United States of America et al v. Claris Vision, LLC et al

Filing 46

MEMORANDUM AND ORDER Re: 40 Motion to Compel filed by Michele Bisbano. The Relators' Motion to Compel (ECF No. 40) is provisionally GRANTED as to Requests Nos. 1 and 2 as follows: Dr. Koch shall, within seven days, advise the Court if he i s withdrawing that part of his argument regarding the claimed fee disparity. If the argument is withdrawn, the Motion to Compel shall be DENIED as moot and Dr. Koch shall promptly file amended versions of ECF Nos. 32, 32-1 and 32-2 accordingly. If the argument is not withdrawn, Dr. Koch is ORDERED to produce the requested documents within twenty-one days. To the extent that responsive documents contain privileged information, the parties shall confer in good faith about a process for Dr. Koch to redact such information from the documents subject to documentation in a privilege log. So Ordered by Magistrate Judge Lincoln D. Almond on 11/15/2023. (Noel, Jeannine)

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
UNITED STATES OF AMERICA,
THE STATE OF RHODE ISLAND and
THE COMMONWEALTH OF
MASSACHUSETTS ex rel. MICHELE
BISBANO and STEPHANIE PAOLINO
v.
CLARIS VISION, LLC, et al.

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C.A. No. 18-00176-MSM

MEMORANDUM AND ORDER
Pending before me for determination is Plaintiffs’/Relators’ Motion to Compel Production
of Documents regarding attorneys’ fees. (ECF No. 40). Defendant Dr. Paul S. Koch objects. (ECF
No. 43).
In a nutshell, the Relators have a pending Motion for Attorneys’ Fees in this qui tam action.
(ECF No. 29). Dr. Koch objects and argues that the Relators are not legally entitled to a fee award
and, in any event, that the time billed is excessive, and the hourly rates sought are unreasonable.
(ECF No. 32).
The instant Document Requests were triggered by one of the arguments made by Dr. Koch
in opposition to the fee request. He argues that the Relators’ fee request is unreasonable, in part,
by pointing out the disparity between the gross amount of the request and the much lower gross
amount of fees he was billed in defending this matter. (ECF No. 32 at p. 27, n.11). Dr. Koch
supports this argument through the Affidavit of John A. Tarantino, Esquire, one of his primary
attorneys in this matter. (ECF No. 32-1 at ¶ 13; Exhs. 4 and 5). Additionally, Dr. Koch’s fee

expert, Marc DeSisto, Esquire, relies, in part, on this claimed disparity in forming his opinion that
the Relators’ fee request is “excessive.” (ECF No. 32-2 at ¶ 18).
Discussion
The Relators seek production of documents regarding the time expended by Dr. Koch’s
attorneys in this matter (Request No. 1) and the amounts paid by Dr. Koch for his representation
(Request No. 2).1 They reasonably argue that Dr. Koch opened the door to this discovery by
comparing the fees billed by his attorneys to the amounts sought by the Relators’ attorneys. In
response, Dr. Koch argues that “the ‘relevance of the number of hours spent by defense counsel to
a determination of the reasonable fee for Plaintiffs’ attorneys’ is highly questionable.” (ECF No.
43 at p. 7). This argument is, of course, plainly at odds with the arguments made by Dr. Koch in
opposition to the fee request that a comparison of respective fees is relevant and supports his
position.
Dr. Koch cannot have it both ways. If the comparison is relevant, then the Relators are
entitled to some reasonable discovery to allow them to analyze the data and fairly respond to Dr.
Koch’s argument. If the comparison is irrelevant, then Dr. Koch should withdraw the argument
and there would be no need for fee discovery.
The case law is clear that the Court has the discretionary power under these circumstances
to permit reasonable discovery of an adversary’s fees in fee petition litigation. See Hernandez v.
George, 793 F.2d 264, 268 (10th Cir. 1986); Mendez v. Radec Corp., 818 F.Supp.2d 667, 668
(W.D.N.Y. 2011); and Cohen v. Brown Univ., No. 92-197L, 1999 WL 695235 (D.R.I. May 19,
1999).

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Request No. 3 seeks a privilege log regarding communications between any of Dr. Koch’s attorneys and any other
attorney representing any other Defendant in this action. The Court is at a loss as to the relevance of this Request
to the fee dispute, and the Relators do not provide any explanation in their submission. Because the Court finds the
Motion to Compel waived as to this unsupported request, Request No. 3 is DENIED.

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On balance, the only reasonable outcome is to grant the Relators’ Motion to Compel as to
Requests Nos. 1 and 2.

Although the Court believes that a fee comparison under these

circumstances is of questionable relevance (as argued by Dr. Koch himself), Dr. Koch opened the
door by raising the argument in opposition to the Relators’ fee petition, and the argument cannot
be fairly evaluated and responded to by the Relators’ counsel without the underlying time records
to put the gross billing amount in some context. Similarly, the Court is unable to determine
whether the comparison is apples to apples or apples to oranges without more context than only
the gross billing amount provides.
Accordingly, the Relators’ Motion to Compel (ECF No. 40) is provisionally GRANTED
as to Requests Nos. 1 and 2 as follows:
Dr. Koch shall, within seven days, advise the Court if he is withdrawing that part of his
argument regarding the claimed fee disparity. If the argument is withdrawn, the Motion to Compel
shall be DENIED as moot and Dr. Koch shall promptly file amended versions of ECF Nos. 32, 321 and 32-2 accordingly. If the argument is not withdrawn, Dr. Koch is ORDERED to produce the
requested documents within twenty-one days. To the extent that responsive documents contain
privileged information, the parties shall confer in good faith about a process for Dr. Koch to redact
such information from the documents subject to documentation in a privilege log.
SO ORDERED
/s/ Lincoln D. Almond
LINCOLN D. ALMOND
United States Magistrate Judge
November 15, 2023

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