Schoolcraft v. The City Of New York et al

Filing 581

LETTER addressed to Judge Robert W. Sweet from Alan H. Scheiner dated February 5, 2016 re: Supplemental Reply in Support of Motion for Discovery. Document filed by The City Of New York. (Attachments: # 1 Exhibit Transcript of Hearing)(Scheiner, Alan)

EXHIBIT A

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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A.R. AS PARENT AND NATURAL
GUARDIAN OF N.B.,

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Plaintiff,
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v.

12 CV 7144 (RWS)

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NEW YORK CITY DEPARTMENT OF
EDUCATION,

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Defendant.
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New York, N.Y.
March 26, 2014
12:08 p.m.

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Before:
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HON. ROBERT W. SWEET,
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District Judge
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APPEARANCES
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ARTHUR R. BLOCK
ANTON G. PAPAKHIN
Attorneys for Plaintiffs

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NEW YORK CITY LAW DEPARTMENT
OFFICE OF THE CORPORATION COUNSEL
Attorneys for Defendant
BY: ERIC B. PORTER

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE COURT:

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I regret that I was unable to really

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address this problem telephonically during your whatever it

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was -- a deposition or whatever it was -- and I'm sorry about

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that, but just I couldn't get my hands around it or my head

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around it.

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Let me ask you, Mr. Block, just tell me what are the

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records that you have.

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say what records do you have, I mean records relating to your

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fee calculation.

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MR. BLOCK:
February 24.

What records do you have?

And when I

Your Honor, we made our motion for fees on

In that motion, it's a standard motion --

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THE COURT:

Yeah, yeah.

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MR. BLOCK:

-- and it has the exact hours worked.

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THE COURT:

No, no.

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What I asked is what are the records that you have

That's not quite I asked.

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relating to your fees.

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on, but what records are there?

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MR. BLOCK:

I know you made a calculation and so

Well, are you talking about the fees that

have been paid by JRC?

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THE COURT:

Yes.

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MR. BLOCK:

Well, what I was explaining in the call is

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that under the agreement which I provided as per your

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instructions last week, it describes that I'm doing various

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services for JRC.

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THE COURT:

Forgive me.

I take it that means you are

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representing different clients who have a relationship or seek

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to have a relationship with JRC?

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MR. BLOCK:

Yes.

The agreement which I produced as

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per your instruction says I'm doing four things under this

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agreement, one of which and the main one is representing

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parents that are advancing me part of my fee and that I will

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reimburse you if and when I get an attorneys' fee award.

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And then the agreement talked about three other

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categories of things that were unrelated to that which is what
the redactions are.

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So it says I will render monthly bills.

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THE COURT:

To?

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MR. BLOCK:

To JRC for these four categories of work.

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So a typical monthly bill has all these line items where it

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will have first the name of the child and then the description.

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And so there are 24, 24 of these monthly bills, of which only a

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tiny part involves --

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THE COURT:

Relate to.

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MR. BLOCK:

-- involves this case.

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And the rest is

confidential information about other clients.
And I may just say one thing more about this record,

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your Honor.

These records, even redacted, are useless to their

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attempted defense because what I was paid, all that's relevant

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is what I was paid for the hours that I have billed in my

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attorneys' fees claim.

So I set out in -- my declaration makes

SOUTHERN DISTRICT REPORTERS, P.C.
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clear why these documents are useless because -- may I just say

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one more thing?

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THE COURT:

Sure.

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MR. BLOCK:

Because I put in my declaration exactly to

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the dollar how much I've been advanced for the work on this

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case.

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the hourly rate for the year -- there's one rate for 2012, one

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for 2013, one for 2014 -- to take that rate and multiply it

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times the number of hours that are in my attorneys' fees claim.

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So I'm already saying in my declaration I got paid the

And the only way to come up with that figure is to take

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maximum.

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going to find, that I didn't bill some of the things in the

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claim?

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So these bills are useless because what are they

That's irrelevant.
THE COURT:

But from what you tell me then, there

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wouldn't be any difficulty -- and you say that there are 24 of

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these -- just producing those that relate to this particular

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client.

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MR. BLOCK:

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pages.

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Well, that would be redacting about 170

And if your Honor wants me do that, I would ask they

pay for my time.

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THE COURT:

How can it be 170 pages?

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MR. BLOCK:

Twenty-four months times about -- the

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bills range from five to eight pages.

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hours.

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So it's going to take me

would respectfully --

And I think that if your Honor wants me to do that, I

SOUTHERN DISTRICT REPORTERS, P.C.
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THE COURT:

How much are the entries for A.R.?

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MR. BLOCK:

It varies over the months of the two years

mean.

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of this case.

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it up, of a redacted one of these bills.

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I've prepared a sample, if you want me to hand

THE COURT:

Well, but okay.

But that is -- I

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understand your contention that it doesn't help the defense at

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all, but nonetheless there it is.

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to me that those should be produced, that is, the ones relating

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It's relevant.

So it seems

to A.R.

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MR. BLOCK:

Well, I would ask that your Honor also

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order an interim attorneys' fees to be paid for my time spent

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redacting these documents that I believe are totally

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unnecessary to be produced.

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THE COURT:

Well, I guess that's another claim.

So

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when we get to resolving the attorneys' fee issue, I understand

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your position and I'll deal with that when the time comes.

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MR. BLOCK:

Your Honor --

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THE COURT:

But so there's that.

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to JRC.

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Those are the bills

records.

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But you have other, presumably, you have other time

MR. BLOCK:

Well, the time records are electronic and

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they're printed out into the JRC bill and those electronic

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slips were selected out of all those bills to put into my claim

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so that you have before you in my motion.
SOUTHERN DISTRICT REPORTERS, P.C.
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THE COURT:

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In other words, what you do is when you

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finish doing one of your exhaustive briefs, let's say, you

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calculate the time.

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computer then spits out all the time that has been spent.

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Right?

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MR. BLOCK:

You put it into the computer and the

Right.

At the end of the month it

produces a bill for JRC.
THE COURT:

So the only other record of time spent is

the computer.

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MR. BLOCK:

Oh, yes.

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THE COURT:

Okay.

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MR. BLOCK:

And then the printouts of the original JRC

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Yes.

bill and the claims that I've submitted to the Court.
THE COURT:

I don't know, I won't say your testimony,

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but it's your representation that the charges to JRC for A.R.

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are simply the mechanical computation of the time.

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Of course, let me ask the city, are you going to -- I

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understand there is an issue relating to the participation of

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JRC, but at this point are you planning to attack Mr. Block's

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allocation of time?

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MR. PORTER:

We do have certain -- yes, your Honor, we

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will make certain arguments that certain amounts of time that

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he's claimed should be reduced.

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Now, that's based solely upon the time sheets that he
submitted to the DOE for purposes -- that were attached as an
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exhibit to his fee motion.

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understand from Mr. Block's representation today, that

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represent invoices to JRC.

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THE COURT:

Those are not the time sheets, as I

He would say, I'm sure he would take the

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position that the time, the bills to JRC are simply

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replications or compilations of the computer time sheets.

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MR. PORTER:

Yes, your Honor.

And I don't believe

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that we would take issue with that representation.

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intend to object to certain allocations of time, certain

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We do

amounts of time spent.

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THE COURT:

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MR. PORTER:

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THE COURT:

And to the extent we haven't seen these

records to JRC yet.

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Sure.

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Yeah, but they aren't going to help you in

any regard, I take it.

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MR. PORTER:

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Honor, not having seen them.

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reflected a number of hours that were inconsistent with what

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was being billed to the DOE, that may present an issue for us

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that we want to raise.

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Not having the records, I can't comment.

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MR. BLOCK:

It's hard for me to know that, your
For instance, if the bills to JRC

I'm not saying that's going to happen.

Well, your Honor, now he's talking about a

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whole different purpose for this which is unheard of in terms

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of attorneys' fees motions that he is now trying to audit,

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audit my time records.

That's not appropriate.

SOUTHERN DISTRICT REPORTERS, P.C.
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This whole motion is supposed to be about their

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defense which we say has no legal merit at all of contribution

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by JRC.

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possible under this arrangement, so there's nothing more for

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them to complain about.

And my motion is saying I was paid the maximum amount

I'm saying the maximum.

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THE COURT:

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that there is a difference.

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but that there is a difference between the amount allocated to

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JRC and the amount claimed to the city.

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MR. BLOCK:

Let's just hypothecate that you gave -I'm not saying this is the case,

Well, there will be some amounts that are

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different because I didn't bill to the city everything that I

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billed to JRC.

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But that's their bargain.

So could I just say two things about answering your

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other questions.

Just to make clear about other records, I

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enter these on my computer.

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to be clear about that --

There's no paper.

So I just want

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THE COURT:

I assumed.

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MR. BLOCK:

-- like a lot of law firms.

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And, No. 2, besides redacting all the other children's

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time, in the narratives for this case, I have redacted in the

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log for them -- and I will redact in this -- any parts of the

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narrative that would disclose confidential information or work

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product.

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THE COURT:

Understood.

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MR. BLOCK:

I want to make clear that I don't get a

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complaint back from them.
THE COURT:

You probably will get a complaint but the

nature of it is as yet undetermined.
Actually, if you make the redaction, well, let's do it

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this way.

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the ones for other people but relating to the A.R.

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representation are based on confidential communications between

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client and lawyer.

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redaction other than that, I think you should indicate.

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Let's assume that any redactions you make other than

MR. BLOCK:

And if there's some other basis for

Well, your Honor, I would say that I

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should also be able to redact narrations that describe

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strategy, settlement --

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THE COURT:

Work product.

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MR. BLOCK:

-- settlement possibilities, what cases I

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read for briefing, and --

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THE COURT:

Sure.

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MR. BLOCK:

-- so work product, as well as

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confidential communications.

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THE COURT:

That's fair.

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MR. BLOCK:

So now there's Mr. Papakhin's bill.

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deal with that.

Let's

That's going to be very simple.

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Mr. Papakhin has said in the agreement that he

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produced as per your instruction, and as he said in his

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declaration, he was paid $5,000 for the impartial hearing

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because the impartial hearing was less than three days.
SOUTHERN DISTRICT REPORTERS, P.C.
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His

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agreement that you have says that if it's more than three days,

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he gets another 5,000.

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stage.

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So he has a bill for 5,000 at that

And then the agreement leaves open charges for further

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proceedings at the SRO or this court.

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and was done here, and as he said in the declaration, he got

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another $5,000 at the beginning of the SRO proceedings.

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has a bill to JRC for that.

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And so the practice was

So he

His bills, however, like mine, include billings for

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other clients in other matters.

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same thing about his being able to redact that.

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So I assume that based on that

And so just to be clear, I am going to redact and

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produce this -- by now it's probably 200 pages of billing

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records -- redacted.

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bills reflecting the two payments that he received from JRC.

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And Mr. Papakhin will produce the two

I'd like to say for the record, your Honor, as I said

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in my motion, my opposition to their motion, that it's our

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position that a contribution by a third party to a civil rights

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plaintiff who prevails is absolutely irrelevant to our

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attorneys' fees claim.

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THE COURT:

I understand.

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MR. BLOCK:

This entire discovery thing --

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THE COURT:

That's substantive.

I'm doing this on the

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basis just simply discovery that might lead to relevant.

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not taking a position on that issue.
SOUTHERN DISTRICT REPORTERS, P.C.
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MR. BLOCK:

But also in our motion for fees, which

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they have not opposed so it hasn't been before you, we said

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arguendo that even if that is a valid defense in part, they say

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that it's only a defense to the extent that the attorney does

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not have to reimburse the client or reimburse the third party.

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So in our motion we preempted that.

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we get third party payments.

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paid.

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is to pay it back if we get attorneys' fees.

We put in, we said, yes,

Here's the exact amount we got

This is our deal, sworn statement saying our agreement

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So then we came here last week and your Honor said,

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well, if you have those agreements, give them to them, so we

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did.

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said in our sworn statements.

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So you have them and the agreements say exactly what we

And so in terms of attorneys' fees litigation, I just

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want to say that I believe that this is really, you know,

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inappropriate.

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All of this discovery is inappropriate.

THE COURT:
think I'm wrong.

That's okay.

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Okay.

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MR. PORTER:

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I understand.

I understand totally.

And I may conclude that I was.

Anything?
I do have a few points, your Honor.

My

first will be to request a privilege log to the extent that --

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THE COURT:

You've just, in effect, you've just gotten

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it.

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attorney client or work product.

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You

It's either going to be on the basis of confidential

MR. PORTER:

Yes, your Honor.

And as your Honor

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noted, I believe, to the extent that any additional information

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is redacted and the reason for that redaction would be provided

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as well.

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THE COURT:

Yeah.

Those are the only two that I've

heard.

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Okay.

Anything else?

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MR. PORTER:

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Mr. Block just stated that according to Mr. Papakhin's

Yes, your Honor, if I may.

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declaration and according to his agreement, he was paid 5,000

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for arguing the IHO hearing and then 5,000 for the SRO appeal.

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That's not my reading of Mr. Papakhin's letter to JRC that was

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produced, so I would ask for some clarification on that.

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As I read the agreement, it is that Mr. Papakhin is

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paid $5,000 by JRC at the time that he files the request for

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the impartial hearing and then is paid $5,000 for handling the

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impartial hearing and that the agreement does not cover any

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appeals to the SRO or any federal litigation.

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So if that is not, and this reflects the larger point,

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your Honor, which is that the agreement or the letter that was

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produced to us which we attached in our letter to the Court of

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last Friday dealing with Mr. Papakhin covers a different school

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year than the one at issue.

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entire case we're dealing with covers representation of a

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student during 2011-2012 school year.

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Mr. Papakhin or JRC.

It covers 2009-2010, when the

It also isn't signed by

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So to the extent this is not the final agreement or

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covers the year at issue, we ask for a copy of the actual

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agreement.

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interpreted to continue moving forward and there is no signed

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agreement, it was just a handshake or a verbal understanding,

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we would just request a representation from counsel that that's

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the case, that there's nothing else out there.

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To the extent this is the agreement and it was just

THE COURT:

I assume that is the case.

Otherwise, it

would have been produced.

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MR. BLOCK:

Yes, your Honor.

You asked us what

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writing exists.

This is the writing that exists.

After that,

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they had a course of conduct and that was it.

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agreement that was produced it says this fee does not include

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appeals to the state review officer or to state or federal

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court.

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writing, and Mr. Papakhin has a sworn statement saying that

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that's his deal with regard to the state review.

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He pays it back if he gets it.

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MR. PORTER:

In this

And so that was done on ad hoc basis without a separate

Same as here.

I just wanted to clarify that because

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what Mr. Block said before was the additional 5,000 came from

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the SRO work and what the agreement and what he's now saying is

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it comes prior to that.

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But moving on, your Honor.

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MR. BLOCK:

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That's not what I said, your Honor.

I

said that 5,000, there's the bill for 5,000 for the impartial
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hearing.

There's a bill for 5,000 for the SRO, just as

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Mr. Papakhin said in his declaration, and that the agreement

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here does not address the second 5,000 because it was never put

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into writing.

That's all.

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THE COURT:

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MR. PORTER:

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from what's in the agreement.

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Okay.
Well, I still think that is different

But moving on then, we also asked, there are a number
of other issues.

And to the extent there were any additional

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payments made to Mr. Papakhin beyond this 10,000, if there were

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not, there were not.

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for production of those records as well.

But to the extent there was, we would ask

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Now, our initial request, our initial motion to

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compel, your Honor, sought more than just these records.

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sought any records reflecting an obligation on behalf of

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plaintiff herself to repay JRC.

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records concerning payment to plaintiff's counsel or any

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additional records concerning obligations.

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they produced everything that exists or with the anticipated

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production of these individual bill invoices sent to JRC, that

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that will encompass the universe of everything responsive, we

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would just like confirmation of that point, a representation

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from plaintiff that that is everything.

It

It also sought any additional

Now, to the extent

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The last issue, your Honor, is with respect to

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information that was redacted from the letters they did produce
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to us last week.

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Mr. Block represented in his cover letter to us, which I

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provided to the Court, that these were unrelated to his

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obligation to repay JRC for fees advanced for his work on this

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case.

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privilege or privilege that would justify withholding

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information from a document that your Honor determined was

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relevant and should be produced.

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There are whole sections that are redacted.

But that to me does not sound like attorney-client

So we would request that the information be produced

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to us, No. 1.

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to determine whether or not this is information properly

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withheld.

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redactions made to these documents.

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In the alternative, there be an in camera review

But there was no privilege log.

MR. BLOCK:

There was just

You asked us to produce any writing which

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set forth the terms of advances of fees by JRC to me or

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Mr. Papakhin and our obligation to return them.

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document that I sent them May 5, my agreement with JRC says I

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have been providing four kinds of legal services for and on

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behalf of JRC.

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is representing parents, and then you see second redaction,

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third redaction, fourth -- I even included that even though I

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didn't have to.

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So the

And I include everything about the first, which

So this redacted document is complete as to what you

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asked for, the agreement with regard to representing A.R.

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These redactions have to do with the second and third types of
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services that were under this agreement.

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THE COURT:

Other clients.

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MR. BLOCK:

Other types of services to JRC, not

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involving representing parents.

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THE COURT:

That's what I'm saying.

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MR. BLOCK:

That's none of their business.

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THE COURT:

Your representation is that the redactions

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relate to matters other than the A.R. matter.
MR. BLOCK:

Other than the A.R. matter and other than

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the generic A.R. matter, other than having to do with

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representing parents at impartial hearings and so forth.

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THE COURT:

If you want me to look at the document,

but I'll accept Mr. Block's representation.
MR. PORTER:

Okay, your Honor.

I would only point out

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that what is concerning to us and what raised this flag for us

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is not the second, third, and fourth categories that were

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redacted.

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follows the paragraph in which Mr. Block discusses the fee

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arrangement with JRC, the very next paragraph is redacted and

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that's in the same subheading.

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there may be some additional information about this payment

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relationship that is not being revealed.

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But on page 4, the paragraph that immediately

MR. BLOCK:

That raised a red flag to us

The redacted part of page 3, the top

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paragraph, the heading is Direct Services to JRC, underlined.

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That's what that paragraph is about.

It has nothing to with

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representing parents.

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THE COURT:

With A.R.

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MR. BLOCK:

With A.R. or representing parents.

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THE COURT:

All right.

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MR. BLOCK:

Mr. Papakhin, you know, redacted part of

Anything else?

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his retainer.

Let him just explain it to you, his payment

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agreement, so we don't have to come back here again from

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another letter from Mr. Porter.

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MR. PAPAKHIN:

Yes, your Honor.

My engagement letter

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describes a situation where I represent parents of students who

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already attend JRC and who are seeking getting additional

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services in their IEPs in the form of behavioral interventions.

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And so this whole section in my letter relates to these

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situations which is completely irrelevant to representation of

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students who never attended the school and whose parents are

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seeking to enroll them in the school for the first part.

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So that's it.

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THE COURT:

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MR. PORTER:

Thank you.

Anything else?
The only other thing, your Honor, is

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again we would just ask for a representation from counsel in

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writing that what we are receiving is the universe of

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responsive documentation.

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THE COURT:

I take it it's implicit, but I take it

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counsel will represent they have completed, they submitted all

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materials that I directed be submitted.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:12-cv-07144-RWS Document 46 Filed 04/10/14 Page 18 of 18
E3QLARPC
Conference

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MR. BLOCK:

Yes, that you directed, not what

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Mr. Porter a day later interprets to be what you said.

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why I had ordered the court reporter for today.

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THE COURT:

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MR. PORTER:

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Thank you all.
Thank you, your Honor.
o0o

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

That's