As noted, the Court has already found that reasonable attorneys' fees caused by Defendant's failure to comply with the Court's May 7, 2018 discovery order are recoverable by Plaintiff. However, the Court's September 9, 2018 Order and Rule 37(b)(2)(C) only authorize an award of Plaintiff's “reasonable” attorneys' fees caused by the noncompliance. Reasonable attorneys' fees are generally calculated based on the traditional “lodestar” method. See Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 978 (9th Cir. 2008). Under the lodestar method, the Court determines a reasonable fee by multiplying “the number of hours reasonably expended on the litigation” by “a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The reasonableness of hours expended depends on the specific circumstances of each case. Camacho, 523 F.3d at 978.

The Court “has a great deal of discretion in determining the reasonableness of the fee and, as a general rule, [an appellate court] will defer to its determination ... regarding the reasonableness of the hours claimed.” Prison Legal News v. Schwarzenegger, 608 F.3d 446, 453 (9th Cir. 2010) (citation omitted). In reviewing the hours claimed, the Court may exclude hours related to overstaffing, duplication, and excessiveness, or that are otherwise unnecessary. See, e.g., Hensley, 461 U.S. at 433; see also Cruz v. Alhambra School Dist., 601 F. Supp. 2d 1183, 1191 (C.D. Cal. 2009) (“the Court must eliminate from the lodestar time that was unreasonably, unnecessarily, or inefficiently” spent). Aevoe Corp. v. AE Tech. Co., Ltd., 2013 WL 5324787, *5 (D. Nev. Sept. 20, 2013) (“While attorneys and their clients are free to staff matters as they see fit [citation], they are not entitled to recover fees as a sanction for hours that are deemed to be excessive.”).

*2 Here, the Court finds an award of $150,000 is not reasonable under the circumstances of this case. As an initial matter, the Court finds that Plaintiff's counsel's rates, individually and considered as a blended whole, are not unreasonable in this market, for this type of litigation.

The billing entries submitted by counsel for Plaintiff relate, in one way or another, the preparation and prosecution of the Motion.[1] The Court recognizes Plaintiff's counsel's attestation to the time and care spent in preparing and prosecuting the Motion. Dkt. 79-1, ¶¶ 20-22. Although the Court finds the $150,000 requested in not reasonable in this circumstance under Rule 37(b)(2)(C), that does not mean the fees were improvidently incurred as between Plaintiff and its counsel. A motion seeking issue and evidentiary sanctions may sometimes constitute a case-dispositive endeavor, and care should be taken. However, examining the request both holistically and on a line-item basis, the Court finds that a lower sanction amount is appropriate here under Rule 37.

Considering just the written product for which fees are requested, the Motion cites eight cases, two statutes, Rule 37 and Local Rule 37. The Memorandum in support of the Motion totals sixteen pages excluding the conclusion. The Declaration of counsel totals seventeen pages. The Reply in support of the Motion, citing an additional six cases not cited in the Motion and no additional statutory references, totals twenty pages excluding the conclusion, with a nine-page Supplemental Declaration of Counsel. Thus, the entirety of Plaintiff's legal briefing on the Motion totaled thirty-six pages of argument citing fourteen cases, two statutes, Rule 37 and Local Rule 37.

Of course, a page-count or case-count does in and of itself quantify the quality or nature of advocacy; rather, in briefing, as in life, sometimes “less is more.” However, the Court does consider the total work product generated in assessing the overall reasonableness of the $150,000 fee request.

Regarding specifics, first, Plaintiff's Fee Entry No. 175, seeking recovery of “$3,413” for one hour of attorney time on September 6, 2018, appears to be in error. Dkt. 79-3 at 8. The rate for that attorney is $711 per hour. The Court therefore reduces the recoverable amount for that entry $2,702 ($3,413 claimed, less $711 recoverable).

Further, the Court takes staffing choices into account to the extent such choices affect an assessment of reasonableness. Here, the Motion was prepared with the assistance of four experienced counsel, including two partners, who, combined, billed more than 234 hours in the preparation and prosecution of the Motion. As noted by the court in Aevoe Corp., attorneys and clients are free to staff matters as they see fit; however, the Court, in reviewing for reasonableness, has a different role. The Court's review of the billing records submitted in support of the sanctions request reflects a total of 107.8 hours of attorney time, resulting in $71,411 in requested fees, spent in interoffice conferences/emails and reviews/edits of drafts of filings.[2] While some amount consultation may be warranted where multiple attorneys are needed to perform a task, the Court finds that $71,411 incurred in attorney conferences (whether in person, by telephone, or by email) and in reviewing and revising draft written work product is not reasonable in connection with the Motion. As but one example, the Court notes that two attorneys spent a combined total of over 19 hours, $13,745 in charges, in reviewing and revising the Motion and supporting documents – on a single day. See Dkt. 79-3, Entry Nos. 112, 113. When combined with the charges from the other two attorneys, Plaintiff seeks to recover for 26.4 hours of attorney time, more than $18,000, for a single day's combined revisions to a sixteen-page Motion, which cites eight cases, and seventeen-page declaration. The fee request, as it relates to revisions and conferences, is not reasonable, and the Court reduces the fee request by $65,000 to account for the excesses.

*3 Defendant fairly notes that some of the entries relating to the preparation of the Motion include time spent reviewing Defendant's document production – a task that would have been performed regardless of Defendant's failure to comply with the May 7, 2018 discovery order. It appears to the Court that Plaintiff seeks to recover for 23.3 hours and $13,634 so attributable. See Dkt. 79-3, Entry Nos. 8, 65, 75, 91, 105, 140, 149, 168, 174. The Court will reduce that $13,634 figure by half, that is, by $6,817 to account for the “mixed use” of the time spent in reviewing Defendant's document production.

Taking into account the above reductions ([-$2,702], [-$6,817] and [-$65,000], the fee request, rounded to the nearest thousand, stands at $75,000. The Court also takes into consideration, in assessing what portion of the fees incurred were “caused by” Defendant's noncompliance with May 7, 2018 Order. The Motion sought, in addition to monetary sanctions, issue preclusion and evidentiary sanctions. The majority of the cases cited in the Motion were offered in support of issue or evidentiary sanctions. See Motion at 14-16. The Court did not award such sanctions, finding instead that monetary sanctions alone were warranted. Thus, to the extent a portion of the relief sought by the Motion was found not be appropriate, the Court finds that some portion of the time spent in preparing and prosecuting the Motion overall should be discounted from the final figure as Defendant's acts did not proximately cause Plaintiff to seek relief to which it was not (yet) entitled. In taking such consideration into account, the Court does not minimize the seriousness of Defendant's failure to comply with a Court order, but instead seeks to apply equitable principles in assesses reasonableness of the fees requested. As a result, the Court finds that a one-third reduction in the fee award, from $75,000 to $50,000, is warranted.

In so finding, the Court has considered and taken into account Defendant's “equitable” arguments and claims of “good faith” in its response to Plaintiff's sanction request. Dkt. 82 (“Response”). The Court notes that most of the “good faith” and “other factors” set forth in the Response predate the September 6, 2018 hearing, and were taken into account by the Court in imposing monetary sanctions, rather than issue or evidentiary sanctions.

Further, Defendant's failure to comply with the May 7, 2018 Order did not occur in a vacuum. First, the parties are before the Court on the Motion because ten months ago, Defendant provided inadequate responses to a multitude of requests for production, and then failed to timely meet and confer under Local Rule 37.

Second, Defendant had, at the time of the Motion, already been sanctioned $10,000 as a result of discovery violations relating to the same requests for production at issue in the Motion. See Dkt. 15, ¶ 8.

Third, in March 2018, Defendant accused Plaintiff of an “egregious” “rush to the courthouse” in filing the original motion to compel (Dkt. 49 at 18), yet six months later, at the time of the hearing on the Motion, Defendant still has not complied with its obligations.[3]

*4 Fourth, Plaintiff contends that the costs associated with the Motion were increased because of Defendant's alleged over-designation of documents under the operative confidentiality protective order. Dkt. 79-1, ¶ 22. Defendant argues that such additional costs were “unnecessary” because once advised of the issue, Defendant immediately provided a “waiver of confidentiality.” Dkt. 82 at 10. However, the immediate “waiver” of confidentiality raises the question of why the documents at issue were designated as confidential in the first place.

The Court recognizes that Defendant's current counsel was not counsel at the time of the prior orders and sanction award, and does not find any bad faith by Defendant's current counsel. Nonetheless, a change in counsel does not wipe the slate clean of prior discovery violations, and the Court takes into account that Defendant faced a prior $10,000 monetary sanction regarding the same discovery requests, and it nonetheless still failed to comply with a Court. A $50,000 sanction, which the Court finds represents the reasonable attorneys' fees caused by Defendant's violation of the May 7, 2018 Order, is warranted. The Court finds this figure reasonable, both under the specific calculations set forth above, and based upon a holistic consideration of the Motion and the litigation relating thereto. See, e.g., Fox v. Vice 563 U.S. 826, 838 (2011) (citing Hensley, noting the essential goal in fee shifting is to do “rough justice,” not to achieve “auditing perfection,” with trial courts using their overall sense of the litigation in making the determination).

Defendant is therefor ORDERED to deliver $50,000 in sanctions to counsel for Plaintiff by not later than fourteen (14) days from the date of this Order.

IT IS SO ORDERED.

Initials of Clerk: DV