Black v. Buffalo Meat Service, Inc. d/b/a Boulevard Black Angus a/k/a Black Angus Meats a/k/a Black Angus Meats & Seafood et al

Filing 54

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER granting 50 Motion for Attorney FeesPlaintiff's motion for attorney's fees is granted in part, plaintiff is awarded $4,220.00 against defendants and their counsel jointly. Defendants' cross-motion (Docket No. 51) to recover their motion costs is denied. Court Clerk to enter judgment as to this attorney's fee award.So Ordered. Signed by Hon. Hugh B. Scott on 8/3/2017. (DRH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DARCY M. BLACK,
Plaintiff,
Hon. Hugh B. Scott
15CV49S
v.
Order

BUFFALO MEAT SERVICE INC., et al.,
Defendants.

Before the Court are the applications of the parties to recover motion costs for their
motions to compel: plaintiff’s motion (Docket No. 50) and defendants’ motion (Docket No. 51).
This Court (Docket No. 40) granted plaintiff’s motion to compel (Docket No. 34) but only
partially granted defendants’ own motion to compel (Docket No. 36). That Order recognized
that both sides prevailed in some sense on their motions and allowed applications to recover their
respective discovery motion costs (Docket No. 40, Order of March 31, 2017, at 10). Defendants
moved (Docket No. 42) to reconsider this Court’s Order (Docket No. 40), delaying these fee
applications. The reconsideration Order (Docket No. 48, Order of June 23, 2017), allowed the
parties to move to recover their reasonable motion costs where they prevailed in their respective
motions (id. at 16-17). Familiarity with this Order (and prior discovery proceedings held herein)
is presumed.
Factoring in time for filing any objections to the June 23, 2017, Order (see Fed. R. Civ.
P. 72(a)), the fee application motions were due by July 10, 2017, with responses to the

opponent’s application due by July 17, 2017, and the application motions deemed submitted
(without oral argument) on July 17, 2017 (Docket No. 49).
BACKGROUND
This is an employment discrimination action wherein plaintiff alleges violations of
Title VII, the Civil Rights Act of 1964, the Equal Pay Act, 42 U.S.C. § 1981, and the New York
State Human Rights Law, see Black v. Buffalo Meat Serv., No. 15CV49, 2016 U.S. Dist. LEXIS
164441, at *2-4 (W.D.N.Y. Nov. 29, 2016) (Scott, Mag. J.) (Docket No. 32, Order of Nov. 29,
2016, at 2-3). Plaintiff filed a series of motions to compel (Docket Nos 23, 28, 34) as well as
defendants’ cross-motion to compel (Docket No. 36). The present fee application arises from the
last series of motions (plaintiff’s motion, Docket No. 34, as well as from defendants’ crossmotion, Docket No. 36, to compel and defense motion for reconsideration, Docket No. 42).
Plaintiff’s Third Motion to Compel (No. 34)
Pertinent to the present fee applications, plaintiff sought compliance with this Court’s
August 16, 2016, and November 29, 2016, Orders (Docket Nos. 27, 32) and production of all
documents responsive to her Request Nos. 12 and 13 (Docket No. 34), seeking tax and payroll
records from January 2016 to present (Docket No. 34, Pl. Atty. Decl. ¶ 26).
Defendants renewed their response that they produced, among 500 pages of documents
already produced, materials responsive to plaintiff’s outstanding demands (Docket No. 36, Defs.
Memo. at 7-9). Defense counsel’s affidavit stated that defendants supplemented tax and payroll
documents from the period of plaintiff’s tenure, with over 2,700 pages of materials (Docket
No. 37, Defs. Atty. Aff. ¶¶ 36, 38, 39).

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Defendants’ Cross-Motion (No. 36)
In addition to responding to plaintiff’s last motion to compel, defendants cross-moved
plaintiff to produce her W-2, tax returns and to execute medical and Social Security
authorizations (Docket No. 36). They also wanted plaintiff to schedule her deposition following
defense receipt of earnings, tax, and medical records (id.).
Order of March 31, 2017 (No. 40)
In the Order of March 31, 2017, this Court granted plaintiff’s motion to compel and
ordered compliance with the prior Orders while granting in part and denying in part defendants’
motion to compel (Docket No. 40, Order of Mar. 31, 2017). Pertinent to the reconsideration
motion, this Court held that defendants were to produce tax and payroll records based upon
representations that only 500 pages of those records were produced (id. at 6-7). This Court then
found that plaintiff need not produce her joint tax returns but only produce W-2 forms instead
(id. at 8-9). After extending the Scheduling Order deadlines (id. at 9-10), this Order also set
forth briefing for discovery sanctions (id. at 10); this briefing was held in abeyance pending
resolution of the present reconsideration motion (Docket No. 43).
Defendants’ Motion for Reconsideration (No. 42)
Defendants then sought reconsideration of the March 31, 2017, Order (Docket No. 40);
seeking denial of plaintiff’s motion to compel further production from them of payroll and tax
documents (Docket No. 42, Defs. Notice of Motion at 1). They contended that defendants did
supplement the 500 pages of production with 2,700 additional pages of its employees’ payroll
and tax documents to 2010 (id., Defs. Memo. at 2-3, 4-5). They stated that they noted this
supplementation in prior proceedings (Docket No. 27, Order at 15; Docket No. 25, Defs. Memo.
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at 2; Docket No. 36, Defs. Atty. Aff. ¶¶ 36, 38, 39; Docket No. 30, Defs. Memo. at 1, 2) but this
Court disregarded it (see Docket No. 42, Defs. Memo. at 6). They asserted that they produced in
supplementation weekly payroll records of all employees (and not merely comparable
employees) during plaintiff’s employment and their W-2 statements and W-2 summary reports
(Docket No. 42, Defs. Memo. at 4-5). Defendants also wanted reconsidered the denial (in part)
of their motion to compel plaintiff’s redacted tax returns, with defendants seeking disclosure of
plaintiff’s source of income during the course of this litigation (id. at 9). Defendants also sought
redacted tax returns to learn the sources of plaintiff’s post-termination income (Docket No. 42,
Defs. Notice of Motion at 1).
Plaintiff countered that there is no motion for reconsideration and, under Rules 59(e) or
60(b), a non-final Order cannot be reconsidered, citing this Court’s earlier Order denying
reconsideration of plaintiff’s motion (Docket No. 44, Pl. Atty. Decl. ¶¶ 12-[2d] 12; see Docket
No. 32, Order at 14; Black, supra, 2016 U.S. Dist. LEXIS 164441, at *19-20; Docket No. 33, 3d
Am. Scheduling Order at 14). She argued that defendants still had not produced payroll or tax
records after 2010 (Docket No 44, Pl. Atty. Decl. ¶¶ 20, 22-23); defendants supplemented with
records only during the period of plaintiff’s employment, up to 2010 and merely repeated
arguments that failed in three prior motions to compel (id. ¶ 27; Docket No. 44, Pl. Memo. at
10). Plaintiff, however, did not respond to defense motion to reconsider compelling her to
produce her joint tax returns.
Order of June 23, 2017 (No. 48)
Defendants’ motion to reconsider was granted in part and this Court reexamined
disposition of the last round of motions to compel, finding that this Court erred in not
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acknowledging the extent of defense production (Docket No. 48, Order at 11-12). Defendants
were ordered to produce tax and employee payroll documentation from 2010 to present for
employees as previously produced (whether comparable to plaintiff or not) (id. at 12-13). After
discussing the apparent inconsistency with denying plaintiff’s prior motion to reconsider (id. at
13-14), this Court reconsidered denial of plaintiff’s tax records to defendants, holding that
plaintiff was to produce her joint tax returns in redacted form (id. at 14-15), and deemed moot
other production defendants sought wherein plaintiff either had produced or was in the process of
producing (id. at 15-16). This Order also extended expert disclosure deadlines (id. at 16; see also
Docket No. 47, Fifth Amended Scheduling Order).
Finally, this Court noted that both sides prevailed at least in part in their respective
motions to compel; entitling recovery of some amount of their reasonable motion costs (Docket
No. 48, Order at 16). This Court thus asked the parties to address whether discovery costs
should be imposed; how much of a party’s costs are attributable to the portion of their motion in
which they prevailed; which (the party or its counsel or both) should be held responsible for
these costs; and what was the amount of the reasonable costs (id. at 17). Parties, however, were
cautioned about avoiding making this fee application process into “prolonged ancillary
litigation,” Lamar Advert. of Penn., LLC v. Town of Orchard Park, No. 01CV556, 2006 U.S.
Dist. LEXIS 82901, at *27 (W.D.N.Y. Nov. 14, 2006) (Scott, Mag. J.) (Docket No. 48, Order at
17).
Plaintiff’s Fee Application (No. 50)
Plaintiff denies that defendants were substantially justified in not producing the payroll
and tax records (Docket No. 50, Pl. Atty. Decl. ¶¶ 9-14, 15-16). Plaintiff claims attorney’s fees
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as her expenses for the motion $7,220.00 for 36.1 hours at a partner’s rate of $200 per hour (id.
¶¶ 18-20, Ex. A), with this rate due to counsel’s thirty years’ experience (id. ¶ 19).
Defendants argue that their failure to produce was substantially justified (or imposition of
sanctions here unjust) since they only needed to produce documents regarding comparable
employees and not the full scope plaintiff sought, especially given the proportionality ruling by
this Court (Docket No. 51, Defs. Memo. at 13-18). Defendants object to plaintiff recovering her
costs for opposing defendants’ motion for reconsideration (Docket No. 53, Defs. Responding
Memo. at 8-9).
Defense Fee Application (No. 51)
Defendants counter that their claim for motion expenses is attorneys’ fees totaling
$7,781.00 for 6.9 hours expended by a partner (at a rate of $290 per hour), and 26.0 hours for an
associate (at a rate of $220 per hour) (Docket No. 51, Defs. Atty. Aff. ¶ 19), with actual billing
records available for in camera inspection by this Court. The Court declines to conduct that
inspection. Defendants contend that they sought documents (plaintiff’s tax and income
materials, medical and Social Security authorizations) for months and plaintiff refused to
produce, also they sought to conduct plaintiff’s deposition (id., Defs. Memo. at 9-10).
Plaintiff complains that defendants did not produce contemporaneous time records to
justify their attorneys’ fee request (Docket No. 52, Pl. Atty. Decl. ¶ 4). She objects that
defendants did not engage in good faith efforts to resolve their discovery disputes prior to
moving to compel production (id. ¶ 5). Plaintiff recites the produced authorizations and her
belief that there was no dispute prior to defense cross-motion (id. ¶¶ 6-10). She states that she
produced authorizations and W-2 statements months before defendants’ cross-motion and
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responded to defense discovery demands as they were made (id., Pl. Memo. at 3-4). Plaintiff
argues that she was substantially justified in not producing her tax returns because she produced
her W-2 forms and had asserted qualified privilege against producing the joint returns (id. at 4).
She explained that she had back surgery in late September 2016, hindering the scheduling of
plaintiff’s examination (id. at 4-5).
Neither side claims other motion expenses aside from attorneys’ fees.
DISCUSSION
I.

Applicable Standard—Reasonable Discovery Costs
Imposition of sanctions for failure to comply with discovery demands must be weighed in

light of the full record. Johanson v. County of Erie, No. 11CV228, 2012 U.S. Dist. LEXIS 6772,
at *3 (W.D.N.Y. Jan. 20, 2012) (Scott, Mag. J.); see Cine Forty-Second Street Theatre Corp. v.
Allied Artists Pictures, 602 F.2d 1063, 1068 (2d Cir. 1979). Under Rule 37, where a motion to
compel is granted in part and denied in part, “the court may issue any protective order authorized
under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable
expenses for the motion,” Fed. R. Civ. P. 37(a)(5)(C), including attorney’s fees, see id.,
R. 37(a)(5)(A). Also for failure to comply with this Court’s previous discovery Order, the
movant may recover her reasonable motion expenses, id., R. 37(b)(2)(C) (Docket No. 50, Pl.
Atty. Decl. ¶ 9).
As alluded to in the June 23, 2017, Order (Docket No. 48, at 17), this analysis has several
factors: first, which motion cost is attributable to the prevailing point. Both parties moved for
production of various items but only prevailed on a subset. So the full time and costs for filing
their respective motions or responding to their opponent’s motion is not automatically

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recoverable. Second, since both sides won (and both sides lost) on various points in their
motions, the Court has to determine whether the prevailing costs are a wash. Third, where a
party prevails in a motion to compel, the reasonable motion expenses may be charged to the
opposing party or to their attorney or both, id., R. 37(a)(5)(A). Fourth, again for a prevailing
motion to compel, id., the Court may not impose recovery of these expenses if there was no good
faith attempt to obtain the discovery short of motion practice; the opposition to disclosure was
substantially justified; or “other circumstances make an award of expenses unjust,” id. Although
these apply in the exclusively prevailing motion, that standard also informs whether to apportion
recovery of expenses where both sides prevail in part on their respective motions.
Fifth, the parties need to show that the amounts of discovery motion expenses claimed
are reasonable. Movants are entitled only to reasonable costs and attorneys’ fees, if entitled to
recover anything at all. “If the court determines to award expenses and fees, it is for the court to
decide what amount is proper.” 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus,
Federal Practice and Procedure § 2288, at 666-67 (Civil 2d ed. 1994); see also Addington v.
Mid-American Lines, 77 F.R.D. 750, 751 (W.D. Mo. 1978) (three hours at $50 per hour held
excessive in 1978 where opponent merely failed to make timely response to interrogatories,
reducing time to one hour). The rate or amount an attorney bills his or her client related to
discovery or a motion to compel does not make that rate or time expended reasonable under
Rule 37 as reasonable motion expenses. See Kahn v. General Motors Corp., No. 88 Civ. 2982,
1993 U.S. Dist. LEXIS 5196, at *4 (S.D.N.Y. Apr. 19, 1993).
Using the lodestar (or the “presumptively reasonable fee,” see Arbor Hill Concerned
Citizens Neighborhood Ass’n v. County of Albany, 493 F.3d 110, 111(2d Cir. 2007)) method for
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calculating the reasonable attorney’s fee, Johnson v. the Bon-Ton Stores, No. 05CV170, Docket
No. 39, 2006 U.S. Dist. LEXIS 20019, at *8 (W.D.N.Y. Apr. 17, 2006) (Scott, Mag. J.); see
Hensley v. Eckerhart, 461 U.S. 424, 429-30, 430 n.3 (1983) (applying for fees under 42 U.S.C.
§ 1988 using lodestar method), the components for determining the reasonable attorneys’ fee are
the moving attorney’s time spent on the motion and the reasonable billing rate for that attorney.
The last component for determining the reasonable motion expenses are the other motion
expenses incurred (not claimed here by either side). In calculating the “presumptively
reasonable fee,” this Court “should generally use the prevailing hourly rate in the district where it
sits to calculate what has been called the ‘lodestar,’” Arbor Hill, supra, 493 F.3d at 111. The
movant seeking reimbursement bears the burden of proving the hours spent and the prevailing
rates. 7 Moore’s Federal Practice–Civil § 37.23[8] (2005); see Johnson, supra, 2006 U.S. Dist.
LEXIS 20019, at *11.
Furthermore, the time that is recoverable is only so much that a party recovered on her or
their discovery demands (specifying time expended on a particular prevailing issue). Most
attorney billing records do not reach this level of detail in specifying how long he or she worked
on a particular issue. To present such detail and file that billing with this Court in support of a
fee application is rarely done and because such disclosure potentially exposes attorney work
product confidences in the detail. Absent detailed billing records, this Court will apply the
percentage of relief obtained by the prevailing party to determine the recoverable amount of
time.
In the reconsideration Order of June 23, 2017, the protective Order aspects were granted
(Docket No. 48). What remains is whether to award either side its reasonable motion expenses.
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II.

Plaintiff’s Fee Application
A.

Fee that Is Recoverable

For either party’s fee application, both sides do not dispute the attorneys’ fee rate quoted
by their opposite number or the time claimed working on the respective motions to compel.
1.

Failure to Produce Substantially Justified or Imposition of Costs as Unjust

Defendants claim that their failure to produce these employee tax and personnel records
was either substantially justified (as limited by the proportionality ruling by this Court or
restricted to comparable employees). Plaintiff’s application goes back to her earlier motion to
compel later subject to defense motion for reconsideration. Following the reconsideration,
plaintiff prevailed on her motion to compel production of the tax and payroll records. Plaintiff
was awarded production of defendants’ personnel and tax records for their employees and for the
period requested after her termination (Docket No. 48, Order at 11-13). The first Order (Docket
No. 27, Order at 14-15) recognized proportionality for 500 pages defendants initially produced
save for additional production for her Equal Pay Act claims and the last Order (Docket No. 48,
Order at 11-13). While acknowledging defendants’ additional production of 2,700 pages of
documents about all of their employees (and not those deemed by defense to be comparable to
plaintiff), ordered defendants to produce post-May 2010 records for all of their employees with
the caveat that only some employees may turn out to be comparable to plaintiff. Who is or is not
comparable is left for a future dispositive motion (or ultimately for trial). Defendants were not
substantially justified in not producing these records.

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2.

Rate Calculation

Neither side disputes the rate charged by their opposite number or the particular time
expended as part of their claim. But here, defendants dispute plaintiff’s entitlement on so much
of her motion not reaching discovery issues. They argue that plaintiff should not recover her
costs for opposing the motion for reconsideration (Docket No. 53, Defs. Response at 8). From
plaintiff’s counsel billing records, her attorney spent a total of 15 hours from April 12-20, 2017,
researching and drafting responding papers to the reconsideration (Docket No. 50, Pl. Atty. Decl.
Ex. A at 3); excluded is the time from April 8, 2017, wherein counsel reviewed the motion to
compel and conducted research on damages recoverable under the Equal Pay Act (id.). Plaintiff
did not prevail on the procedural question of whether reconsideration could be (or should have
been) held; the bulk of the research (as evidenced in the responding declaration and
memorandum of law, Docket No. 52) reflects inquiry into that procedural question. Rule 37
sanctions are recoverable only for successfully compelling discovery (or, for a party moving for
a protective Order, obtaining that Order or like relief). Had plaintiff prevailed in limiting the
subjects for reconsideration, she still could not recover her costs for prevailing on this procedural
point.
As noted in the reconsideration Order (Docket No. 48, Order at 12-13), plaintiff on that
second look did prevail in obtaining either confirmation of the discovery she is entitled to obtain
and clarification of the discovery she should receive. Thus, the approximate time expended by
her counsel in obtaining that discovery relief will be the only amount recoverable; the time
claimed for researching and drafting the reconsideration arguments is not recoverable. Absent
detailed billing records (specifying time expended on a particular issue, specificity rarely done
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and potentially exposing attorney work product confidences), this Court applied a rough
calculation that excludes the time expended on billing dates April 12-20, 2017, believed to have
been used to address the reconsideration issues that are not recoverable; these totaled 15 hours
and (at counsel’s $200 per hour rate) $3,000 in plaintiff’s claim. Plaintiff’s fee award is reduced
by $3,000. As a result, plaintiff is only entitled to $4,220.00, for 21.1 hours of attorney’s time
deemed to be for seeking discovery production.
B.

Liable Party

Rule 37 attributes discovery motion costs either upon the party, its counsel, or both.
Neither side discussed whether the client, attorney, or both were responsible for the failure to
produce. It is not clear from the motion papers or the fee application whether defendants or their
attorneys are responsible. Therefore, both defendants and their counsel are jointly liable for
plaintiff’s fee award.
III.

Defendants’ Fee Application—Recovery of Fee and Amount
In addition to granting reconsideration, defendants prevailed in obtaining in redacted

form plaintiff’s tax returns, as well as W-2 statements and authorizations produced during the
pendency of their motions. Many of these items were produced during the pendency of this
cross-motion (for example, some produced days before oral argument, see Docket No. 53, Defs.
Reply Memo. at 3).
Plaintiff argues that defendants did not engage in good faith to resolve their discovery
dispute prior to cross-moving to compel production (Docket No. 52, Pl. Atty. Decl. ¶¶ 5, 6-10).
Most of the items sought by defendants were produced by plaintiff as the motion was filed or
shortly thereafter.
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The purpose of Rule 37 requiring good faith effort to obtain the discovery without
judicial intervention is to not clog the Court with discovery disputes that could easily be resolved
by the parties. That rule is also to preclude “tit-for-tat” motion practice wherein the opponent
cross moves to compel in response to movant’s original motion but absent good faith efforts to
resolve the opponent’s discovery issues, see also Mattel, Inc. v. Rand Int’l Leisure Products,
Ltd., No. 06CV807, 2008 WL 4826320 at *7 (W.D.N.Y. Nov. 4, 2008) (Scott, Mag. J.);
CooperVision, Inc. v. Ciba Vision Corp., No. 2:06CV149, 2007 WL 2264848, at *1 (E.D. Tex.
Aug. 6, 2007) (Hines, Mag. J.) (“Bullying, venomous and tit-for-tat pretrial antics go against the
letter and spirit of the Federal Rules of Civil Procedure”). In 2015-16, defendants wrote for
corrected authorizations (Docket No. 36, Defs. Atty. Decl. ¶¶ 15-19, 21, 23, 26, 28, Exs. 4-7, 10,
11, 14, 15) and conducted a telephone conference with plaintiff’s counsel seeking these
documents (id. ¶ 22). While there may not have been a prolonged series of attempts to obtain the
last set of authorizations in 2017 (cf. id. ¶ 28), these are the culmination of defendants’ attempts
to obtain these authorizations (and the medical records they would allow produced) from 2015.
Thus, defendants here have shown good faith efforts to resolve this dispute prior to making this
cross-motion. Defendants also recount their efforts to schedule plaintiff’s deposition (id. ¶¶ 2933) and to obtain her income and tax records (id. ¶¶ 10-11, 13, 18, 20-22, 24-28), thus
establishing their good faith efforts for these demands.
Plaintiff next argues that she was substantially justified in the manner of her production
since she produced many of the items sought by defendants in their cross-motion months prior to
the cross-motion (Docket No. 52, Pl. Memo. at 3-4). She did not decline to appear at her
deposition; rather, she had back surgery in late September 2016 when the examination was
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planned (id. at 4-5). This Court, in the March 31, 2017, Order (Docket No. 40, Order at 7-9)
denied defense motion to compel, but this was reversed on reconsideration (Docket No. 48,
Order at 14-16) and defendants were to gain redacted copies of plaintiff’s joint tax return
(recognizing that information from non-party plaintiff’s husband is included in the tax returns).
Ordinarily, tax returns are subject to qualified privilege and, production of W-2 statements would
provide the material defendants sought, but this Court agreed that plaintiff put her salary at issue
in this case to have discovery on that point (see id. at 14-15). Plaintiff, thus, was substantially
justified in withholding the tax returns.
Third, she complains that defendants’ application did not have contemporaneous time
records from defense counsel to justify the application (id. at 5). Given the result just stated that
plaintiff was substantially justified in denying production of her tax returns, thus, the defendants
are not entitled to recover their motion costs for their cross-motion and their motion (Docket
No. 51) is denied.
CONCLUSION
For the reasons stated above, plaintiff’s application motion (Docket No. 50) to recover
her reasonable discovery motion costs is granted in part, and defendants’ application motion
(Docket No. 51) to recover their reasonable discovery motion costs following their motions is
denied. Plaintiff thus is awarded $4,220.00 against defendants and their counsel jointly.
So Ordered.

/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge

Dated: Buffalo, New York
August 3, 2017
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