Laub v. Horbaczewski
Laub v. Horbaczewski
2020 WL 10817057 (C.D. Cal. 2020)
January 27, 2020
Stevenson, Karen L., United States Magistrate Judge
Summary
The court granted in part Defendants' Motion to Compel Production of Plaintiffs' Text Messages, awarding them $32,740.07 in reasonable fees and expenses. The court excluded fees incurred in the meet and confer process and applied a 60% apportionment of reasonable fees. The court also denied Defendants' request for an additional award of fees incurred in bringing the Fee Motion itself.
Additional Decisions
JUSTICE LAUB and DANIEL KANES, Plaintiffs,
v.
NICHOLAS HORBACZEWSKI, et al., Defendants
v.
NICHOLAS HORBACZEWSKI, et al., Defendants
NO. CV 17-6210-JAK (KSx)
United States District Court, C.D. California
Filed January 27, 2020
Counsel
Patrick M. Ryan, Stephen C. Steinberg, Chad DeVeaux, Gabriella A. Wilkins, Joseph John Fraresso, Bartko Zankel Bunzel and Miller APC, San Francisco, CA, for Plaintiffs.Kenneth A. Kuwayti, Morrison and Foerster LLP, Paolo Alto, CA, Andrew Ditchfield, Pro Hac Vice, Peter M. Bozzo, Pro Hac Vice, Brian M. Burnovski, Pro Hac Vice, Davis Polk and Wardwell LLP, New York, NY, Nicholas Rylan Fung, Morrison and Foerster LLP, Los Angeles, CA, for Defendants.
Stevenson, Karen L., United States Magistrate Judge
ORDER RE: DEFENDANTS' REQUEST FOR REASONABLE EXPENSES INCURRED IN MOVING TO COMPEL PRODUCTION OF DOCUMENTS FROM PLAINTIFFS JUSTICE LAUB AND DANIEL KANES (DKT. NO. 357)
*1 Before the Court is Defendants' Request for Reasonable Expenses Incurred in Moving to Compel Production of Documents From Plaintiffs Justice Laub and Daniel Kanes (the “Fee Motion”) and a Declaration of Kenneth A. Kuwayti in Support of the Fee Motion. (Dkt. No. 357.) On August 20, 2019, Plaintiffs filed an Objection and Response to the Fee Motion (the “Opposition”). (Dkt. No. 361.) On August 26, 2019, Defendants filed a Reply in support of the Fee Motion (the “Reply”) along with a Declaration of Kenneth A. Kuwayti in Support of the Fee Motion. (Dkt. No. 367.) On November 6, 2019, the Court heard oral argument and took the matter under submission. (Dkt. No. 405.) Defendants seek an award of $89,692.12 in attorneys' fees and $797.22 for a total award of $90,489.85 as reasonable costs incurred in bringing a motion to compel, which includes a request for $25,000 for expenses incurred in bringing the Fee Motion.
Having considered the parties' briefing and evidence submitted in connection with the Fee Motion, Opposition, and Reply, along with the relevant pleadings and files in this action and having held oral argument on this matter, for the reasons outlined below, the Court applies the lodestar method to the hours reasonably attributable to filing the partially successful Motion to Compel, and GRANTS the Fee Motion in the amount of $32,740.07. The Court DENIES Defendants' request for fees incurred in bringing the Fee Motion.
I. INTRODUCTION
On April 30, 2019, the Court granted in part Defendants' Motion to Compel Production of Plaintiffs' Text Messages (the “April 30 Order”). (See Dkt. No. 212.) In ordering the production of Plaintiffs' text messages, the Court found it “concerning” that despite having produced “hundreds of other text messages during the relevant time period, Plaintiffs' production contain[ed] no text messages whatsoever between Kanes and Laub and none between Kanes and his brother Aaron.” (Id. at 6.) In response to Plaintiffs' argument that the responsive text messages were lost when Plaintiffs upgraded their cell phones, the Court noted, “it seems highly unlikely that both Kanes and Laub independently would lose just those text messages with each other in the upgrade process.” (Id. at 7 (emphasis in original).) Further, in light of Plaintiffs' inability to confirm whether Kanes and Laub were given directive to preserve data on their phone and other electronic devices in light of this pending litigation, the Court found that there were “serious questions concerning Plaintiffs' compliance with their preservation requirements with respect to the missing text messages.” (Id.) Accordingly, the Court granted Defendants' Motion to Compel production of the Kanes/Laub and Kane/Aaron Kanes text messages. (Id. at 7-8.) However, the Court denied Defendants' request for a forensic examination of Plaintiffs' other devices and iCloud backup. (Id. at 8.) The Court also exercised is discretion to apportion the reasonable expenses for the Motion to Compel, pursuant to Federal Rule of Civil Procedure Rule 37(a)(5)(C). (Id.) Plaintiffs sought review of the Court's April 30 Order (Dkt. No. 220), which was denied on July 30, 2019 (Dkt. No. 347).
II. THE PARTIES' ARGUMENTS
a. Defendants' Position
*2 Defendants argue that they are entitled to recover reasonable attorneys' fees and costs related to the Motion to Compel because, despite Plaintiffs' motion for review of the April 30 Order, presiding district judge, the Honorable John A. Kronstadt, denied review and found “[i]t was reasonable for Judge Stevenson to find Plaintiffs' proffered explanations for failing to produce the responsive text messages were sufficiently lacking in credibility that they did not provide a substantial justification.” (Dkt. No. 347 at 34.)
Defendants maintain that the hours expended in bringing the Motion to Compel were reasonable based upon the time entries and billing records submitted as exhibits to the Declaration of Kenneth A. Kuwayti In Support of Defendants' Fee Request (“Kuwayti Declaration” or “Kuwayti Decl.”). Exhibit B to the Kuwayti Declaration includes redacted invoices from the Morrison & Foerster law firm showing time entries for members of Defendants' legal team for legal services provided from December 2018 through April 30, 2019. (Kuwayti Decl., Ex. B.) Exhibit C to the Kuwayti Declaration is a summary chart that isolates the relevant time entries from Exhibit B, showing the date, task descriptions, timekeeper, total hours, total fee, the adjusted hours, and adjusted fees, for tasks relating to the Motion to Compel. (Kuwayti Decl., Ex. C.)
Defense counsel's adjusted billing records, as reflected in Exhibit C, indicate a total of 113.80 adjusted attorney hours spent in investigation, meet and confer communications and conferences, and drafting the Motion to Compel and supplemental briefing, for an adjusted fee request of $64,692.13. (Kuwayti Decl., Ex. C at 43.) Defendants contend that these “adjusted” time entries and fees reflect reductions to the actual hours and fees incurred relating to the Motion to Compel. (Fee Motion at 6; and see Kuwayti Decl., Ex C at 43.)
Defendants represent that the hourly rates charged by the Morrison & Foerster attorneys and a legal assistant who worked on the Motion to Compel are commensurate with prevailing rates charged for attorneys and legal professionals of similar skill and experience in similar cases in the Los Angeles market. (Fee Motion at 4-6.) Defendants submit billing records for the following: Mr. Kuwayti, a partner with 30 years of experience in complex litigation ($820 per hour); Nichol Ham, an associate with six years' experience ($562.50 per hour); Nicholas Fung, associate ($570 per hour); and Alvin West, a legal assistant ($370 per hour). (See Kuwayti Decl. ¶¶ 2-6 & Ex. C.)
In addition, Defendants submit records reflecting $797.72 in expenses incurred in connection with bringing the Motion to Compel, which includes printing and delivery costs ($328.50), economy class airfare for Defendants' counsel to attend oral argument ($314.59), ground transportation ($130.63), and parking ($24.00). (Kuwayti Decl. ¶¶ 12, 13, Ex. E.)
b. Plaintiffs' Position
In the Opposition, Plaintiffs argue that Defendants' request for fees “in connection with Defendants' partially successful motion to compel” should be denied in its entirety. (Opposition at 5.) First, Plaintiffs argue that because Judge Kronstadt found that an award of fees unjust in connection with Plaintiffs' motion for review of the April 30 Order, “[t]he law of the case doctrine and basic logic dictate these same circumstances make an award of fees unjust” in connection with the underlying Motion to Compel. (Id. at 6-7.) Second, Plaintiffs maintain that “Defendants' own lack of diligence by failing to review Plaintiffs' document production before the close of fact discovery was the impetus for this motion and justifies denying Defendants' fees in their entirety.” (Id. at 8.) Third, Plaintiffs contend the Fee Motion should be denied because Plaintiffs' arguments in opposing the Motion to Compel were “substantially justified.” (Id. at 9-10.)
*3 Alternatively, Plaintiffs argue that if the Court finds an award of fees appropriate, the amount awarded should be reduced to less than 10% of the amount that Defendants seek. (Id. at 5.) Specifically, Plaintiffs maintain that the total fees requested are “outrageous” and include amounts related to the unsuccessful portions of the Motion to Compel that sought a forensic examination that the Court denied, and spoliation, which the Court declined to address. (Id. at 11-13.) Plaintiffs also argue that Defendants' cannot recover fees associated with the meet and confer process or reviewing documents prior to initiating the meet and confer process. (Id. at 14.)
c. Defendants' Reply
In their Reply, Defendants reiterate that the attorneys' fees and expenses sought in the Fee Motion are reasonable and argue that Plaintiffs have failed to carry their burden to show otherwise. Defendants include with the Reply a request for an additional $25,000 in fees incurred in connection with filing the Fee Motion itself, bringing the total fee award requested to $90,49.85. Defendants support this increased fee request with billing records submitted with the Kuwayti Declaration in Support of the Reply Brief that show an additional 85.5 attorney hours and fees of $47,400.80 incurred in connection with preparing the Fee Motion. (Kuwayti Decl. in Support of Reply ¶ 7, Ex. H.)
Defendants emphasize that in August 2019, Plaintiffs “finally produced nearly 1,000 texts that had been exchanged between them and between Plaintiff Kanes and his brother,” none of which “would have been produced without Defendants' motion to compel.” (Reply at 1.) Further, Defendants point out that despite this significant and much delayed production of additional responsive emails, Plaintiffs had previously represented to Defendants and the Court “that the motion [to compel] was futile and should be denied because no unproduced texts existed.” (Id.)
Defendants contend that their requested fee award is warranted because “Defendants were forced to incur the time and expense of successfully proving to the Court that [Plaintiffs'] claims were not credible—a result that was confirmed by Plaintiffs' recent production” (Id. at 2.) In addition, with the Reply, Defendants offer evidence that Plaintiffs produced more responsive text messages even after the Fee Motion was filed, including “approximately 950 texts between Mr. Kanes and his brother Aaron.” (Id. at 2 (citing Kuwayti Decl. in Support of Reply ¶ 2).)[1]
Moreover, Defendants argue that given Plaintiffs' plain refusal to produce the relevant text messages until ordered to do so following the Motion to Compel, Defendants are entitled to recover fees for time spent in meet and confer and investigation prior to filing the Motion to Compel. (Reply at 10-11.) Defendants also argue that they are entitled to recover additional amounts or “fees on fees,” incurred in obtaining an award. (Id. at 11.) With the Reply, Defendants submit, for the first time, billing records showing an additional 85.25 attorney hours, amounting to $47,400.80 in fees, incurred in bringing the Fee Motion. (See Kuwayti Decl. in Support of Reply, Ex. H at 17.) Defendants maintain that they “are seeking recovery of only $25,000 in fees, which represents approximately half of that total.” (Kuwayti Decl. in Support of Reply ¶ 9.)
III. LEGAL STANDARD
A. Rule 37(a)(5)(C)
*4 When a motion to compel is granted in part and denied in part, Rule 37(a)(5)(C) grants the court discretion to award reasonable fees, providing that “the court may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” FED. R. CIV. P. 37(a)(5)(C) (emphasis added); see Wilson v. Greater Las Vegas Assoc. of Realtors, 2016 WL 4087272, at *1 (D. Nev. July 28, 2016) (internal citations omitted). “In exercising its discretion, the Court may consider the exceptions available under Federal Rule of Civil Procedure 37(a)(5)(A).” Id. Under Rule 37(a)(5)(A)'s exceptions, the Court must not order an award of fees and expenses if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.
FED. R. CIV. P. 37(a)(5)(A); Limtiaco v. Auction Cars.Com, LLC, 2012 WL 5179708, at *1 (D. Nev. Oct. 17, 2012).
B. Determining Reasonable Attorney Fees
1. Lodestar Approach to Calculate Fee Awards
In Hensley v. Eckerhart, 461 U.S. 424 (1983), the Supreme Court adopted the lodestar method for calculating attorneys' fee awards. A court determines the lodestar by multiplying the number of hours reasonably expended on a particular motion by a reasonable hourly rate. Id. at 433. “Although the district court's calculation of an award need not be done with precision, some indication of how it arrived at its figures and the amount of the award is necessary.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1211 (9th Cir. 1986).
2. Reasonable Hourly Rate
In determining the reasonable hourly rate of the prevailing attorney, the Court must look to the “rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008); see also Jordan v. Multnomah Cty., 815 F.2d 1258, 1262 (9th Cir. 1987) (“The prevailing market rate in the community is indicative of a reasonable hourly rate.”).
A party seeking attorneys' fees must provide “satisfactory evidence ... that the requested rates are in line with those prevailing in the community[.]” Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984). A declaration regarding the prevailing rate in the relevant community is sufficient to establish a reasonable hourly rate. Widrig v. Apfel, 140 F.3d 1207, 1209 (9th Cir. 1998). “When a fee applicant fails to meet its burden of establishing the reasonableness of the requested rates, however, the court may exercise its discretion to determine reasonable hourly rates based on its experience and knowledge of prevailing rates in the community.” Bademyan v. Receivable Mgmt. Servs. Corp., Case No. CV 08-519-MMM (RZx), 2009 WL 605789 at *5 (C.D. Cal. Mar. 9, 2009); and see Moreno v. Empire City Subway Co., 2008 WL 793605, at *7 (S.D.N.Y. Mar. 26, 2008) (stating that if fee applicant “has submitted no evidence of the prevailing market rate for attorneys of like skill ... it is within [the court's] discretion to determine the reasonable hourly rate ... based on [the court's] familiarity with ... prevailing rates in the [relevant community]”).
3. Hours Reasonably Expended
In addition to establishing a reasonable hourly rate, a prevailing party in a discovery dispute seeking attorneys' fees “bears the burden of proving that the fees and costs taxed are ... reasonably necessary to achieve the result obtained.” Rucker v. Air Ventures Haw., LLC, 2017 WL 4158201, at *3 (D. Haw. Sept. 19, 2017) (citing Tirona v. State Farm Mut. Auto Ins. Co., 821 F. Supp. 632, 636 (D. Haw. 1993)). The court reviews time records submitted by the applicant to determine whether the hours were reasonably incurred or if “any of the hours were unnecessary, duplicative or excessive,” or inadequately documented. True Health Chiropractic, Inc. v. McKesson Corp., 2015 WL 3453459, at *1 (N.D. Cal. May 29, 2015) (internal citation omitted).
IV. DISCUSSION
A. Judge Kronstadt's Denial of an Award of Fees on the Motion for Review Does Not Preclude an Award of Fees on Defendants' Underlying Motion to Compel
*5 Plaintiffs urge that Defendants' Fee Motion should be denied because Judge Kronstadt denied Plaintiffs' request for fees in connection with a motion to review the April 30 Order, which granted in part and denied in part Defendants' Motion to Compel. Plaintiffs urge that Judge Kronstadt's denial of fees on the motion for review is now “law of the case” with respect to the Fee Motion at issue here. (Opposition at 7.) Plaintiffs' argument fails.
First, Plaintiffs' motion for review and the Motion to Compel were separate proceedings governed by different rules. A motion for review of a magistrate judge's nondispositive order, such as the April 30 Order, is governed by Rule 72. See FED. R. CIV. P. 72; see also Vecron Exim Ltd. v. Stokes, Case No. CV 17-2944-CAS (RAOx), 2018 WL 6062312, at *3 (C.D. Cal. Nov. 20, 2018) (denying motion to review of nondispositive discovery ruling). The Motion to Compel, by contrast, is governed by Rule 37, which expressly provides that the court award of reasonable fees and expenses, including attorneys' fees when, as here, a motion to compel is granted in part and denied in part. FED. R. CIV. P. 37(a)(5)(C). Second, Plaintiffs themselves acknowledge, as they must, that Judge Kronstadt denied the motion for review and expressly declined to overturn the portion of this Court's April 30 Order that allowed Defendants to pursue an award of expenses with respect to the Motion to Compel. (See Opposition at 6 (quoting Dkt. No. 347 at 35 (“Defendants will have the opportunity to pursue an award of expenses with respect to the underlying motion to compel, which this Order does not overturn.”)).) Thus, contrary to Plaintiffs' argument, the two proceedings do not present identical circumstances that would make an award of fees under Rule 37(a)(5) unjust. (See Opposition at 7.)
B. Plaintiffs Fail to Demonstrate that the Opposition to the Motion to Compel was Substantially Justified
Plaintiffs also object that an award of reasonable fees is unwarranted because of Defendants' lack of diligence in seeking the text messages before the discovery cut-off. (Opposition at 8-9.) This argument, however, essentially reiterates Plaintiffs' timeliness arguments that the Court considered and rejected in ruling on the merits of the Motion to Compel. Indeed, the April 30 Order specifically noted that Defendants had sought the text messages as early as March 2018 in their First Set of Request for Production. (See Dkt. No. 212 at 5.) Contrary to Plaintiffs' arguments, it was not Defendants' lack of diligence that necessitated the Motion to Compel, but rather, Plaintiffs' failure to produce relevant responsive documents. Indeed, the Court found Plaintiffs' reasons for failing to produce and/or preserve the relevant Kanes/Laub and Aaron Kanes/Kanes text messages not credible and their opposition to the Motion to Compel substantially unjustified. (See Dkt. No. 212.) Thus, Plaintiffs' argument that Plaintiffs were not sufficiently diligent in seeking the production of text messages that was ordered in the April 30 Order does not undermine the Court's finding that an award of reasonable fees is warranted as permitted under Rule 37(a)(5)(C).
Finally, Defendants' emphasize in their Reply that as late as August 2019, even after the filing of the Fee Motion, Plaintiffs continued to produce hundreds of relevant, responsive text messages that Plaintiffs originally insisted did not exist or could not be recovered. (Reply at 2.) It is readily apparent that these documents would not have been produced without Defendants incurring the time and expense to bring the Motion to Compel. Accordingly, Plaintiffs have not shown that their opposition to the Motion to Compel was substantially justified.
C. Defendants' Billing Rates Were Reasonable
*6 The Court now turns to an analysis of the reasonableness of Defendants' fee request. As noted above, to calculate the lodestar, the Court must determine a reasonable fee by multiplying the “number of hours reasonably expended” by a “reasonable hourly rate.” Hensley, 461 U.S. at 433; Morales v. City of San Rafael, 96 F.3d 359, 363-65 (9th Cir. 1996).
Here Defendants' counsel's hour billing records reflect rate of $820/hour for one partner; $562.50/hour for an associate with six years complex litigation experience who handled “the majority of the research and initial drafting of the Joint Stipulation and Supplemental Memorandum”; $570/hour for an associate who “assisted with the filing of the Joint Stipulation” in Mr. Ham's absence; and $277.50/hour for a legal assistant. (Kuwayti Decl. ¶¶ 2-6.) Defendants represent that the hourly rates charged by the attorneys and legal assistant who worked on the Motion to Compel were significantly discounted. (See Fee Motion at 4-6; Kuwayti Decl. ¶¶ 2-6.)
At the first step of the lodestar analysis, the Court finds that the hourly rates charged by defense counsel are well within the range for attorneys of similar skill and experience in the Los Angeles legal market as evidenced by the market data provided in Exhibit A to the Kuwayti Declaration. (See Kuwayti Decl. ¶¶ 2-6 & Ex. A.) This conclusion is supported by the Kuwayti Declaration, which outlines the education and professional backgrounds of the attorneys and legal assistant who worked on the Motion to Compel and includes summary information on comparable billing rates for attorneys at top tier firms in the Los Angeles market. (See Kuwayti Decl. ¶¶ 2-6 & Ex. A.) The Court's own knowledge and experience in the Los Angeles legal market also confirms that the hourly rates charged by Defendants' counsel are in line with those for attorneys of comparable skill and experience in this market.
Courts in this district have found significantly higher hourly rates to be reasonable in intellectual property lawsuits in Los Angeles. See e.g., Range Road Music, Inc. v E. Coast Foods, Inc., Case No. CV 09-2059-CAS (AGRx), 2010 WL 11596747, at *2-*3 (C.D. Cal. May 5, 2010) (finding hourly rate of $657 for a partner, $400.50 to $441 for a mid-level associate, and $360 for junior associate reasonable in Los Angeles for a copyright infringement action); Perfect 10, Inc. v. Giganews, Inc., Case No. CV 11-7098-AB (SHx), 2015 WL 1746484, at *15-*16 (C.D. Cal. Mar. 24, 2015) (finding billing rates in copyright infringement action of $750-930 per hour for senior partner, $610-$750 for junior partner, and $350-$690 for associates reasonable and comparable to prevailing Los Angeles market rates for attorneys of similarly experience, skill, and reputation).
Plaintiffs do not dispute the reasonableness of the hourly rates that Defendants' counsel charged in connection with bringing the Motion to Compel. Rather, they argue—with good reason—that the amount of fees Defendants seek for the partially successful discovery motion is excessive. (Opposition at 5.)
D. The Total Hours Sought Are Not Reasonable
In the second part of the lodestar analysis, the Court considers whether the number of hours billed to the Motion to Compel was reasonable. On this point, Defendants' Fee Motion falters. Defendants request fees associated with 113.80 hours for time billed to various tasks between December 19, 2018 and March 27, 2019. (Kuwayti Decl., Ex. C.) In addition, Defendants submit records showing $47,400.80 for fees incurred in connection with preparing the Fee Motion, representing an additional 85.5 attorney hours expended in preparing the Fee Motion. (Reply at 13; Kuwayti Decl. in Support of Reply, Ex. H at 16-17.) Defendants state they have unilaterally discounted these additional fees to only seek $25,000 of this amount as “fee-on-fees” for bringing the Fee Motion. (Reply at 13.) Thus, Defendants' seek a fee request of $89,692.12 in attorneys' fees, plus expenses in the amount of $797.22 for a total fee request of $90,489.85. (Id.) The Court finds the total hours and amount of fees excessive for a straightforward discovery motion that did not raise particularly complex legal or factual issues.
*7 To start with, a close examination of Defendants' billing records reveals that not all of the hours for which Defendants' seek a fee award are properly subject to apportionment under Rule 37(a)(5)(C). As discussed in detail below, the total hours to be apportioned must be reduced to exclude hours unrelated to bringing the motion to compel.
1. Time Billed for Tasks Unrelated to the Motion to Compel Are Not Recoverable
Defendants request fees for 113.80 total hours related to the Motion to Compel, plus an additional 85.25 hours associated with preparing the Fee Motion. (See Kuwayti Decl., Exs. C, H.) In arguing that this figure is “reasonable,” Defendants' represent that these figures reflect a downward adjustment to the total hours actually billed that “seeks recovery for less than the total amount of expense [Defendants] actually incurred in connection with the Motion[.]” (Fee Motion at 2; Kuwayti Decl., Ex C.) According to Defendants' billing records, the actual total hours billed in connection with the Motion To Compel, before any “discount,” was 170.80 hours. (Kuwayti Decl., Ex. C at 43.)
a. General Litigation Tasks
The Court has conducted a thorough review of the individual time entries in the billing records submitted in Exhibit C to the Kuwayti Declaration with the Fee Motion. Based on this review, the Court concludes that billing entries between December 2018 and February 4, 2019 describe discovery tasks and work in this case that were unrelated to the Motion to Compel.
Here, Exhibit C to the Kuwayti Declaration is a “summary of attorneys' fees incurred in moving to compel the production of documents from Plaintiffs.” (Kuwayti Decl. ¶ 9.) But Exhibit C reveals the following entry for Attorney Ham on December 19, 2018: “Reviewed and revised opposition brief regarding motion to dismiss, review texts produced by plaintiffs; emails with team regarding same;” with a time entry of 2.00 hours for an adjusted fee of $1,012.50. The Court cannot identify anything in this billing entry that reflects work on the motion to compel or even segregates out the time Attorney Ham may have spent on a review of Plaintiffs' text messages. An entry for December 21, 2019 billed by Attorney Kuwayti reads: “Review and revise opposition brief regarding motion to dismiss counterclaim; analyze case law regarding same; review text messages relating to plaintiffs” for .50 hours at a fee of $253.13. (Kuwayti Decl., Ex. C at 40 (emphasis added).) A billing description for January 10, 2019 states: “Telephone conference with A. Ditchfield; draft email regarding production of Dan/Justice texts; emails regarding damages documents and discovery issues”—tasks for which Attorney Kuwayti billed hours for an adjusted fee of $246. (Id.) On January 11, 2019 Attorney Kuwayti billed 1.00 hours at an adjusted fee of $820 for: “Review and comment upon expert report; draft joint email regarding Dan/Justice texts, Aaron Kanes texts; confer with B. Burnovski; emails regarding discovery issues; review plaintiffs' case law regarding attorney-client privilege waiver. (Id.) An entry for January 16, 2019 states: “Review and revise amended answer; review and analyze all text messages produced by plaintiffs; analyze meta data associated with plaintiffs text messages and conduct research regarding same; input edits form [sic] team regarding amended answer; prepare and file amended answer”; for 4.1 adjusted hours and adjusted fees of $2,306.25. (Id. (emphasis added).) Rule 37(a)(5)(C) does not permit an award of fees and expenses associated with preparing an amended answer and the attorney's work to “review and analyze” the text messages plaintiff produced is not work related to preparing and/or arguing the motion to compel. Defendants acknowledge that their “invoices include time from December 19, 2018, when Defendants began their investigation in the Plaintiffs' deficient production of text messages[.]” (Fee Motion at 6.) This “investigation,” along with the review of the text messages that Plaintiffs did produce, is a general discovery task that would have had to be done whether or not a motion to compel was ever filed. The Court, therefore, declines to award any fees for these billing entries that describe discovery tasks performed well before the Court authorized Defendants to bring the Motion to Compel and include descriptions of other litigation work unrelated to the Motion to Compel.[2]
b. Meet and Confer Expenses
*8 Courts in this district have reasoned that, generally, the fees that may be awarded under Rule 37(a)(5) do not include time spent by counsel in meet and confer efforts. Pythagoras Intellectual Holdings, LLC v. Stegall, Case No. CV 08-87-AG (RNBx), 2009 WL 10674788, at *2 (C.D. Cal. Feb. 25, 2009) (“Pythagoras”) (declining to “construe this language [of Rule 35(a)(5)(A)] as necessarily including attorney time expended during the meet and confer process”); Berryhill v. Johnson, Case No. CV 11-1468-AG (RNBx), 2012 WL 13020328, at *2 *(C.D. Cal. July 19, 2012) (“[U]nder the Court's construction of Rule 37(a)(5)(A), the time expended by plaintiff's counsel in connection with his meet and confer efforts is not compensable. Rather, only the time expended ... in actually preparing the moving papers here is compensable[.]”).
In the Motion to Compel, Defendants outline their efforts between December 2018 through February 2019, to meet and confer with Plaintiffs about Plaintiffs' text messages. (See Motion to Compel (Joint Stipulation) at 9-12 [Dkt. No. 152].) It was not until February 4, 2019, however, after a telephonic discovery conference with the parties, that the Court directed Defendants to file a motion to compel in the joint stipulation format regarding the adequacy of Plaintiffs' text message production. (See Dkt. No. 140.) The records of attorney hours and fees billed in Exhibit C in support of the Fee Motion include a summary column that categorizes the work done between December 19, 2018 and February 4, 2019 as “Investigation”, “Meet and Confer,” or “Hearing.” (Kuwayti Decl., Ex. C at 40-41.) The description of work relating to “Hearing” does not pertain to the Motion to Compel, but rather, refers to a hearing on February 4, 2019 concerning an ex parte application for review of this Court's order pertaining to the Laub deposition and certain notes from a meeting attended by Plaintiffs' attorney Jennifer Post. (See id. at 41.)
The individual billing entries in Exhibit C after February 4, 2019, however, are categorized as relating to “Joint Stipulation,” “Supplemental Memo,” and a single entry for “Hearing” on March 27, 2019. (Id. at 41-43.) The March 27 hearing was the hearing on the Motion to Compel. (Id. at 43.) The hours incurred in preparing for and attending the hearing on the Motion to Compel, including the supplemental memorandum, are recoverable under Rule 37(a)(5)(C) as this work is unambiguously related to Defendants successfully obtaining an order compelling Plaintiffs' production of previously withheld text messages.
In considering the total hours and fees requested in the Fee Motion, the Court joins other courts in this district that have declined to award as reasonable expenses under Rule 37(a)(5) amounts billed for attorney hours associated with the meet and confer process. Local Rule 37-1 requires that counsel meet and confer in an effort to resolve discovery disputes, whether or not any motion is ever filed. See C.D. L. R. 37-1. Defendants point to Hung Nguyen v. Regents of the University of California, 2018 WL 6112616, at *3 (C.D. Cal. May 18, 2018), as authority supporting an award of fees incurred in the meet and confer process in “appropriate limited circumstances.” (Reply at 10.) But as U.S. Magistrate Judge Karen E. Scott explained in Nguyen, the weight of authority from other Ninth Circuit district courts have concluded that fees associated with the meet and confer process generally should not be included in a fee award. Nguyen, 2018 WL 6112616, at *3. Further, the kinds of limited circumstances outlined in Nguyen where an award of fees incurred in the meet and confer process might be appropriate included situations where the opposing party wholly “ignored the meet and confer process as opposed to engaging in a matter that was unsatisfactory to ‘the moving party.’ ” Id. Thus, in Nguyen, Judge Scott “decline[d] to award expenses relating to meet and confer efforts.” Id.
*9 Here, the Court finds no exceptional circumstances that warrant an award of fees incurred in the meet and confer process. Defendants do not contend that Plaintiffs wholly ignored the meet and confer process. Rather, Defendants maintain, not unlike the movant in Nguyen, that Plaintiffs' meet and confer participation was frustrating and unsatisfactory. Accordingly, the Court, consistent with the majority of courts in this Circuit to have considered the issue, declines to award expenses relating to meet and confer efforts. Consequently, the Court excludes from consideration Defendants' adjusted billing hours and fees for work described as “Investigation,” “Meet and Confer,” or “Hearing” between December 18, 2018 and February 4, 2019. The excluded time includes a total of 11.6 hours billed by Attorney Kuwayti for total adjusted fees of $3,608; and 14.2 hours billed by Attorney Ham for adjusted fees of $7,846.88. The excluded amounts reduce the total fees associated with Defendants' portion of the Motion to Compel by $11,454.88.
E. Calculating the Lodestar
Subtracting the disallowed hours and fees from the total amounts requested results in remaining fees for work directly associated with preparing the Motion to Compel of $53,237.25. Applying the lodestar method using the reduced attorney hours as outlined above, the Court multiplies the reasonable attorney rates by the hours reasonably billed in bringing the motion to compel as follows:
Biller
Hours
Fees
Rate
Kuwayti
23.4
$19,188.00
$820/hr.
Ham
47.2
$ 26,550.00
$562/hr.
Fung
2.3
$1,311.00
$570.00
TOTAL
95.2 hrs.
$53,237.25
F. An Apportionment of Sixty Percent of Defendants' Motion-Related Fees is Warranted
Next, the Court considers that the Motion to Compel was granted in part and denied in part. Therefore, the Court may apportion fees consistent with the portion of the Motion to Compel that was successful. FED. R. CIV. P. 37(a)(5)(C). Plaintiffs insist that the primary issue in dispute to the Motion to Compel was the narrow question of the “timeliness of Defendants' request for text messages,” and on that basis, they insist Defendants “cannot meet their burden to show that even 10% of the time spent on their motion to compel was reasonably expended and related to whether or not their request for text messages was timely.” (Opposition at 16.) Plaintiffs are wrong.
The central reason for the Motion to Compel was Plaintiffs' failure to produce relevant responsive Laub/Kanes and Aaron Kanes/Kanes text messages. Plaintiffs withheld these texts for months based on representations that the texts did not exist and could not be recovered from Plaintiffs since-upgraded cell phones. Only after the Court granted Defendants' Motion to Compel further production of the text messages, did Plaintiffs produce hundreds of additional texts that they had long argued did not exist. (See Fee Motion at 1; Reply at 2-3.) This was not the only issue Defendants raised in the Motion to Compel, but the text messages were unquestionably the primary issue. In the Motion to Compel, Defendants also sought an order for a forensic examination of Plaintiffs' devices and an order for spoliation. (See Dkt. No. 212 at 8-9.) The Court denied the Motion to Compel as to these two issues. (Id.) But these issues would not have been raised at all but for Plaintiffs' failure to produce the Laub/Kanes and Aaron Kanes/Kanes text messages and, as the Court noted, Plaintiffs' inability to confirm “what steps, if any, Plaintiffs took to preserve DRL-related text messages between Kanes and Laub and between Kanes and his brother.” (See id. at 7.)
On this record, the Court concludes that an 60% apportionment of reasonable fees is warranted because Defendants' largely prevailed on the Motion to Compel. Accordingly, the Court will award 60% of the allowable amount it determined was attributable to preparing and arguing the Motion to Compel, an award of $31,942.35 as reasonable fees. This amount is calculated as $53,237.25 x .60 = $ 31,942.35.
Plaintiffs do not dispute the reasonableness of Plaintiff's request for $797.72 in expenses associated with bringing the Motion to Compel. This amount plus 60% of the reasonable attorneys' fees as determined by the Court of $ results in a total award to Plaintiff of $32,740.07 for the reasonable fees and expenses incurred in bringing the Motion to Compel. FED. R. CIV. P. 37(a)(5)(A).
G. Fees-on-Fees
*10 Finally, Defendants argue that they incurred an additional $47,400.80 for attorneys' fees in connection with preparing the Fee Motion, representing an additional 85.5 attorney hours. (Reply at 13; Kuwayti Decl. in Support of Reply, Ex. H at 16-17.) Likely anticipating that the Court might be skeptical of this extraordinary additional amount of hours and fees, Defendants represent that they “are only seeking recovery of $25,000 of this amount ... as compensation for the time spent briefing the request for fees.” (Reply at 13.)
Defendants are correct that courts in this Circuit have found that an award of “fees-on-fees” is permitted under Rule 37. See Reply at 12-13 (citing Nguyen, 2018 WL 6112616, at *5). Nevertheless, the Court finds the $25,000 in “fees-on-fees” that Defendants seek here excessive. In Nguyen, for example, the Court awarded total fees on fees of $562, reduced from $1,404. Nguyen, 2018 WL 6112616, at * 5. The Fee Motion consisted of an 8-page opening brief, the 5-page, 15 paragraph Kuwayti Declaration with Exhibits A-E; a 13-page Reply brief, with the Kuwayti Declaration in Support of the Reply with Exhibits F-H; and a 1-page Proposed Order. Despite Defendants' unilateral reduction of the fees incurred in briefing the request for fees, bringing the Fee Motion from $47,400 to $25,000, it seems incomprehensible that it would require more than 85 attorney hours to prepare these papers and assemble the related exhibits. Furthermore, because Defendants provide no information about how the $25,000 reduction relates to specific hours billed by any particular attorneys, the Court has no basis to determine using the lodestar method, as it must, whether even $25,000 is a reasonable amount of fees to be awarded.
Finally, and more importantly, although Defendants mentioned in the opening brief that they intended to seek recovery of fees associated with bringing the Fee Motion, it was not until they filed the Reply brief that Defendants provided any documentation or information about the amount of such fees and/or attorney hours related to the Fee Motion itself. As a result, Plaintiffs had no opportunity to respond to this new evidence. (See Opposition at 19.) The Ninth Court has long held that it is improper to raise new arguments in a reply precisely because it deprives the opposing party of the opportunity to response. Tovar v. U.S. Postal Serv., 3 F.3d 1271, 1273 n.3 (9th Cir. 1993). The Court, therefore, DENIES Defendants request for an additional award of fees incurred in bringing the Fee Motion itself.
CONCLUSION
Accordingly, for the reasons outlined above, Defendants' Fee Motion is GRANTED in the amount of $32,740.07. Plaintiffs shall pay this fee award to Defendants' counsel within twenty one (21) days of the date of this Order.
Footnotes
In the Reply, Defendants also raise questions about the thoroughness of Plaintiffs' further productions of text messages. They point out that Plaintiffs' counsel left the further search “entirely to Plaintiffs”; Mr. Laub provided no explanation of how he conducted the searches and it does not appear that Plaintiffs “used forensic software” in their searches; and Defendants point out “unexplained gaps in text messages between Mr. Kanes and Mr. Laub” for the period prior to March 31, 2015. (Reply at 3.) These issues, however, while arguably relevant to whether Plaintiffs' opposition to the Motion to Compel was substantially justified, fundamentally go to the substantive adequacy of Plaintiffs' compliance with the April 30 Order. Defendants argue that Plaintiffs' production deficiencies “appear to confirm the spoliation of evidence long after Plaintiffs had a duty to preserve.” (Id. at 4.) Because the spoliation argument is not at issue here in the context of resolving the Fee Motion, the Court declines to address Defendants' arguments regarding possible spoliation.
The Court also notes that numerous billing descriptions between December 19, 2018 and February 4, 2019 are block billed. The Ninth Circuit has long recognized that block-billing practices make it more difficult to determine how much the time spent on particular tasks. See Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007); and see Young v. Wolfe, Case No. CV 07-3190-RSWL-AJWx, 2017 WL 3184167, at *6 (C.D. Cal. July 26, 2017) (noting courts “generally impose a 5% to 20% reduction for hours block-billed” (internal citation omitted)). However, because the Court finds that all these entries must be excluded from the fee award as work unrelated to bringing the Motion to Compel, the Court need not apply any percentage reduction for the block-billed entries.