Certusview Technologies, LLC v. S & N Locating Services, LLC et al

Filing 364

Opinion & ORDER Granting in Part re: 232 Motion Request for Monetary Sanctions. Defendant S&Ns Request for Monetary Sanctions, ECF No. 232, is GRANTED IN PART, and S&N is awarded $57,722 in attorneys fees and $3,200.61 in costs, less $18,458.55 for CertusViews previous award, for a total award amount of $42,464.06. Signed by Magistrate Judge Tommy E. Miller and filed on 9/1/15. Copies distributed to all counsel of record 9/1/15. (ldab, )

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
CERTUSVIEW TECHNOLOGIES, LLC,
Plaintiff,
v.

ACTION NO. 2:13cv346

S&N LOCATING SERVICES, LLC, and
S&N COMMUNICATIONS, INC.,
Defendants.

OPINION & ORDER
Presently before the Court is the determination of the amount of attorneys’ fees and costs
to which S&N Locating Services, LLC, and S&N Communications, Inc. (“S&N”) collectively
are entitled as a result of the undersigned granting S&N’s Request for Sanctions (ECF No. 232).
This request stems from attorneys’ fees and costs incurred by S&N to brief and attend hearings
on two motions to compel. The undersigned has entered an Order granting S&N’s request for
fees.

ECF No. 254.

For the reasons outlined below, the Court ORDERS CertusView

Technologies, Inc. (“CertusView”) to pay S&N sanctions in the amount of $42,464.06.
I. BACKGROUND
On October 3, 2014, the Court held a hearing and granted Defendants’ Motion to Compel
(“First Motion to Compel”). ECF No. 138. Daniel O’Connor, Esq., represented Defendants at
the hearing. CertusView was ordered to turn over two Market Intelligence Reports that were
clawed back during the deposition of Curtis Chambers on the basis of attorney-client privilege,
and S&N was granted the opportunity to conduct a continuation of the deposition of Curtis
Chambers.

On November 19, 2014, the undersigned held a hearing and granted S&N’s Emergency
Motion to Compel (“Second Motion to Compel”, ECF No. 199). Order, ECF No. 220. Daniel
O’Connor, Esq., and Weldon Rankin, Esq., represented Defendants at the hearing. Defendants
were seeking the production of documents that Plaintiff argued were protected by the attorneyclient privilege. Plaintiff asserted that the attorney-client privilege was not waived by disclosure
to third parties because the third parties were the functional equivalent of CertusView
employees. The Court made the following findings: (1) Plaintiff failed to make the specific
demonstration required to show that the documents at issue were privileged according to the
criteria set forth in Rambus, Inc. v. Infineon Technologies AG, 220 F.R.D. 264, 272 (E.D. Va.
2004); and, (2) even if the documents had been privileged, the third parties were not the
functional equivalent of CertusView employees. In the Order granting the Second Motion to
Compel, the undersigned indicated that S&N “may file a request for monetary sanctions.” ECF
No. 220.
On December 5, 2014, S&N filed a Request for Monetary Sanctions focusing on the
amount of sanctions requested. ECF No. 232. Plaintiff responded on December 29, 2014,
arguing, in part, that sanctions should not be awarded. ECF No. 240. On January 30, 2015, the
undersigned entered an Order granting S&N’s request for fees and costs to be awarded as a
sanction, and established a briefing schedule to address the amount of fees and costs requested.
ECF No. 254.
CertusView filed objections to the undersigned’s Orders entered November 20, 2014 and
January 30, 2015, and the objections were overruled by United States District Judge Mark A.
Davis. ECF No. 296. CertusView then filed a response to S&N’s request for sanctions asserting

2

that the fees and costs requested by S&N were unreasonable. ECF No. 307. CertusView further
asserted that the request should be reduced by $18,458.55, the amount of fees and costs
CertusView is now seeking as a result of Magistrate Judge Lawrence A. Leonard’s granting
CertusView’s request for costs and fees after ruling in their favor on a motion to compel in April
2014. ECF No. 116.
S&N has replied to the response (ECF No. 314), and the issue of the amount of fees and
costs is ripe for determination.
II. STANDARD OF REVIEW
Review of the reasonableness of S&N’s request for attorneys’ fees begins with a
determination of the “lodestar figure,” which is calculated “by multiplying the number of
reasonable hours expended times a reasonable rate.” Robinson v. Equifax Info. Servs., LLC, 560
F.3d 235, 243 (4th Cir. 2009) (citing Grissom v. Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008)).
To determine a “reasonable” number of hours and rate, the Court is guided by the following
factors:
(1) the time and labor expended; (2) the novelty and difficulty of
the questions raised; (3) the skill required to properly perform the
legal services rendered; (4) the attorney’s opportunity costs in
pressing the instant litigation; (5) the customary fee for like work;
(6) the attorney’s expectations at the outset of the litigation; (7) the
time limitations imposed by the client or circumstances; (8) the
amount in controversy and the results obtained; (9) the experience,
reputation and ability of the attorney; (10) the undesirability of the
case within the legal community in which the suit arose; (11) the
nature and length of the professional relationship between attorney
and client; and (12) attorneys’ fees awards in similar cases.
Robinson, 560 F.3d at 243–44 (quoting Barber v. Kimbrell’s Inc., 577 F.2d 216, 226 n. 28 (4th
Cir. 1978)). Because this matter involves a discovery motion rather than a determination of fees
3

due following the completion of trial, the Court finds that the fourth, sixth, seventh, eighth, tenth,
and eleventh factors are not particularly applicable, leaving the Court to address the first, second,
third, fifth, ninth and twelfth factors. See Lismont v. Alexander Binzel Corp., 47 F. Supp. 3d 443,
450 (E.D. Va. 2014). In addition to these factors, “the court must exclude any hours that are
‘excessive, redundant, or otherwise unnecessary,’ as such hours are not reasonably expended on
the litigation.” Project Vote/Voting for Am., Inc. v. Long, 887 F. Supp. 2d 704, 709 (E.D. Va.
2012) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
III. ANALYSIS
S&N requests an award of $98,582 in attorneys’ fees1 and $5,578.41 in costs. ECF No.
235 at 2.2 CertusView challenges S&N’s award request on the grounds that the amount of time
spent drafting the motions to compel was excessive and that S&N should not recover for the time
spent reviewing privilege logs, documents, and deposition transcripts or attending the deposition
of Mr. Chambers (the first factor), the amount of senior partner time expended was unnecessary
given the novelty and difficulty of the questions raised (the second factor), projects were
overstaffed in light of the skill required to properly perform the legal services rendered (the third
factor), and the amount of the requested award exceeds that awarded in similar cases, particularly
considering S&N’s unnecessary travel expense of a first class airfare ticket (the twelfth factor).
ECF No. 310-1 at 3-9. CertusView does not object to S&N’s billing rate nor does CertusView
dispute the experience, reputation, and abilities of the attorneys involved (the fifth and ninth

1

The Court notes that S&N’s attorneys’ fees recorded for the two motions to compel add up to
$98,583.75. ECF No. 235-1 at 2-6. The Court, however, will deduct from the starting point of
$98,582, S&N’s requested attorneys’ fees.
2
In the analysis section, reference will be made to the briefs and attachments filed under seal by
the parties.
4

factors). ECF No. 310-1 at 12. Additionally, CertusView asserts that S&N’s award request
should be reduced by $18,458.55, the amount owed to CertusView based on CertusView’s
previously granted motion to compel interrogatory responses. ECF No. 310-1 at 9.
As to the first factor, the Court FINDS that S&N spent excessive time drafting two
motions to compel, and the Court accordingly lowers S&N’s award; however, the Court refrains
from lowering S&N’s award further based on the time S&N spent reviewing privilege logs,
documents, and deposition transcripts or the costs associated with Mr. O’Connor’s travel to the
deposition of Mr. Chambers. As to the second factor, the Court FINDS that the percentage of
senior partner time expended was reasonable given the novelty and difficulty of the questions
raised. As to the third factor, the Court FINDS that the hearing on the Second Motion to Compel
and Mr. Chambers’ deposition were overstaffed in light of the skill required to properly perform
the legal services. As to the fifth and ninth factors, the Court FINDS that S&N’s billing rates
were customary for like work and that the ninth factor justifies the specific hourly rates charged.
As to the twelfth factor, the Court FINDS that similar cases do not fully justify S&N’s total
award request, particularly considering S&N’s request for first class airfare reimbursement.
Finally, based on the evidence that has been submitted, the Court FINDS that S&N’s award
should be reduced by $18,458.55, the amount owed to CertusView based on CertusView’s
previously granted motion to compel interrogatory responses. The Court addresses each of these
factors in turn.
A. Factor 1: Time and Labor Expended
S&N seeks attorneys’ fees for the time and labor expended drafting two motions to
compel. ECF No. 318 at 2. According to the chart submitted in support of the fee request, three
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of S&N’s attorneys spent a total of 58.3 hours researching and drafting the First Motion to
Compel. ECF 235-1 at 2-3. Ms. Choi recorded 10.5 hours ($4,063.50) preparing the First
Motion to Compel, Mr. Rankin recorded 41.8 hours ($23,512.50), and Mr. O’Connor recorded 6
hours ($4,050). ECF No. 235-1 at 2-3. The records show that three of S&N’s attorneys spent a
total of 71.6 hours researching and drafting the Second Motion to Compel. ECF 235-1 at 4-6.
Ms. Hausler recorded 44.5 hours ($17,221.50) researching and drafting the Second Motion to
Compel, Mr. Rankin recorded 17.4 hours ($9,787.50), and Mr. O’Connor recorded 9.7 hours
($6,547.50). ECF No. 235-1 at 4-6. Accordingly, attorneys’ fees recorded for the time spent
researching and drafting both motions to compel total 129.9 hours and $65,182.50. ECF 235-1
at 2-6.
S&N argues that a reasonable amount of time was billed, given the time and labor
necessary to draft four briefs. ECF No. 235 at 10. S&N asserts that each brief required legal
research and analysis, as well as an in depth review of deposition and hearing transcripts, prior
pleadings, and evidence on file with the Court. ECF No. 235 at 10-11. S&N also emphasizes
that the Second Motion to Compel required lengthy review of privilege logs, which contained
over 600 documents.

ECF No. 235 at 11.

S&N contends that CertusView’s discovery

misconduct contributed to the amount of time counsel spent preparing the motions to compel.
ECF No. 318 at 3. S&N argues that the extent of CertusView’s “efforts to keep non-privileged
documents from being produced” forced S&N to spend more time examining the record “with a
particularly discerning eye as the truth trickled out.” ECF No. 318 at 3.
CertusView claims that the time S&N spent drafting the two motions to compel exceeded
the complexity of the issues. ECF No. 310-1 at 3. According to CertusView, the issues involved
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“a few fairly straightforward questions of attorney-client privilege,” rather than complex
questions of patent law requiring a large amount of time. ECF No. 310-1 at 4. CertusView
contends that S&N’s decision to spend a great amount of time on the motions to compel was a
“tactical decision.” ECF No. 310-1 at 4. CertusView further argues that the involvement of
highly experienced patent attorneys should have reduced the time necessary to draft the motions
to compel.

ECF No. 310-1 at 3.

With respect to the specific review of privilege logs,

documents, and deposition transcripts made in connection to the motions to compel, CertusView
argues that S&N should not recover fees for work that should be done as a matter of course
during litigation. ECF No. 310-1 at 6-7 (citing Intelligent Verification Sys., LLC v. Microsoft
Corp., No. 2:12-cv-525, 2014 WL 6685440, at *5 (E.D. Va. Nov. 25, 2014)). Accordingly,
CertusView asks that S&N’s recovery be reduced by $5,181.30 for the time S&N spent
reviewing CertusView’s privilege logs, documents, and deposition transcripts. ECF No. 310-1 at
5-7. Lastly, CertusView asks for a separate reduction of $2,355.70, which represents the airfare
and hotel expenses for travel to the deposition of Mr. Chambers. ECF No. 310-1 at 6.
The party requesting fees bears the burden of demonstrating the reasonableness of what it
seeks to recover. Plyer v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990); Cook v. Andrews, 7 F. Supp.
2d 733, 736 (E.D. Va. 1998). The fee applicant bears the burden of establishing by clear and
convincing evidence the amount of a reasonable fee under the circumstances. See Hensley, 461
U.S. at 433. Based on the issue being contested, the Court FINDS that S&N spent excessive
time drafting the two motions to compel. As S&N notes, CertusView’s improper privilege
assertions and misleading statements increased the time necessary to research and draft the two
motions to compel. See Flame S.A. v. Indus. Carriers, No. 2:13-cv-658, 2014 WL 7185199, at
7

*11 (E.D. Va. Dec. 16, 2014) (acknowledging the “complex challenge” presented by the
opposing party’s “discovery misconduct” and “history of stonewalling discovery and delay
tactics”).

However, CertusView’s conduct does not fully justify the 129.9 hours that two

partners and two associates spent on two motions to compel. While the court has found it
reasonable and customary for “associates and partners to work on the same motion,” MiTile, Ltd.
v. Hasbro, Inc., No. 1:13-cv-451, 2013 WL 5525685, at *7 (E.D. Va. Oct. 4, 2013), the total
time, if excessive, must be reduced. See Hensley, 461 U.S. at 434 (finding that excessive hours
should be excluded from the fee calculation). Accordingly, Mr. O’Connor’s recoverable hours
for researching and drafting the motion will be reduced from 15.7 to 7.85, Mr. Rankin’s
recoverable hours from 59.2 to 29.6, Ms. Choi’s recoverable hours from 10.5 to 5.25, and Ms.
Hausler’s recoverable hours from 44.5 to 22.25. The Court FINDS that total recoverable hours
for the time spent researching and drafting the two motions to compel will be lowered from
129.9 hours to 64.95 hours for a reduction of $32,591.25.
However, the Court FINDS that S&N’s award should not be reduced by an additional
$5,181.30, the amount representing the time counsel spent reviewing privilege logs, documents,
and deposition transcripts, or by $1,189.72, the expenses associated with Mr. O’Connor’s travel3
to the deposition of Mr. Chambers.

Lismont noted that recovery in discovery disputes

encompasses a “broad array of expenses including ‘all expenses, whenever incurred, that would
not have been sustained had the opponent conducted itself properly.’” Lismont, 47 F. Supp. at
455 (citing In re Stauffer Seeds, Inc., 817 F.2d 47, 50 (8th Cir. 1987) (quoting Aerwey
Laboratories v. Arco Polymers, Inc., 90 F.R.D. 563, 565-66 (N.D. Ill. 1981)). In the present
3

S&N also requests $1,165.98 for Ms. Choi’s travel to the continued deposition of Mr.
Chambers. This request is addressed in III.A.2.
8

case, S&N asserts that privilege logs, documents, and deposition transcripts were analyzed
“directly in the context of the second motion to compel relating to the continued discovery
misconduct of CertusView.” ECF No. 318 at 9. The billing records show that the privilege logs,
documents, and depositions transcripts would not have been reviewed had the second motion to
compel not been required by CertusView’s discovery misconduct.

ECF No. 235 at 4-6.

Similarly, the statements of Mr. Chambers that provided the basis for the improper privilege
assertions compelled his continued deposition and, consequently, the travel expenses that ensued.
ECF No. 318 at 8. Accordingly, the Court FINDS that S&N’s recoverable hours will not be
further reduced based on the time counsel spent reviewing privilege logs, documents, and
deposition transcripts, or the expenses associated with Mr. O’Connor’s attendance at the
deposition of Mr. Chambers.
B. Factor 2: The Novelty and Difficulty of the Questions Raised
CertusView contends that, given the novelty and difficulty of the questions raised, senior
partners performed a disproportionate amount of the work that should instead have been
completed by more junior associates. ECF No. 310-1 at 4. The Court rejects this argument. As
S&N remarks, senior attorney Mr. Rankin was in the best position to prepare the motions to
compel, given his familiarity with the facts. ECF No. 218 at 5. As S&N notes, there are
situations where a senior attorney’s greater understanding of the facts associated with a dispute
justifies more involvement in the interests of efficiency. ECF No. 318 at 4 (citing Lismont, 47 F.
Supp. 3d at 456). Here, Mr. Rankin understood the details of the dispute more fully, in part
because he conducted the initial deposition of Mr. Chambers. ECF No. 318 at 5. Furthermore,
in Lismont, the court upheld the reasonableness of an award where 72 out of the 89.5 hours were
9

billed by three senior partners. Lismont, 47 F. Supp. 3d at 455. Compared to Lismont, where the
partners billed 80% of the total hours, senior partners in the present case billed a lower amount at
70% of the total hours. ECF No. 235 at 2-6. Therefore, the Court FINDS that, given the overall
reduction of hours addressed in section III.A, partners devoted a reasonable percentage of the
time spent on the two motions to compel in light of the novelty and difficulty of the questions
raised.
C. Factor 3: The Skill Required to Properly Perform the Legal Services Rendered
CertusView argues that S&N’s award should be reduced based upon improper
overstaffing, in light of the skill required to properly perform the legal services rendered. ECF
No. 310-1 at 7. CertusView specifically argues that S&N overstaffed the hearing on S&N’s
Second Motion to Compel (attended by both Mr. O’Connor and Mr. Rankin)4 and the
depositions (attended by both Mr. O’Connor and Ms. Choi). ECF No. 310-1 at 7-8. The Court
addresses each of CertusView’s overstaffing arguments in turn.
1. The Hearing on S&N’s Second Motion to Compel
CertusView argues that two senior partners, Mr. O’Connor and Mr. Rankin, should not
have both attended the hearing on S&N’s Second Motion to Compel. ECF No. 310-1 at 7.
Because Mr. O’Connor argued the motion at the hearing, CertusView asserts that Mr. Rankin’s
presence was unnecessary. EFC No. 310-1 at 7. CertusView notes that, at the same hearing,
CertusView sent only one partner, Mr. Moore, and one associate, Ms. Rubin. ECF No. 310-1 at

4

The Court also considers S&N’s expenses associated with the hearing on S&N’s First Motion
to Compel. Requested expenses associated with the hearing on the First Motion to Compel
include 16.4 hours of Mr. O’Connor’s time ($11,070), 1 hour of Mr. Rankin’s time ($562.50),
and Mr. O’Connor’s travel expenses to the hearing on the First Motion to Compel ($1,289.52).
ECF Nos. 235-1 at 3, 232-3 at 3. The Court FINDS these expenses reasonable.
10

7. Accordingly, CertusView asks that S&N’s award be reduced by $9,477.57, which represents
Mr. Rankin’s preparation for the hearing (14.7 hours of work totaling $8,268.75) and his travel
expenses (airfare and hotel costs for attendance at the hearing totaling $1,208.82).5 ECF No.
310-1 at 7. A specific breakdown of the hours Mr. Rankin spent preparing for the second
hearing includes 1 hour preparing an oral argument outline, 6.2 hours reading and analyzing the
motion to compel briefing and exhibits and drafting an oral argument outline, and 7.5 hours
preparing for and participating in the hearing on S&N’s emergency motion to compel. ECF No.
235-1 at 6.
S&N argues that the attendance of both partners was necessary for the hearing. ECF No.
318 at 10. While acknowledging that Mr. O’Connor alone presented oral arguments at the
hearing, S&N argues that Mr. Rankin’s presence provided necessary factual expertise based on
Mr. Rankin’s “initial deposition of Mr. Chambers and the briefing underlying both motions,” his
extensive work drafting the second motion to compel, and the oral argument outlines that he
prepared for the hearing. ECF No. 318 at 10. Accordingly, S&N argues that Mr. Rankin’s
presence at the second motion to compel hearing was “not duplicative to Mr. O’Connor but
complementary.” ECF No. 318 at 10. Additionally, S&N contends that the seriousness of the
second hearing required the presence of two senior attorneys, both who possessed the kind of
extensive knowledge of the case required to answer questions arising at the hearing. ECF No.
318 at 11.
S&N asserts that multiple attorneys often properly attend hearings as “common practice.”
5

The Court notes that S&N also asks for an award amount in the sum of $13,500 for Mr.
O’Connor’s attorneys’ fees for the hearing on the Second Motion to Compel and $724.37 for Mr.
O’Connor’s travel expenses to attend the hearing on S&N’s Second Motion to Compel. ECF
Nos. 235-1 at 6, 232-3 at 4. The Court FINDS these expenses reasonable.
11

ECF No. 318 at 10 (citing MiTile, Ltd. v. Hasbro, Inc., No. 1:13-cv-451, 2013 WL 5525685, at
*2 (E.D. Va. Oct. 4, 2013)). While MiTile does provide some support for that assertion, the case
specifically addresses the work of joint associates and partners, stating that “it is reasonable and
customary for both associates and partners to work on the same motion and their time expended
is not duplicative, but appropriate.” MiTile, Ltd., 2013 WL 5525685, at *2. In this case,
however, Mr. O’Connor and Mr. Rankin, two senior partners billing $675 and $562.5 per hour
respectively, attended the hearing for the Second Motion to Compel. ECF No. 235-1 at 5-6. In
light of the skills required to properly perform this legal service for S&N, the Court FINDS that
the attendance of two partners was excessive. Where a task does not require the use of multiple
attorneys, the Court should “award fees for the time of one attorney.” Cox v. Reliance Std. Life
Ins. Co., 179 F. Supp. 2d 630, 636 (E.D. Va. 2001). The Court should exclude “hours that are
excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. Accordingly, the
Court FINDS that S&N’s award will be reduced by $9,477.57.
2. Attendance at Mr. Chambers’ Deposition
CertusView also argues that S&N overstaffed the deposition by sending both Ms. Choi
and Mr. O’Connor to Mr. Chambers’ deposition. ECF No. 310-1 at 7. Arguing that Ms. Choi’s
attendance was unnecessary, CertusView asks that S&N’s award be reduced by $1,165.98, the
amount associated with Ms. Choi’s travel to Mr. Chambers’ deposition. ECF No. 310-1 at 7.
S&N contends that Ms. Choi’s attendance was necessary, as “more junior attorneys [play]
critical roles including drafting scripts, formulating follow-up questions, and locating documents
for the generally more-senior deposing attorney.” ECF No. 318 at 11. However, the Court
FINDS that while Ms. Choi’s presence at Mr. Chambers’ deposition was certainly helpful, her
12

presence was not indispensable considering Mr. O’Connor’s experience. ECF No. 310-1 at 7-8.
Despite that fact that “it is reasonable and customary for both associates and partners to work on
the same motion,” MiTile, Ltd., 2013 WL 5525685, at *2, this district has not upheld the
necessity of having both a partner and associate travel to a deposition. Consequently, the Court
FINDS that S&N’s award will be reduced by $1,165.98, the costs associated with Ms. Choi’s
travel to Mr. Chambers’ deposition.
D. Factors 9 and 5: The Experience, Reputation and Ability of the Attorneys and the
Customary Fee for Like Work
S&N’s attorneys who participated in the preparation of the two motions to compel
include Mr. Rankin (Partner with 12 years of experience), Mr. O’Connor (Partner with 40 years
of experience), Ms. Hausler (Associate with 4 years of experience), and Ms. Choi (Associate
with 3 years of experience). ECF No. 235-5 at 4. All attorneys are partners and associates of the
firm Baker & McKenzie LLP. ECF No. 235-5 at 3. The Curriculum Vitaes (“CV”) of Mr.
O’Connor and Mr. Rankin show expertise in patent litigation. ECF No. 235-5 at 4. Ms. Choi’s
CV lists experience in networks, software, communication systems, semiconductors, optics,
medical devices, and display technology. ECF No. 235-5 at 4. Ms. Hausler’s CV shows
experience in complex litigation. ECF No. 235-5 at 4. CertusView does not dispute the
experience, reputation, and abilities of these attorneys. Based on the work they performed and
their resumes and credentials, the Court FINDS that the ninth factor weighs in S&N’s favor.
Concerning the fifth factor, S&N proffered the following billing rates for its four
attorneys who worked on the two motions to compel: Mr. Rankin—$562.50 per hour; Mr.
O’Connor—$675 per hour; Ms. Hausler—$387 per hour; Ms. Choi—$387 per hour. ECF No.
235-1 at 2-6. In determining whether S&N’s requests are reasonable, the Court first considers
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the Declaration of Craig L. Mytelka, an attorney who is not counsel in this case. ECF No. 235-5
at 2-9. The Fourth Circuit has determined that, “[i]n addition to the attorney’s own affidavits,
the fee applicant must produce satisfactory specific evidence of the prevailing market rates in the
relevant community for the type of work for which he seeks an award.” Plyler, 902 F.2d at 277
(citations omitted). In his declaration, Mr. Mytelka states that the specific rates charged by the
attorneys of Baker & McKenzie are reasonable in light of the attorneys’ years of experience for
“complex, high-stakes civil litigation in federal court.” ECF No. 235-5 at 5. Mr. Mytelka
further notes that similar rates have been approved in the Norfolk Division of the Eastern District
of Virginia. See Swimways Corp. v. Tofasco of America, Inc., No. 2:08-cv-481, 2009 U.S. Dist.
LEXIS 122865, at *3 (E.D. Va. Sep. 3, 2009) (approving and applying a rate of $675 per hour
for partner time and $435 per hour for associate time). CertusView does not dispute the
reasonableness of S&N’s billing rates. ECF No. 310-1 at 12. In fact, it appears as though
counsel for CertusView charged CertusView higher rates than those charged to S&N. ECF No.
310-1 at 12.

Considering the Declaration of Independent Counsel Craig L. Mytelka and

CertusView’s lack of objection to the billing structure, the Court FINDS that S&N’s billing rates
were reasonable and customary for like work.
E. Factor 12: Fee Awards in Similar Cases
With respect to the twelfth factor, CertusView argues that S&N’s fee request surpasses
fee awards made in similar cases. CertusView cites six Fourth Circuit cases where the court
awarded fees in the $5,000 to $30,000 range pursuant to Rule 37(a)(5). ECF No. 310-1 (citing
Flame S.A. v. Indus. Carriers, No. 2:13-cv-658, 2014 WL 7185199 (E.D. Va. Dec. 16, 2014)
(awarding $8,400 and $19,797 pursuant to Rule 37 on two separate occasions); Lismont v.
14

Alexander Binzel Corp., 47 F. Supp. 3d 443 (E.D. Va. 2014) (awarding $33,873 in fees and costs
for multiple motions to compel); Papanicolas v. Project Execution & Control Consulting, LLC,
No. CBD-12-1579, 2014 WL 5297646 (D. Md. Oct. 10, 2014) (awarding $8,337.22 in fees and
costs on a motion to compel); Grayson Consulting, Inc. v. Cathcart, No. 2:07-02992-DCN, 2015
WL 436217 (D.S.C. Feb. 5, 2013) (awarding $11,360 in fees for a discovery request); Hairston
v. Prince George’s County, No. PJM-09-3431, 2011 WL 6000757 (D. Md. Nov. 29, 2011)
(awarding $5,756.01 in fees to compel production of spoliated materials); Mills v. E. Gulf Coal
Preparation Co., LLC, No. 5:08-0260, 2010 WL 1050359 (S.D. W. Va. Mar. 18, 2010)
(awarding $6,120 in fees for briefing and arguing a motion to compel)). The cases listed by
CertusView do not grant awards similar to the $98,582 in attorneys’ fees and $5,578.41 in costs
that S&N seeks here. ECF No. 235 at 2.
S&N alleges that the cases cited by CertusView do not involve the same level of
complexity as does the present case. ECF No. 318 at 16. In support of their request for a larger
award, S&N cites Swimways, a case in which the court awarded $61,169.69 in attorneys’ fees
and costs associated with a single motion to compel. Swimways Corp., 2009 U.S. Dist. LEXIS
122865, at *3. While acknowledging that Swimways involved a preliminary injunction violation
not at issue in the present case, S&N asserts that attorneys’ fees were awarded in Swimways for a
motion to compel discovery because “the discovery of the violation of the preliminary injunction
was a direct result of the motion to compel.” ECF No. 218 at 14-15. Additionally, S&N argues
that the present case compares to cases where discovery misconduct has increased the
complexity of the case. ECF No. 318 at 16. S&N compares the present case to Flame, a case
involving discovery misconduct, where the court awarded attorneys’ fees for 52.7 hours of work.

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ECF No. 318 at 15-16 (citing Flame S.A., 2014 WL 7185199, at *14). S&N further compares
the discovery misconduct at issue to Lismont, a case in which the court found an award for 89.5
hours reasonable based on the preparation of a “motion for entry and a reply in support of the
motion; two supplemental briefs; a declaration and reply; and a motion for attorneys fees.” ECF
No. 318 at 16 (citing Lismont, 47 F. Supp. 3d at 450). However, as noted above, the court in
Flame awarded attorneys’ fees in the amount of $8,400 in connection to a motion to compel and
$19,797 in connection to a motion for sanctions. Flame S.A., 2014 WL 7185199, at *15. In
Lismont, the court awarded $33,469 in attorneys’ fees and $404.01 in Westlaw research fees.
Lismont, 47 F. Supp. 3d at 459. Ultimately, S&N bears the burden of establishing by clear and
convincing evidence the amount of a reasonable fee in the circumstances. See Henley, 461 U.S.
at 433. Both awards in Flame and Lismont were considerably lower than the amount S&N
requests, despite what S&N refers to as similar discovery misconduct between the two cases.
ECF No. 318 at 16. Accordingly, an analysis of total fee awards in similar cases does not clearly
support S&N’s request for $98,582 in attorneys’ fees and $5,578.41 in costs. ECF No. 235 at 2.
After subtracting the Court’s aforementioned reductions from S&N’s requested amount, S&N’s
awards stands at $60,925.61.

The Court FINDS this figure to be much more reasonable

considering fee awards in similar cases.
Along with CertusView’s more general allegation that S&N’s award request exceeds
total awards issued in similar cases, CertusView specifically disputes S&N’s request for first
class airfare reimbursement and $3 gift shop purchase. CertusView asserts that expenses related
to S&N’s first class airfare should not be awarded. ECF No. 310-1 at 8. CertusView asks that
S&N’s request be reduced by $253.55, which represents 25% of the $1,014.20 plane ticket that

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included a first class seat. ECF No. 310-1 at 8. In response, S&N notes that the costs associated
with Mr. Rankin’s first class airfare ticket were not the product of frivolity, but rather the fact
that a first class ticket was available for a direct flight as opposed to a main cabin ticket also
available that “would have required a connecting flight through Charlotte and approximately five
hours of travel time.” ECF No. 318 at 13. The court has noted that “[a]bsent some unusual
circumstances . . . it is not reasonable to shift to the opposing party the costs of first class air
travel, luxury cars, or even unreasonably high charges for less luxurious models.” Eli Lilly &
Co. v. Zenith Goldline Pharms., Inc., 264 F. Supp. 2d 753, 762 (S.D. Ind. 2003). While
acknowledging S&N’s argument that Eli Lilly does not state that first class airfare can never be
awarded, the Court FINDS that a longer layover does not amount to the kind of “unusual
circumstances” that would justify an award for first class airfare in this case. Eli Lilly, 264 F.
Supp. 2d at 762. However, the Court will not further reduce S&N’s award by $253.55 to
account for the first class airfare because the Court previously deducted, in III.C.1, all of the
travel expenses associated with Mr. Rankin’s travel to the hearing on the Second Motion to
Compel, including the costs associated with the first class flight.
CertusView further argues that it would not be appropriate to award S&N the $3 counsel
spent on gift shop purchases during travel. ECF No. 310-1 at 8. S&N refrains from contesting
the $3 charge. ECF No. 318 at 14. Accordingly, the Court FINDS that S&N’s award will be
reduced by the $3 spent at the gift shop.
F. Previous Award to CertusView of $18,458.55
Lastly, CertusView argues that any award granted to S&N should be reduced by
$18,458.55 based upon the court’s prior ruling on CertusView’s motion to compel interrogatory

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responses. ECF No. 310-1 at 9. S&N contends that CertusView’s inaction for 10 months should
prohibit them from now requesting an award. ECF No. 318 at 17. Despite CertusView’s failure
to take speedy action to collect fees, the Court FINDS that S&N’s award will be reduced by
$18,458.55. As acknowledged by S&N, the Court imposed no official time limit that required
CertusView to take action to collect fees. ECF No. 318 at 17. Furthermore, the Court has
examined CertusView’s brief, the Declaration of Aaron W. Moore in Support of Plaintiff
CertusView’s Request for Fees, and the summary of time counsel for CertusView recorded for
the motion to compel, and FINDS CertusView’s request reasonable in light of the factors
discussed above. ECF No. 310-1 at 9-14, Ex. A, Ex. B. The Court acknowledges S&N’s
argument that CertusView improperly relies on a declaration of its own counsel, Aaron Moore,
and on the affidavit of S&N’s independent counsel, Craig Mytelka, to show the reasonableness
of their requested fees. ECF No. 318 at 18. However, in these circumstances, both CertusView
and S&N have utilized the same rate structure for their requests for fees. ECF No. 310-1 at 1112. Accordingly, the Court FINDS that CertusView’s request contains sufficient evidence of the
prevailing market rates and reduces S&N’s award by $18,458.55.
IV. CONCLUSION
Defendant S&N’s Request for Monetary Sanctions, ECF No. 232, is GRANTED IN
PART, and S&N is awarded $57,722 in attorneys’ fees and $3,200.61 in costs, less $18,458.55
for CertusView’s previous award, for a total award amount of $42,464.06.

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The Clerk shall mail a copy of this Order to all counsel of record.

/s/
Tommy E. Miller
United States Magistrate Judge
Norfolk, Virginia
September 1, 2015

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