Breslin et al v. Dickinson Township et al
Filing
172
MEMORANDUM OPINION AND ORDER re 157 MOTION to Compel Discovery Response to Second Request for Production filed by Dickinson Township, Raymond Jones. For the foregoing reasons, the dfts motions to compel discovery,(Doc. 157) is GRANTED. On o r before July 25, 2011, the pltfs shall disclose Any and all fee agreements, representation agreements, retention agreements and/or other documents setting forth the billing arrangement between Charles Breslin, Paul Cunningham, and Phillip Thompson and Don A. Bailey, Esquire, including the hourly rate (if any) charged. Signed by Magistrate Judge Martin C. Carlson on July 18, 2011. (kjn )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHARLES BRESLIN, et al.,
Plaintiffs,
v.
DICKINSON TOWNSHIP, et al.,
Defendants.
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Civil No. 1:09-CV-1396
(Judge Stengel)
(Magistrate Judge Carlson)
MEMORANDUM OPINION AND ORDER
I.
Statement of Facts and of the Case
This case is a civil rights action brought by the plaintiffs against defendants,
various local township officials, alleging constitutional First Amendment and First
Amendment-retaliation claims. In their complaint, the plaintiffs seek wide-ranging
relief from the defendants, including attorney’s fees and damages. (Docs. 1 and 36)
Following contentious discovery proceedings, this case was referred to the
undersigned on January 25, 2011, for the purpose of overseeing pre-trial discovery.
(Doc. 77) The parties continue to engage in acrimonious discovery disputes as this
litigation proceeds fitfully forward. The instant motion is but the latest example of a
heated, but legally unnecessary, dispute in this case.
Given the plaintiffs’ prayer for relief in this case, which sought among other
things an award of attorney’s fees, the defendants have propounded upon the
plaintiffs a request for production of documents which seeks information that goes
directly to this demand for attorney’s fees and requests the production of:
Any and all fee agreements, representation agreements, retention
agreements and/or other documents setting forth the billing arrangement
between Charles Breslin, Paul Cunningham, and Phillip Thompson and
Don A. Bailey, Esquire, including the hourly rate (if any) charged.
(Doc. 157-2)
To avoid any legal confusion on the plaintiffs’ part regarding the defendants’
entitlement to this information, this request for production went on to advise the
plaintiffs’ counsel, in clear and precise terms, that: “Please note that, pursuant to
Montgomery County v. Microvote Corporation, 175 F.3d 296 (3rd Cir. 1999), the
Third Circuit expressly has held that ‘The attorney-client privilege does not shield fee
arrangements.’” (Id.) Despite this clear notice from the defendants that they sought
discoverable information, it is represented that the plaintiffs have failed to comply
with this request for production, thus forcing the defendants to move to compel
production of this information. (Doc. 157) In response to the defendants’ motion to
compel, which recites the settled legal principle that fee agreement information is not
privileged, the plaintiffs have filed a response (Doc. 168) which illustrates the legal
bankruptcy of the plaintiffs’ refusal to comply with this discovery demand. In this
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response, the plaintiffs acknowledge the settled case law approving disclosure of fee
arrangements in civil discovery, but ask the Court in the face of this settled case law
to deny this particular discovery request.
Since the plaintiffs cite no legal authority in opposition to this discovery
request, and concede that there is ample legal authority permitting this precise form
of discovery, the motion to compel will be granted.
II.
Discussion
Several basic guiding principles inform our resolution of the instant discovery
dispute. At the outset, Rule 37 of the Federal Rules of Civil Procedure governs
motions to compel discovery, and provides that:
(a) Motion for an Order Compelling Disclosure or Discovery
(1) In General. On notice to other parties and all affected persons, a
party may move for an order compelling disclosure or discovery. . . .
Fed. R. Civ. P. 37(a).
The scope of what type of discovery may be compelled under Rule 37 is
defined, in turn, by Rule 26(b)(1) of the Federal Rules of Civil Procedure, which
provides as follows:
(1) Scope in General. Unless otherwise limited by court order, the scope
of discovery is as follows: Parties may obtain discovery regarding any
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nonprivileged matter that is relevant to any party’s claim or defense –
including the existence, description, nature, custody, condition, and
location of any documents or other tangible things and the identity and
location of persons who know of any discoverable matter. For good
cause, the court may order discovery of any matter relevant to the
subject matter involved in the action. Relevant information need not be
admissible at trial if the discovery appears reasonably calculated to lead
to the discovery of admissible evidence. All discovery is subject to the
limitations imposed by Rule 26(b)(2)(C).
Fed. R. Civ. P. 26(b)(1)
Rulings regarding the proper scope of discovery, and the extent to which
discovery may be compelled, are matters consigned to the court’s discretion and
judgment. Thus, it has long been held that decisions regarding Rule 37 motions are
“committed to the sound discretion of the district court.” DiGregorio v. First
Rediscount Corp., 506 F.2d 781, 788 (3d Cir. 1974). Similarly, issues relating to the
scope of discovery permitted under Rule 26 also rest in the sound discretion of the
Court. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987). Thus,
a court’s decisions regarding the conduct of discovery, and whether to compel
disclosure of certain information, will be disturbed only upon a showing of an abuse
of discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983).This
far-reaching discretion extends to rulings by United States Magistrate Judges on
discovery matters. In this regard:
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District courts provide magistrate judges with particularly broad
discretion in resolving discovery disputes. See Farmers & Merchs. Nat'l
Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585
(D.N.J.1997). When a magistrate judge's decision involves a
discretionary [discovery] matter . . . , “courts in this district have
determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United States,
943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that standard, a magistrate
judge's discovery ruling “is entitled to great deference and is reversible
only for abuse of discretion.” Kresefky v. Panasonic Commc'ns and Sys.
Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also Hasbrouck v.
BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 (N.D.N.Y.1999)
(holding that discovery rulings are reviewed under abuse of discretion
standard rather than de novo standard); EEOC v. Mr. Gold, Inc., 223
F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a magistrate judge's
resolution of discovery disputes deserves substantial deference and
should be reversed only if there is an abuse of discretion).
Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).
This discretion is guided, however, by certain basic principles. Thus, at the
outset, it is clear that Rule 26's broad definition of that which can be obtained through
discovery reaches only “nonprivileged matter that is relevant to any party’s claim or
defense.” Therefore, valid claims of relevance and privilege still cabin and restrict the
court’s discretion in ruling on discovery issues. Furthermore, the scope of discovery
permitted by Rule 26 embraces all “relevant information” a concept which is defined
in the following terms: “Relevant information need not be admissible at trial if the
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discovery appears reasonably calculated to lead to the discovery of admissible
evidence.”
A party moving to compel discovery bears the initial burden of proving the
relevance of the requested information. Morrison v. Philadelphia Housing Auth., 203
F.R.D. 195, 196 (E.D.Pa. 2001). Once that initial burden is met, “the party resisting
the discovery has the burden to establish the lack of relevance by demonstrating that
the requested discovery (1) does not come within the broad scope of relevance as
defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevance that the
potential harm occasioned by discovery would outweigh the ordinary presumption in
favor of broad disclosure.” In re Urethane Antitrust Litigation, 261 F.R.D. 570, 573
(D.Kan. 2009).
In this case, the defendants face a claim for attorney’s fees from the plaintiffs.
Since the plaintiffs have elected to demand attorney’s fees from the defendants, the
defendants now seek information from the plaintiffs relating to their fees agreement
with plaintiffs’ counsel. Such information is plainly discoverable. As the United
States Court of Appeals for the Third Circuit noted more than a decade ago:
[An attorney-client] fee agreement letter is not privileged. The attorneyclient privilege does not shield fee arrangements. In re Grand Jury
Investigation, 631 F.2d 17, 19 (3d Cir.1980) (holding attorney-client
privilege does not protect fee arrangements absent strong probability
that disclosure would implicate client in criminal activity for which
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client sought legal advice). Furthermore, the fee agreement letter does
not come within the ambit of the work-product privilege, see Murray v.
Stuckey's Inc., 153 F.R.D. 151, 153 (N.D.Iowa 1993), and of course is
not the opinion of a non-testifying expert.
Montgomery County v. MicroVote Corp., 175 F.3d 296, 304 (3d Cir. 1999). This
decision, in turn, is consistent with “the weight of authority [which] holds that
communications relating solely to the payment of attorneys' fees are not covered by
the attorney-client privilege unless they reveal confidences about the nature of legal
services rendered. See Montgomery County v. MicroVote Corp., 175 F.3d 296, 304
(3d Cir.1999) (holding that attorney fee agreement letter is not privileged); Chaudhry
v. Gallerizzo, 174 F.3d 394, 402 (4th Cir.1999) (‘Typically, the attorney-client
privilege does not extend to billing records and expense reports.’); Lefcourt v. United
States, 125 F.3d 79, 86 (2d Cir.1997) (‘As a general rule, a client's identity and fee
information are not privileged.’); Clarke v. Am. Commerce Nat'l Bank, 974 F.2d 127,
129 (9th Cir.1992) (holding that billing correspondence is not protected unless it ‘also
reveal[s] the motive of the client in seeking representation, litigation strategy, or the
specific nature of the services provided, such as researching particular areas of law’).
Berliner Corcoran & Rowe LLP v. Orian, 662 F.Supp.2d 130, 134 (D.D.C. 2009).
See also, Gov’t Employee Hosp. Ass’n v. Serono Int’l. S.A., 246 F.R.D. 93,98 (D.
Mass 2007).
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In light of this settled case law–which plaintiffs’ counsel concedes–we find
the plaintiffs’ suggestion that we should decline discovery into factual matters
relating to a legal question which the plaintiffs have placed at issue in this case
wholly unpersuasive. It is the plaintiffs who seeks attorney’s fees in this case. Having
made this demand for attorney’s fees, their own fee agreement, which may prescribe
what the parties regard as a reasonable hourly rate for counsel’s services, or set forth
some other relevant information regarding fees for counsel in this litigation, is plainly
relevant to these proceedings. Furthermore, the fee agreement is not cloaked in any
legitimate claim of privilege, a fact long recognized by the courts and wholly
conceded by plaintiffs’ counsel. Since this information is clearly relevant, and plainly
not protected by any privilege, it must be disclosed.
III.
Conclusion
For the foregoing reasons, the defendants’ motions to compel discovery,
(Doc.157) is GRANTED. On or before July 25, 2011, the plaintiffs shall disclose
“Any and all fee agreements, representation agreements, retention agreements and/or
other documents setting forth the billing arrangement between Charles Breslin, Paul
Cunningham, and Phillip Thompson and Don A. Bailey, Esquire, including the hourly
rate (if any) charged.”1
We note that the defendants also seek to recover costs and attorneys’ fees in
their motion to compel for what they regard as needless litigation in the face of a
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So ordered this 18th day of July, 2011.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
frivolous discovery objection by the plaintiffs.(Doc. 157) This is one of multiple,
competing requests of this type that have emerged in this acrimonious litigation.
The Court will address all of these various competing requests for costs and fees at
one time in a subsequent opinion and order once the merits of these discovery
disputes are fully adjudicated.
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