Johnson et al v. Ford Motor Company

Filing 1173

MEMORANDUM OPINION AND ORDER directing Defendant Ford Motor Company to pay Plaintiffs the total sum of $488,028.31 as sanctions for Ford's discovery misconduct; directing that the payment shall be made within thirty days of the date of this Order. Signed by Magistrate Judge Cheryl A. Eifert on 3/22/2018. (cc: counsel of record; any unrepresented party) (hkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
CHARLES JOHNSON, et al.,
Plaintiffs,
v.

Case No.: 3:13-cv-06529

FORD MOTOR COMPANY,
Defendant.

MEMORANDUM OPINION and ORDER
On December 27, 2017, this Court entered a Memorandum Opinion and Order
sanctioning Defendant for making material misrepresentations during the discovery
process, which significantly increased Plaintiffs’ costs of litigation. (ECF No. 1111). In
recompense, the Court awarded Plaintiffs attorneys’ fees and costs and expert fees and
costs attributable to Ford’s discovery misconduct. The matter was referred to the
undersigned United States Magistrate Judge to determine the appropriate amount of fees
and costs to be awarded to Plaintiffs. (Id. at 20).
On December 29, 2017, the undersigned issued a briefing schedule. (ECF No.
1120). The parties have now completed their briefing, and the matter is ready for
resolution. In their brief, Plaintiffs ask for fees and costs in the total amount of
$692,225.52. (ECF No. 1166 at 15). Ford counters by arguing that once duplicative,
excessive, vague, and unsupported amounts are deducted from Plaintiffs’ request, they
are entitled to an award of $223,610.97. (ECF No. 1152 at 20).
The undersigned notes that the law governing awards of attorneys’ fees and costs
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in this circuit is well established. Moreover, the issues in dispute are clear; therefore, oral
argument would not assist the Court in resolving the matter. For the reasons that follow,
the Court ORDERS Defendant, Ford Motor Company (“Ford”), to pay Plaintiffs the sum
of $488,028.31 in sanctions. Ford is further ORDERED to make this payment within
thirty (30) days of the date of this Order.
I.

Attorneys’ Fees
The Court has concluded that Plaintiffs are entitled to reimbursement of attorneys’

fees for time associated with preparing, negotiating, and arguing the source code
protective order entered in this litigation, as well as pursuing Plaintiffs’ motion for
sanctions. In addition, Plaintiffs seek reimbursement of travel time to and from a secured
room in Dearborn, Michigan where their counsel and experts were required to go in order
to review source code produced by Ford. According to affidavits supplied by Plaintiffs, the
total amount of attorneys’ fees sought is $351,256.63. (ECF No. 1143 at 6-7).
In response, Ford concedes that Plaintiffs are entitled under the Court’s order to
attorneys’ fees related to: (1) negotiating the source code protective order, (2) traveling to
Dearborn, Michigan to use the secured source code room, and (3) drafting and arguing
the motion for sanctions. (ECF No. 1152 at 2). However, Ford contends that Plaintiffs have
not limited their fee application to those tasks. Furthermore, Ford argues that the number
of attorney hours claimed by Plaintiffs is extreme, and the requested hourly rates
substantially exceed reasonable, appropriate, and prevailing rates in this jurisdiction. (Id.
at 2-3). After subtracting duplicative and excessive hours, and reducing the hourly rates
to “reasonable” amounts, Ford asserts that Plaintiffs are entitled to attorneys’ fees in the
amount of $77,824.25. (ECF No. 1152 at 20).
The parties agree that when calculating an award of attorneys’ fees in this circuit,
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the court must follow a three-step process. McAfee v. Bozcar, 738 F.3d 81, 88 (4th Cir
2013) (“The proper calculation of an attorney’s fee award involves a three-step process.”)
First, the court must “determine a lodestar figure by multiplying the number of
reasonable hours expended times a reasonable rate.” Robinson v. Equifax Information
Services, LLC, 560 F.3d 235, 243 (4th Cir. 2009) (citing Grissom v. The Mills Corp., 549
F.3d 313, 320 (4th Cir. 2008)). The burden of establishing a reasonable rate and
demonstrating that a reasonable number of hours was expended rests with the party
seeking attorneys’ fees. McGee v. Cole, 115 F. Supp. 3d. 765, 771 (S.D.W. Va. 2015) (citing
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The United States Court of Appeals for
the Fourth Circuit (“Fourth Circuit”) has enumerated twelve factors to consider when
determining a lodestar figure, including the following:
(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 243-244 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d
714 (5th Cir. 1974)).
At the second step of the process, the court must subtract from the lodestar figure
“fees for hours spent on unsuccessful claims unrelated to successful ones.” Grissom, 549
F.3d at 321 (quoting Johnson v. City of Aiken, 278 F.3d 333, 337 (4th Cir. 2002)). Once
this calculation is completed, the court proceeds to the third step, which consists of the
court increasing the step-two figure by “some percentage of the remaining amount,
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depending on the degree of success enjoyed by the [party seeking fees].” Johnson, 278
F.3d at 337. In this case, the Court need not formally proceed to the second and third
steps, because the fees and expenses are being awarded as a discovery sanction, rather
than as an award based upon a successful resolution of the case as a whole. In addition,
Plaintiffs have already performed step two of the process by reducing the portion of their
fee application related to the motion for sanctions by 50% to account for the fact that they
only succeeded on one of two grounds asserted in the motion. Therefore, the Court focuses
largely upon the lodestar figure.
A. Reasonable Hourly Rate
“When calculating reasonable fees, establishing the hourly rate is generally the
critical inquiry.” Wolfe v. Green, No. 2:08–cv–01023, 2010 WL 3809857 *4, (S.D.W. Va.
Sept. 24, 2010) (quoting Westmoreland Coal Co. v. Cox, 602 F.3d 276, 289 (4th Cir.
2010)). An hourly rate is considered reasonable when it is “in line with those prevailing
in the community for similar services by lawyers of reasonably comparable skill,
experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 890 n. 11 (1984). “[T]he
community in which the court sits is the first place to look to in evaluating the prevailing
market rate.” Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 179 (4th Cir. 1994).
Nevertheless, when an applicant seeks reimbursement of fees charged by an attorney who
primarily practices law in another jurisdiction, the court may determine that using
community rates, rather than the attorney’s home rates, is inequitable; particularly, when
there is an absence of comparable attorneys in the community. National Wildlife
Federation v. Hanson, 859 F.2d 313, 317 (4th Cir. 1988) (holding that a fee award based
on an extrajurisdictional rate is appropriate when the complexity and specialized nature
of the case means that no attorney with the requisite skills is available locally). To
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determine whether extrajurisdictional counsel are entitled to the prevailing hourly rates
in their home jurisdiction, the court should consider the following questions: (1) did
counsel provide services that were not available in the court’s jurisdiction; and (2) did the
client make a reasonable choice in hiring extrajurisdictional counsel, or did the client
select an unreasonably expensive attorney? Id.
Here, Plaintiffs seek reimbursement of fees charged by fourteen attorneys, with
hourly rates ranging from $175 to $950, and by four paralegals billing between $115 and
$275 per hour. Half of the attorneys and half of the paralegals have extrajurisdictional
home bases. Plaintiffs argue that these practitioners are entitled to the prevailing hourly
rates in their own communities, because they satisfy the two-part inquiry set forth in
Hanson. (ECF No. 1166 at 6). According to Plaintiffs, the size and complexity of the
instant action required them to hire a “coalition of law firms with experience in complex
class action litigation,” which could not be found exclusively in this jurisdiction. (Id. at 7).
Ford counters this argument by pointing out that a local law firm, Spilman Thomas &
Battle, PLLC, played a leadership role in the litigation and its billings account for 40% of
the fees sought by Plaintiffs. (ECF No. 1152 at 7). Thus, the instant action is not so complex
that no local lawyer is able to effectively prosecute it.
The undersigned agrees with Ford. Although the subject matter of this case is
complex, both factually and legally, Plaintiffs have failed to demonstrate that this
jurisdiction lacks experienced lawyers capable of successfully prosecuting Plaintiffs’
claims. As Ford notes, one of Plaintiffs’ leading law firms is located in Charleston, West
Virginia, and as discussed below, Plaintiffs make no showing that Spilman Thomas &
Battle is the only local firm qualified to handle complex class action litigation. Moreover,
Plaintiffs seek reimbursement of substantial expert fees. Given that Plaintiffs relied
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heavily on experts to navigate the technical aspects of the source code protective order
and assist in locating evidentiary support for the motion for sanctions, the remaining
tasks involved in negotiating the protective order and pursuing the award of sanctions
could have been accomplished by a number of lawyers who regularly appear in this Court.
The undersigned acknowledges the Fourth Circuit cases cited by Plaintiffs in which
fee awards were calculated using hourly rates from geographic markets outside the court’s
jurisdiction. (ECF No. 1166 at 6-7). However, in each of these cases, the court’s decision
was based on more than just the complexity of the case. In Hanson, supra, a case filed in
eastern North Carolina, the party seeking attorneys’ fees asked the court to apply
Washington, D.C. rates. Unlike the plaintiffs in this case, however, the Hanson applicant
did not rely solely on the complexity of the case to support its argument; instead the party
produced evidence showing that: (1) its local counsel was unable to take the case; (2) the
nearest counsel with experience in complex environmental litigation was located in
Washington, D.C.; and (3) the applicant was unsuccessful in involving a local
environmental defense fund. Accordingly, a sound basis existed for applying Washington,
D.C. rates.
Similarly, in Rum Creek Coal Sales, Inc., 31 F.3d at 178-79, the Fourth Circuit held
that Richmond, Virginia rates were appropriate in a West Virginia case, in part due to the
complex nature of the litigation. However, in addition, the court considered that (1) the
Virginia lawyers were the applicant’s regular counsel and were well-versed in the type of
matters litigated; (2) outside counsel was necessary “since taking on the governor and the
police of the state where the trial court is located, in the middle of a well-publicized coal
miners’ strike could be politically sensitive activity for a local West Virginia firm”; and (3)
a substantial portion of the fees were incurred secondary to the party’s appeal filed in
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Richmond, Virginia. Id. at 179.
In Friends of Earth, Inc. v. Gaston Copper Recycling Corp., the court applied
Washington, D.C. rates in South Carolina where the fee applicant demonstrated that
attorneys’ services of like quality were not available in the forum and the selection of
attorneys was reasonable under the circumstances. Friends of Earth, Inc., No. 3:92-2574MJP, 2007 WL 2363868, at *2 (D.S.C. Aug. 16, 2007). To establish its right to
extrajurisdictional rates, the applicant supplied affidavits from local attorneys verifying
an absence of available counsel in the jurisdiction capable of taking such a complex and
expensive case on a contingent fee basis. Furthermore, the applicant used the affidavits
to prove that the Washington, D.C. rates were comparable to South Carolina rates. Similar
affidavits were submitted in N.C. Alliance for Transp. Reform Inc. v. U.S. Dept. of
Transp., 168 F. Supp. 2d 569, 580 (M.D.N.C. 2001) (relying on an affidavit from local
counsel regarding the dearth of qualified lawyers in the jurisdiction and the unavailability
of those lawyers that were sufficiently experienced).
In ABT Bldg. Prods. Corp v. National Union Fire Ins. Co., the court based its
decision to apply extrajurisdictional rates on the fact that the fee applicant used national
counsel with vast institutional knowledge and prior experience in the same subject
matter, noting that the efficiencies associated with national counsel counterbalanced
their increased hourly rates. In addition, the party seeking reimbursement demonstrated
that it had paid the fees requested without any expectation of their recovery. reasonable.
ABT Bldg. Prod. Corp., No. CIV. 501CV100-V, 2005 WL 6124839, at *2–3 (W.D.N.C. May
31, 2005), aff'd sub nom. ABT Bldg. Prod. Corp. v. Nat'l Union Fire Ins. Co. Of
Pittsburgh, 472 F.3d 99 (4th Cir. 2006). Similar reasons for using New York rates in a
North Carolina case were accepted by the court in Aventis CropScience , N.V. v. Pioneer
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Hi-bred Intern, Inc., No. 1:00CV463, 2010 WL 2306677, at *5 (M.D.N.C. Jun. 8, 2010)
(concluding that applicant’s national counsel provided a unique service to fee applicant
that was not available locally).
In contrast to the fee applications in the above-cited cases, Plaintiffs offer no
evidence or focused argument in this case. In fact, Plaintiffs provide no explanation for
how they selected counsel; no evidence that they searched other local firms for
comparable attorneys; and no corroboration that the extrajurisdictional attorneys in this
case provided a unique service that could not be offered by less expensive and equally
available counsel. Consequently, while the instant case certainly requires specialized skill,
Plaintiffs have not adequately supported their request for extrajurisdictional rates.
Having determined that the prevailing market rates in the Southern District of
West Virginia should be applied, the undersigned next considers the evidence submitted
by Plaintiffs to establish the prevailing rates, as well as Ford’s arguments in opposition.
As indicated below, the parties are significantly at odds over the appropriate hourly rate
to apply to each attorney included in the fee application:
Plaintiffs’ requested hourly rates

Ford’s suggested hourly rates

Nathan Atkinson

$400

Nathan Atkinson

$300

Sandra Burch

$135

Sandra Burch

$100

Meg Coppley

$270

Meg Coppley

$200

Andrew Darcy

$185

Andrew Darcy

$150

Anthony DeWitt

$550

Anthony DeWitt

$300

Kelly Griffith

$260

Kelly Griffith

$190

Pamela Haynes

$115

Pamela Haynes

$100

Rebecca Hendrix

$175

Rebecca Hendrix

$140

Shawn Judge

$400

Shawn Judge

$225

Amy Keller

$675

Amy Keller

$300

Kathy Kuryak

$165

Kathy Kuryak

$100

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Audrey Lebdjiri

$275

Audrey Lebdjiri

$100

Adam Levitt

$950

Adam Levitt

$400

Niall Paul

$500

Niall Paul

$400

Don Slavik

$700

Don Slavik

$400

John Tangren

$725

John Tangren

$300

Gregory Travalio

$495

Gregory Travalio

$350

Mark Troutman

$425

Mark Troutman

$300

The prevailing market rate for attorneys’ fees in a given jurisdiction may be
established “by evidence of what attorneys earn from paying clients for similar services in
similar circumstances.” Depaoli v. Vacation Sales Assocs, LLC, 489 F.3d 615, 622 (4th
Cir. 2007). Consequently, affidavits outlining hourly rates typically charged and received
by local attorneys in the case are useful in determining home market rates. Id. Likewise,
affidavits from other local lawyers, who are not involved in the case, but are familiar with
the skill level of the involved attorneys and with the type of work performed, are also
evidence of the range of reasonable hourly rates in the relevant district. Robinson, 560
F.3d at 245. In the absence of persuasive affidavits, the court may look to “previous
awards in the relevant marketplace as a barometer for how much to award counsel in the
immediate case.” Newport News Shipbuilding & Dry Dock Co. v. Holiday, 591 F.3d 219,
228 (4th Cir. 2009). When the fee applicant fails to provide sufficient outside evidence of
prevailing rates in the community, the court may also rely on its own knowledge of such
rates. Rum Creek Coal Sales, 31 F.3d at 174.
Plaintiffs support their requested hourly rates with affidavits from attorneys
providing the legal services at issue, all of whom assert that the requested rates are
reasonable. Many of the attorneys confirm that the hourly rates contained in their fee
applications are the rates they typically charge to and receive from paying clients.
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Plaintiffs additionally submit information outlining the qualifications, training, and
experience of each attorney. Finally, Plaintiffs cite to several cases discussing fee awards;
including a decision issued in a class action suit filed against Toyota Motor Corp., which
involved claims of sudden acceleration in certain vehicle models, much like the instant
action. Plaintiffs did not, however, provide affidavits from local counsel unrelated to the
case, or supply other objective evidence verifying or corroborating the prevailing hourly
rates charged in this jurisdiction.
Notwithstanding Plaintiffs’ failure, the range of prevailing market rates for
attorneys in this jurisdiction is discernible by examining the myriad of cases in this
district considering the matter. For example, in October 2017, United States District
Judge Robert C. Chambers awarded attorneys’ fees in a Fair Labor Standards Act case,
using an hourly rate of $350, which he found reasonable in light of counsel’s experience
in wage and hour law. Federer v. Genesis Eldercare Rehab. Servs. LLC, No. CV 3:17-0211,
2017 WL 5495809, at *2 (S.D.W. Va. Oct. 26, 2017). That same month, United States
District Judge Thomas E. Johnston approved attorneys’ fees ranging from $187 to
$314.50 per hour and paralegal rates of $110.50 to $148.50 per hour. Constellium Rolled
Prod. Ravenswood, LLC v. Rogers, No. 2:15-CV-13438, 2017 WL 4445977, at *2-*3
(S.D.W. Va. Oct. 5, 2017). In determining the reasonableness of these rates, Judge
Johnston considered other fee awards in the district, the type of litigation at issue, and
the skill and reputation of the law firm seeking fee reimbursement. (Id.). In July 2017,
United States District Judge John T. Copenhaver, Jr., performed a “lodestar cross check”
in a complex class action involving the contamination of the water supply in Charleston,
West Virginia, using a blended hourly rate for attorneys of $360. Good v. W. VirginiaAm. Water Co., No. CV 14-1374, 2017 WL 2884535, at *27 (S.D.W. Va. July 6, 2017). The
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blended rate incorporated a range of hourly fees, with the highest billing rate being $575
per hour. In May 2017, United States District Judge Irene C. Berger approved hourly rates
of $275-$550 for partners, $150-$400 for associates and senior attorneys, and $110 for
paralegals in a case involving health benefits under ERISA. Greenbrier Hotel Corp. v.
Unite Here Health, No. 5:13-CV-11644, 2017 WL 2058222, at *2–4 (S.D.W. Va. May 12,
2017), vacated on other grounds, No. 16-2116, 2018 WL 272012 (4th Cir. Jan. 3, 2018).
Judge Berger’s figures were based on evidence that these hourly rates were typically
charged by the fee applicants; on supporting affidavits prepared by other experienced
attorneys in the area stating that these hourly rates were competitive for the market; and
on the Court’s recent experience in awarding attorneys’ fees. That same month, Judge
Chambers awarded attorneys’ fees in a Clean Water Act case, finding unchallenged hourly
rates of $260-$450 to be reasonable. Ohio Valley Envtl. Coal. v. Fola Coal Co., LLC, No.
CV 2:13-16044, 2017 WL 1712525, at *2 (S.D.W. Va. May 2, 2017).
In October 2016, Judge Berger awarded attorneys’ fees in a civil action alleging
violations of the Fair Credit Reporting Act. Daugherty v. Ocwen Loan Servicing, LLC,
No. 5:14-CV-24506, 2016 WL 6680033, at *2 (S.D.W. Va. Oct. 12, 2016). The fee applicant
requested hourly rates of $300 and $400, which the applicant supported with affidavits
from attorneys practicing in the Southern and Northern Districts of West Virginia. In the
affidavits, local counsel confirmed that the requested rates coincided with prevailing
market rates charged by local attorneys of similar skill and for similar work. (Id.). Relying
on the affidavits, Judge Berger found the rates to be customary and reasonable for
attorneys litigating similar cases. In August of the same year, Judge Chambers approved
a request for attorneys’ fees in a Clean Water Act case based on hourly rates of $240 to
$450. Ohio Valley Envtl. Coal., Inc. v. Fola Coal Co., LLC, No. CV 2:13-5006, 2016 WL
11

8252928, at *2 (S.D.W. Va. Aug. 30, 2016). The hourly rates were accepted by the adverse
party as being reasonable and, thus, were used without objection.
In a civil rights action pending in July 2015, Judge Chambers awarded fees based
on hourly rates ranging from $225 to $500 for attorneys—depending upon each
attorney’s level of experience and specialization of services—and $100 for paralegals.
McGhee v. Cole, 115 F. Supp.3d 765, 775 (S.D.W. Va. 2015). In determining the prevailing
market rates, Judge Chambers relied upon his own experience in awarding fees, as well
as hourly rates set by his colleagues in state and federal courts in the area. Judge
Chambers explicitly rejected hourly rates of $771 and $789, which were requested by
extrajurisdictional counsel and were based on the Laffey Matrix used in Washington, D.C.
Judge Chambers concluded that the Matrix had “limited” applicability in this market and
the requested rates exceeded prevailing market rates. (Id.). Although Judge Chambers
acknowledged that counsel regularly charged more than the rates contained in the Matrix,
he explained his obligation to apply local market rates in the absence of some special
circumstance justifying rates from a different or larger market. (Id.).
In March 2014, Judge Copenhaver agreed that $250 per hour was generally
accepted as a reasonable rate and awarded that amount in an action alleging unfair debt
collection practices. Finney v. MIG Capital Management Inc., Civil Action No. 2:1302778, 2014 WL 1276159, at *15 (S.D.W. Va. Mar. 7, 2014). Finally, a year earlier in March
2013, Judge Johnston determined that hourly rates of $375, $175, and $160 were
appropriate in a predatory lending case. Koontz v. Wells Fargo N.A., No. 2:10-CV-00864,
2013 WL 1337260, at *18-19 (S.D.W. Va. Mar. 29, 2013). In making that determination,
Judge Johnston considered affidavits from the attorneys seeking reimbursement of fees,
as well as affidavits supplied by peer attorneys practicing in West Virginia. (Id. at *14).
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Although Judge Johnston was critical of the affidavits, which he found deficient, he placed
some weight on one of the affidavits and also relied on his own familiarity with the
litigation and the local legal market in establishing reasonable market rates for each of
the attorneys applying for fees.
Considering the affidavits supplied by Plaintiffs in this action and the cases cited
above, the undersigned concludes that the prevailing rates for attorney services in this
jurisdiction range from $150 to $550 per hour and between $100 and $145 per hour for
paralegal services. Accordingly, the twelve Johnson factors must now be considered to
arrive at a range of reasonable rates applicable to this matter. As Plaintiffs argue, the
issues raised in this case have been relatively novel, such that when resolving concerns
regarding the production and security of Ford’s source code, the parties and the Court
could find little guidance in existing case law. The case is complex, requiring more than
average skill and experience to effectively prosecute and defend the claims. The discovery
process was detailed and time-consuming, requiring the contributions of numerous
attorneys and multiple experts. Accordingly, the second and third factors weigh heavily
in Plaintiffs’ favor when considering where in the prevailing market range the hourly rates
in this case should fall. The customary rates charged and received by Plaintiffs’ counsel,
as set forth in their affidavits, further support rates at the higher end of the market range.
All of the participating attorneys are associated with established law firms, have excellent
reputations, have considerable experience, and consistently produce high quality work
product, which are factors meriting hourly rates at the high end of the market range. In
addition, Plaintiffs’ attorneys have been forced to expend considerable resources to
prosecute their case, making the case less desirable to the average litigator. In light of
these factors, the Court finds that attorneys’ fees ranging from $175 to $550 per hour and
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paralegal rates ranging from $100 to $145 are reasonable.
With respect to the lawyers and paralegals working at Spilman Thomas and Battle,
the Court finds that the hourly rates requested in the fee application fall within the
prevailing market range and are appropriate when considering the level of experience,
specialized skill, and professional investment of each individual. Therefore, the
undersigned adopts the hourly rates proposed by Plaintiffs for Niall Paul, Nathan
Atkinson, Sandra Burch, Meg Coppley, Andrew Darcy, Kelly Griffith, Rebecca Hendrix,
and Pamela Haynes. As for the hourly rate proposed on behalf of Adam Levitt, one of the
principal attorneys in the litigation, the rate is excessive for this market. Nonetheless, Mr.
Levitt has practiced law for more than 25 years, specializing in class action litigation, with
an emphasis on complex product liability cases. According to the affidavit supplied by his
law partner, Mr. Levitt has been appointed to a leadership role in a number of automotive
defect cases, giving him a level of experience not shared by many of the other attorneys.
Consequently, a hourly rate of $550 for Mr. Levitt’s services is reasonable. Similarly, Mr.
Don Slavik, who has practiced law since 1981 and also specializes in complex product
liability cases, including the multidistrict litigation involving unintended acceleration in
Toyota vehicles, an hourly rate at the highest end of the market range is appropriate.
Anthony DeWitt, a partner with the law firm of Bartimus, Frickleton, Robertson & Rader
in Kansas, regularly manages class action litigation. He graduated from law school in 1993
and has received many recognitions, including an AV rating from Martindale Hubbell.
Notwithstanding these accomplishments, his regular hourly rate of $550 is not supported
by the record given his limited role. Accordingly, the undersigned finds that an hourly
rate of $400 is reasonable for the time spent by Mr. DeWitt.

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Amy Keller and John Tangren are law partners of Mr. Levitt, specializing in
consumer class action litigation. While both attorneys have considerable experience, they
did not play prominent roles in this litigation; therefore, hourly rates of $350 and $400,
respectively, are supported by the record. Three attorneys from the firm of Isaac, Wiles,
Burkholder & Teetor provided legal services; including Shawn Judge, who has twenty
years of legal experience; Mark Troutman, a partner with 15 years of experience; and
Gregory Travalio, who graduated from law school in 1975 and taught at the Moritz College
of Law at the Ohio State University for decades. Bearing in mind each attorney’s
experience, training, specialization, customary hourly rates, and role in the instant action,
the undersigned finds rates of $350, $400, and $475, respectively, to be reasonable.
Lastly, two extrajurisdictional paralegals provided services—Kathy Kuryak and Audrey
Lebdjiri. Ms. Kuryak conducted searches of the discovery to uncover source code
communications, while Ms. Lebdjiri performed largely administrative functions.
Consequently, the undersigned finds an hourly rate of $140 for Ms. Kuryak’s time and
$115 per hour for Ms. Lebdjiri’s time to be reasonable.
In conclusion, the Court approves the following hourly rates as indicated below:
Nathan Atkinson

$400

Sandra Burch

$135

Meg Coppley

$270

Andrew Darcy

$185

Anthony DeWitt

$350

Kelly Griffith

$260

Pamela Haynes

$115

Rebecca Hendrix

$175

Shawn Judge

$350

Amy Keller

$350
15

Kathy Kuryak

$115

Audrey Lebdjiri

$140

Adam Levitt

$550

Niall Paul

$500

Don Slavik

$550

John Tangren

$400

Greg Travalio

$475

Mark Troutman

$400

Now that a range of reasonable hourly rates has been determined, a review of the hours
is necessary to ensure that the time billed is not duplicative, overlapping, or excessive.
B. Reasonable Number of Hours
“When reviewing a fee petition, the Court must exclude any hours that are
excessive, redundant, or otherwise unnecessary.” Allen v. Monsanto Company, 2007 WL
1859046 at *2 (S.D.W. Va. June 26, 2007) (citing Hensley y v. Eckerhart, 461 U.S. 424,
434 (1983)). “Counsel for a prevailing party has a duty to exercise ‘billing judgment’ to
‘exclude from a fee request hours that are excessive, redundant or otherwise unnecessary,
just as a lawyer in private practice ethically is obligated to exclude such hours from his fee
submission …’” Daly v. Hill, 790 F.2d 1071, 1079 (4th Cir. 1986) (quoting Hensley, 461
U.S. at 434)). A fee application should contain, at a minimum, the dates on which the
work was performed, a reasonably specific description of the work, and the amount of
time spent on each task. Central Cab Company, Inc., v. Cline, 972 F. Supp. 370, 374
(S.D.W. Va. 1997). While the Court should look for evidence of excessive billing, such as
duplication of effort and overuse of discovery, Xiao-Yue Gu v. Hughes STX Corp., 127 F.
Supp. 2d 751, 765 (D. Md. 2001), the Court “need not, and indeed should not, become [a]
green-eyeshade accountant[].” Fox v. Vice, 563 U.S. 826, 838 (2011). “The essential goal”
in awarding fees is “to do rough justice, not to achieve auditing perfection.” Id. Thus, the
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Court “may take into account [its] overall sense of [the] suit, and may use estimates in
calculating and allocating an attorney's time.” Id. “Even in the absence of novel questions,
an expenditure of significant hours may be reasonable where ‘the case certainly posed
difficulties from an evidentiary standpoint and required a high degree of skill to win.’”
Xiao-Yue, 127 F. Supp. 2d at 766 (quoting Herold v. Hajoca Corp., 682 F.Supp. 297, 300
(W.D. Va. 1988)).
Ford complains that Plaintiffs’ billing records show “substantial overlap and
duplication of efforts.” (ECF No. 1152 at 9). Ford argues that Plaintiffs had seven to ten
partner-level attorneys working on the same protective order and sanctions motion,
noting that multiple partners billed for supervisory work, while a horde of lawyers
simultaneously drafted and reviewed the same court filings. Ford argues that the Court
should reduce the requested fees by 50% to 67% in order to account for this “overstaffing.”
(Id. at 10-11). Furthermore, Ford challenges numerous billing entries on the basis that
they are not reasonably specific, or they constitute block-billing, adding that courts
routinely reduce fee awards when faced with these billing deficiencies.
In response to Ford’s arguments, Plaintiffs contend that they have conservatively
approached their fee application. (ECF No. 1166). Plaintiffs point out that they have
already reduced their 2017 time by one half to account for their level of success on the
motion for sanctions, and they have included only those billing entries directly related to
the pertinent issues, excluding potentially compensable billings out of an abundance of
caution. (ECF No. 1166-1 at 4; ECF No. 1166-2 at 7). With respect to Ford’s concern about
vague entries and block billing, Plaintiffs’ counsel verify that each entry in their billing
records was meticulously scrutinized so that only entries or portions of entries clearly
related to the pertinent issues were included in their fee application. (Id.). Plaintiffs assert
17

that the source code protective order took more than five months to negotiate and draft
and required contributions from many different attorneys. (ECF No. 1166 at 9). They
provide examples of how Plaintiffs’ lawyers used a “tag-team approach,” indicating that a
close review of the billing entries in chronological order demonstrates the absence of
unnecessary staffing. Finally, Plaintiffs emphasize that all of this time and effort would
have been avoided if Ford had not made material misrepresentations during discovery.
With these arguments and the Johnson factors in mind, the undersigned has
reviewed the billing entries in chronological order and finds that Plaintiffs’ counsel did
bill a large number of hours on the source code protective order and the sanctions motion,
and a portion of those hours were billed by members of the same or different firms
performing duplicative tasks; including, reviewing, revising, researching, and examining
the work of the other attorneys. To that extent, the approach used by Plaintiffs’ counsel
was “lawyers working by committee,” which is not an appropriate approach in the context
of calculating a fee award. See McGee v. Cole, 115 F. Supp. 3d 765, 776 (S.D.W. Va.2015).
In addition, some of the billing entries were vague or inadequate in describing the tasks
being performed. Unacceptable block billing likewise appears in Plaintiffs’ billing entries.
When faced with billing deficiencies in a fee application, the court “must exercise sound
judgment based on knowledge of the case and litigation experience to reduce the number
of hours by an appropriate percentage.” Route Triple Seven Ltd. P'ship v. Total Hockey,
Inc., 127 F. Supp. 3d 607, 621–22 (E.D. Va. 2015). Courts have reduced fee requests by
percentages ranging from 10% to 90%. Id.
Here, the undersigned accepts that some duplication in attorneys’ services should
be anticipated due to the nature of the case (a putative class action involving allegedly
defective electronic throttle control systems in numerous vehicle models manufactured
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over a nine-year period), the complexity of the issues surrounding the production of
Ford’s source code and related sanctions motion, and the perceived importance of the
discovery to Plaintiffs’ claims. The issues were hotly contested, requiring numerous court
conferences and meet and confer sessions, an evidentiary hearing, and the involvement
of an unbiased expert, Dr. William Sanders, to assist the Court with difficult and
specialized technical matters. Therefore, the tasks associated with the protective order
and sanctions motion required the contribution of highly skilled, trained, and
experienced attorneys. For that reason, the prevalence of law firm partners—as opposed
to associates—participating in these matters was reasonable and expected. Moreover,
while there was duplication in attorney attendance at court conferences, the attorneys
came from different law firms located in different states and were all participating in
various aspects of the source code issues. Consequently, their direct involvement in the
conferences allowed the Court to have the most knowledgeable attorneys present at all
hearings and telephonic conferences, and likely resulted in increased efficiency in
communication between the various firms. The undersigned also must consider that at
the time Plaintiffs’ counsel performed the work and incurred the expenses set forth in the
fee application, they had no expectation of reimbursement. Accordingly, they did not
intentionally overwork the issues to artificially inflate their billings. Instead, they invested
the time and resources they felt were necessary to respond to a situation created by Ford.
Finally, Plaintiffs’ counsel’s staffing was likely no more excessive than lawyer
staffing for the defense. The undersigned recalls that three or more defense attorneys
appeared at or participated in most, if not all, court conferences. Undoubtedly, numerous
defense attorneys worked on the same matters related to the source code protective order
and Plaintiffs’ motion for sanctions. In addition, as Plaintiffs’ argue, the time billed by
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their counsel for the source code protective order and the sanctions motion would not
have been necessary at all if Ford had been accurate and forthright at the outset about its
use, disclosure, and protection of the relevant source code. Ford’s attempt to distinguish
between issues at the evidentiary hearing related to source code protection and
production is unavailing, because the entire process surrounding production of Ford’s
source code would have been shortened and streamlined if Ford had not repeatedly and
vigorously misrepresented its history of source code disclosure. Ford should bear in mind
that the award of fees and costs in this case does not arise ancillary to a routine Rule 37(a)
discovery motion; rather, the award here is imposed as a sanction for Ford’s discovery
misconduct.
For the reasons stated above, the undersigned finds that the lodestar amounts for
each attorney should be reduced by twenty-five percent to account for billing duplication,
billing overlap, excessive billing, insufficient billing descriptions, and block billing. This
percentage fairly addresses Ford’s legitimate concerns, while accounting for the billing
judgment already exercised by Plaintiffs’ counsel. The only time excepted from the
percentage reduction is time charged by Mr. Slavik for work in October 2015 through June
2017 and time charged by Ms. Kuryak, because these time entries are not duplicative,
overlapping, or vague.
Having applied the approved hourly rates and deducting twenty-five percent from
the lodestar amounts, Plaintiffs are entitled to an award of attorneys’ fees totaling
$199,819.29, which divided by law firm is as follows:
1.

Grant & Eisenhoffer, P.A.

$54,600.00

2.

DiCello Levitt & Casey, LLC

$22,374.38

3.

Spilman Thomas & Battle, PLLC

$75,569.91

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4.

Slavik Law

$44,961.25

5.

Bartimus Frickleton Robertson & Rader

$1,732.50

6.

Isaac Wiles Burkholder & Teetor, LLC

$581.25

II.

Attorneys’ Expenses
After subtracting an error in Mr. Slavik’s itemization, Plaintiffs request an award

of attorney-related expenses in the amount of $12,756.97, which includes expenses
incurred by the three lead law firms representing Plaintiffs. In a series of affidavits,
Plaintiffs’ counsel verify that the expenses requested in the fee application are true,
accurate, and directly related to Ford’s discovery misconduct. (ECF Nos. 1166-1, 1166-2,
1166-3).
Ford objects to the claimed expenses, arguing that the itemizations provided by
Plaintiffs’ counsel are not well detailed or documented; thereby, preventing Ford from
determining the reasonableness of the charges. The undersigned finds Ford’s argument
to be unpersuasive. Other than a couple of transcripts and secretarial overtime, the line
items largely reflect travel-related expenditures for trips related to the source code
protective order and the motion for sanctions. The amounts included by Plaintiffs’
counsel appear to be reasonable on their face and to be limited to expenses incurred
secondary to Ford’s discovery misconduct. Moreover, as officers of the court, counsel have
testified under oath that the list of expenses contained in the fee application are an
accurate, if not understated, accounting of the expenses incurred by Plaintiffs’ counsel as
a result of Ford’s misrepresentations. Accordingly, the undersigned finds that Plaintiffs
are entitled to reimbursement of attorneys’ expenses in the amount of $12,756.97.

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III.

Expert Fees and Expenses
Plaintiffs have requested payment of expert fees in the amount of $261, 406.55

and expert expenses in the amount $66,319.63. The fees and expenses were charged to
Plaintiffs by the Barr Group, Philip Koopman, Ph.D., and Edge Case Research. According
to affidavits supplied by Plaintiffs, the time billed by the Barr Group reflects work
performed in May 2015; October through December 2015; and January through October
2016. (ECF No. 1143-1 at 2, 10, 11). The May 2015 entries reflect work completed by
Plaintiffs’ expert, Nigel Jones, to prepare for an evidentiary hearing on the source code
protective order. The remaining entries reflect the time spent by Barr Group experts
traveling to and from the secured room in Dearborn, Michigan in order to review Ford’s
source code. (Id.). The Barr Group charged expert fees in the range of $325-$550 per
hour. The total charged by the Barr Group for the above-described services is $145,
701.25. In addition, the Barr Group incurred expenses totaling $57, 537.70, including Mr.
Jones’s travel to Huntington, West Virginia for the evidentiary hearing, and the travel of
other Barr Group experts to the secured room in Dearborn. (Id. at 3, 16).
Dr. Koopman, one of Plaintiff’s expert witnesses, performed work in 2017, between
February and November. Plaintiffs seek reimbursement of Dr. Koopman’s fees for time
spent traveling to Dearborn; for portions of his expert reports that “informed Plaintiffs’
motion for sanctions”; and for direct support provided by Dr. Koopman during the
briefing of the motion for sanctions. (Id. at 5, 49). Dr. Koopman’s fees for those services
total $65, 342.80. Dr. Koopman also incurred travel expenses in the amount of $5,619.99.
(Id. at 6, 51).
Edge Case Research is an expert firm with expertise in embedded software and
vehicle safety. (ECF No. 1143-1 at 3). Plaintiffs retained Edge Case Research, in relevant
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part, to “review and analyze source code files attached to emails produced by Ford during
discovery.” (Id. at 4). The information uncovered by Edge Case Research formed the basis
of Plaintiffs’ sanctions motion. Plaintiffs seek reimbursement of fees incurred between
April 19, 2017 and May 8, 2017 for Edge Case Research’s analysis of the emailed source
code. (Id. at 29-30). These fees total $50, 362.50. In addition, Plaintiffs paid Edge Case
Research’s expenses in the amount of $2,819.68, which constitute the cost of software
licenses Edge Case Research was required to purchase in order to perform the source code
review. (Id. at 4, 32).
1. Barr Group
Ford objects to the time billed by Mr. Jones for his attendance at the evidentiary
hearing, arguing that the time should be reduced to one third, because the hearing
involved issues other than the security of the source code. In addition, Ford objects to Mr.
Jones’s block billing. (ECF No. 1152 at 15). With respect to Barr expert, Steve Louden,
Ford contends that Mr. Louden is requesting $550 per hour in fees when he only charged
Plaintiffs $350-$375 per hour. Ford indicates that Mr. Louden’s hourly rate should be
decreased to reflect the actual rate charged to Plaintiffs. Finally, Ford objects to the
expenses requested by the Barr Group on the ground that the expenses are not sufficiently
detailed to allow Ford the opportunity to evaluate the reasonableness of the charges. Ford
concedes that travel expense is an appropriate item for reimbursement, but argues that
the lack of detailed travel charges justifies a 50% reduction of the Barr Group’s expenses.
(Id. at 19).
In a responsive affidavit, Andrew Girson, CEO of the Barr Group, verifies that the
fees and expenses itemized by Plaintiffs in their fee application are accurate and are based
upon contemporaneously prepared time and expense records of the Barr Group. (ECF No.
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1166-6 at 2-3). Mr. Girson testifies that the time records submitted were prepared with
great care to insure that only activities directly related to the protective order and travel
to the source code room were included. He also asserts that Ford is mistaken about the
hourly rate charged by the Barr Group to Plaintiffs for Mr. Louden’s services, explaining
that while Mr. Louden billed the Barr Group $350 to $375 per hour for his time, the Barr
Group charged Plaintiffs $550 per hour for that time. Accordingly, the hourly fee sought
by Plaintiffs for Mr. Louden’s time is correct. (Id.).
In essence, Ford does not object to the categories of fees and expenses outlined by
the Barr Group; instead, Ford contends that the individual entries are either excessive or
not well supported. The undersigned disagrees. The Barr Group has provided sufficient
information to discern the task that led to the charge and the expense that accompanied
the task. The undersigned likewise finds Ford’s argument regarding Mr. Jones’s
appearance at the evidentiary hearing to be unpersuasive. If not for the difficulty
associated with negotiating the source code protective order, an evidentiary hearing likely
would not have been necessary. Therefore, Mr. Jones’s appearance at the hearing can be
directly attributed to Ford’s discovery misconduct. While the travel time and expenses
claimed by the Barr Group are substantial, the amounts are verified by the affidavit of Mr.
Girson. There is nothing facially outrageous about the time and expenses claimed, and
the hourly rates charged by the Barr Group are within the range typically charged by
experts.
Nevertheless, there are some entries included on the Barr Group’s expense
itemization that either lack a corresponding time record, or are undated and thus prevent
the Court from determining if a corresponding time record exists. Although the Barr
Group may have legitimately charged these amounts, the Court is not tasked with parsing
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through the record and interpreting entries in an effort to match activities with expenses.
To the contrary, the burden rests with the Plaintiffs to adequately demonstrate that their
fee application is complete and accurate. Entries that are unclear or inconsistent with
other records will be rejected as lacking substantiation. For that reason, the following
expense entries have been disallowed:
11/04/2015 Louden trip to Detroit (10/6-10/8)

$881.93

11/04/2015 Louden trip to Detroit (10/6-10/8)

$420.00

12/09/2015 Louden trip to Detroit (11/8-11/21)

$810.00

12/09/2015 Louden trip to Detroit (11/8-11/21)

$4,974.20

2/08/2016

Barr trip to Detroit (1/12-1/13)

$683.27

2/08/2016

Barr trip to Detroit (1/12-1/13)

$198.18

2/08/2016

Barr trip to Detroit (1/12-1/13)

$81.25

11/11/2016

Louden per diem

$33.50

11/11/2016

Louden transportation (10/16 & 10/23) $1,084.96

11/11/2016

Smith transportation

$63.00

11/11/2016

Smith rental car

$247.20

11/11/2016

Smith meal per diem

$195.00

11/11/2016

Louden meal per diem

$390.00

2/07/2017

Louden meal per diem

$325.00

3/07/2017

Louden transportation (2/11 & 2/18)

$1,101.08

3/07/2017

Louden meal per diem

$780.00

4/06/2017

Louden meal per diem

$65.00

In addition, two time records are disallowed as they reflect administrative, rather than
expert witness time: 5/26/2015 Nigel Jones Prep for travel, totaling $262.50, and
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11/27/2015 Michael Wilk travel arrangements, totaling $325.00.
After making these deductions, the undersigned concludes that Plaintiffs are
entitled to reimbursement of the fees and expenses charged by the Barr Group in the total
amount of $190,317.88.
2. Philip Koopman, Ph.D
Ford opposes Dr. Koopman’s fees and expenses on two grounds. First, Ford asserts
that Plaintiffs are attempting to recoup time spent by Dr. Koopman traveling to the
secured source code room even though Dr. Koopman never charged this time to Plaintiffs.
(ECF No. 1152 at 15-16). Ford argues that it should not have to pay fees that were never
passed on to Plaintiffs. Second, Ford objects to Plaintiffs’ request for reimbursement of
10% of Dr. Koopman’s time spent preparing his expert reports and giving deposition
testimony. Ford contends that the percentage selected by Plaintiffs is “wholly made up”
in that it is not tied to any concrete measurement. (Id. at 16).
Plaintiffs counter Ford’s objections by supplying an affidavit from Dr. Koopman.
(ECF No. 1166-7 at 2-6). Dr. Koopman explains that he did bill Plaintiffs for his travel
time, directing the parties to the entries in his invoices that represent his charges for
travel. (Id. at 4). Dr. Koopman acknowledges that he did not identify travel time as a
separate line item in his bills to Plaintiffs, but did make a conservative estimate to assist
Plaintiffs in supporting their motion for sanctions. Dr. Koopman testifies that the time
allowed for his travel “understates the actual amount of time” he spent commuting to the
secured source code room. (Id.). In regard to the 10% charged for time spent on security
issues in his expert reports and deposition, Dr. Koopman supplies a rationale for the 10%
figure used by Plaintiffs.

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The undersigned finds Ford’s opposition to Dr. Koopman’s travel time to be
without merit. As Plaintiffs have stressed on more than one occasion, they suggested other
methods for reviewing the source code that would not have required extensive travel by
their expert witnesses. Ford strenuously opposed each one of Plaintiffs’ suggestions on
the ground that Ford’s source code had been strictly safeguarded in the past and was
entitled to heightened protection that could only be accomplished by a secured source
code room. As it turned out, Ford’s representations were grossly inaccurate, making travel
to the source code room an avoidable extravagance. Consequently, Ford must pay the
travel time and expenses of Dr. Koopman.
On the other hand, Plaintiffs have failed to carry their burden of demonstrating
how Ford’s misrepresentations increased the time Dr. Koopman spent writing his expert
reports and giving a deposition. While it is possible that these tasks are connected to the
discovery misconduct, the information before the Court does not adequately explain the
relationship. For that reason, the time attributed to preparing the expert reports and
preparing for deposition testimony will be deducted. Plaintiffs are entitled to
reimbursement, however, for the time Dr. Koopman spent assisting with with the motion
for sanctions.
After subtracting the time described above, the undersigned finds that Plaintiffs
are entitled to $31,951.99 for Dr. Koopman’s fees and expenses.
3. Edge Case Research
Ford argues that all of the fees and expenses billed by Edge Case Research should
be disallowed, because its task descriptions are “incomplete and vague.” (ECF No. 1152 at
15). Ford suggests that Edge Case Research’s work had nothing to do with the protective
order or the motion for sanctions. Instead, according to Ford, Plaintiffs are attempting to
27

shift the costs of their case in chief to Ford. (Id.). Ford also objects to paying the expenses
claimed by Edge Case Research, arguing that Edge Case Research seeks reimbursement
of software licenses that were needed to analyze the source code in general, not
specifically the code discussed in the motion for sanctions.
In his affidavit, Dr. Koopman responds to Ford’s assertions by explaining that he
is a co-founder of Edge Case Research, a firm that provides expert analysis in litigation.
(ECF No. 1166-7 at 2). In regard to Ford’s discovery misconduct, Edge Case Research was
retained to examine and analyze the source code files attached to emails produced by Ford
during discovery. Plaintiffs confirm that the source code files attached to emails were not
examined to advance Plaintiffs’ theories of recovery, but were instead examined to
determine the extent of Ford’s misrepresentations. (ECF No. 1152 at 15). Dr. Koopman
also verifies that the time included in the fee application described by Edge Case Research
as source code analysis relates directly to the emailed source code attachments and not to
source code analysis performed as part of Plaintiffs’ case in chief. (ECF No. 1166-7). In
addition, Dr. Koopman confirms that the software licenses purchased by Edge Case
Research were essential to an analysis of the emailed source code. (Id. at 3).
In light of Dr. Koopman’s affidavit, the undersigned finds that the services charged
by Edge Case Research were directly related to Ford’s discovery misconduct.
Furthermore, the software license purchased by Edge Case Research were necessary to
allow employees of Edge Case Research to access the source code files that were attached
to emails produced by Ford in discovery. By opening and reviewing these attachments,
Edge Case Research determined that Ford misrepresented the level of protection given to
the source code ordered to be disclosed in this case. Ford has not produced any evidence
to refute the credibility of Dr. Koopman’s affidavit. Therefore, Plaintiffs are entitled to
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reimbursement of the fees and expenses charged by Edge Case Research in the amount of
$53,182.18.
IV.

Conclusion
Wherefore, for the reasons set forth above, the Court ORDERS Ford to pay

Plaintiffs the total sum of $488,028.31 as sanctions for Ford’s discovery misconduct.
The payment shall be made within thirty days of the date of this Order.
The Clerk is instructed to provide a copy of this Order to counsel of record and any
unrepresented party.
ENTERED: March 22, 2018

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