Jeremiah J. CROSS, deceased, BY AND THROUGH his Personal Representative Valerie STEELE, Plaintiff, v. XPO EXPRESS, INC. f/k/a Express 1, Inc., XPO Logistics, Inc., Cliffside Transportation Services LLC and Timothy Craig Groshans, Defendants. Graysen D. Cross, deceased, by and through his Personal Representative Valerie Steele, Plaintiff, v. XPO Express, Inc. f/k/a Express 1, Inc., XPO Logistics, Inc., Cliffside Transportation Services LLC and Timothy Craig Groshans, Defendants. Shirley G. Oickle and Douglas M. Oickle, Individually and as Personal Representatives of the Estate of Crystal G. Oickle, a/k/a Crystal G. Cross, Deceased, Plaintiff, v. XPO Express, Inc. f/k/a Express 1, Inc., XPO Logistics, Inc., Cliffside Transportation Services LLC and Timothy Craig Groshans, Defendants. Barry A. Himes, deceased, by and through his Personal Representative and Mother, Eleanor Miller Plaintiff, v. XPO Express, Inc. f/k/a Express 1, Inc., XPO Logistics, Inc., Cliffside Transportation Services LLC and Timothy Craig Groshans, Defendants. Jacqueline Ann McCann, deceased, by and through her Personal Representatives, Constance M. Huff and Ray Huff, Plaintiff, v. XPO Express, Inc. f/k/a Express 1, Inc., XPO Logistics, Inc., Cliffside Transportation Services LLC and Timothy Craig Groshans, Defendants Civil Action No. 4:15-2480-BHH, Civil Action No. 4:15-2481-BHH, Civil Action No. 4:15-2773-BHH, Civil Action No. 4:16-1253-BHH, Civil Action No. 4:16-1254-BHH United States District Court, D. South Carolina Signed April 20, 2017 Counsel Mark Christopher Joye, Mark Joseph Bringardner, Joye Law Firm, Charleston, SC, for Plaintiff. T. David Rheney, William T. Young, III, Gallivan White and Boyd, Greenville, SC, for Defendants XPO Express Inc., XPO Logistics Inc. Duke Raleigh Highfield, Brandt Robert Horton, Victoria Leigh Anderson, Young Clement Rivers and Tisdale, Charleston, SC, for Defendant Cliffside Transportation Services LLC. Mark Steven Barrow, Sweeny Wingate and Barrow, Columbia, SC, Martin S. Driggers, Jr., Sweeny Wingate and Barrow, Hartsville, SC, for Defendant Timothy Craig Groshans. Marchant, Bristow, United States Magistrate Judge ORDER *1 These actions have been filed by the Plaintiffs against numerous Defendants alleging wrongful death & survival (-2480, -2481, -1253, -1254), negligence (-2480, -2481,-2773, -1253, - 1254), negligent entrustment (-2480, -2481, -1253, -1254), negligent hiring (-2480, -2481, -1253, - 1254), retention (-2480, -2481, -1253, -1254), maintenance & supervision (-2480, -2481, -1253, - 1254), piercing the corporate veil/alter ego (-2480, -2481, -2773, -1253, -1254), and amalgamation of interests (-1253, -1254). These claims arise out of a rear-end motor vehicle crash on Interstate 95 on March 21, 2015 in which five people were killed. At the time of the crash, Defendant Groshans was driving the tractor-trailer involved in the crash. Plaintiffs allege that the tractor-trailer was owned by the Defendant Cliffside Transportation Services, and at the time of the accident was leased to the Defendants XPO Express, Inc. and XPO Logistics, Inc. (hereinafter collectively referred to as “XPO”) under a subcontractor agreement. By Order filed May 3, 2016, the Honorable Bruce Howe Hendricks, United States District Judge, granted Plaintiffs' motion to compel responses to certain interrogatory and production requests, as well as requiring the XPO Defendants to produce a privilege log for those documents they wished to protect from discovery. That Order also allowed for an ESI search of the Defendant Groshans' laptop computer. Defendants were instructed to comply with the directives set forth in the Order relating to the matters to be produced within thirty (30) days. Subsequently, however, Plaintiffs filed renewed motions to compel, and for sanctions, due in part to the XPO Defendants' purported failure to comply with Judge Hendricks' order. Those motions were referred to the undersigned, and a hearing was held on Plaintiffs' motions on December 20, 2016. With respect to XPO’s purported failure to comply with Judge Hendricks' May 2016 Order,[1] a review of the hearing transcript shows that Plaintiffs' counsel stated there were “six to eight” items ordered by Judge Hendricks to have been produced (within 30 days of her order of May 3, 2016) but which had not been. Plaintiffs' counsel argued XPO had failed to produce certain items or to alternatively provide a privilege log showing where privilege was being claimed with respect to these items, and had also failed to produce certain financial statements and property damage settlement information. Following oral argument, the Court instructed Plaintiffs' counsel to advise the Court, in writing, as to what was still outstanding that Judge Hendricks had ordered to be produced, with a copy to defense counsel, and that after defense counsel had had an opportunity to respond, the Court would than enter such further orders as were necessary and appropriate. The Court further held that, since Plaintiffs' counsel had to file the renewed motions to compel and attend the hearing, at least in part, due to XPO’s non-compliance with Judge Hendricks' previous order, Plaintiffs' counsel should submit affidavits of fees and costs incurred for having to pursue that course of action, following which Defense counsel would have 30 days to respond. *2 The Court thereafter filed a written Order on December 21, 2016, memorializing the Court’s oral rulings from the hearing, and which in part again granted Plaintiffs' requests for attorneys' fees and costs for XPO’s failure to comply with Judge Hendricks' Order of May 3, 2016. See Order of December 21, 2016, at p. 7. The December 2016 Order noted that defense counsel had conceded at the hearing that at least some of the material ordered to be produced by Judge Hendricks had still not been produced as of the hearing (despite the passage of some seven (7) months), and Plaintiffs' counsel were directed to file affidavits of fees and costs incurred for having to pursue the renewed motions to compel with respect to this material by January 13, 2017. XPO’s counsel was granted thirty days after the filing of these affidavits to contest the amount of any fees and costs being sought, following which a final order was to be issued. On January 13, 2017, attorney Kevin Barth, counsel for Plaintiffs Barry A. Himes, deceased, by and through his personal representative and mother, Eleanor Miller, and Jacqueline Ann McCann, deceased, by and through her Personal Representatives Constance M. Huff and Ray Huff, filed an affidavit stating that “[b]ased upon my time and expense records, 62.10 hours have been spent by me in dealing with the issues surrounding the Defendants' discovery responses or lack thereof and the Motions to Compel and for Sanctions.”[2] See Barth Affidavit, p. 3 [Court Docket No. 124-1, p. 3]. Barth attests that his hourly rate is $300 and that the total of attorneys fees incurred to date on these matters was $17,435.[3] See Barth Affidavit, p. 3 [Court Docket No. 124-1, p. 3]. On January 13, 2017, attorney Vincent Barbera, who is also counsel for Plaintiffs Barry A. Himes, deceased, by and through his personal representative and mother, Eleanor Miller, and Jacqueline Ann McCann, deceased, by and through her Personal Representatives Constance M. Huff and Ray Huff, [the same Plaintiffs represented by Barth] filed an affidavit stating that “[t]he total charge of my legal service and the legal charges of my associates and paralegals in dealing with the issues surrounding the Defendants' discovery responses or lack thereof and the Motions to Compel and for Sanctions, is the sum of $30,932.50 ....” See Barbera Affidavit, p. 5 [Court Docket No. 125-1, p. 5]. On January 13, 2017, Mark J. Bringardner, counsel for Plaintiff Valerie Steele, filed an affidavit stating that his client will have “incurred attorney’s fees to his firm totaling $38,125” for “the issues surrounding the Defendants' discovery responses or lack thereof and the Motions to Compel and for Sanctions.” See Bringardner Affidavit, p. 3 [Court Docket No. 126-1, p. 3]. On February 1, 2017, Bringardner filed a supplemental affidavit itemizing 152.50 hours of time spent pursuing the renewed motion to compel and motion for sanctions.[4] Bringardner previously attested that his hourly rate was $250, which would total $38,125 for 152.50 hours. See Bringardner Affidavit, p. 3 [Court Docket No. 126-1, p. 3]. *3 On January 13, 2017, Melissa Mosier, counsel for Plaintiffs Doug and Shirley Oickle, individually and as Personal Representatives of the Estate of Crystal G. Oickle, a/k/a Crystal G. Cross, Deceased, filed an affidavit stating that her hourly fee is $275 an hour together with time entries totaling 57.08 hours spent addressing and responding to the various discovery issues which are the subject of Plaintiffs' Motion for Sanctions. See Mosier, pp. 2-5 [Court Docket No. 128-1, pp. 2-5]. An hourly fee of $275 for 57.08 hours would total $15,697. On February 10, 2017, XPO filed a memorandum challenging the $104,284.50[5] claimed by Plaintiffs as attorneys' fees purportedly incurred to gain XPO’s compliance with the May 3, 2016 Order of Judge Hendricks. See Court Docket No. 140. XPO initially argues that an award of attorneys' fees is unjust under the circumstances of this case including, but not limited to, that any failure to respond (specifically referring to the production of a privilegelog) was based on a prior counsel’s conduct,[6] that the documents at issue were not in XPO’s possession, that XPO subsequently apparently obtained the documents and produced them to the Plaintiffs, and that there are now no further documents to be produced.[7] See Court Docket No. 140, pp. 7-8. However, to the extent that XPO is challenging what Judge Hendricks ordered produced, those issues have already been ruled on by Judge Hendricks, and this Court has no authority to review Judge Hendricks' rulings. With respect to XPO’s contention that it had produced at least some of the discovery at issue by the time of the hearing, that would not excuse XPO’s failure to have timely produced those materials in compliance with Judge Hendricks' Order. Further, XPO’s counsel conceded at the hearing, when discussing one of the specific items at issue, that he had advised “Mr. Joye last week we had no problem producing [the material at issue]. I have no idea why it had not been produced. But I advised him that was something that we could -- we should have produced, and we will....” See Transcript of December 20, 2016 hearing, p. 45. When the Court then asked why this documentation or material had not already been produced since Judge Hendricks had ordered it to be produced back in May 2016, XPO’s counsel responded “Your Honor, truthfully, I don't either. I don't know why that wasn't produced.” See Transcript of December 20, 2016 hearing, p. 45. XPO’s counsel also admitted that they failed to meet Judge Hendricks' June 2016 deadline to provide a privilege log, and instead did not produce the privilege log until October 2016.[8] See Transcript of December 20, 2016 hearing, p. 46. Notably, Judge Hendricks' Order had not only directed XPO to produce a privilege log for those documents that it wished to protect, but specifically cautioned XPO that “failure to produce a timely or sufficient privilege log may constitute a forfeiture of any claims of privilege.” See May 3, 2016 Order, p. 10. Accordingly, Plaintiffs are entitled to fees and costs for having to continue to pursue the production of a privilege log until it was produced in October 2016, as well as for having to file motions in order to obtain the documentation ordered by Judge Hendricks to be produced, which XPO’s counsel conceded should have already been produced at the time of the hearing. *4 However, although a fee award is appropriate under these facts,[9] XPO further argues that the attorney fee requests submitted exceed the limited scope of the Court’s December 2016 order, and the Court is constrained to agree with this argument. On December 21, 2016, the Court found that “as it is readily apparent that XPO failed to timely comply with Judge Henricks' Order of May 3, 2016 ... Plaintiffs' motion for monetary sanctions as a penalty for this failure to comply was granted.” See Order filed on December 21, 2016, p. 7 [Emphasis Added]. The Court then directed Plaintiffs to “prepare an affidavit of fees and costs incurred by Plaintiffs for having to pursue a renewed motion to compel and/or motion for sanctions with respect to this material ....” See Order filed on December 21, 2016, p. 7 [Emphasis Added]. As such, insofar as the issues addressed herein, only fees relating to entries strictly limited to the noncompliance of XPO to Judge Hendricks' May 2016 Order should be awarded. Cf. Goodyear Tire & Rubber v. Haeger, No. 15-1406, ––– S.Ct. ––––, 2017 WL 1377379 (Apr. 18, 2017)[Compensatory discovery fee sanction must be limited to the amount of legal fees caused by the misconduct]. However, although the Court finds that Plaintiffs' counsel have sufficiently established their experience and qualifications, the entries that have been submitted go well beyond the parameters of work regarding any noncompliance with Judge Hendricks' May 2016 Order. For example, the time sheets submitted include time entries (with the corresponding fee amounts) for work relating to the Defendant Groshans, depositions, general housekeeping, for work relating to the Defendant Cliffside Transportation, subpoenas to non-parties, matters relating to spoliation (a separate issue), insurance coverage issues, amendment of the pleadings, Plaintiffs' responses to Defendants' discovery requests, time for paralegals, and various entries relating to Omnitracs and related issues, none of which appear to specifically relate to XPO’s non-compliance with Judge Hendricks' May 2016 Order. Additionally, numerous other entries cannot be reconciled with the issue at hand, as they only refer to unidentified emails being sent by or between counsel, general work on “discovery” matters, etc. Even with respect to entries that can be specifically identified as relating to Plaintiffs' renewed motions to compel and for sanctions and the hearing itself, since those motions (as well as a significant portion of the hearing) addressed or dealt with other issues not directly related to XPO’s non-compliance with the directives contained in Judge Hendricks' Order, counsel would not be entitled to fees for all of the time set forth in even those entries. Cf. Goodyear, 2017 WL 1377379 at * 1 [Court may award only those fees that the innocent party would not have incurred in the absence of the litigation misconduct, and such fees are compensatory only if “calibrate[d] to [the] damages caused by” the acts on which they are based], citing Mine Workers v. Bagwell, 512 US 821, 834 (1994). While the Court could require Plaintiffs' counsel to submit new time sheets showing only relevant entries, the Court is concerned that requiring the parties to expend more time, in addition to the time already spent, will lead to Plaintiffs' counsel expending more time on this issue than what they are actually entitled to recover.[10] Likewise, requiring XPO’s counsel to potentially expend more time challenging these fees and costs could likely result in more expenditures than savings. As such, the Court has endeavored to resolve the fee issue without resort to further filings or briefings. Cf. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) [Determination of amount of fees to be awarded “should not result in a second major litigation”]. Therefore, the Court has culled what fee information it can from the material submitted, and based upon the records submitted, a thorough review of the facts surrounding this dispute, the expertise of counsel and their hourly rates, Judge Hendricks' May 2016 Order, the representations to the Court at the December 2016 hearing, the relevant filings with the Court, and the scope of XPO’s noncompliance, the Court orders an award to Plaintiffs' counsel, respectively, in the following amounts: $2,616.25 for Mosier, $5,875 for Bringardner, and $5,705 total for Barth and Barbera to be divided equally,[11] all of which the Court finds to be fair, just and reasonable. Fox v. Vice, 563 U.S. 826, 838 (2011) [Noting that “trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal [in awarding fees] is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time”]; see also Kebe ex rel. K. J. v. Brown, 91 Fed. Appx. 823, 827 (4th Cir. 2004) [Motion for sanctions under Rule 37 is “undoubtably a nondispositive matter covered by Rule 72”]; Perdue v. Kenny A., 559 U.S. 542, 558 (2010) [Determining a reasonable attorney’s fee is a matter that is committed to the sound discretion of the court]. *5 While these amounts are significantly less than the fees set forth in the affidavits submitted, the Court is only focused in this Order on the very narrow issue of noncompliance with Judge Hendricks' May 2016 Order. These amounts are in no way reflective of the Court’s opinion as to the reasonableness of fees itemized relating to other matters. XPO is directed to pay the fees set forth herein to the counsel as indicated within thirty (30) days of the date of this Order. IT IS SO ORDERED. Footnotes [1] Plaintiffs' motions and the hearing also involved other issues. [2] Barth also stated that an itemized bill was available if the Court desired to review the same. See Barth Affidavit, p. 3 [Court Docket No. 124-1, p. 3]. That itemized bill (containing a total of 65.1 hours) is attached as Exhibit A to XPO’s memorandum filed February 10, 2017. [3] The Court notes, however, that the total of 62.10 hours at a rate of $300 would total $19,530, exceeding the $17,435 that Barth lists as his total attorney fees in his affidavit. See Barth Affidavit, p. 3 [Court Docket No. 124-1, p. 3]. [4] Bringardner attests that this listing of hours does not include all of his time and does not include any time spent by Mark Joye, senior trial counsel and head of litigation at his firm (the Joye Law Firm). SeeBringardner Supplemental Affidavit, pp. 1-2 [Court Docket No. 138-1, pp. 1-2]. Joye has not himself submitted a separate affidavit for fees and costs, although he attended the hearing. [5] XPO’s total of $104,284.50 includes a total of Barth’s fees at $19,530. See Footnote 3, supra. [6] XPO previously had other counsel in these cases. [7] This does not appear to be in dispute. In response to the Court’s Order of December 21, 2016, Plaintiffs' counsel notified the Court on January 3, 2017 that defense counsel had updated the privilegelog to address the documents that were not produced, and that Plaintiffs were not going to contest that the documents added are protected by the attorney/client privilege. Plaintiffs' counsel did not indicate that Plaintiffs had any other remaining or outstanding production issues related to Judge Hendricks' May 2016 Order at that time. Therefore, the Court assumes that all discovery matters addressed in that order are now resolved. [8] Moreover, even that privilege log, after finally being provided, had to be further supplemented after the hearing to address deficiencies discussed at the hearing. See Court Docket No. 115. [9] No costs have been requested in the affidavits submitted. [10] The Court is not going to award fees for time spent preparing the affidavits themselves, or work related thereto. See Michigan Millers Mut. Ins. Co. v. Westport Ins. Corp., No. 14-151, 2014 WL 5810309 at * 5 n. 5 (W.D. Mich. Nov. 7, 2014) [Time spent preparing affidavits regarding fees for inclusion in Court’s sanction award not included in award]. [11] As previously noted, Barth and Barbera represent the same Plaintiffs. Other Plaintiffs separately sued XPO and are represented by separate counsel.