralegal who worked on this case...This
information was supported by an affidavit provided by plaintiff's counsel.
After reviewing those records, the district court found itself fully satisfied
with the detailed documentation and able to determine an appropriate
award without any additional discovery or evidentiary hearings.
Bingham v. Zolt, 66 F.3d 553, 565 (2d Cir. 1995) (emphasis added). 4
B. Defendants’ Have Failed to Establish Any Basis to Support Their
Specious Allegations.
While defendants profess a “need” to obtain counsel’s original time entries,
defendants have failed to articulate any basis upon which to question the validity of
counsels' submissions. Indeed, defendants have failed to identify a single billing entry –
much less a pattern of billing entries – that would even remotely support their spurious
claim that the time entries were not, in fact, contemporaneous. Instead of furnishing the
Court with actual support for their claims -- despite having over one-and-a-half months
to scrutinize plaintiff’s counsels’ billing records -- defendants resort to rank speculation
and bald accusations, claiming that they have “serious doubts” about whether counsel’s
records are “in fact contemporaneous,” without a shred of support to back up such
claims. Accordingly, this court should deny any request based on such spurious
allegations as those made by defendants herein. See e.g, David v. Sullivan, 777 F. Supp.
212, 222-23 (E.D.N.Y. 1991):
Defendants, however, allege that these do not constitute the requisite
contemporaneous time records in that they are not the original records,
asserting that the production of the “actual time records” is “particularly
necessary”...Defendants have not suggested any reason to question
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Even if defendants request could be considered legitimate, the relief that defendants seek ‒ the original
computerized version of these records ‒ reveals a complete misunderstanding of how these records are
actually generated. In fact, the vast majority of the plaintiff’s counsels’ original time entries consist of
handwritten notes, not computer entries. Thus, defense counsel’s request for original electronic entries is,
like so much else in their letter, based on erroneous assumptions and utter speculation.

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plaintiffs' claim. Moreover, since defendants have not adduced any
convincing evidence that these transcriptions are inaccurate, I see no
reason to examine the original time slips.
Id. (emphasis added); see also Morin v. Sec'y of Health & Human Servs., 835 F.
Supp. 1431, 1439 (D.N.H. 1993)("Absent anything which suggests that plaintiff
submitted a reconstructed record where no contemporaneous records had been kept, the
court concludes that plaintiff's submission is a properly contemporaneous one."); Pastre
v. Weber, 800 F. Supp. 1120, 1124 (S.D.N.Y. 1991)("Defendant's argument has several
times been rejected by district judges in this Circuit...We, too, perceive no justification
for requiring plaintiff to produce the daily time sheets which would add little to our
consideration of the reasonableness of the award sought.").
Moreover, defendants’ assertions that plaintiffs' counsels' Declarations are "not
enough" to establish the contemporaneousness of their records "without citation to any
evidence," is also directly contradicted by the law in this Circuit. See e.g., Lenihan v.
City of New York, 640 F. Supp. 822, 824 (S.D.N.Y. 1986):
I need not linger long on this contention. There is nothing to suggest that
the records Lenihan has submitted are not contemporaneous records. To
be sure, Lenihan has not submitted the original, handwritten time sheets
filled out by her attorneys on a daily basis...However, Lenihan has
submitted typewritten transcriptions of those original records. No more is
required...The Court routinely receives computerized transcriptions of
contemporaneous time records from firms whose billing records are
maintained in computers. Lenihan's submission is no less
contemporaneous.
Id.
As such, contrary to defendants suggestions, counsels' Declarations ‒ all of which
affirm the contemporaneity of the records ‒ are amply sufficient to establish the
contemporaneousness of the time records in this case especially where defendants have
failed to raise even one solitary reason to question the veracity of plaintiffs'' counsels'
submissions. See e.g., Brennan v. New York Law Sch., No. 10 CIV. 0338 DLC HBP,
2012 WL 4177736, at *10 (S.D.N.Y. Aug. 15, 2012) report and recommendation
adopted, No. 10 CIV. 0338 DLC, 2012 WL 4195826 (S.D.N.Y. Sept. 20, 2012)("Plaintiff
has no evidence that these representations are false. In the absence of evidence to the
contrary, Piotrowski's statement establishes the sufficiency of the time records offered.");
Castillo v. Time Warner Cable of New York City, No. 09 CIV. 7644 PAC, 2013 WL
1759558, at *2 (S.D.N.Y. Apr. 24, 2013) (rejecting the argument that an declaration was
insufficient to establish that the records were contemporaneous because "counsel, has
submitted a declaration affirming that the 'fee petition submitted in this case was and
continues to be based on contemporaneous records kept manually (handwritten), by the
undersigned'"); Video-Cinema Films, Inc. v. Cable News Network, Inc., No. 98
CIV.7128 BSJ, 2004 WL 213032, at *4 (S.D.N.Y. Feb. 3, 2004) ("Original time sheets,

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however, are not required; computer print-outs of the pertinent entries, when
accompanied with an affidavit, are sufficient...Video-Cinema's argument that such
documentation is inadequate is both unsupported and directly contrary to prevailing
law.").
Furthermore, plaintiff’s counsels' time entries fully comport with Second Circuit
standards regarding sufficiency. Specifically, it is well settled that billing records must
"specify the name of each attorney working on the file, the date the work was done, the
hours spent, and the nature of the work performed." Mikes v. Straus, 274 F.3d 687, 706
(2d Cir. 2001); Auscape Int'l v. Nat'l Geographic Soc'y, No. 02 CIV. 6441 LAKHBP,
2003 WL 21976400, at *3 (S.D.N.Y. Aug. 19, 2003)(billing records must "set forth the
date on which services were performed, the hours spent and the nature of the work
performed."). Thus, defendants' assertion that counsel must present additional proof that
"state[s] the date or time that information [in the bills] was entered." (Def. Ltr. at 4) is as
unreasonable as it is without merit. Such a request would create a brand new standard for
fee applications in addition to that which is actually required under the law and must be
rejected.
Lastly, even assuming, arguendo, that the original Declarations failed to properly
articulate that these records were typewritten versions of contemporaneous written
timesheets, this letter response is more than sufficient to cure any purported defect. See
Abel v. Town Sports Int'l, LLC, No. 09 CIV. 10388 DF, 2012 WL 6720919, at *27
(S.D.N.Y. Dec. 18, 2012):
Davis has now explained that his 'time records [were] drawn from [his]
time notations on contemporaneous notes of work performed pre-litigation
and post-trial'...This is sufficient to satisfy the requirement that time
records be contemporaneous...There is thus no need for this Court to
conduct a hearing on the question of whether counsel's time was recorded
contemporaneously with the work performed, and the Court will proceed
with the lodestar calculation.
Id.
C. The Office of Corporation Counsel Has Previously Been Sanctioned for
Making The Same “Frivolous” Argument, Which the District Court
Found to be “Worse than Disingenuous.”
What is perhaps most galling about defendants’ letter to the Court is that it fails to
acknowledge – much less address – a case which is directly on point and which resulted
in sanctions to the Office of Corporation Counsel. See Richards v. New York City Bd.
of Educ., No. 83 CIV. 7621 (CBM), 1988 WL 70209, at *9 (S.D.N.Y. June 27, 1988). In
Richards, the City argued ‒ as it does here ‒ that plaintiff’s counsel’s typewritten
transcriptions of handwritten entries was insufficient, and that counsel should be required
to provide additional proof establishing that the records were contemporaneous. The
District Court emphatically rejected this request, finding the City’s position to be

6

“frivolous” and imposing a monetary sanction for making such a baseless argument:
Attorney Moore provided typed transcriptions of his handwritten time
records. This was a welcome convenience for the court. The Corporation
Counsel, however, insisted that Attorney Moore provide photocopies of
his handwritten records...The Corporation Counsel's position is worse than
disingenuous. The Corporation Counsel tried this argument in Lenihan,
and Judge Conner rightly rejected it...Thus, Attorney Moore fully satisfied
the Second Circuit's requirements on September 28, 1987, when he
submitted the typed version of his time sheets, and the Corporation
Counsel's insistence, [] that he provide “contemporaneous time records” is
frivolous. In consequence, as a penalty to the Corporation Counsel, this
court will add a multiplier of 2 to the hour claimed by Attorney Moore for
providing photocopies of his diary, which hour the Corporation Counsel
disputes.
Richards, 1988 WL 70209 at *9 (emphasis supplied). Since the Richards case
involved the same law firm (the Office of Corporation Counsel), making the exact same
argument, there is no excuse for defense counsel making this same frivolous argument to
the Court now. The Court should impose the same penalty that the Richards Court
imposed on the City for forcing plaintiff’s counsel to engage in such needless, timeconsuming and wasteful motion practice.
III.

DEFENDANTS’ ARGUMENTS REGARDING THE MERITS OF
PLAITNIFF’S FEE APPLICATION ARE PREMATURE AND SHOULD
BE ADDRESSED ONLY IN THEIR RESPONSIVE BRIEF.

In a transparent attempt to “poison the well” before the Court has a chance to
consider plaintiff’s motion as a whole, defendants launch a series of petty attacks on the
merits plaintiff’s fee application. However, these claims ‒ like so many of defendants’
other claims ‒ are inaccurate and misleading. Nonetheless, plaintiff’s counsel will refrain
from responding to these specious claims for now, and instead will respond to these
claims only when they are properly raised by defendants in opposition to plaintiff’s fee
application.
IV.

DEFENDANTS HAVE UTTERLY FAILED TO EXPLAIN WHY THEY
NEED FOUR FULL MONTHS TO RESPOND TO AN ATTORNEY FEE
APPLICATION.

Having already been granted three months to respond to plaintiff’s fee
application, defendants now ask the Court for yet another full month to put in opposition
papers. This request is not only premature, but also, it is wholly unwarranted. As of
today’s date, defendants still have almost a full month before their opposition papers are
due. Defendants have utterly failed to offer any explanation – nor could they – as to why

7

they cannot submit their opposition brief within this time frame. 5 It is readily apparent
that defendants’ real reason for requesting more time is so that defendants can continue
to pursue their utterly baseless ‒ and sanctionable (Richards, supra.) ‒ efforts to obtain
additional “proof” from plaintiff’s counsel regarding their time entries. Accordingly,
defendants’ request for more time should be rejected.
For all of the foregoing reasons, it is respectfully submitted that defendants'
application should be flatly rejected by this Court in all respects.
Thank you for your consideration of this request.
Sincerely,

_________/s________________

JOSHUA P. FITCH
GERALD M. COHEN
COHEN & FITCH LLP
233 Broadway, Suite 1800
New York, N.Y. 10279
[phone]
[e-mail]
[e-mail]
NATHANIEL B. SMITH
100 Wall Street, 23rd Floor
New York, New York 10005
212-227-7062
[e-mail]
JON L. NORINSBERG
225 Broadway, Suite 2700
New York, New York 10007
[phone]
[e-mail]
JOHN LENOIR
100 Wall Street, 23rd Floor
New York, New York 10005
212-335-0250
5

By comparison, fully briefed appeals in the Second Circuit – which are often based on thousands of pages
of testimony and exhibits – must be submitted within 90 days. Likewise, summary judgment opposition
papers are typically submitted within 30 to 60 days.

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[e-mail]

CC:
Alan Scheiner
Assistant Corporation Counsel
New York City Law Department
100 Church Street
New York, New York 10007

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