*1 Following the further hearing on Defendants Brian J. Bowers and Dexter C. Kubota's Motion to Compel, the Court issued an order directing the parties to file supplemental briefing regarding Items 41-3100 that remain in dispute, the issue of wavier, and any requested discovery sanctions related to the ongoing discovery dispute. See ECF No. 162. As directed, Defendants Bowers and Kubota filed a Supplemental Motion to Compel (Items 41-3100) and Related Motion for Attorneys’ Fees and Expenses (Supplemental Motion). See ECF Nos. 172, 173, 176. Plaintiff Eugene Scalia, Secretary of Labor, United States Department of Labor (the Secretary) filed its Response to the Supplemental Motion on March 31, 2020. See ECF No. 181. Defendants Bowers and Kubota filed their Reply on April 7, 2020. See ECF No. 185. The Court granted the Secretary's request to allow additional briefing on the issue of bad faith on April 20, 2020. See ECF No. 190. The Secretary's Sur-Reply was filed on April 27, 2020. See ECF No. 192. Defendants Bowers and Kubota filed their Response to the Sur-Reply on April 30, 2020. See ECF No. 193.

The Court finds the Supplemental Motion suitable for disposition without a hearing pursuant to Rule 7.1(c) of the Local Rules of Practice of the United States District Court for the District of Hawaii (Local Rules).

After careful review of the submissions of the parties and the applicable legal authority, the Court GRANTS IN PART AND DENIES IN PART the Supplemental Motion as detailed below.

The full background history of this discovery dispute was set forth in the Court's prior discovery order. See ECF No. 162. However, the key background facts regarding the specific documents at issue are recited again for purposes of this Supplemental Motion.

This prolonged discovery dispute began with a dispute regarding 40 “Items” that the Secretary withheld on the basis of privilege addressed in Defendants Brian J. Bowers’ and Dexter C. Kubota's Motion to Compel Discovery. See ECF No. 113. With his Opposition to that Motion Compel Discovery, the Secretary produced a Third Supplemental Privilege Log, which identified for the first time three groups of emails listed together as Items 41, 42, and 43. See ECF No. 121-5. At that same time, the Secretary produced the initial Declaration of Assistant Secretary of Labor Preston Rutledge (Rutledge Declaration), which addressed Items 41, 42, and 43 grouped together. See ECF No. 121-6 ¶¶ 29-31.

Following the first hearing on the Motion to Compel Discovery, the Court determined that the Secretary impermissibly grouped together Items 41, 42, and 43 and ordered the Secretary to, among other things, produce to Defendants, with a copy to the Court, a supplemental privilege log that fully complies with Local Rule 26.2(d) including (a) greater detail in all columns, e.g., the date the documents was created, the specific subject matter of the document or communication, the names and titles of all authors and recipients, including attorneys, etc.; and (b) and separately lists each document previously grouped together in Items 41, 42, and 43. See ECF No. 137.

*2 The Secretary produced a Fourth Supplemental Privilege Log that provided more information regarding Items 1-40 originally at issue and identified an additional 5,000 documents withheld on the basis of privilege, which the Secretary identified as Items 41-5430. See ECF No. 154-2.

Given the volume of discovery material at issue, the Court continued the further hearing on the Motion to Compel Discovery for six weeks and directed supplemental briefing to be filed in advance of the further hearing. See ECF No. 145. After the Court granted the parties’ two extensions of time to file their supplemental briefs, the parties continued to disagree about the discoverability of Items 41 through 3100. See ECF Nos. 154, 155. Defendants argued in their supplemental briefing that the Secretary failed to substantiate his assertion of any privilege as to Items 41 through 3100 because the Secretary did not provide a declaration supporting its assertion of privilege as required. See ECF No. 154. The Secretary responded that it would submit a declaration regarding the invocation of the privileges asserted in items 41 through 3100 before the further hearing. See ECF No. 155. The Secretary filed the Supplemental Declaration of Assistant Secretary of Labor Preston Rutledge (Supplemental Rutledge Declaration) on January 30, 2020, eight days before the further hearing. See ECF No. 159.

The Supplemental Rutledge Declaration addressed Items 41 through 3100 in a summary fashion and stated in two paragraphs that all of the documents were properly withheld. See id. ¶¶ 10-11. Given the inadequacy of the Supplemental Rutledge Declaration, the Court stated in its order following the further hearing that it was inclined to grant the request to compel as to Items 41 through 3100. See ECF No. 162 at 14. The Court ordered the Secretary to reconsider its assertions of privilege as to Item 41 through 3100 and to produce to Defendants any Items for which the assertion of privilege was no longer appropriate no later than February 28, 2020. See id.

On February 28, 2020, the Secretary produced to Defendants all documents previously withheld as to Items 41 through 3100, most with redactions, totaling 10,761 pages, a Revised Fourth Supplemental Privilege Log, and a Third Supplemental Declaration of Assistant Secretary of Labor Preston Rutledge (Third Supplemental Rutledge Declaration).[1] See ECF Nos. 176-1, 176-2.

In the Supplemental Motion, Defendants Bowers and Kubota ask the Court to compel the Secretary to produce all documents at issue without redactions because the Secretary has failed to support his claims of privilege, or alternatively, has waived his claims of governmental privileges. See ECF No. 172. Defendants also ask the Court to award them their fees and costs associated with this discovery dispute. See id.

First, the Court will address Defendants Bowers and Kubota's arguments regarding the Secretary's claims of privilege. Second, the Court will address Defendants’ request for attorneys’ fees and costs.

I. The Secretary's Claims of Privilege

*3 The Secretary produced a Revised Fourth Supplemental Privilege Log to Defendants Bowers and Kubota with its most recent production of Items 41 through 3100 with redactions. See ECF No. 176-1. For these documents, the Secretary again has asserted the attorney-client privilege, the work product doctrine, the deliberative process privilege, and the investigative files privilege. The applicable legal standards for each of these privileges was set forth in detail in the Court's prior discovery order and is incorporated by reference here. See ECF No. 184 at 2-6.

A. Attorney-Client Privilege and the Work Product Doctrine

Under Federal Rule of Civil Procedure 26(b)(5) and Local Rule 26.2(d), the privilege log must sufficiently describe the nature of the information withheld so that the recipient can assess the claim of privilege. See Fed. R. Civ. P. 26(b)(5); LR26.2(d). In his Revised Fourth Supplemental Privilege Log, the Secretary noted each document that he claimed was protected from discovery under the attorney-client privilege or the work product doctrine, described each document in general terms, stated whether it was attached to other documents listed, and referenced the author and the recipients. See id. The Court has carefully reviewed all of the entries in the Revised Fourth Supplemental Privilege Log related to the attorney-client privilege and the work product doctrine.

Based on the information provided by the Secretary in the privilege log, the Court is able to determine for most of the entries at issue that the withheld information involves a communication with counsel regarding legal advice or that the withheld information was prepared in anticipation of litigation. See United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010) (stating the standard for asserting the attorney-client privilege); Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d 1486, 1494 (9th Cir. 1989) (setting forth the standard for application of the work product doctrine). For these entries, the Secretary has provided sufficient information to establish that the information at issue is protected from discovery by the attorney-client privilege or is properly withheld under the work product doctrine. See id.

However, the Court has concerns about a few Items. Specifically, based on the information provided in the log, the Court is unable to determine whether the Secretary appropriately asserted the attorney-client privilege or the work product doctrine as to: Items 252, 254, 257, 276, 296, 352, 525, 746, 1555, 1556, 1557, 1558, 1732 through 1743, and 2047. It appears that these are communications that do not involve counsel and the descriptions do not provide sufficient information for the Court to determine whether the documents were prepared in anticipation of litigation. See ECF No. 176-1.[2]

No later than May 29, 2020, the Secretary shall review its assertions of privilege as to these Items and shall file a supplemental declaration explaining in greater detail the basis for its assertion of the attorney-client privilege and/or the work product doctrine and shall produce a supplemental privilege log if the Secretary determines that any assertions of the attorney-client privilege or the work product doctrine were in error.

B. The Deliberative Process and the Investigative Files Privileges

*4 In the Revised Fourth Supplemental Privilege Log, the Secretary also continues to assert the deliberative process privilege and the investigative files privilege as to many Items at issue. See ECF No. 176-1. Defendants Bowers and Kubota first argue that the Secretary has waived these governmental privileges based on his failure to properly assert the privileges and his purported bad faith conduct in this discovery dispute. See ECF No. 172 at 9-13; ECF No. 185 at 2-4; ECF No. 193. Defendants Bowers and Kubota next argue that the Third Supplemental Rutledge Declaration is insufficient to substantiate the Secretary's claim of governmental privileges. The Court will address each argument below.

1. Waiver

Defendants Bowers and Kubota argue that the Court should find that the Secretary waived governmental privileges based on his failure to properly assert the privileges and his purported bad faith conduct in this discovery dispute. The Court disagrees.

First, contrary to Defendants Bowers and Kubota's arguments, the Court finds no evidence of bad faith based on the declaration of Ruben Richard Chapa, Esq., counsel for the Secretary, which was provided in support of the Secretary's Opposition to Defendants Bowers and Kubota's Supplemental Motion to Compel (Items 41-3100) and Related Motion for Attorneys’ Fees and Expenses (Chapa Declaration). The Chapa Declaration states that government attorneys reviewed Items 41-3100, briefed Assistant Secretary Rutledge, and drafted his Supplemental Declaration that asserted the deliberative process and investigative files privileges. See ECF No. 181-1 ¶ 6. Defendants Bowers and Kubota argue that this was improper and is evidence of bad faith; however, the case law cited by Defendants Bowers and Kubota does not support this conclusion.

Defendants Bowers and Kubota cite two cases: Exxon Corporation v. Department of Energy, 91 F.R.D. 26 (N.D. Tex, 1981); and United States ex rel. Poehling v. Unitedhealth Group, Inc., 2018 WL 8459926 (C.D. Cal. Dec. 14, 2018). See ECF No. 172 at 13. Neither of these cases is controlling authority and neither is persuasive because both are factually distinguishable. In Exxon Corp., the district court held that only the agency head may assert the executive privilege and that “affirmations of staff attorneys, especially those participating in pending litigation are legally insufficient.” 91 F.R.D. at 43. In Poehling, the district court found that the agency declarations submitted in support of the claim of deliberative process were insufficient because “contract attorneys” had reviewed the documents at issue, “senior agency personnel” were not involved in the review process, the declarants reviewed only a “miniscule fraction” of the documents at issue, and the declarations provided generalized descriptions of the categories of documents at issue. See 2018 WL 8459926 at *12-*13. Here, the Secretary did not rely on the “affirmations of staff attorneys” or review by “contract attorneys” to support his claim of privilege, but instead provided a declaration from a senior agency official stating that he personally reviewed each of the documents and made the determinations that the privileges were necessarily asserted. See ECF No. 176-2. Nothing in the district courts’ decisions in Exxon Corp. or in Poehling suggests that it is inappropriate for counsel to provide legal advice to the senior agency personnel in making their determinations regarding the governmental privileges or that it is inappropriate for counsel to draft declarations for the senior agency personnel to review, approve, and sign.

Second, the Court finds that the Secretary's delays and inconsistencies in asserting these governmental privileges do not evidence bad faith and do not support a finding of waiver. As detailed above, the Court has determined in its earlier orders that the Secretary's assertion of the governmental privileges was not adequately supported in its prior privilege logs and by the declarations from agency personnel. See ECF Nos. 137, 162. However, the Secretary complied with all orders of the Court, made efforts to address the inadequacies identified, and eventually produced a significant portion of the Items at issue with relatively limited redactions. Although the Secretary's delays and inconsistencies demonstrate that his discovery position was not reasonable as discussed in further detail below, the Court does not find that the Secretary's action rise to the level of bad faith or support a finding of waiver. As noted in the Court's prior discovery order, finding waiver of governmental privileges based on the government's untimely assertion of the privileges is generally disfavored. See, e.g., Maria Del Socorro Quintero Perez, CY v. United States, 2016 WL 362508, at *3 (S.D. Cal. Jan. 29, 2016) (declining to find waiver where the defendant failed to provide a declaration in support of the privileges when it provided a privilege log); Macias v. City of Clovis, 2015 WL 7282841, at *4 (E.D. Cal. Nov. 18, 2015) (declining to find waiver where the defendant failed to timely raise the objection or timely provide a privilege log). Although the Court shares some of Defendants’ frustrations with this lengthy discovery dispute, the Court finds that the appropriate remedy is an award of reasonable fees and expenses as discussed below, not a finding of waiver.

2. Sufficiency of the Declaration as to Items 41 to 3048[3]

*5 The Third Supplemental Rutledge Declaration provides a detailed description of the Items at issue, explains the role of those Items in the decisional or investigative process, and states that Assistant Secretary Rutledge has determined that the release of the redacted portions of these Items would undermine the agency's decision-making process or would disclose the agency's investigative techniques. See ECF No. 176-2 ¶¶ 5-30. Based on the information provided in the Third Supplemental Rutledge Declaration, the Court finds that the Secretary has provided sufficient information to support its assertions of the governmental privileges and the related redactions of Items 41-3100.

Defendants Bowers and Kubota argue that these qualified privileges should be set aside as to information about the statute of limitation, loss calculations, valuations, measurements, milestones, and major case initiatives. See ECF No. 172 at 14-24. Defendants Bowers and Kubota made the same arguments as to Items 14-40. The Court considered and rejected these arguments in its prior order. See ECF No. 184 at 10-32.[4] The Court finds that the same analysis applies equally to the Items at issue here. Although the redacted portions may contain relevant information, Defendants Bowers and Kubota have failed to demonstrate that their need for disclosure of the redacted information outweighs the Secretary's interests in maintaining the privileges. Accordingly, Defendants Bowers and Kubota's request to compel the production of unredacted versions of Items 41 through 3048 is DENIED.

II. Discovery Sanctions

Defendants Bowers and Kubota request an award attorneys’ fees and costs related to this discovery dispute. See ECF No. 172 at 24-26; ECF No. 173. As noted above, the Court does not find that the Secretary's conduct in this discovery dispute rises to the level of bad faith. However, a finding of bad faith is not necessary in order to award fees and costs related to a discovery dispute. Under Rule 37(a)(5), if discovery is provided after a motion to compel is 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.” Fed. R. Civ. P. 37(a)(5)(A). However, the Court must not award reasonable expenses if the nondisclosure or response was “substantially justified,” or “other circumstances made an award of expenses unjust.” Id. If a motion to compel is granted in part, 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). Below the Court considers the availability of an award of reasonable expenses, whether the Secretary was “substantially justified”, whether an award would be “unjust”, and, if imposed, whether the award of costs is reasonable.

First, the Court finds that an award of reasonable expenses is available for this discovery dispute under both Rule 37(a)(5)(A) and (C). As detailed above and in the Court's prior order, the Secretary produced numerous documents after Defendants Bowers and Kubota filed their motion to compel. See ECF No. 184 at 7 (noting the after the Court's February 10 Discovery Order, the Secretary produced to Defendants without redactions Items 17-26, 28, 28(a)-28(c), 28(e)-(m), 32-34, 37, 39, and 40, which were previously withheld from production and produced Items 14, 15, 16, 27, 28(d), 29, 30, 31, 35, 36, 38 with redactions and the withdrew its prior assertion of certain privileges as to those documents). The Court also granted in part Defendants Bowers and Kubota's motion to compel when it ordered the Secretary to produce core documents from prior investigations related to the Saakvitne Defendants. See ECF No. 162 at 10-12.

*6 Second, the Court finds that the Secretary's actions in this discovery dispute were not substantially justified. The Secretary bears the burden of establishing that its position was substantially justified. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106-07 (9th Cir. 2001). Substantial justification requires a showing that the discovery conduct has “a reasonable basis in both law and fact.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). The discovery conduct must meet “the traditional reasonableness standard—that is justified in substance or in the main, or to a degree that could satisfy a reasonable person.” Id. (internal quotations omitted). Here, reasonable people would not differ on whether the Secretary's conduct in this discovery dispute was appropriate. The Secretary was not substantially justified in withholding some Items without any basis, in its overly broad assertions of privilege, or in its inadequate, summary declarations to support some claims of privilege.

As detailed in the Court's prior discovery order and above, the Secretary initially withheld numerous documents on the basis of various privileges and then later produced those same documents to Defendants without any redactions after Defendants filed their Motion to Compel Discovery. See ECF No. 184 at 6-7. The Secretary initially asserted multiple privileges as to numerous documents in response to Defendants’ discovery requests and then withdrew its prior assertion of many of those privileges in its subsequent production of revised privilege logs. See id. at 7 n.2; ECF No. 163-2; ECF No. 176-1. The Court has previously determined that the Rutledge Declaration and the first Supplemental Rutledge Declaration were inadequate, which further supports a finding that the Secretary's actions were not substantially justified. See ECF No. 162 at 5, 7, 14.

Third, the Secretary has not shown that any other circumstances made an award of expenses unjust. See Fed. R. Civ. P. 37(a)(5)(A).

Fourth, having determined that an award of reasonable expenses is appropriate, the Court now considers whether the fees and costs requested by Defendants Bowers and Kubota are reasonable. Defendants Bowers and Kubota seek an award of attorneys’ fees in the amount of $212,360.00 and expenses in the amount of $2,312.97. See ECF No. 173 at 3.

A. Reasonable Attorneys’ Fees

Under federal law and in the Ninth Circuit, reasonable attorneys’ fees are generally based on the traditional “lodestar” calculation set forth in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). See Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). The Court must determine a reasonable fee by multiplying a reasonable hourly rate by the number of hours reasonably expended. See Hensley, 461 U.S. at 433. Once calculated, the “lodestar” is presumptively reasonable. See Penns. v. Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711, 728 (1987); see also Fischer, 214 F.3d at 1119 n.4 (stating that the lodestar figure should only be adjusted in rare and exceptional cases).

Defendants Bowers and Kubota request the following rates and hours for work performed by their counsel:

When determining whether hourly rates are reasonable, the Court “should be guided by the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation.” Webb v. Ada Cnty., 285 F.3d 829, 840 (9th Cir. 2002). Reasonable hourly rates should reflect the prevailing market rates in the community. See id.

Defendants Bowers and Kubota request $500 per hour for Mr. Johanson, who has 34 years of experience, made strategic decisions, presented oral arguments at hearings, and drafted and revised briefs related to this discovery dispute. See ECF No. 173-3; ECF No. 173 ¶¶ 6, 12. Defendants request $300 per hour for Mr. Rubel, who also has 34 years of experience, conducted legal research and drafted and revised the discovery briefs. See ECF No. 173-4; ECF No. 173 ¶¶ 7, 12. Defendants request $300 per hour for Mr. Billheimer, a former partner with 39 years of experience, who conferred regarding strategic decisions and drafted and revised the discovery briefs. See ECF No. 173 ¶¶ 8, 12. Defendants request $300 per hour for Mr. Thompson, who has 28 years of experience, supervised the review of discovery, conducted legal research, and drafted and revised briefs. See ECF No. 173-6; ECF No. 173 ¶¶ 9, 12. Defendants request $400 per hour for Ms. Markun, who has 39 years of experience, supervised the review discovery and drafted and revised the discovery briefs. See ECF No. 173-7; ECF No. 173 ¶¶ 10, 12. Defendants request $300 per hour for Ms. Huang, who has 15 years of experience, reviewed discovery and conferred regarding deficiencies in the document production. See ECF No. 173-8; ECF No. 173 ¶¶ 11, 12.

*7 It is the responsibility of the fee applicant to submit evidence to support the requested hourly rate. See Camacho v. Bridgeport Fin., Inc., 523 F. 3d 973, 980 (9th Cir. 2008). The district court may rely on the fee applicant's declaration and “its own familiarity with the ... [applicable] legal market” to support a determination of a reasonable hourly fee. See Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011).

Here, in addition to the declaration of Defendants’ counsel, Defendants Bowers and Kubota also submitted the affidavit of John D'Amato, a Hawaii attorney with 29 years of experience concentrated on employee benefits and fiduciary matters, who states that the requested rates are reasonable and appropriate in this jurisdiction. See ECF No. 185-1 ¶ 8. Based on the information provided by Defendants Bowers and Kubota along with the Court's familiarity with the prevailing rates in the community, the Court finds that the requested rates are reasonable.

In addition to establishing a reasonable hourly rate, Defendants Bowers and Kubota bear the burden of documenting the appropriate hours expended and must submit evidence in support of those hours worked. See Hensley, 461 U.S. at 437; Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). The Court must determine whether the requested fees are reasonably necessary to achieve the results obtained. See Tirona v. State Farm Mut. Auto. Ins. Co., 821 F. Supp. 632, 636 (D. Haw. 1993) (citations omitted). Courts must guard against awarding fees and costs which are excessive and must determine which fees and costs were self-imposed and avoidable. See id. at 637 (citations omitted). Time expended on work deemed “excessive, redundant, or otherwise unnecessary” shall not be compensated. See Gates at 1399 (quoting Hensley, 461 U.S. at 433-34).

The Secretary argues that many of the hours requested by counsel are excessive. See ECF No. 181 at 29-31. Although the Court finds that most of the hours are reasonable, the Court agrees that certain reductions are appropriate.

First, the Court finds that the hours requested should be reduced for conferences, meetings, discussions, and email communications, for which multiple attorneys billed. Generally, two professionals cannot bill for attending the same meeting or hearing. See Robinson v. Plourde, 717 F. Supp. 2d 1092, 1099 (D. Haw. 2010) (citing Brandon E. v. Dep't of Educ., 2008 WL 4602533, at *3 (D. Haw. Oct. 16, 2008)). Additionally, “when a party's counsel meet with one other, the Court deducts the duplicative time billed.” Id. For these duplicative entries, the Court allows the hours requested by the highest billing attorney and deducts the hours requested by the other attorneys. The Court deducts 13.9 hours from Mr. Rubel's time, 2.0 hours from Mr. Billheimer's time, 3.4 hours from Mr. Thompson's time, 2.2 hours from Ms. Markun's time, and 1.3 hours from Mr. Huang's time.[5]

*8 Second, the Court finds that the combined 34.8 hours spent by counsel in preparing for the November 2019 hearing is excessive. See ECF No. 173-2 at 8-9. The Court deducts 5.0 hours from Mr. Johanson's time and 5.0 hours from Mr. Rubel's time.

Third, the Court finds that the combined 79.0 hours spent by counsel in preparing for a December 2019 meet and confer call with counsel for the Secretary is excessive and deducts 5.0 hours from Mr. Billheimer's time and 10.0 hours from Mr. Rubel's time. See ECF No. 173-2 at 12-14.

3. Apportionment is Appropriate

When appropriate, Rule 37 allows the Court to “apportion the reasonable expenses for the motion” after a motion to compel is granted in part. Fed. R. Civ. P. 37(a)(5)(C). The Court finds that apportionment of the reasonable expenses determined above is appropriate in this case.

On one hand, the Court found that this discovery dispute has been unnecessarily protracted, the Secretary's actions were not substantially justified, documents were produced after the Motion to Compel Discovery was filed, and the Court ordered production of the core Saakvitne investigation documents. Yet, Defendants Bowers and Kubota have not obtained all of the relief that they sought in the motions to compel. The Secretary redacted information in most of the documents ultimately produced and the Court has upheld the Secretary's assertions of privilege as to much of that redacted information.

To summarize, the Court may not have considered an award of reasonable expenses had the Secretary produced the documents with redactions with meaningful privilege logs and sufficient declarations from agency personnel from the outset. Accordingly, the Court finds that it is appropriate to reduce the attorneys’ fees by 30% to reflect the appropriate relief for the protracted, unnecessary litigation related to this discovery dispute and Defendants Bowers and Kubota's limited success in the dispute.

4. Total Reasonable Attorneys’ Fees

In total, the Court finds that the following attorneys’ fees are reasonable:

B. Reasonable Costs

Defendants Bowers and Kubota also request costs associated with this discovery dispute in the amount of $2,312.97. See ECF No. 173 at 3. The Court finds that two reductions are appropriate.

First, pursuant to Local Rule 54.1(f)(5), computer research costs are not taxable. See LR54.1(f)(5). Although reasonable expenses under Rule 37 are not governed by the same standards as taxation of costs under Rule 54, the Court finds that the Local Rule reflects the general practice in this district that costs related to computer research are considered part of a law firm's overhead and should not be separately charged. The Court deducts $361.77 in costs associated with online legal research. See ECF No. 173-2 at 3 ($21.49), 7 ($56.65, $81.50), 15 ($109.01), and 17 ($93.12).

*9 Second, the Court finds that the $150.00 in costs for a “Motion to Compel preparation dinner meeting” is not reasonable and deducts that amount. See id. at 15.

The Court has reviewed the remaining costs requested for accessing court documents and for travel to the hearings related to this discovery dispute, which total $1,801.20, and finds them to be reasonable.

C. Total Reasonable Expenses Awarded

The Court awards Defendants Bowers and Kubota their reasonable expenses in the amount of $137,760.00 in fees and $1,801.20 in costs related to this discovery dispute.

The Court GRANTS IN PART AND DENIES IN PART Defendants Bowers and Kubota's Supplemental Motion to Compel (Items 41-3100) and Related Motion for Attorneys’ Fees and Expenses as follows:

1. No later than May 29, 2020, the Secretary shall review its assertions of privilege as to Items 252, 254, 257, 276, 296, 352, 525, 746, 1555, 1556, 1557, 1558, 1732 through 1743, and 2047 and shall file a supplemental declaration explaining in greater detail the basis for its assertion of the attorney-client privilege and/or the work product doctrine and shall produce a supplemental privilege log if the Secretary determines that any assertions of the attorney-client privilege or the work product doctrine were in error.

2. Defendants Bowers and Kubota's request to compel the production of unredacted versions of Items 41 through 3048 is DENIED.

3. Defendants Bowers and Kubota are AWARDED their reasonable expenses related to this discovery dispute in the amount of $137,760.00 in fees and $1,801.20 in costs. The Secretary shall pay these reasonable expenses no later than May 29, 2020.

IT IS SO ORDERED.

DATED AT HONOLULU, HAWAII, MAY 7, 2020.

The Second Supplemental Declaration of Assistant Secretary of Labor Preston Rutledge addressed Items 14-40 and the other Saakvitne investigation documents and was discussed by the Court in its prior order. See ECF No. 184.

Contrary to Defendants Bowers and Kubota's assertion in their Supplemental Motion, the Court does not find that the Secretary asserted the attorney-client privilege for 452 documents that did not involve an attorney. See ECF No. 172 at 8 n.9. Based on the Court's review, most of the Items listed by Defendants do, in fact, involve an attorney or are communications with the Secretary's consulting expert, which are protected from discovery under Rule 26(b)(4)(C). See ECF No. 176-1.

Items 3049 through 3100 were redacted based only on the attorney-client privilege or the work product doctrine. See ECF No. 176-1 at 204-207.

The Court notes that on May 5, 2020, Defendants Bowers and Kubota filed an appeal of this portion of the Court's decision, which remains pending before the district court. See ECF No. 194.

Mr. Rubel's duplicative time entries for conferences were on 7/18/2019 (0.9), 7/29/2019 (0.5); 9/9/2019 (0.2); 11/25/2019 (0.4); 12/13/2019 (0.7); 12/13/2019 (0.9); 12/19/2019 (1.0); 12/23/2019 (0.5); 12/23/2019 (2.4); 1/2/2020 (0.4); 1/2/2020 (1.5); 2/7/2020 (1.4); 2/7/2020 (1.0); 2/27/2020 (1.5); and 2/27/2020 (0.6). See ECF No. 173-2 at 2, 3, 6, 9, 12, 14, 15, 18, 20. Mr. Billheimer's duplicative time entries for conferences were on 7/18/2019 (1.1); 7/29/2019 (0.5); and 11/25/2019 (0.4). See id. at 2, 3, 10. Mr. Thompson's duplicative time entries for conferences were on 7/29/2019 (0.5); 12/13/2019 (0.8); 2/27/2020 (1.5); and 2/27/2020 (0.6). See id. at 3, 12, 20. Ms. Markun's duplicative time entries for conferences were on 12/13/2019 (0.9) and 2/27/2020 (1.3). See id. at 12, 20. Ms. Huang's duplicative time entry was for a conference on 2/27/2020 (1.3). See id. at 20.

190 hours requested - 5.0 hours for excessive time related to the November 2019 hearing = 185.0 hours.

243.1 hours requested - 13.9 hours for duplicative time - 5.0 hours for excessive time related to the November 2019 hearing - 10.0 hours for excessive time related to the December 2019 meet and confer = 214.2 hours.

65.4 hours requested - 2.0 hours for duplicative time - 5.0 hours for excessive time related to the December 2019 meet and confer = 58.4 hours.

29.0 hours requested - 3.4 hours for duplicative time = 25.6 hours.

39.3 hours requested - 2.2 hours for duplicative time = 37.1 hours.

1.3 hours requested - 1.3 hours for duplicative time = 0.0 hours.