Pletcher v. Giant Eagle, Inc.
Pletcher v. Giant Eagle, Inc.
2021 WL 6061666 (W.D. Pa. 2021)
November 8, 2021
Fischer, Nora B., Senior United States District Judge
Summary
Electronically stored information was used to review social media posts, discovery responses and production, as well as multiple deposition transcripts. Defendants sought attorneys' fees and costs against Plaintiffs Vidovich and Zytnick for their respective failures to timely produce documents. The court adjusted the fees and costs downward and ordered a total award of $4,900.00 in fees instead of the requested $21,462.50. Access to the private Facebook group was given to Defendants before the relevant motions were submitted.
Additional Decisions
KIMBERLY PLETCHER, et al., Consolidated Plaintiffs,
v.
Giant Eagle, Inc., et al., Defendants
v.
Giant Eagle, Inc., et al., Defendants
Civil Action No. 2:20-cv-754
United States District Court, W.D. Pennsylvania
Filed November 08, 2021
Counsel
Thomas B. Anderson, Thomson, Rhodes & Cowie, P.C., Pittsburgh, PA, for Plaintiffs Kimberly Pletcher, Josiah Kostek, Nicholas Conley, Sharon Burton, Debbie Vidovich, Paul Shepherd, Gerald Thomchick, Connie Winner, John Durso, Tracy O'Connor, Douglas Janaszek, Owen Burk, Ben Zytnick, Gregory Mandich, John Blackstone, Kathleen Cunningham, Jamie Marks-Borichevsky, Polly Quintiliani, Carolyn L. Stewart, Tommy Wynkoop, Tammie Aiken, Steven Parsons, Jefrey Coulson, Katherine Duckstein, Nathanael Dollar, Thomas Bensor, Vicki Parker, Stephen Mcrae, Kristie Harnish, Molly Shirk, Michael Hammers, Rebecca Struchen, Clyde Piovesan, Theodore Frick, Theresa Faust, Christine Pierro, Leann Mismas, Bob Haggerty, Kerry Palladino, Tammy Marshall, Carol Stevanus, Drew Mangus, Crystal McGinnis, Jordan Rhoat, Cindy Lennex, Michele Whitcroft, Timothy Bair, Robert Dearmitt, Amy Ulery, Robert Ree, Teresa Davis, Margaret Dunn, Kevin Gembarosky, Paula Soost, Lisa Brannigan, Steve Roberts, Genevieve Mellott, Rita Gorzock, Holly Pulling.Jeremy D. Engle, Jonathan D. Marcus, Marcus & Shapira LLP, Pittsburgh, PA, for Defendants.
Fischer, Nora B., Senior United States District Judge
REPORT AND RECOMMENDATIONS OF DISCOVERY SPECIAL MASTER RE: DEFENDANTS’ PETITION FOR REASONABLE ATTORNEYS’ FEES AND COSTS
I. Brief Introduction
*1 The Discovery Special Master incorporates herein by reference as if the same were set forth fully and at length her Report and Recommendations regarding Defendants’ Motion to Compel and her Report and Recommendations regarding Defendants’ Motion for Sanctions. See ECF 98-99.
The Discovery Special Master previously recommended “sanctions against Plaintiff Vidovich and Plaintiff Zyt[n]ick in the form of an award of reasonable attorneys’ fees and costs incurred in preparing for and participating in two (2) conferences with the Discovery Special Master, the preparation of the Motion to Compel, and the preparation of the Motion for Sanctions as a result of their respective failures to timely produce documents.” ECF 99 at pg. 27. By Order of Court dated September 14, 2021, the Discovery Special Master's recommendations were “adopted as the Opinions of the Court”. ECF 100.
The Court further ordered that Defendants “file a fee petition and supporting documentation detailing the reasonable attorneys’ fees and costs claimed” by September 28, 2021. Id. Plaintiffs Vidovich and Zytnick were ordered to file a response in opposition to Defendants’ fee petition by October 12, 2021. The Discovery Special Master finds that the parties filed timely submissions and, therefore, pursuant to the Court's order referring this matter to the Discovery Special Master for consideration, addresses the merits of Defendants’ fee petition as follows. Id.
II. Defendants’ Petition for Reasonable Attorneys’ Fees and Costs and Legal Analysis Regarding the Same
Defendants pray for: (1) an award of attorneys’ fees and costs in the amount of $8,085.00 imposed against Plaintiff Vidovich, and (2) an award of attorneys’ fees in the amount of $3,500.00 imposed against Plaintiff Zytnick. ECF 102 at pg. 4. Defendants assert that these figures are reasonable where “total fees and costs [incurred] over the span of three months and related to the conferences and motions amount to $52,341”.[1] Id. at pg. 1. Defendants attach their relevant invoices along with the invoices of the Discovery Special Master as evidentiary support for the claimed fees and costs. See id. at Exhibits 1-2.
Defendants estimate “that as much as 50% of its fees relate to time focused on the belated discovery from Ms. Vidovich.” ECF 102 at pg. 3, n.3. “This included thousands of belatedly produced posts from the private Facebook group Stop Giant Eagle Now,[2] which Ms. Vidovich started and administered, hundreds of private messages ... she withheld,[3] and her testimony about communications with other Plaintiffs that she ... failed to identify and produce.” Id. “This belatedly produced discovery was the primary basis for identifying much of the discovery deficiencies that were the subject of Giant Eagle's discovery motions.” Id.
*2 Plaintiffs Vidovich and Zytnick counter that:
The fees sought by Defendants ... are anything but ‘reasonable.’ Defense counsel spent an inordinate amount of time preparing expansive motions to compel and for sanctions that were mostly denied because they were without merit and/or frivolous. Defendants also seek reimbursement for excessive time spent preparing for and conferencing with the Special Master.
Plaintiffs argue their misconduct is limited to the following:
• Plaintiff Vidovich: Failure to timely produce “notes of Debbie Vidovich's calls with Giant Eagle Executives and various agencies and video recordings of her trips to Giant Eagle stores ... both of which have been produced.”
• Plaintiff Zytnick: Failure to perform a reasonable search for text messages and emails regarding his ability to wear a face covering in a Giant Eagle store where he believed that no such documents existed. The subsequent search ordered by the Court upon the Discovery Special Master's recommendation revealed that Zytnick was correct that no documents existed.
Id. at pg. 2.
Plaintiffs further assert that most of Defendants’ remaining arguments as against Plaintiffs Vidovich and Zytnick were “rebuffed” by the Discovery Special Master, because Defendants “mischaracterized” Vidovich's discovery responses and/or argued for a “tortured interpretation” of Zytnick's discovery responses. Id. Therefore, according to these Plaintiffs, Defendants are not entitled to recover their attorneys’ fees related to time spent on frivolous arguments arising out of these mischaracterizations. Id. at pp. 2-3.
Plaintiffs summarize their argument stating:
Defendants have submitted an extremely unreasonable fee petition seeking $8,085 in fees for 83.2 hours of time to prepare what should have been a simple motion to compel production of [Plaintiff Vidovich's] videos and notes ... and a randomly selected 10% of costs incurred for the Special Master. Defendants also seek $3,500 in fees for 10 hours to compel Zytnick to conduct a search for documents that he knew did not exist, and which the subsequent search confirmed did not exist. The reality is that most of the excessive time spent by defense counsel was spent making up frivolous arguments that were dispatched by the Special Master.
Id. at pg. 2.
Plaintiffs ask the Discovery Special Master to either deny Defendants’ fee petition in its entirety or “issue an order commensurate with a reasonable fee for a reasonable amount of time to obtain the items requested that the Special Master determined should have been produced earlier.” Id. at pg. 3.
The Supreme Court of the United States (“SCOTUS”) has held that a federal court order sanctioning a party for “bad-faith” conduct, “is limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith.” Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1184 (U.S. 2017).
*3 In Goodyear, the manufacturer of a tire wrongfully withheld from its document production the tire's heat test results: (1) where the plaintiffs’ legal theory (in this products liability case) “was that the tire was not designed to withstand the level of heat it generated when used on a motorhome at highway speeds”, and (2) where plaintiffs specifically requested the production of “all testing data”. Id. The case settled before the plaintiffs learned of the manufacturer's misconduct in discovery. Id. The district court in Goodyear awarded plaintiffs both legal fees “that could be causally tied to [the manufacturer's] misconduct and those that could not.” Id. at 1185. A “divided panel” of the United States Court of Appeals for the Ninth Circuit affirmed. Id.
SCOTUS reversed the lower courts stating:
This Court has made clear that such a sanction, when imposed pursuant to civil procedures, must be compensatory rather than punitive in nature ... In other words, the fee award may go no further than to redress the wronged party for losses sustained; it may not impose an additional amount as punishment for the sanctioned party's misbehavior. To level that kind of separate penalty, a court would need to provide procedural guarantees applicable in criminal cases, such as a beyond a reasonable doubt standard of proof. When (as in this case) those criminal-type protections are missing, a court's shifting of fees is limited to reimbursing the victim.
“The court's fundamental job is to determine whether a given legal fee—say, for taking a deposition or drafting a motion—would or would not have been incurred in the absence of the sanctioned conduct. The award is then the sum total of the fees that, except for the misbehavior, would not have accrued.” Id. at 1187 (emphasis added). “The essential goal in shifting fees is to do rough justice, not to achieve auditing perfection. Accordingly, a district court may take into account [its] overall sense of a suit, and may use estimates in calculating and allocating an attorney's time.” Id. (internal quotations omitted) (citing and quoting Fox v. Vice, 563 U.S. 826, 838 (2011)).
Since SCOTUS issued its opinion in Goodyear, this Honorable Court has followed its guidance in awarding attorneys’ fees as a sanction. See e.g., LabMD, Inc. v. Tiversa Holding Corp., 2020 WL 1428935, at *12, n.11 (W.D. Pa. Mar. 24, 2020) (related to discovery misconduct); and Deming-Archambault v. Lennox Int'l, 2018 WL 1899033, at *2 (W.D. Pa. Apr. 20, 2018) (related to asserting a frivolous claim).
This Honorable Court in applying the holding of Goodyear has held that, “any sanction under the Court's inherent powers must be “tailored to address the harm identified.” ” Deming-Archambault, 2018 WL 1899033, at *4 (quoting Republic of Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 74 (3d Cir. 1995)). “The Supreme Court has held that the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. The result of this computation is called the lodestar. The lodestar is strongly presumed to yield a reasonable fee.” Washington v. Philadelphia Cty. Ct. of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996) (internal quotations omitted) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)) and (citing City of Burlington v. Dague, 505 U.S. 557 (1992)).
“The general rule is that a reasonable hourly rate is calculated according to the prevailing market rates in the community. The prevailing party bears the burden of establishing by way of satisfactory evidence, in addition to the attorney's own affidavits ... that the requested hourly rates meet this standard.” Washington, 89 F.3d at 1035 (citing and quoting Blum v. Stenson, 465 U.S. 886, 895–96 n. 11 (1984)).
*4 In Deming-Archambault, this Honorable Court observed that the Pittsburgh market rate for employment law attorneys combined with the “level of skill and experience” needed to complete the relevant tasks (i.e., drafting a motion for judgement on the pleadings to defend against a frivolous Family and Medical Leave Act claim and drafting a related motion for sanctions) justified an hourly rate of $350.00. See 2018 WL 1899033, at *5. However, the Court also determined that:
Defendant's request for attorneys’ fees in the amount of $21,462.50 is unreasonably high. Defendant's billing affidavit (Exhibit F to Sanctions Motion) provides daily block billing for the time of two attorneys, totaling to the above amount. Using this billing chart to assess the amount of a sanction award would be improper for several reasons: the chart contains charges that would have been incurred absent Plaintiff's counsel's misconduct; the chart contains charges that could easily have been avoided; the chart bills for the time of experienced attorneys when less-experienced attorneys could have performed the relevant tasks; and the chart omits the time spent in support of the Sanctions Motion.
Deming-Archambault, 2018 WL 1899033, at *4.
The Deming-Archambault court further considered the fact that defense counsel did not confer with plaintiff's counsel regarding a voluntary dismissal of the frivolous claim prior to filing the relevant motions. Id.[4] Considering the totality of the circumstances, the Deming-Archambault court “adjusted downward” the hours billed to seven (7) hours for the motion for judgment on the pleadings and seven (7) hours for the motion for sanctions. Id. at *5. A total award of $4,900.00 in fees was ordered instead of the requested $21,462.50. Id. The Discovery Special Master finds the Deming-Archambault court's analysis persuasive.
a. Award of Attorneys’ Fees Against Plaintiff Zytnick
Defendants seek $3,500.00 in attorneys’ fees against Plaintiff Zytnick related to Defendants’ preparation of their Supplement to Motion for Sanctions. See ECF 102-1 at pg. 3, ¶11. Defense Counsel (i.e., Jeremy D. Engle, hereinafter “Attorney Engle”) recorded a total of ten (10) hours of time at a rate of $350.00 per hour relative to preparing Defendants’ Supplement to Motion for Sanctions. Id. at pp. 7-8 (August 26 and 27, 2021 time entries).
The Discovery Special Master does find the hourly rate of $350.00 to be reasonable given the Pittsburgh market rate for attorneys working in the areas of complex litigation and class action litigation. Additionally, the rate of $350.00 an hour is commensurate with a lawyer of fifteen (15) years of experience in these practice areas such as Attorney Engle. However, the Discovery Special Master does consider whether an associate level attorney at a lower rate should have been assigned the task of preparing the Supplement to Motion for Sanctions.
The Supplement to Motion for Sanctions sought the dismissal of Plaintiff Zytnick's claims and an award of attorneys’ fees. See ECF 99 at pg. 22. The Discovery Special Master spent a significant amount of time and effort addressing Defendants’ numerous representations (in their Supplement to Motion for Sanctions) related to Plaintiff Zytnick's purported discovery deficiencies. Id. at pp. 22-25. The Discovery Special Master has previously addressed and will not recount here Defendants’ “tortured interpretation” of certain of Plaintiff Zytnick's discovery responses. Id. Suffice to say, the Discovery Special Master finds that a portion of the time spent by Defense Counsel in preparing the Supplement to Motion for Sanctions is not causally related to Plaintiff Zytnick's relevant misconduct (i.e., the failure to timely conduct a reasonable search of his text messages and emails “for any communications in his possession that relate to his ability to wear a mask or Giant Eagle's mask policy”). Id. at 26.
*5 Given the foregoing, the Discovery Special Master will adjust downward Defense Counsel's hours in calculating a reasonable attorneys’ fee. The Discovery Special Master makes this adjustment for two reasons: (1) to make sure that only those fees caused by Plaintiff Zytnick's failure to conduct a reasonable search of his text messages and emails are awarded as compensation to Defendants, and (2) to adjust for a partner billing rate where an associate attorney with a lower rate could have prepared the subject motion.
It is the considered determination of the Discovery Special Master that Defendants should be awarded six (6) hours’ worth of time at a rate of $350.00 in attorneys’ fees. The Discovery Special Master recommends that Plaintiff Zytnick be ordered to pay $2100.00 in attorneys’ fees as a monetary sanction to Defendants related to Defendants’ preparation of their Supplement to Motion for Sanctions.
b. Award of Attorneys’ Fees Against Plaintiff Vidovich
Defendants seek an award of fees and costs in the total amount of $8,085.00 from Plaintiff Vidovich. See ECF 102 at pg. 4. According to Attorney Engle's affidavit, he charged an hourly rate of $295.00 pre-July 2021 and $350.00 per hour beginning July 1, 2021 for time related to participating in the relevant conferences with the Discovery Special Master and for time related to drafting the applicable motions. See ECF 102-1 at pg. 2, ¶4. As demonstrated supra, the Discovery Special Master finds the charged hourly rates to be consistent with the Pittsburgh market rate. The Discovery Special Master also finds it appropriate for a partner level attorney to handle the two (2) conferences with the Discovery Special Master but again the Discovery Special Master considers whether an associate at a lower rate should have been assigned the task of drafting Defendants’ Motion to Compel and Motion for Sanctions. Accordingly, the Discovery Special Master considers whether an adjustment downward in the total hours billed is necessary.
The issue of causation relative to Ms. Vidovich's misconduct (i.e., failure to timely produce notes of phone calls with Giant Eagle executives and various agencies in addition to her video recordings of her trips to Giant Eagle stores and her failure to timely produce responsive social media posts, communications with other Plaintiffs and/or timely provide access to SGEN), see ECF 98 at pp. 13-15, 30-31, presents a much more difficult question for the Discovery Special Master's consideration. There is no precise way for the Discovery Special Master to definitively determine how many hours were actually billed by Defense Counsel to address these discrete issues as caused by Plaintiff Vidovich where multiple Plaintiffs failed to timely produce documents and/or provided other incomplete discovery responses. Id. Therefore, the Discovery Special Master follows the guidance of the Goodyear Court in an effort to do “rough justice” and based upon the Discovery Special Master's overall sense of the instant discovery dispute.
Defendants estimate “that as much as 50% of [their] fees relate to time focused on the belated discovery from Ms. Vidovich.” ECF 102 at pg. 3, n.3. “This included thousands of belatedly produced posts from the private Facebook group Stop Giant Eagle Now, which Ms. Vidovich started and administered, hundreds of private messages ... she withheld, and her testimony about communications with other Plaintiffs that she ... failed to identify and produce.” Id. “This belatedly produced discovery was the primary basis for identifying much of the discovery deficiencies that were the subject of Giant Eagle's discovery motions.” Id.
*6 The Discovery Special Master agrees that Plaintiff Vidovich did not make a timely production of responsive documents. Based on all the facts and circumstances revealed through the discovery motions practice, the Discovery Special Master also finds that Plaintiff Vidovich did play a more significant role in the discovery disputes as compared to other plaintiffs. However, the Discovery Special Master does not find Defense Counsel's estimate of 50% of their fees to be a reasonable number when applying a “but for” test of causation to Plaintiff Vidovich's misconduct. Notably, Defense Counsel does advise that they reduced their request to 25% of their fees “for this work from Ms. Vidovich to be conservative”. See ECF 102 at pg. 5, n. 3. However, this figure too seems to be unreasonably high for the following reasons.
First, access to the private Facebook group Stop Giant Eagle Now (“SGEN”) was given to Defendants before the relevant Motion to Compel and Motion for Sanctions were submitted. See ECF 98 at pg. 14; see also ECF 89 at pg. 5 and ECF 89-8 at pg. 2 (Defendants stating, “Vidovich failed to provide access to a private Facebook group, Stop Giant Eagle Now ... until after her deposition” – said deposition took place on March 19, 2021). The Discovery Special Master further notes that Defense Counsel provided her with a copy of certain SGEN posts identified as “Exhibit G” before the initial June 3, 2021 conference before the Discovery Special Master.[5] Accordingly, the Discovery Special Master finds that Defendants were given access to SGEN prior to her involvement in this case.
Second, Plaintiff Vidovich did produce “hundreds of unquestionably responsive private Facebook messages with others on or about July 8, 2021 prior to Defendants submitting” their Motion to Compel. See ECF 98 at pg. 14. The Discovery Special Master also finds that Defendants received Plaintiff Vidovich's supplemental production prior to the July 22, 2021 conference before the Discovery Special Master.
That said, by way of contrast, the production of Plaintiff Vidovich's social media posts on July 8, 2021 did occur after the June 3, 2021 conference with the Discovery Special Master and after the agreed upon deadline for supplemental discovery responses of July 6, 2021. Moreover, the Discovery Special Master recommended that Plaintiff Vidovich be compelled to make a further production of documents related to text messages, emails, private Facebook messages, or other social media posts/messages/blogs in addition to communications referenced on SGEN that were not produced prior to the preparation of Defendants’ Motion to Compel and Motion for Sanctions. See ECF 98 at pp. 30-31, ¶¶1, 4. Similarly, Plaintiff Vidovich did repeatedly fail to produce her notes of phone calls with Giant Eagle executives and various agencies in addition to her video recordings of her trips to Giant Eagle stores prior to Defendants’ incurring the relevant fees and costs of motions practice. In sum, the issues identified in this paragraph undoubtedly caused Defendants to incur unnecessary fees and costs such that Plaintiff Vidovich should reasonably compensate Defendants for the same.
The only remaining question is – how much harm was caused by Plaintiff Vidovich's misconduct? The Discovery Special Master considers Defendants’ prayers for relief in their Motion to Compel and Motion for Sanctions in an effort to answer this question.
Defendants represented in their Motion to Compel that the relevant discovery misconduct was widespread amongst all fifty-eight (58) Plaintiffs. Indeed, Defendants’ Motion to Compel Discovery was asserted as against all Plaintiffs. See generally ECF 88-89. Defendants’ Proposed Order appended to their Motion to Compel asked that “All Plaintiffs” be compelled to inter alia provide a “straightforward stipulation regarding their ability to wear face coverings” and a further response to Defendants’ document requests, interrogatories and requests for admission. See ECF 88-1. Defendants could not have made such a prayer for relief in good faith, unless they conducted a comprehensive review of all Plaintiffs’ document productions, written responses to interrogatories, written responses to requests for admissions and the stipulations provided by twenty-six (26) Plaintiffs.[6] Therefore, twenty-five percent (25%) of Defendants’ attorneys’ fees as applied to Plaintiff Vidovich seems unreasonably high relative to her discovery misconduct and the corresponding costs of the Motion to Compel and the two conferences with the Discovery Special Master.
*7 In their Motion for Sanctions, Defendants moved for sanctions pursuant to Federal Rule of Civil Procedure 37 for an order sanctioning eight (8) Plaintiffs. See ECF 90. Defendants claimed that eight (8) Plaintiffs have “repeatedly withheld relevant documents, spoliated evidence, and provided evasive or false discovery responses, all in defiance of the Court's orders.” Id. Defendants prayed that all eight (8) Plaintiffs’ claims be dismissed and sought an award of fees related to Plaintiff Vidovich and Plaintiff Janaszek. See ECF 90-91. As such, twenty-five percent (25%) of Defendants’ attorneys’ fees seems unreasonably high relative to the costs of Defendants’ Motion for Sanctions as it related to Plaintiff Vidovich.
The Discovery Special Master spent significant time reviewing the discovery responses of all fifty-eight (58) Plaintiffs, along with Stipulations and deposition testimony for select Plaintiffs who provided same, in preparing for and facilitating the two conferences before the Discovery Special Master. See ECF 102-1 at Exhibit 2. Accordingly, the Discovery Special Master cannot conclude that the time she spent addressing Plaintiff Vidovich's misconduct equated to as much as 10% of her conference costs as asserted by Defendants. See ECF 102 at pg. 3, n. 4.
Based on all the facts and circumstances known to the Discovery Special Master, and based on applicable legal authority in this jurisdiction, the Discovery Special Master roughly estimates that Plaintiff Vidovich was singularly responsible for fifteen (15) of Defense Counsel's hours at a rate of $350.00 per hour or a total of $5,250.00 in attorneys’ fees. Similarly, the Discovery Special Master roughly estimates that Plaintiff Vidovich was singularly responsible for $1200.00 in conference costs.
III. Conclusion and Recommendations
It is the considered determination of the Discovery Special Master that Defendants’ Petition for Reasonable Attorneys’ Fees and Costs be granted in part and denied in part. Defendants’ Petition is denied inasmuch as their requests for $8,085.00 in costs and fees against Plaintiff Vidovich and $3,500.00 in fees against Plaintiff Zytnick are unreasonably high.
Defendants’ Petition is granted because a reasonable award of attorneys’ fees and costs is warranted as a direct consequence of Plaintiff Vidovich's and Plaintiff Zytnick's discovery misconduct.[7]
Therefore, the Discovery Special Master recommends the following:
1.) Plaintiff Vidovich shall pay $5,250.00 in fees and $1,200.00 in costs to Defense Counsel within thirty (30) days from the date of the Court's Order adopting these recommendations; and
2.) Plaintiff Zytnick shall pay $2100.00 in fees to Defense Counsel within thirty (30) days from the date of the Court's Order adopting these recommendations.
Footnotes
The Discovery Special Master notes that there are fifty-eight (58) Plaintiffs remaining in the case. See ECF 98 at pg. 21. Defendants’ Motion to Compel Discovery was asserted as against all Plaintiffs. See generally ECF 88-89; see also ECF 88-1 (i.e., Defendants’ Proposed Order appended to their Motion to Compel asking that “All Plaintiffs” be compelled to inter alia provide a “straightforward stipulation regarding their ability to wear face coverings” and a further response to Defendants’ document requests, interrogatories and requests for admission). Accordingly, based upon Defendants’ asserted total fees and costs figure, Defendants incurred approximately $902.43 per Plaintiff to litigate the relevant discovery dispute.
The Discovery Special Master notes that access to the private Facebook group Stop Giant Eagle Now (“SGEN”) was given to Defendants before the relevant Motion to Compel, Motion for Sanctions and supplement to the Motion for Sanctions were submitted. See ECF 98 at pg. 14; see also ECF 89 at pg. 5 and ECF 89-8 at pg. 2 (Defendants stating, “Vidovich failed to provide access to a private Facebook group, Stop Giant Eagle Now ... until after her deposition” – said deposition took place on March 19, 2021).
The Discovery Special Master notes that Plaintiff Vidovich did produce “hundreds of unquestionably responsive private Facebook messages with others on or about July 8, 2021 prior to Defendants submitting” their Motion to Compel. See ECF 98 at pg. 14. However, this production occurred after the June 3, 2021 conference with the Discovery Special Master and after the agreed upon deadline for supplemental discovery responses of July 6, 2021.
The Discovery Special Master notes that Defense Counsel's filing represents that he did confer with Plaintiff's counsel regarding a proposed resolution of the attorneys’ fees and cost issues and that Plaintiff's counsel responded that Plaintiffs rejected Giant Eagle's proposals. See ECF 102 at pg. 4 and ECF 102-1 at ¶ 14.
The Discovery Special Master's records indicate that Exhibit G (among other defense exhibits) was downloaded to her document management system on or about May 13, 2021.
A review of Defense Counsel's invoices reveals as much. For example, the time entries dated July 15, 2021 through July 20, 2021 state that Defense Counsel reviewed “plaintiffs’ ” (plural) social media posts, discovery responses and production. See ECF 102-1 at pg. 6. In yet another time entry dated July 30, 2021, Defense Counsel reviewed multiple “deposition transcripts” for purposes of “preparing motion to compel and motion for sanctions.” Id. at pg. 7. Defendants provided the Discovery Special Master with five (5) deposition transcripts for Plaintiffs Janaszek, Pulling, Kostek, Piovesan and Vidovich during the course of the instant discovery dispute.
While there is a representation in Attorney Engle's Declaration that Plaintiff's counsel informed him during their September 23 and 24, 2021 communications that he “not those Plaintiffs, would pay the awarded sanctions on a contingency with the Plaintiffs” and Attorney Engle raised “a concern about whether such an arrangement would be permissible under the Rules of Professional Conduct” (see ECF 102-1 at ¶ 14), the Discovery Special Master does not deem this issue to be within her assigned authority and, therefore, no recommendation is made herein addressing this issue.