*1 On August 13, 2020, Plaintiffs Aramark Management, LLC and HPSI Purchasing Services LLC (“Plaintiffs”) filed a Motion for Adverse Jury Instruction, Attorneys' Fees, and Order to Show Cause for Defendants' Spoliation and Withholding of Electronically Stored Information. (“Motion” at Dkt. 143.) The District Judge referred the Motion to the Magistrate Judge for a report and recommendation (“R&R”). (Dkt. 149.) After considering the Motion, the opposition filed by Steve Borgquist, Brent Borgquist, and Beacon Purchasing LLC (“Defendants”) (“Opposition” at Dkt. 164), Plaintiffs' reply brief (“Reply” at Dkt. 170), and holding a hearing (Dkt. 174), the Magistrate Judge issued an R&R on January 27, 2021 (Dkt. 198).

The Magistrate Judge recommended, among other things, that the District Judge issue an order finding “Defendants, the law firm of current defense counsel, and the law firm of former defense counsel Mr. Lattin jointly and severally liable for the reasonable expenses Plaintiffs incurred in bringing the instant motion.” (Id. at 48 ¶ 4.[1])

On February 10, 2021, Defendants filed objections to the R&R (“Objections” at Dkt. 201) and on February 24, 2021, Plaintiffs filed a response to the Objections (“Response” at Dkt. 206). On March 8, 2021, the District Judge issued an Order Accepting Report and Recommendation of U.S. Magistrate Judge (“Order” at Dkt. 207). The Order directed Plaintiffs to submit a status report advising, among other things, whether, after meeting and conferring with current and former defense counsel, the parties agreed on the reasonable amount of expenses Plaintiffs incurred in bringing the Motion. (Id. at 2 ¶ 7.)

Counsel met and conferred as directed by the Order. They agreed on the reasonable amount of some fees but disagreed as to others. As a result, on May 6, 2021, the parties filed a motion in the form of a joint stipulation (“Joint Stip” at Dkt. 215) asking the Court to resolve the following disputes:

1. Whether Plaintiffs may recover fees reasonably incurred to prepare the Response? If so, whether $22,944[2] is a reasonable amount for such fees?

2. Whether the $7,953 in fees associated with preparing for and attending the hearing is reasonable?

3. Whether Plaintiffs may recover fees reasonably incurred to prepare the Joint Stip? If so, whether $8,009 is a reasonable amount for such fees?

II. LEGAL STANDARDS.

The Joint Stip accurately sets forth the applicable law for evaluating the reasonableness of attorneys' fees, including the various factors courts should consider. (Joint Stip at 11-13.) The Court will not repeat that law herein.

III. DISCUSSION.

A. Fees for Preparing the Response.

Defendants argue that the fees Plaintiffs incurred to draft the Response are not recoverable because they: (1) are authorized by neither the R&R nor the Order, and (2) were incurred after the Magistrate Judge issued the R&R. (Joint Stip at 19-20.)

*2 To support these arguments, Defendants point to the R&R's language that says, “An award of attorney's fees incurred by Plaintiffs in bringing the instant motion is necessary to cure the prejudice they have suffered due to the ESI [electronically stored information] spoliation.” (Dkt. 198 at 47.) Defendants argue that “the instant motion” refers only to the briefing presented to the Magistrate Judge. (Joint Stip at 19.)

The R&R, however, was only a recommendation. The District Judge could have rejected it, in whole or in part. Fed. R. Civ. P. 72. As a result, Plaintiffs did not prevail on the “instant motion” for purposes of obtaining fee-shifting sanctions until the District Judge issued the Order.

Defendants also argue that the Response played no role in the District Judge's decision, because the Order references the Objections but not the Response. (Joint Stip at 19.) Courts are presumed to have read the briefs relevant to pending motions, absent a statement to the contrary. The Order says that the District Judge “reviewed the pleadings and all the records and files herein” and “engaged in a de novo review of those portions of the” R&R “to which objections have been made.” (Dkt. 207.) This does not support a conclusion that the District Judge did not consider the Response.

For these reasons, Plaintiffs may recover reasonable fees incurred to prepare the Response.

Plaintiffs claim $22,944 in fees for preparing the Response. (Joint Stip at 10.) There is no dispute about the reasonableness of counsel's hourly rate. (Id. at 13-14.) Rather, the parties dispute whether the amount of time spent was reasonable, and whether the way in which tasks were staffed caused unnecessary or duplicative work.

The fees claimed by Plaintiffs break down as follows:

Regarding Ms. Roth's time, Plaintiffs argue that 56.7 hours was reasonable to draft the Response because: (1) the R&R was 48 pages long and addressed alleged spoliation of different forms of ESI and other discovery misconduct under multiple legal standards; (2) Defendants objected to nearly every finding in the R&R with 34-page Objections[3] supported by two new declarations totaling more than 25 pages; (3) the Objections cited “fifteen cases—many of which were not addressed in the Parties' prior briefing” (Joint Stip at 17); and (4) the work product ultimately produced consisted of a 28-page Response brief. Plaintiffs further argue that additional time was justified due to the importance of the Motion and the District Judge's obligation to review de novo all matters to which Defendants objected. (Id.)

In response, Defendants argue, “It should not have taken a reasonable and prudent lawyer more than 20 hours to prepare” the Response, because it concerned the same issues raised in the Motion. (Id. at 20.) Defendants argue that all 20 hours should have been spent by Ms. Roth. (Id.) Defendants have not submitted evidence of the time defense counsel spent drafting the Objections.

*3 Ms. Roth's expenditure of 56.7 hours drafting the Response averages to about 2 hours per page. This appears reasonable, given the need to review and refer both to the lengthy R&R and Objections, the need to research and discuss new cases, and the need to present each issue for de novo review. The fact that Ms. Baird, the partner who handled the hearing, spent 4.8 hours overseeing Ms. Roth's work also appears reasonable.

Regarding Mr. Pockers, given the importance of the Motion, it was reasonable to task a more senior partner with communicating with the clients and providing strategic input on the Response. One might have expected his role, however, not to exceed twice that of Ms. Baird's. The Court will therefore reduce Mr. Pockers's hours from 18 to 9.6 (a reduction of 8.4 x $402.50 = $3,381).

Regarding Ms. Bayley's work, because the Response does not discuss any timekeeping records or fee amounts, the description of her work does not support a finding that this work was done in furtherance of the Response. The Court therefore excludes Ms. Bayley's time, resulting in another reduction of $552.50.

For these reasons, the Court will award $19,010.50 as reasonable fees for preparing the Response.

B. Fees for Preparing for and Attending the Hearing.

Plaintiffs seek fees in connection with the telephonic hearing on the Motion, as follows:

(Dkt. 251-1 at 6 [Baird Decl. ¶ 24]; id. at 20-21.)

Both Ms. Baird and Mr. Pockers attended the hearing. (Dkt. 213 at 2.) Two lawyers also attended on behalf of Defendants. (Id.)

Ms. Baird explains that she included time spent communicating with defense counsel about the status of Steven Borgquist's iPhone because that was an evolving issue, and she wanted to be prepared to answer the Court's questions. (Joint Stip at 22.) She asserts that the remainder of her preparation time was reasonable given the complexity of the issues, volume of prior briefing, and high stakes of the Motion. She further asserts that it was reasonable to receive minimal assistance from Ms. Roth and Mr. Pockers. Finally, she relied on Ms. Bayley to help her prepare to answer anticipated questions about the fees and costs incurred to bring the Motion. (Id. at 23.)

*4 Defendants argue that the time spent preparing for a 1-hour hearing was excessive. They point to the fact that Plaintiffs filed the Reply just two weeks earlier, such that counsel did not need to refresh their recollections as to the content of prior briefing. (Id. at 25.) Defendants cite Youngevity Int'l Corp. v. Smith, No. 16-cv-00704, 2018 WL 2113238 (S.D. Cal. May 7, 2018), in which the district court found 12 hours of time for preparation and travel to a 1.5-hour hearing reasonable. (Id.) Defendants argue that hours spent “for Mr. Pockers and Ms. Roth [sic] to attend the hearing at which they did not say anything substantive, are duplicative and excessive.”[4] (Id.) Defendants urge the Court to consider 4 hours of Ms. Baird's time a reasonable fee. (Id. at 25-26.)

The Court is persuaded that substantial preparation time was appropriate for the hearing on the Motion. It was also appropriate for Ms. Baird to receive assistance from Ms. Roth, who was heavily involved in the briefing process; Mr. Pockers, who was spearheading client communications; and Ms. Bayley, who could efficiently summarize timekeeping records about which the Court might reasonably have inquired.

The Court will, nevertheless, reduce Ms. Baird's preparation time from 12.1 to 10 hours to represent a reasonable preparation time, resulting in a reduction of 2.1 x $350 =$735. In Youngevity, the case cited by Defendants, the district court found that 10.5 hours was an unreasonable amount of time to spend preparing for a hearing, where the hearing was on a “routine” motion for protective order, and the “totality of the briefing by both sides, exclusive of exhibits, was only 31 pages”; the court therefore reduced the hours to 4. 2018 WL 2113238, at *8. In this case, although the briefing by the parties was more extensive and the issues more significant and complex, three times the number of hours reasonably spent preparing for a routine discovery hearing is excessive.

The Court will also deduct Mr. Pocker's time for attending the hearing; while law firms may choose to send multiple lawyers to hearings for client-relation reasons, it was unnecessary here. This results in a further deduction of $402.50. Doing the math, $7,953.25 – ($735 + $402.50) = $6,815.75.

For these reasons, the Court will award $6,816 as reasonable fees for preparing for and attending the hearing.

C. Fees for Preparing the Joint Stip.

Defendants argue, “Plaintiffs seek recovery of $8,008.70 in fees incurred in connection with this Joint Stipulation which is not authorized by either the R&R or the Court's Order.” (Joint Stip at 26.) Plaintiffs counter that when a court authorizes a fee award, it implicitly includes the time spent litigating the amount of the award. (Id. at 23, citing Anderson v. Dir., Office of Workers Comp. Programs, 91 F.3d 1322, 1325 (9th Cir. 1996) (holding compensation for time spent litigating a fee petition “must be included in calculating a reasonable fee because uncompensated time spent on petitioning for a fee automatically diminishes the value of the fee eventually received”).)

The R&R stated, “The District Court should order the parties to meet-and-confer over the amount of such fees, and if they cannot reach agreement, Plaintiffs should be allowed to submit evidence of such expenses.” (Dkt. 198 at 4.7) The Order directed the parties to meet and confer and file a status report if they could not agree on the amount of a reasonable fee. (Dkt. 207 at 2 ¶ 7.) Thus, the current Joint Stip is still part of the original Motion. As the prevailing party, Plaintiffs can recover reasonable fees. Fed. R. Civ. P. 37; Order ¶ 4. Plaintiffs are correct that their fee award includes time reasonably spent litigating the amount of the award.

*5 Plaintiffs seek fees for preparing their portion of the Joint Stip totaling $8,008.70. (Joint Stip at 2.) They explain that this is an estimate, but Plaintiffs have not yet been invoiced. (Id. at 24 n.7.) They offer, “Plaintiffs can provide the Court with a supplemental declaration for the hours spent in preparing the Joint Stipulation and supporting documents.” (Id.)

Without a breakdown of the tasks performed by the relevant timekeepers, the Court cannot assess the reasonableness of the fees sought. The Court therefore instructs Plaintiffs to: (1) prepare a chart comparable to those in this minute order describing the basis for the fees sought, and (2) meet and confer with Defendants. If the parties are unable to agree on the reasonable amount of fees Plaintiffs incurred to prepare the Joint Stip, then the parties should file short, joint brief that attaches the chart and supporting time records as exhibits. In their briefing, the parties should address why the hours spent or staffing decisions made were (or were not) reasonable. They do not need to address the procedural history or applicable legal standards. The time spent meeting and conferring should not exceed 1 hour, and the time spent by each side preparing its portion of the joint brief should not exceed 5 hours.

IV. CONCLUSION

IT IS HEREBY ORDERED that:

1. Plaintiffs are awarded $25,826.50 in fees, consisting of $19,010.50 for fees incurred in preparing the Response and $6,816 for fees incurred in preparing for and attending the hearing.

2. On or before June 16, 2021, the parties shall meet and confer regarding the fees Plaintiffs incurred in preparing the Joint Stip and, if they cannot agree on the amount, file a joint brief as described above.

Page citations refer to the pagination imposed by the Court's e-filing system.

In some places, the Court rounded the fees sought by Plaintiffs to the nearest dollar.

The Court counted neither the Table of Contents nor Table of Authorities.

Ms. Roth did not attend the hearing. (Dkt. 213 at 2.) She has no time entries for attending the hearing.