NRA Grp., LLC v. Durenleau
NRA Grp., LLC v. Durenleau
2021 WL 5863842 (M.D. Pa. 2021)
October 12, 2021

Kane, Yvette,  United States District Judge

Protective Order
Third Party Subpoena
Sanctions
Cost Recovery
Download PDF
To Cite List
Summary
The court granted the plaintiff's motion for a protective order and awarded the plaintiff expenses. The court also ordered the defendants to provide a certificate of destruction from an IT professional confirming the permanent deletion/destruction of all electronic copies of materials required to be deleted/destroyed pursuant to the court's July 16, 2021 order. Additionally, the court ordered the plaintiff to file an affidavit detailing the time spent in connection with its motion for protective order.
Additional Decisions
NRA GROUP, LLC, Plaintiff
v.
NICOLE DURENLEAU and JAMIE BADACZEWSKI, Defendants
No. 1:21-cv-00715
United States District Court, M.D. Pennsylvania
Filed October 12, 2021

Counsel

Devin J. Chwastyk, McNees Wallace & Nurick LLC, Paige F. MacDonald-Matthes, Obermayer Rebmann Maxwell & Hipple LLP, Harrisburg, PA, Elizabeth Kathleen Lilienthal, Ivo J. Becica, Obermayer Rebmann Maxwell & Hippel LLP, Philadelphia, PA, Joshua B. Kaplan, Obermayer Rebmann Maxwell & Hippe! LLP, Mt. Laurel, NJ, Toni Telles, Obermayer Rebmann Maxwell & Hippel, Voorhees, NJ, for Plaintiff.
Cory A. Iannacone, Pillar Aught LLC, Harrisburg, PA, for Defendants.
Kane, Yvette, United States District Judge

ORDER

*1 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
 
On April 16, 2021, Plaintiff NRA Group, LLC (“Plaintiff” or “NRA”) initiated the above-captioned action by filing a complaint in this Court against a former employee, Defendant Nicole Durenleau (“Defendant Durenleau”), alleging a claim under the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030. (Doc. No. 1.) On May 19, 2021, Plaintiff filed an amended complaint, adding another former employee, Jamie Badaczewski, as a defendant (“Defendant Badaczewski,” and with Durenleau, “Defendants”), and asserting additional claims under the CFAA, as well as claims of: violation of the Defend Trade Secrets Act, 18 U.S.C. § 1836; violation of the Pennsylvania Uniform Trade Secrets Act, 12 Pa.C.S. § 5302; civil conspiracy; and breach of the common law duty of loyalty. (Doc. No. 8.)
 
Before either Defendant was due to respond to the amended complaint, on June 9, 2021, Plaintiff filed a Motion for Protective Order and Special Relief (Doc. No. 14), with exhibits and a brief in support (Doc. No. 15). The motion related to the issuance of a subpoena by Defendants' counsel, dated May 17, 2021, directed to the Swatara Township Police Department (“STPD”) seeking the production of “[a]ny and all files, complaints, investigations, reports, letters, memorandums, emails and/or any other documents which reference or relate to Shell Sharma, Steve Kusic, Jill Kusic and/or NRA Group, LLC a/k/a National Recovery Agency.” (Doc. No. 15-1.) According to Plaintiff's moving papers, the subpoena at issue was officially served on the STPD on May 19, 2021, after Defendants' counsel provided notice of the subpoena to a detective with the STPD via email on May 17, 2021. (Doc. No. 15-2.) Plaintiff's former counsel received notice of the subpoena via email on May 17, 2021. (Doc. No. 15-6.) Before STPD's Solicitor had notice of service of the subpoena, and on the same day the subpoena was served, the STPD detective sent numerous documents in response to the subpoena to Defendants' counsel via email, totaling 764 pages of materials. (Doc. No. 15 at 5-8.) In connection with its motion, Plaintiff's counsel asserted that the materials reflected the STPD's investigative work, including a significant amount of sensitive business information that Plaintiff provided to the STPD to aid in its investigation of a criminal complaint previously lodged by Plaintiff with the STPD against Defendant Durenleau related to the conduct that forms the basis of its claims against her. (Id. at 8-9.) After numerous communications among Plaintiff's counsel, Defendants' counsel, and the STPD, Plaintiff filed its motion seeking a protective order preventing Defendants from utilizing the materials obtained via the May 17, 2021 subpoena, and further, seeking an award of its fees and costs incurred in filing the motion. (Id. at 16.)
 
After full briefing and a telephone conference with the parties, the Court issued an Order dated July 16, 2021 (Doc. No. 23) granting Plaintiff's motion for a protective order. In doing so, the Court found that: (1) Defendants' counsel issued the subpoena in violation of Rule 26 of the Federal Rules of Civil Procedure because it was undisputed that, at the time of the issuance of the subpoena, the parties had not conferred as required by Rule 26(f); and (2) the subpoena was substantively improper because it sought the production of information that was irrelevant to the claims at issue, in light of the fact that—despite Defendants' counsel's representation at the time that the subpoena sought information “that goes directly to Ms. Durenleau and Ms. Badaczewski's defenses and counterclaims in this matter”—as of May 17, 2021, neither Defendant had filed an answer or a counterclaim, and in fact, Ms. Badaczewski was not yet a defendant in this action, as the amended complaint asserting claims against her was filed on May 19, 2021.[1] (Id. at 5-7.)
 
*2 Accordingly, the Court's July 16, 2021 Order provided that “Defendants may not use any of the documentation produced by the Swatara Township Police Department in response to the May 17, 2021 subpoena issued by Defendants' counsel (the ‘Subpoenaed Documents’), unless such documents are obtained independently in compliance with the Federal Rules of Civil Procedure,” and that “Defendants and their counsel shall immediately delete and destroy any and all electronic and hard copies of the Subpoenaed Documents and shall confirm that destruction in writing to Plaintiff's counsel within five (5) days of the date of this Order.” (Id. at 8.) In accordance with the provisions of Federal Rule of Civil Procedure 37(a)(5), the Court's Order permitted Plaintiff to file a motion for attorneys' fees. (Id.)
 
Thereafter, on July 29, 2021, Plaintiff filed a Motion for Award of Expenses and Attorneys' Fees with a brief in support. (Doc. Nos. 26, 27.) A few days later, Plaintiff filed a Motion for Special Relief (Doc. No. 29) with supporting brief (Doc. No. 30), asking the Court for an Order requiring Defendants “to provide a certificate of destruction relating to the destruction of any and all electronic materials required to be destroyed pursuant to this Court's July 16, 2021 Order.” (Doc. No. 29 at 1.) Defendants thereafter filed a brief in opposition to Plaintiff's motion for expenses and attorneys' fees (Doc. No. 32) and motion for special relief (Doc. No. 35). Plaintiff filed its reply brief in support of its motion for special relief on September 2, 2021. (Doc. No. 40.)
 
Meanwhile, Plaintiff filed its reply brief in support of its attorneys' fees motion on August 26, 2021 (Doc. No. 36), and on that same date, file a Motion for Leave to File Exhibit 4 to Plaintiff's Reply Brief Under Seal (Doc. No. 37). Defendants did not concur in the motion, and on September 9, 2021, Plaintiff filed a brief in support of its motion. (Doc. No. 41.) On August 30, 2021, Defendants filed a Motion for Leave to File a Sur-Reply Brief to Plaintiff's attorneys' fees motion (Doc. No. 39), which motion was concurred in by Plaintiff “conditioned upon Defendants/Counterclaim Plaintiffs' counsel providing concurrence with a subsequent motion for leave to file a sur-reply brief which Plaintiff/Counterclaim Defendant may wish to file.” (Id. at 6.) Defendants filed a brief in opposition to Plaintiff's sealing motion (Doc. No. 43) , and on September 27, 2021, Plaintiff filed a reply brief (Doc. No. 44). Accordingly, all pending motions have been fully briefed and are ripe for disposition.
 
A. Motion for Leave to File Sur-Reply Brief and Motion for Leave to File Exhibit 4 to Reply Brief Under Seal
As an initial matter, the Court addresses Defendants' Motion for Leave to File a Sur-Reply Brief to Plaintiff's attorneys' fees motion and Plaintiff's Motion for Leave to File Exhibit 4 to Reply Brief Under Seal, which are interrelated, because both motions pertain to an issue raised for the first time on page eleven of Plaintiff's reply brief in support of its attorneys' fees motion—namely, Plaintiff's allegation that “the conduct of Defendants' attorney, Mr. Iannacone, in filing a related action filed by a former ‘temp’ at NRA Group, Morgan Rothenhoefer, highlights his demonstrated continued unwillingness to circumvent the rules and this Court's Orders in these related matters, and provides further support for the propriety of a fee award here.” (Doc. No. 36 at 11.) Plaintiff refers to the recently-filed case of Rothenhoefer v. NRA Group, LLC, No. 21-cv-1474, also assigned to the undersigned, and spends three pages of its reply brief in support of its attorneys' fees motion discussing Defendants' counsel's alleged misuse of information contained in the Subpoenaed Documents in connection with the allegations made in the complaint in the Rothenhoefer case. (Id. at 11-13.) The Court notes that, in connection with Plaintiff's discussion of Defendants' counsel's alleged misuse of information in the Rothenhoefer case, Plaintiff refers to and attaches Exhibit 2 (the Rothenhoefer complaint), Exhibit 3 (Exhibit B to the Rothenhoefer complaint), and Exhibit 4 (several pages of documents produced by the STPD).[2] (Doc. No. 36 at 11-12.)
 
*3 In the Court's view, Plaintiff's allegation—raised for the first time in its reply brief and forming the basis of both its motion regarding the sealing of Exhibit 4 and Defendants' motion to file a sur-reply brief—is extraneous to Plaintiff's pending motion relating to a potential award of attorneys' fees in connection with the Court's July 16, 2021 Order and the motion for protective order that precipitated it. As to the motion for leave to file a sur-reply brief, the Court does not need further briefing on an issue that is tangential to the attorneys' fees motion at hand, which addresses Plaintiff's potential entitlement to fees in connection with its June 9, 2021 motion for protective order and this Court's July 16, 2021 Order granting that motion. Any allegations regarding Defendants' counsel's potential misuse of information in the Rothenhoefer case are best left to motion practice in that case. However, upon review of the docket of this matter, the Court is compelled to note that, to the extent the parties seek to engage in tit-for-tat, obstructionist litigation tactics, leading to the spilling of much ink on the docket of this matter (or the Rothenhoefer case) with regard to issues that are tangential to the claims before the Court, the Court will not entertain such conduct.[3] Accordingly, the Court will deny Defendants' motion for leave to file a sur-reply brief. Further, in light of the Court's view that exhibits 2 through 4 of Plaintiff's reply brief to its attorneys' fees motion—and the three-page discussion in the reply brief that references them—is beyond the scope of the attorneys' fees motion before the Court, the Court will deny Plaintiff's motion regarding the sealing of Exhibit 4. The Court turns to the pending motion for attorneys' fees.
 
B. Motion for an Award of Expenses and Attorneys' Fees
Federal Rule of Civil Procedure 26(b) provides as follows regarding the scope of discovery available to the parties:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in this action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
See Fed. R. Civ. P. 26(b). If “the proposed discovery is outside the scope permitted by Rule 26(b)(1),” the court must limit discovery. See Fed. R. Civ. P. 26(b)(2)(c)(iii). Pursuant to Rule 26(c), “[a] court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” and limit the scope of discovery. See Fed. R. Civ. P. 26(c)(1). Relief available under Rule 26(c) includes, but is not limited to, “forbidding the disclosure or discovery” and “forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters[.]” See Fed. R. Civ. P. 26(c)(1)(A), (D).
 
Federal Rule of Civil Procedure 37 authorizes a district court to impose sanctions against a party that does not provide discovery in accordance with the Federal Rules or a court order. See Fed. R. Civ. P. 37. The purposes of Rule 37 include penalizing a culpable party or attorney and deterring others from engaging in similar conduct. See Nat'l Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 643 (1976). Rule 37(a)(5)(A) addresses the payment of expenses in connection with the grant of a protective order, providing as follows:
If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment 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.
See id. The Court notes that Rule 37(a)(5)(A) permits the Court to require a party or its attorney, or both, to pay the reasonable expenses incurred in relation to a motion for protective order. The decision as to whether to impose sanctions under Rule 37, and a determination as to what sanction may be appropriate “are matters generally entrusted to the discretion of the district court.” See Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 538 (3d Cir. 2007).
 
*4 Upon careful consideration of Plaintiff's motion, Defendants' response, and the relevant authorities, the Court is persuaded that Plaintiff is entitled to an award of expenses as a sanction pursuant to Federal Rule of Civil Procedure 37 in connection with the Court's granting of a motion for protective order regarding the Subpoenaed Documents. As previously found by the Court in its July 16, 2021 Order, Defendants' counsel sought discovery in violation of Rule 26(d)(1)'s provision that “[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f),” when it issued a subpoena to the STPD on May 17, 2021, prior to the parties' Rule 26(f) conference. (Doc. No. 23 at 5.) Further, the Court found that, at the time of the issuance of the subpoena, it did not seek information relevant to the claims in the case, and the subpoena would have been subject to a motion to quash on that basis. (Id. at 6.) Moreover, the record reveals that, when confronted by Plaintiff's counsel with regard to these improprieties, Defendants' counsel refused to correct his error by agreeing that the Subpoenaed Documents could not be used for any purpose in this litigation until such time as they would be properly obtained. (Doc. No. 32-5 at 4.) The Court can see no basis for a finding that Defendants' counsel's issuance of the subpoena to the STPD, and subsequent refusal to agree to a comprehensive limitation on the use of the improperly-obtained documents, was “substantially justified,” and Defendants make no real effort to demonstrate substantial justification in their brief in opposition.[4] The Court similarly finds no basis for concluding that an award of fees would be unjust in these circumstances, to the extent Defendants' counsel, as opposed to Defendants, is responsible for the payment of such fees. Defendants' counsel is responsible for his issuance of the procedurally and substantively improper subpoena and his refusal to agree to the non-use of all improperly-obtained documents, until such time as they would be properly obtained. Therefore, the Court concludes that Plaintiff is entitled to an award of expenses in connection with the Court's decision granting the motion for a protective order, and such expenses shall be payable by Defendants' counsel. The Court turns to the issue of the reasonableness of Plaintiff's requested fee award.
 
“The starting point for determining the amount of a reasonable fee is the lodestar, which courts determine by calculating the ‘number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.’ ” McKenna v. City of Philadelphia, 582 F.3d 447, 455 (3d Cir. 2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). A party seeking an award of fees bears the burden of demonstrating the reasonableness of its request. See Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 426 F.3d 694, 703 n.5 (3d Cir. 2005). Therefore, “the fee petitioner must submit evidence supporting the hours worked and rates claimed.” See id. (internal quotation marks omitted). A party opposing a fee request must “challenge, by affidavit or brief with sufficient specificity to give fee applicants notice, the reasonableness of the requested fee.” See Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).
 
In reviewing the hours worked and rates claimed, the following guidelines apply. With regard to the hours worked, the Court must “review the time charged, decide whether the hours set out were reasonably expended for each of the particular purposes described and then exclude those that are ‘excessive redundant, or otherwise unnecessary.’ ” See Pub. Interest Research Grp. Of N.J., Inc. v. Windall, 51 F.3d 1179, 1188 (3d Cir. 1995) (quoting Hensley, 461 U.S. at 433). “In reviewing whether the number of hours in a fee application are reasonable, the Court must conduct a thorough and searching analysis, and it is necessary that the Court go line, by line, through the billing records supporting the fee request.” Wachtel v. Health Net., Inc., No. 01-cv-4183, 2007 WL 1791553, at *2 (D.N.J. June 19, 2007) (quotations omitted). With respect to the billing rate claimed, “a reasonable hourly rate is calculated according to the prevailing market rate in the relevant community.” See Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001).
 
Here, as detailed in Exhibit D to Plaintiff's motion, Plaintiff seeks attorney's fees in the amount of $22,907.50, consisting of 18.9 hours of time spent by Attorney Paige Macdonald-Matthes at a rate of $550 per hour, and 32.5 hours of time spent by Attorney Joshua B. Kaplan at a rate of $385 per hour. (Doc. No. 27-4 at 2.) Plaintiff maintains that the reasonableness of the attorneys' hourly rates is demonstrated by counsel's years of experience and “evidenced by NRA Group's payment thereof.” (Doc. No. 27 at 6.)[5] Plaintiff's initial brief in support of its motion and its Exhibit D in support of the motion make no effort to detail the amount of attorney time spent with regard to various purposes related to the protective order granted by the Court beyond stating that “copies of Plaintiff's detailed billing records will be provided for an in camera review upon request by this Honorable Court due to the attorney-client privilege.” (Doc. No. 27-4 at 2.)
 
*5 As noted above, a party seeking an award of fees bears the burden of demonstrating the reasonableness of its request. Under these circumstances, where Plaintiff has not provided the Court with a detailed record of attorney time spent in connection with various tasks related to its motion for protective order, the Court cannot possibly assess the reasonableness of its fee request. Moreover, Defendants cannot challenge the reasonableness of the fee request when it has not been provided with detailed time records. The Court acknowledges Plaintiff's representation that it is willing to provide copies of its billing records to the Court for an in camera review upon the Court's request; however, in light of Plaintiff's burden to establish the reasonableness of its requested fees, and the need to afford Defendants an opportunity to challenge the reasonableness of those fees, the Court sees no reason why such information as to the time spent by Plaintiff's attorneys on various tasks related to the motion for protective order should not be part of the record in this matter. Information as to the time spent by Plaintiff's attorneys in connection with various tasks associated with the motion for protective order will not necessarily reveal attorney-client privileged communications. Accordingly, Plaintiff's attorneys will be directed to supplement the record by filing, on the docket of this matter, an affidavit containing such detailed information (with any attorney-client privileged communications redacted). The Court will therefore reserve its ruling on Plaintiff's motion for attorneys' fees. The Court turns to Plaintiff's motion for special relief.
 
C. Motion for Special Relief
As noted above, Plaintiff's Motion for Special Relief (Doc. No. 29) seeks an Order requiring Defendants to provide a certificate of destruction relating to the destruction of any and all electronic materials required to be destroyed by the Court's July 16, 2021 Order (Doc. No. 23). Specifically, Plaintiff's motion seeks an Order directing that:
Within seven (7) days of the date of this Order, Defendants shall file with the Court a Certificate of Destruction from an information technology professional, executed under penalty of perjury, confirming the permanent deletion/destruction of all electronic copies of materials that were required to be deleted and/or destroyed pursuant to the Court's July 16, 2021 Order, and describing (a) the vendor's qualifications, including any licensure, certification, and/or bonding, to make that certification and (b) the steps taken to effectuate that deletion/destruction.
(Doc. No. 29-2 at 1.)
 
The legal authority cited by Plaintiff in connection with its motion is the Court's “inherent power to enforce compliance with [its] lawful orders through civil contempt.” (Doc. No. 30 at 7) (quoting Transcon. Gas Pipe Line Co. v. Certain Easements & Rights of Way Necessary to Construct, 359 F. Supp. 3d 257, 267 (M.D. Pa. 2019)).
 
Plaintiff maintains that, with regard to the Subpoenaed Documents stored electronically, Defendants “have done little to substantiate [the] claim” that they have complied with this Court's July 16, 2021 Order. (Id. at 2.) Plaintiff argues that its correspondence with Defendants' counsel (attached as exhibits A-E to its motion) indicates that “Defendants do not appear to fully grasp the technical steps they needed to take to destroy—and confirm the destruction of—the electronic documents in their possession,” and that “NRA Group should not be left in the untenable position of having to wonder whether the sensitive materials that Defendants obtained improperly—which includes personal identifying information (including Social Security numbers) and personal health information from NRA Group's client accounts—was actually deleted.” (Id.) Plaintiff asserts that there is a “straightforward solution,” maintaining that “Defendants should be required to certify, through an information technology (IT) professional, that these electronic records were properly deleted, and explain what steps they took to do so, as well as the IT professional's qualifications to make that certification.” (Id.) Essentially, Plaintiff seeks an Order from this Court requiring Defendant to produce a certificate of destruction from a qualified IT professional confirming the permanent deletion of the electronic records subject to the Court's July 16, 2021 Order.
 
Defendants oppose Plaintiff's motion, maintaining that the Court's July 16, 2021 Order granted precisely the relief sought by Plaintiff in connection with its motion for protective order, and arguing that Plaintiff now seeks to “add additional conditions to the Court's previously issued Order.” (Doc. No. 35 at 2.) Defendants maintain that, in accordance with the Court's July 16, 2021 Order, which directed that “Defendants and their counsel shall immediately delete and destroy any and all electronic and hard copies of the Subpoenaed Documents and shall confirm that destruction in writing to Plaintiff's counsel within five (5) days of the date of this Order” (Doc. No. 23 at 8), Defendants “subsequently deleted and destroyed any and all electronic and hard copies of the Subpoenaed Documents, and by way of letter dated July 21, 2021,” informed Plaintiff's counsel that “Defendants and Undersigned counsel have deleted and destroyed any and all electronic and hard copies of the documents produced by the Swatara Township Police Department in response to the May 17, 2021 subpoena issued by the undersigned counsel” (Doc. No. 35 at 3). Defendants maintain that, subsequent to that confirmation, Plaintiff's counsel has sought to “add additional conditions/obligations upon Defendants and their counsel, which were not provided for or otherwise required in the July 16, 2021 Order.” (Id. at 3.) Defendants maintain that “the undisputed facts of record” demonstrate that “Defendants and their counsel have complied with the Court's July 16, 2021 Order.” (Id. at 11.)
 
*6 In its reply, Plaintiff maintains that, “even if Defendants complied with the Order in ‘form,’ they have not demonstrated at all that they did so in substance, and should be required to meet that obligation.” (Doc. No. 40 at 2-3.) Plaintiff maintains that, in response to Plaintiff's question regarding Defendants' compliance with the Court's Order, “defense counsel failed to answer the critical question whether backup copies of the documents at issue were deleted from his firm's systems,” when counsel stated that “he had ‘no record of any of the subpoenaed documents being backed up or saved in any way.’ ” (Id. at 3) (quoting Doc. No. 35 at 6). Plaintiff notes that defense counsel also stated at the same time that his “firm does not have an internal IT department.” (Id.) Plaintiff maintains that defense counsel's response indicates that he did not consult initially with an IT professional to make sure that the electronic versions of the Subpoenaed Documents were permanently deleted, which is why Plaintiff's counsel thereafter sent an email request to Defendants' counsel asking that he engage an IT professional to certify in writing what steps were taken to fully and permanently delete the electronic documents. (Id. at 3-4.) In response, Defendants' counsel stated: “I have in fact consulted with our third party vendor regarding proper process to delete and destroy electronically stored files in accordance with the Court's July 16, 2021 Order. I do confirm to you that in accordance with said consultation, my clients and I have followed that proper process, including following all prompts concerning permanent deletion of files.” (Doc. No. 35 at 8.) Plaintiff notes that Defendants have not yet “explained what those steps were,” and maintains that “it is well within the broad discretion accorded to the Court to require Defendants to confirm, through the certification of a qualified IT professional, the steps they took to comply with the Order.” (Doc. No. 40 at 5-6.)
 
Upon review of Plaintiff's motion, Defendants' response, the record of this matter, and relevant authorities, the Court concludes that Plaintiff's request for a certificate of destruction from an IT professional is not an unreasonable one; however, ideally, Plaintiff would have requested that relief in connection with its initial motion for a protective order and therefore avoided additional motion practice. The Court notes that its conclusion does not impugn Defendants' confirmation of compliance with the Court's July 16, 2021 Order but rather recognizes the utility of a certificate of destruction from an IT professional when addressing the issue of the permanent deletion/destruction of electronic documents. See, e.g., In re Linerboard Antitrust Litigation, No. 98-cv-5055, 2012 WL 2912332, at *35-36 (E.D. Pa. July 16, 2012) (requiring attorneys to “certify that persons with appropriate expertise have searched their firms' paper and electronic files and that any and all information [improperly obtained] has been permanently deleted” and appointing independent computer forensics expert to ensure that all electronic copies of improperly obtained documents are deleted). Moreover, the Court notes that, in light of defense counsel's representation regarding his consultation with his IT vendor in connection with Defendants' compliance with the Court's previous Order, the Court views its decision here as merely requiring Defendants to document the steps already taken to comply with the Court's July 16, 2021 Order, as opposed to requiring Defendants to take any additional action. Accordingly, the Court will grant Plaintiff's motion.
 
AND SO, on this 12th day of October 2021, upon consideration of the foregoing, IT IS ORDERED THAT:
1. Defendants' Motion for Leave to File Sur-Reply Brief in Opposition to Plaintiff's Motion for an Award of Expenses and Attorneys' Fees (Doc. No. 39) is DENIED;
2. Plaintiff's Motion to File Exhibit 4 to Plaintiff's Reply in Support of Motion for an Award of Expenses and Attorneys' Fees (Doc. No. 37) is DENIED;
3. Within ten (10) days of the date of this Order, Plaintiff shall file with the Court an affidavit containing a detailed description of the time spent in connection with its June 9, 2021 motion for protective order, so that the Court can assess the reasonableness of the fees sought by Plaintiff in connection with its motion for expenses and fees, and Defendants may file a response to that submission within ten (10) days thereafter; and
4. Plaintiff's Motion for Special Relief (Doc. No. 29) is GRANTED, and within ten (10) days of the date of this Order, Defendants shall file with the Court a certificate of destruction from an information technology (“IT”) professional, executed under penalty of perjury, confirming the permanent deletion/destruction of all electronic copies of materials required to be deleted/destroyed pursuant to this Court's July 16, 2021 Order, and describing (a) the IT professional's qualifications, including any licensure, certification and/or bonding, to make the certification, and (b) the steps taken to perform the deletion/destruction.

Footnotes
Defendant Durenleau subsequently filed an Answer and Counterclaim on June 18, 2021 (Doc. No. 16), while Defendant Badaczewski filed an Answer and Counterclaim on July 20, 2021 (Doc. No. 24). Defendant Durenleau filed an Amended Answer and Counterclaim on July 28, 2021. (Doc. No. 25.) Plaintiff subsequently filed an answer to Defendants' counterclaims on August 10 and 17, 2021, respectively. (Doc. Nos. 31, 33.) The case is currently scheduled for a case management conference on October 13, 2021. (Doc. Nos. 34, 42.)
Because Plaintiff seeks an Order of this Court permitting the filing of Exhibit 4 under seal, the pages produced by the STPD are not included with Exhibit 4 to Plaintiff's reply brief.
The Court notes that, to date, the parties have filed six motions on the docket of this matter, before the Court has even conducted a case management conference, currently scheduled for October 13, 2021. (Doc. Nos. 14, 20, 26, 29, 37, 39.)
The Court notes that the bulk of Defendants' brief in opposition is spent in an effort to relitigate their argument—made in connection with their opposition to the motion for protective order—that Plaintiff filed its motion for a protective order without attempting to resolve the issue in good faith with Defendants' counsel. (Doc. No. 32 at 5-20.) In the event the Court's conclusion on this point was not evident by its granting of Plaintiff's motion for protective order, the Court notes that it found no basis to conclude that Plaintiff filed its motion for protective order before attempting in good faith to resolve the subpoena issue with Defendants' counsel.
The Court notes that an attorney's usual billing rate is not dispositive; rather, “[c]ourts are to ‘assess the experience and skill of the prevailing party's attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.’ ” See Yeh v. United States Bureau of Prisons, No. 3:18-CV-943, 2020 WL 1505661, at *5 (M.D. Pa. Mar. 30, 2020) (quoting Maldonado v. Houston, 256 F.3d 181, 184 (3d Cir. 2001)).