Young v. Act Fast Delivery of West Virginia, Inc. et al
ORDER granting Plaintiff's 101 PETITION for Rule 37 Sanctions in its entirety; awarding Plaintiff attorney fees in the amount of $40,434.00. Signed by Magistrate Judge Omar J. Aboulhosn on 8/10/2017. (cc: attys; any unrepresented party) (slr)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
ERIC YOUNG, individually and on
behalf of all others similarly situated,
CIVIL ACTION NO. 5:16-cv-09788
ACT FAST DELIVERY OF WEST
VIRGINIA, INC. et al.,
The undersigned previously found that sanctions pursuant to Rule 37 of the Federal Rules
of Civil Procedure were appropriate in this matter as a result of Defendants Act Fast Delivery of
West Virginia, Inc. and Act Fast Delivery, Inc. (hereinafter referred collectively as “Act Fast”)
conduct with regard to Plaintiff’s discovery requests. (Document No. 96.) Pursuant to the
undersigned’s instructions, Plaintiff submitted his petition for Rule 37 sanctions (Document No.
101.), Act Fast submitted its response to same (Document No. 111.), to which Plaintiff filed his
reply. (Document No. 132.) Accordingly, this issue is now full briefed and ready for determination
of the appropriate sanctions.
For the reasons stated below, the undersigned GRANTS Plaintiff’s Petition for Rule 37
Sanctions. (Document No. 101.)
In his Petition, Plaintiff attached several exhibits including the affidavits of the four
attorneys and one paralegal involved detailing the amount of time each expended in the
prosecution, research, document review, and drafting of pleadings concerning Plaintiff’s Motion
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to Compel, Reply Concerning Plaintiffs’ Motion to Compel, and Motion for Leave to File
Supplement to Reply after having received addition production from Act Fast. (Document Nos.
70, 80, 93.) In sum, Plaintiff requests this Court to order Act Fast to pay his attorney fees in the
amount of $40,434.00 and for any additional relief as may be just and equitable.
In response, Act Fast asserts that the fees and expenses Plaintiff has requested should be
reduced, and specifically contests those sums related to the preparation of Plaintiff’s Supplement
to Reply Concerning Plaintiff’s Motion to Compel. (Document No. 111 at 3.) First, because those
fees and expenses were not preceded by the Rules requirement for a meet and confer; second, Act
Fast produced the requested discovery, it was only a dispute concerning the form of those
productions that arose afterwards; third, these fees and expenses involved document review,
typical litigation expenses; and fourth, the fees and expenses connected to Thomas Goodwin, Esq.
are redundant and unnecessary. (Id. at 3-4.) Act Fast also contends that the claimed fees and
expenses need to be reduced to prevailing market rates in this district. (Id. at 4.)
Act Fast further argues that two issues raised in Plaintiff’s Supplement were not discussed
by the parties: the organization of the production and the production of non-responsive family
members. (Id. at 5.) There is no rule or governance in this district with respect to the format of
electronically stored information (“ESI”), and therefore Act Fast demonstrated good faith and was
justified in producing a “reasonably usable” TIFF format native Microsoft Excel files as agreed
upon by the parties. (Id. at 7-8.)
With respect to the reduction of attorney fees and expenses, Act Fast explains that such
sums should be excluded from the meet and confer process and from normal document review,
which are not allowable pursuant to Rule 37, as the only fees and expenses allowed are those
associated with the failure to comply with discovery. (Id. at 9-10.) Act Fast asserts that the
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expenses associated with Mr. Goodwin are excessive and redundant to those expenses associated
with Ms. Wittemeier and Mr. Kirby, and further, were associated with Plaintiff’s Supplement, and
should therefore be excluded altogether. (Id. at 11.) Finally, Act Fast proposes that the hourly
billing rates claimed by Plaintiff’s attorneys should be reduced in compliance with prevailing
market rates, specifying that the rates for Mr. Kirby, Mr. White and Ms. Washington appear
compliant, however, the rates for Ms. Wittemeier and Mr. Goodwin should be reduced to $350 per
hour. (Id. at 11-13.)
In reply, Plaintiff asserts that Act Fast’s production of the electronically stored information
was made after business hours on a Friday, and were wholly inadequate in response to Plaintiff’s
requests. (Document No. 132 at 3.) Further, Plaintiff did meet and confer prior to filing the Motion
to Compel, and further, was not required to meet and confer again regarding the numerous
deficiencies identified in the Supplement filed afterwards. (Id. at 5.) Plaintiff argues that Act Fast’s
conduct was egregious, and cites its counsel’s Motion to Withdraw as further evidence of that
conduct. (Document No. 100.) (Id.) The Motion to Withdraw highlights Act Fast’s continued
conduct in this case: it refused to abide by this Court’s order to comply with discovery requests,
and now is accused of refusing to pay its own counsel. (Id.)
Contrary to Act Fast’s assertion otherwise, Plaintiff disagrees that it was justified in
producing the format of the ESI, because there was no discussion or agreement regarding the
organization of this discovery; further, Act Fast failed to identify or alert Plaintiff that two fields
were pulled from the metadata in contradiction to its representation to this Court that Act Fast
would produce this material as it maintained same in the ordinary course of business. (Id. at 6.) As
a result, Plaintiff expended considerable time and expense searching for attachments that were
removed from Act Fast’s production as “non-responsive.” (Id.) More importantly, Plaintiff argues
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that Act Fast’s representation to this Court that those attachments were pulled because they did not
respond to Plaintiff’s production requests were false. (Id. at 7.)
Plaintiff further contends that its expenses associated with the attorney fees for document
review in preparation for the hearing on the Motion to Compel should be granted, because Act
Fast’s production deficiencies were substantial, and considerable court time was also expended by
Plaintiff’s counsel to demonstrate to Act Fast’s counsel the specific documents existed that Act
Fast failed to produce. (Id. at 7-8.) Had Act Fast timely produced the documents in response to
Plaintiff’s requests in the manner kept in the ordinary course of business, and without pulling such
documents responsive to Plaintiff’s requests, so much time did not have to be wasted by Plaintiff
in order to point this out. (Id. at 8.)
Moreover, Plaintiff states that its attorney fees and expenses associated with the meet and
confer process that occurred after Plaintiff filed its Motion to Compel, and also because Act Fast
failed to participate meaningfully during the informal conference on these discovery disputes with
the Court. (Id. at 8-9.) All the time entries except for 1.2 hours concern fees and expenses
associated with Plaintiff’s Motion to Compel, and pertained to those issues subject to the Motion.
Mr. Goodwin’s work was not duplicative, but complementary to the work necessary to
prosecute the Motion to Compel; due to Act Fast’s withholding of critical information, and because
of the importance of the Motion to Compel, Plaintiff appropriately staffed its most experienced
litigators on this issue. (Id. at 9.) Further, contrary to Act Fast’s argument, Mr. Goodwin’s and Ms.
Wittemeier’s billing rates are within the prevailing market rates in this district, and several recent
cases in this district have seen hourly billing rates for experienced attorneys at $400 and $550. (Id.
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In sum, Plaintiff asks that the Petition for Sanctions be granted in its entirety as the conduct
demonstrated by Act Fast justifies it. (Id. at 11.)
Pertinent Legal Authorities:
If a court grants a motion to compel, then Rule 37(a)(5) of the Federal Rules of Civil
Procedure compels the court to require the party or the attorney to pay the reasonable expenses,
including attorney fees, incurred by the movant, unless one of three exceptions occurred: one, that
the movant filed the motion before attempting in good faith to obtain the discovery without court
action; two, the opposing party’s nondisclosure, response or objection was substantially justified;
or three, other circumstances make an award of expenses unjust. This district requires parties to an
action to meet and confer as to virtually all discovery disputes that would cause a party to file a
motion to compel. Frontier-Kemper Constructors, Inc. v. Elk Run Coal Co., 246 F.R.D. 522, 525
(S.D.W. Va. 2007).
This Court granted Plaintiff’s Motion to Compel (Document No. 70.) on June 7, 2017
following the hearing on June 6, 2017. (Document No. 96.) Relative to the arguments raised herein,
this Court also granted Plaintiff’s Motion for Leave to File Supplement (Document No. 93.) to its
reply in connection with the Motion to Compel that same day. The undersigned recalls that Plaintiff
demonstrated good cause to file the Supplement when Act Fast produced over 14,000 pages of
documents after 5:00 p.m. on a Friday, however, counsel for Act Fast could not confirm to the
undersigned during the hearing whether Act Fast’s supplemental production was deficient or not,
or responsive or not, to Plaintiff’s requests. A beguiling corollary to the production of 14,000 plus
documents was that the undersigned had ordered Act Fast to specify which of those pages of
disclosures were responsive to the specific enumerated request, as Plaintiff demonstrated that each
page would have to be reviewed in order to determine if Act Fast responded sufficiently. Indeed,
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the undersigned further recalls that Act Fast provided no reasonable excuse for its outright failure
to respond to Plaintiff’s discovery requests, and that Act Fast only responded after Plaintiff was
forced to seek court action to ensure Act Fast’s compliance with the discovery rules.
In short, none of the three exceptions provided by the pertinent legal authority exist that
would preclude this Court from awarding Plaintiff his payment of the expenses and fees incurred
in prosecuting not only the Motion to Compel, but also the Reply and subsequent Supplement. Act
Fast’s argument that such discovery disputes only arose after it produced this information is
unavailing, as well as its argument that the law in this district is “unsettled” with respect to the
format of ESI responsive to Plaintiff’s requests for same. The undersigned previously found that
for Plaintiff to review each of those documents one by one is far too time-consuming a process
and frustrates the purpose of the Rules with regard to the discovery process. Moreover, it is not
lost on the undersigned that this is precisely the circular argument that Act Fast has employed for
several months to circumvent straightforward discovery requests, and has therefore created the
costly situation it now finds itself in due to its own conduct.
The undersigned is also extremely concerned by Plaintiff’s allegation that Act Fast
produced discovery pursuant to the undersigned’s direct order following the hearing on Plaintiff’
Motion to Compel that patently disregarded the undersigned’s direct order that same was to be
produced in its “ ‘native format, un-redacted, as generated in the normal course of business” and
wholly failed to advise Plaintiff that it pulled certain documents from production. (Document No.
132 at 6.) Perhaps more disturbing is that Act Fast represented to this Court that certain ESI
documents were pulled that were non responsive, but Plaintiff, once again, was forced to expend
considerable time to ascertain that Act Fast made a false statement in open court to that end. (Id.
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Plaintiff has more than adequately demonstrated that the attorneys’ fees and other expenses
related to the prosecution of its Motion to Compel subsequent related pleadings, as well as the time
spent to attempt a proper meet and confer, and to review the voluminous documents disclosed, was
the result of Act Fast’s own misconduct.
In addition, as a result of Act Fast’s blatant disregard for not only the Federal Rules of Civil
Procedure, but also this Court’s own direct orders, the undersigned is hard-pressed to find any
good reason to reduce or discount any of the hours spent by any of the attorneys Plaintiff has
retained as related to the issues raised herein. Having reviewed the prevailing market rates in the
Southern District of West Virginia 1 for the experienced and accomplished attorneys involved in
this matter, the undersigned disagrees with Act Fast that the billing rates demonstrated by Mr.
Goodwin or Ms. Wittemeier should be reduced. Both submitted affidavits detailing their collective
legal experience of eight-five years and more than adequately documented their time expended to
prosecute this particular issue.
Given the conduct Act Fast has continuously demonstrated in this matter, the undersigned
GRANTS Plaintiff’s Petition for Sanctions in its entirety as requested. 2 Plaintiff is hereby
awarded attorney fees in the amount of $40,434.00.
In accordance with Rule 72(a) of the Federal Rules of Civil Procedure, the ruling set forth
above in this non-dispositive Petition may be contested by filing within 14 days, objections to this
Order with District Judge Irene Berger. If objections are filed, the District Court will consider the
objections and modify or set aside any portion of the Order found clearly to be erroneous or
Greenbrier Hotel Corp. v. Unite Here Health, No. 5:13-cv-11644, 2017 WL 2058222 (S.D.W. Va. May 12, 2017).
Act Fast’s conduct in this matter regarding the discovery dispute was egregious. It is hard to overstate the bad faith
Act Fast displayed. In the opinion of the undersigned, such conduct cannot, and must not, be overlooked or excused
by the Court. If all litigants conducted themselves in the same manner as Act Fast, litigation would become
exponentially more expensive. The attorney fees being awarded in this matter is a good example of the time and money
wasted by Act Fast’s conduct.
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contrary to law.
IT IS SO ORDERED.
The Clerk is directed to mail a copy of this Order to all counsel of record.
ENTER: August 10, 2017.
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