*1 Allied 100, LLC (“Allied” or “Plaintiff”) moves for sanctions against Sanjay Chadha (“Chadha”) and Icon Global Trading Corp. (“Icon,” and collectively with Chadha, “Defendants”) pursuant to Federal Rule of Civil Procedure 37 and the court's inherent authority to manage its docket. (The “Motion,” Dkt. 41.) Plaintiff seeks attorneys’ fees and costs incurred because of Defendants’ failure to comply with their discovery obligations and with this Court's orders. For the reasons below, the Motion is granted.

Plaintiff filed the Complaint on August 3, 2020, alleging that Defendants “fraudulently induced Allied to enter into contracts to acquire PPE [personal protective equipment], by claiming that they had direct contacts with manufacturers of PPE and could fill Allied's large orders.” (Compl. ¶ 1.) Plaintiff paid “just under $1.5 million in deposits,” but Icon failed to deliver the PPE. (Id.) Allied further alleges that Icon repeatedly promised that the PPE would be ready and available for inspection, but then continually delayed inspection and never produced any PPE. (Id.) Defendants filed an Answer on September 18, 2021, denying many of the allegations and asserting affirmative defenses, including that Defendants had been the victim of fraudulent misconduct by third-party factories. (Dkt. 24 ¶ 81.)

The parties submitted a joint proposed confidentiality order (Dkt. 25), a joint proposed scheduling order (Dkt. 26), and a proposed protocol for preservation, discovery, and production of electronically stored information (the “ESI Protocol,” Dkt. 27). The ESI Protocol, which was signed and stipulated to by both parties (see id. at 17) required, among other things, that the parties produce ESI in specified formats and “in a manner that makes reasonable efforts to preserve the source native file and all metadata,” including time and date stamps. (Id. at 10.)

The parties appeared for an initial conference on November 5, 2020. (Dkt. 29; Minute Entry dated Nov. 5, 2020.)[1] The Court entered the Confidentiality Order and the Scheduling Order, which set the following deadlines: November 5, 2020 for initial document requests and interrogatories, May 7, 2021 for the completion of fact discovery, and July 30, 2021 for the completion of all discovery. (Dkt. 29.) The parties agreed to participate in a settlement conference with the Court on January 20, 2021. (Id.) The Court did not so-order the ESI Protocol, but directed the parties to meet and confer if any disputes regarding electronic productions arose, and to raise any unresolved disputes with the Court. (Minute Entry dated Nov. 5, 2020.)

*2 On November 13, 2020, Plaintiff served its first discovery requests on Defendants (“First Discovery Requests”). (Ex. A to Declaration of Ryan Grover (“Grover Decl.”), Dkt. 41-5.[2]) Responses to these requests were due December 17, 2020. See Fed. R. Civ. P. 34(b)(2)(A) and 33(b)(2) (setting time for discovery responses). On December 8, 2020, Plaintiff served its second set of discovery requests (“Second Discovery Requests”), responses to which were due January 11, 2020. (Ex. B to Grover Decl., Dkt. 41-6.)

On December 21, 2020, Plaintiff's counsel Ryan Grover emailed Defendant's counsel George Kramer informing him that Defendants’ responses to the First Discovery Requests were past due. (Ex. C to Grover Decl., Dkt. 41-7 at 2-3.) On December 30, 2020, Grover followed up with another email to Kramer requesting confirmation that Defendants had served their discovery responses, and if not, requesting Kramer's availability for a meet-and-confer. (Id. at 2.) Kramer replied the same day, writing, “Sent you email yesterday.” (Id.) Shortly thereafter, Debbie Klingsberg, Kramer's co-counsel, forwarded to Grover an email from Kramer dated December 29, 2020—which did not include Grover or any other Plaintiff's counsel in the recipient field—in which Kramer wrote, “Thank you for your email. I should have all docs by Friday or early next week.” (Ex. D to Grover Decl., Dkt. 41-8 at 2.)

On January 5, 2021, Grover emailed Kramer, noting again that Defendants had failed to comply with the discovery deadlines set forth in the Federal Rules of Civil Procedure and requesting either compliance by the end of the day or Defendants’ counsel's availability for a meet-and-confer that same week. (Ex. E to Grover Decl., Dkt. 41-9 at 2.) Grover also warned that if Kramer did not provide his availability for a meet-and-confer, Plaintiff would seek to compel discovery. (Id.)

On January 7, 2021, Plaintiff's counsel Marla Tun Reschly emailed Kramer, writing that Plaintiff still had not received responses to its discovery requests. (Ex. F to Grover Decl., Dkt. 41-10 at 2.) Reschly also wrote that her email was Plaintiff's attempt at a meet-and-confer on Defendants’ failure to timely respond to Plaintiff's discovery requests. (Id.) Kramer replied the same day that the documents had been “fedexed” the day before, “and another batch will be coming soon thereafter. I will turn all of the documents over to you.” (Id.)

The parties agreed to meet and confer on January 14, 2021. (Ex. G to Grover Decl., Dkt. 41-11 at 2.) Plaintiff asserts that during that meeting, “Mr. Kramer represented that ... he could not guarantee that written responses to discovery requests would be served by Friday, January 15, 2021.” (“Pl. Mem. Of Law,” Dkt. 41-1 at 3.) Kramer also stated “that he had received certain documents from his client and that he would begin scanning them and sending them to Allied's counsel the same day.” (Id.) When Plaintiff's counsel stated that such a production “would be insufficient to comply with his discovery obligations,” Kramer “stated that he would contact [Defendants’ other counsel Karl] Silverberg that day about performing a data collection from Defendants.” (Id. at 3-4.) Plaintiff's counsel informed Kramer “that Allied would proceed with filing a letter with the Court detailing the discovery dispute.” (Id. at 4.)

*3 On January 15, 2021, Kramer emailed Plaintiff's counsel attaching two documents. (Ex. H to Grover Decl., Dkt. 41-12 at 2.) According to Plaintiff, “one pdf file included six scanned images of pdfs purporting to reflect wire transfer information. The second pdf file included 48 total pages of scanned emails, some of which are scanned images of the backs of the printed emails.” (“First Motion to Compel,” Dkt. 35.) Defendants did not provide complete written responses to Plaintiff's document requests or any response to Plaintiff's interrogatories at that time. (See id.; see also Ex. H to Grover Decl.; Pl. Mem. Of Law at 4.)

The parties appeared for a settlement conference with the Court on January 20, 2021. (Minute Entry dated Jan. 20, 2021.) The parties were unable to reach an agreement, but agreed to participate in a second conference, which was held February 10, 2021. (Id.; Minute Entry dated Feb. 10, 2021.) The parties were still unable to reach an agreement but agreed to continue settlement discussions. (Minute Entry dated Feb. 10, 2021.) The minute entry for the February 10, 2021 settlement conference stated that “[i]f the parties are not able to reach an agreement to settle, they must meet all outstanding discovery deadlines.” (Id.)

On February 12, 2021, Grover emailed Defendants’ counsel “a draft letter for the Court detailing the current outstanding discovery disputes between the parties.” (Ex. I to Grover Decl., Dkt. 41-13 at 2.) He asked Kramer to “review the background section and add your position ... by 2:00 pm on Tuesday, February 16.... If we do not receive your response by that time, we will proceed with filing the letter....” (Id.) At 8:10 pm on February 16, 2021, Reschly emailed Kramer again, writing that Plaintiff planned to file the letter at 10:00 the next morning and asking Kramer to “[p]lease let us know if you plan to send us a response.” (Id.) Defendants did not reply. (See id.)

On February 17, 2021, Plaintiff filed a letter motion with the Court describing the discovery disputes regarding Plaintiff's First and Second Discovery Requests, and seeking “an order from the Court requiring Defendants to respond to the Discovery Requests in a manner consistent with their obligations under the Rules and the ESI Protocol ...” (First Motion to Compel at 3.) Plaintiff also described its good-faith efforts to meet and confer with Defendants. (Id. at 2-3.) The Court gave Defendants an opportunity to respond by February 19, 2021, but Defendants did not file any response. (See Order dated Feb. 17, 2021.)

The parties appeared for a telephone motion hearing on February 26, 2021 on the First Motion to Compel. After hearing the parties’ argument, the Court granted the motion and ordered Defendants to fulfill their discovery obligations:

(Minute Order dated Feb. 26, 2021 (“Feb. 26 Order”).)

On March 29, 2021, Kramer sent several emails to Plaintiffs’ counsel, attaching bank statements, contracts, emails, and interrogatory responses. (See Exs. J-L to Grover Decl., Dkts. 41-14 through 41-16.) Plaintiff contends, however, that the documents attached to that email “were not produced in accordance with the ESI Protocol agreed to by the parties.” (Pl. Mem. Of Law at 5; see also ESI Protocol.)

*4 On April 6, 2021, Plaintiff filed a Letter Motion for Extension of Time to Complete Discovery and Motion for Sanctions. (“Second Motion to Compel,” Dkt. 36.) According to Plaintiff, despite the Feb. 26 Order, “Defendants provided incomplete responses to the Discovery Requests on March 29, 2021, in a series of last-minute emails beginning at 11:29 pm ET, and did not provide a privilege log as ordered.” (Id. at 1.) Plaintiff also stated that it had “serious concerns that Defendants did not conduct a thorough search of their records for responsive documents” because, among other things: (1) “a few of the emails Defendants produced include copying or forwarding messages to a personal email address of Defendant Sanjay Chadha” but “no emails directly from Mr. Chadha's personal email address were produced;” (2) there were no communications between Defendants and factories negotiating the purchase of PPE; (3) there were no “direct emails or communications between Defendants and factories indicating that Defendants believed they were defrauded,” despite one of the affirmative defenses referencing fraud by factories; and (4) there were no documents relating to certain individuals identified in Defendants’ initial disclosures and specifically requested by Plaintiff. (Id. at 3.) Plaintiff also asserted that Defendants failed to produce ESI in accordance with the parties’ ESI Protocol. (Id. at 3.) Plaintiff sought an extension of time to complete discovery and sought leave to file a motion for sanctions and attorneys’ fees. (Id. at 3.)

On April 12, 2021, Kramer emailed Plaintiff's counsel a document titled “RESPONSES to Document Requests 4 12 2021.pdf.” (Ex. M to Grover Decl., Dkt. 41-17.) He also emailed them a copy of a purported privilege log. (Ex. N to Grover Decl., Dkt. 42.)

That same day, Defendants filed a response to the Second Motion to Compel, arguing that they had provided written responses to Plaintiff's discovery requests and “have given plaintiff everything [Defendants] have and if any additional documents are located, they will be provided to plaintiff. Defendants are not refusing to produce documents responsive to the Document Requests.” (Dkt. 37 at 1.) Defendants specifically stated that with respect to Plaintiff's request numbers 18, 19, 21, 23, 28, 34, and 35, there were no responsive documents. (Id. at 1-2.) Defendants also stated that they produced a privilege log and were only withholding documents pursuant to the attorney-client privilege, that they had objected to certain of Plaintiff's discovery requests, and that “Defendants have conducted a thorough search of its [sic] records and have provided everything they have found to Plaintiff. Defendants cannot produce documents they do not have. Defendants will forward all copied and scanned emails directly to plaintiff's counsel.” (Id. at 2.)

In its reply, Plaintiff contested the accuracy and completeness of Defendants’ representations regarding their discovery responses. (Pl. Reply in Support of the Second Motion to Compel, Dkt. 39.) Plaintiff stated that Defendants did not respond to Plaintiff's First Discovery Requests until April 12, 2021 at 10:25 pm. (Id. at 1.) Plaintiff reiterated its concern regarding Defendants’ failure to comply with the agreed-upon ESI Protocol. (Id. at 2.) It also noted that Defendants had improperly objected to providing confidential documents, including third-party contracts, despite the Court-ordered Confidentiality Order. (Id.) Plaintiff questioned the thoroughness and accuracy of Defendants’ production, noting, for example, that although Defendants claimed that they had no documents responsive to Plaintiff's request for “[a]ny and all Documents and Communications between [Defendants] and Odyssey International Services related to Allied,” Defendants’ production nevertheless “included a few communications with Odyssey International Services.” (Id.) In addition, although Defendants claimed to have produced all documents in response to Plaintiff's request for “[a]ny and all Documents and Communications between [Defendants] and any third party concerning [Defendants’] efforts to procure non-medical grade gloves for Allied,” Defendants did not provide “any emails involving contracts with third parties.” (Id. at 2.) Plaintiff also contends that Defendants’ privilege log was “no privilege log, but a mere blanket statement that Defendants claim privilege over documents protected by the attorney-client privilege,” and, in any event, it was not served until April 12, 2021 at 10:34 pm, five minutes after Defendants had already filed their response to the Second Motion to Compel. (Id. at 1.) The purported privilege log's substantive statement concerning privilege consists of two sentences:

(Id. at 3.)

The parties appeared for a telephone motion hearing on April 16, 2021. (Minute Order dated Apr. 17, 2021, “Apr. 17 Order”.) Defendants’ counsel conceded that he had not produced a privilege log (Transcript of Apr. 16, 2021 Hearing (“Hearing Tr”), Dkt. 45 at 10:17-16:19), had not turned over “documents that are with third parties from whom [Icon] has purchased gloves that also ... involved nondisclosure, noncircumvention agreements” (id. at 12:8-14), and admitted that although he had “requested [Icon] to produce everything including emails,” neither he nor his co-counsel had ensured that Defendants had conducted a diligent search of their records (id. at 16:25-21:2).

The Court ordered Defendants to produce by May 7, 2021 any third-party contracts, “to respond to all of Plaintiff's discovery demands and to produce all responsive documents,” and to produce a privilege log. (Apr. 17 Order.) The Court warned that “Defendants’ failure to produce a privilege log may result in the waiver of privilege” and were reminded to comply with the ESI Protocol. (Id.) The Court also granted Plaintiff's request for leave to file a motion for sanctions and gave Defendants time to respond to such motion. (Id.)

Plaintiff filed the Motion on April 23, 2021.[3] Defendants filed their Opposition on May 3, 2021. (“Def. Opp.,” Dkt. 44.) Plaintiff filed a reply on May 5, 2021. (“Pl. Reply,” Dkt. 46.) The Court then “directed Plaintiff to file a supplemental affidavit in support of its fee request addressing the reasonableness of Plaintiff's counsel's fees and hourly rates,” which Plaintiff did in partially redacted form on May 12, 2021. (Order dated May 10, 2021; Dkts. 47-48.)[4] Plaintiff filed an unredacted version of the affidavit on May 14, 2021 (“Reschly Aff.,” Dkt. 49), with an unredacted Exhibit A (“Plaintiff's Attorney Credentials,” Dkt. 49-1) and a redacted Exhibit B (“Redacted Confidential Fee Information”). Defendant filed a Supplemental Opposition on May 18, 2021. (“Supp. Opp.,” Dkt. 51.)

*6 In a joint status report filed July 9, 2021, Plaintiff informed the Court that it “still has not received the outstanding discovery items or an updated privilege log despite the Court's February 26, 2021 Order and April 16, 2021 Order.” (“July 9 Status Report,” Dkt. 52 at 3.) Defendants “apologize[d] for any delay” and wrote that they “expect to complete the open items ... with[in] one week, by July 16, 2021.” (Id. at 4.)

As a sanction for Defendants’ failure to comply with their discovery obligations and the Court's orders, Plaintiff seeks an award of its reasonable attorneys’ fees and costs pursuant to Rule 37(a), 37(b), and the Court's inherent authority. (See Pl. Mem. Of Law at 5-7.)

I. Whether Sanctions Should be Granted Against Defendants

A. Sanctions Under Rule 37

A party that fails to cooperate in discovery or comply with court orders is subject to sanctions under Rule 37 of the Federal Rules of Civil Procedure.

Under Rule 37(a), “a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Rule 37(a)further provides that

Fed. R. Civ. P. 37(a)(5)(A).

Under Rule 37(b)(2), where a party fails to comply with a court's discovery order, the court “may issue further just orders,” and “must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(A) and (C).

“[A] district court has wide discretion in sanctioning a party for discovery abuses.” Reilly v. Natwest Markets Group Inc., 181 F.3d 253, 267 (2d Cir. 1999). Pursuant to Rule 37, such sanctions must be “just,” and “the severity of sanction must be commensurate with the non-compliance.” Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 140 (2d Cir. 2007). “The sanction imposed should ‘restore the prejudiced party, as nearly as possible, to the position it would have occupied had the discovery been produced and the evidence disclosed.’ ” Alcon Vision, LLC v. Lens.com, Inc., No. 18-CV-407 (NG), 2020 WL 6591463, at *5 (E.D.N.Y. Nov. 10, 2020) (quoting Chevron Corp v. Donziger, 296 F.R.D. 168, 220 (S.D.N.Y. 2013)).

Several factors are relevant to a court's exercise of its discretion under Rule 37, including:

*7 Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (quoting Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y. 2002)) (alteration in Agiwal). “Because the text of the rule requires only that the district court's orders be ‘just,’ however, and because the district court has ‘wide discretion in imposing sanctions under Rule 37,’ ... these factors are not exclusive, and they need not each be resolved against the party challenging the district court's sanctions” for sanctions to be warranted. S.E.C. v. Razmilovic, 738 F.3d 14, 25 (2d Cir. 2013) (quoting S. New England Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010)) (internal citation omitted, quotations in original, alterations added).

B. Whether Defendants Failed to Comply with Discovery Obligations and the Court's Orders

Defendants had an obligation to respond to Plaintiff's First Discovery Requests by December 17, 2020 and the Second Discovery Requests by January 11, 2021. They failed to do so. (See Exs. C and I to Grover Decl.) Even after several communications between counsel via email and a January 14, 2021 meet-and-confer, Defendants produced only two electronic documents that were not fully responsive to Plaintiff's document requests and were not in the format prescribed in the parties’ agreed-upon ESI Protocol. (See Ex. H to Grover Decl.) Defendants did not file any response to the First Motion to Compel. (See Order dated Feb. 17, 2021.) After hearing orally from both parties, the Court granted Plaintiff's First Motion to Compel. (See Feb. 26 Order.)

Defendants then also failed to comply with the Court's Feb. 26 Order directing them to provide complete discovery responses to Plaintiff by March 29, 2021. Defendants’ failure to comply with that order necessitated another discovery motion by Plaintiff. (See Second Motion to Compel.) Although Defendants provided Plaintiff with some additional discovery on April 12, 2021, almost two weeks after the Court's deadline and after Plaintiff already filed the Second Motion to Compel, Defendants still did not fully respond to Plaintiff's outstanding requests, still did not provide documents in accordance with the parties’ agreed-upon ESI protocol, and still did not provide a privilege log. (See id.; see also Hearing Tr.) After another hearing, the Court granted Plaintiff's Second Motion to Compel. (See Apr. 17 Order.)

As of May 3, 2021, when Defendants filed their Opposition to the Motion, Defendants still had not fully complied with their discovery obligations or the Feb. 26 Order. (See Def. Opp. at 4, 8, 9 (stating that Defendants’ counsel “will be able to certify that [D]efendants have provided all responsive documents in compliance with ESI protocol” and that “there will be a detailed privilege log.”) And although the Apr. 17 Order directed Defendants to complete their discovery responses and provide a privilege long by May 7, 2021, as of the parties’ July 9 Status Report, Defendants admitted that they still had not complied with their discovery obligations or the Court's orders. (See July 9 Status Report.)

There is therefore no doubt that Defendants have failed to comply with their discovery obligations and the Court's orders.

C. Whether Sanctions are Warranted

An award of fees and costs is appropriate under Rule 37(a) because (1) Plaintiff attempted in good faith to confer with Defendants’ regarding discovery, (2) the Court granted Plaintiff's First Motion to Compel after giving Defendants leave to file a response and holding a hearing on February 26, 2021, and (3) Defendants’ failure to timely provide discovery responses was not substantially justified and, for the reasons below, such an award would not be unjust. See, e.g., Penta v. Costco Wholesale Corp., No. 14-CV-3587 (DLI)(VMS), 2016 WL 1171612, at *4 (E.D.N.Y. Mar. 25, 2016) (determining sanctions appropriate under Rule 37(a) after making similar findings).

*8 An award of fees and costs under Rule 37(b) is also appropriate because each of the Agiwal factors weighs in favor of sanctions here. With respect to willfulness, “[a] party's conduct will be deemed willful where the contravened orders were clear, the party being sanctioned understood the orders, and the non-compliance was within the party's control.” Urbont v. Sony Music Ent., No. 11-CV-4516 (NRB), 2014 WL 6433347, at *2 (S.D.N.Y. Nov. 6, 2014) (citing In re Fosamax Products Liab. Litig., 06-MD-1789 (JFK), 2013 WL 1176061, at *2 (S.D.N.Y. Mar. 21, 2013)). “Willful non-compliance is routinely found, for instance, where a party has ‘repeatedly failed to respond to interrogatories and produce documents ... in violation of the district court's orders....’ ” Urbont, 2014 WL 6433347, at *2 (quoting Robertson v. Dowbenko, 443 F. App'x 659, 661 (2d Cir. 2011) (quotation and alteration in Urbont)).

The Feb. 26 Order was clear. It ordered Defendants by March 29, 2021 (1) “to provide full responses to Plaintiff's outstanding interrogatories and document requests,” (2) to include “all responsive documents, including documents previously produced in settlement discussions,” and (3) “to provide a privilege log describing the specific reasons for withholding or failing to produce any responsive documents.” (Feb. 26 Order.) Defendant's late-night emails to Plaintiff's counsel on March 29, 2021 did not provide full responses to Plaintiff's outstanding requests, did not include all responsive documents, and did not include a privilege log. (See Exs. J-L to the Grover Decl.)

Defendants argue that they “turned over numerous documents, bank records, wiring records, and had thought they complied in good faith with responding to discovery.” (Supp. Opp. at 6); see also Def. Opp. at 2 (“... there has been substantial compliance with plaintiff's interrogatories and requests for production, much of which plaintiff had prior to commencement of litigation.”) Defendants’ belated and incomplete responses do not indicate a good faith attempt to comply with their discovery obligations or this Court's order. There is no suggestion that anything prevented Defendants’ compliance with the Order, or that Defendant did not understand the Order.[5]

*9 As to the efficacy of lesser sanctions, an award of attorneys’ fees and expenses is “[t]he ‘mildest’ sanction under Rule 37(b) ...” See Best Payphones, Inc. v. Dobrin, 409 F. Supp. 3d 130, 135 (E.D.N.Y. 2018) (quoting Joint Stock Co. Channel One Russia Worldwide v. Infomir LLC, No. 16-CV-1318, 2017 WL 3671036, at *20 (S.D.N.Y. July 18, 2017) (alteration in Best Payphones)). The Court has already held hearings and explained Defendants’ obligations to their counsel. It also gave Defendants additional time to comply with the First and Second Discovery Requests by setting a deadline of March 29, 2021 in the Feb. 26 Order.

With respect to delay, Defendants failed to comply with their discovery obligations for several months. See Section I.B., supra; cf. Infomir LLC, 2017 WL 3671036 at *21 (“Lesser sanctions may be imposed after a ‘relatively short’ period of noncompliance.”) (citing 3801 Beach Channel, Inc. v. Shvartzman, No. 05-CV-0207(CBA)(JO), 2007 WL 879668, at *6 (E.D.N.Y. Mar. 21, 2007)). The long duration of Defendants’ non-compliance with both their discovery obligations under the Rules and this Court's Feb. 26 Order weighs in favor of monetary sanctions. See Funk v. Belneftekhim, 861 F.3d 354, 368-69 (2d Cir. 2017) (upholding district court's award of monetary sanctions where defendants failed to comply with discovery order for a month).

Finally, in addition to Plaintiff diligently pursuing discovery responses from Defendants and warning them at each step what further measures it would be seeking, the Court specifically warned Defendants in the Feb. 26 Order that “failure to fully respond [to Plaintiff's outstanding discovery requests] by March 29, 2021 may result in sanctions, including costs and attorneys fees.”

The Court finds that Defendants’ non-compliance with their discovery obligations was not substantially justified, that an award of expenses would not be unjust, and therefore that sanctions in the form of attorneys’ fees are warranted under Rule 37(a) and (b).[6]

II. Whether Plaintiff's Requested Attorneys’ Fees Are Reasonable

Plaintiff seeks an award of $20,961.50 in attorneys’ fees.[7] (See Pl. Mem. Of Law at 7; Reschly Aff. at 4.) “The court has discretion to determine the amount of attorneys’ fees appropriate to satisfy a fee award.” Zuffa, LLC v. South Beach Saloon, Inc., No. 15-CV-6355 (ADS)(AKT), 2019 WL 1322620, at *6 (E.D.N.Y. Mar. 6, 2019), R&R adopted, 2019 WL 1317568 (E.D.N.Y. Mar. 22, 2019) (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (U.S. 1983)). “[T]he lodestar method—the product of a reasonable hourly rate and the reasonable number of hours required by the case—creates a ‘presumptively reasonable fee.’ ” Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill Concerned Citizens Neighborhood Assoc. v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008) (Arbor Hill II)).

*10 “Courts in this circuit employ the same procedures for determining fees in the context of a sanction award.” Martinez v. City of New York, 330 F.R.D. 60, 66 (E.D.N.Y. 2019) (citing Local Union No. 40 of the Int'l Ass'n of Bridge v. Car-Wi Const., 88 F. Supp. 3d 250, 281 (S.D.N.Y. 2015)). The fees awarded on a motion under Rule 37 “may include attorney's fees and costs in connection with filing a motion for sanctions.” Burks v. Stickney, 837 F. App'x 829, 832–33 (2d Cir. 2020) (citing John Wiley & Sons, Inc. v. Book Dog Books, LLC, 298 F.R.D. 145, 151 (S.D.N.Y. 2014)).

A. Hourly Rates

The appropriate hourly rate is the rate a “reasonable, paying client would be willing to pay.” Arbor Hill II, 522 F.3d at 184. Courts in the Eastern District use the “forum rule,” in which courts “should generally use ‘the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable fee.’ ” Simmons v. New York City Transit Authority, 575 F.3d 170, 174 (2d Cir. 2009) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F.3d 110, 119 (2d Cir. 2007) (Arbor Hill I)). Although the Second Circuit does not apply an “absolute” forum rule, “a district court must first apply a presumption in favor of application of the forum rule” that may be overcome where a movant “persuasively establish[es] that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result.” Simmons, 575 F.3d at 175. In applying the forum rule, courts must “determine whether the requested hourly rate is reasonable by looking to typical Eastern District rates for similar types of cases with lawyers of comparable skill, experience, and reputation.” Schwartz v. United States Drug Enf't Admin., No. 13-CV-5004 (CBA)(ST), 2019 WL 1299192, at *9 (E.D.N.Y. Mar. 1, 2019), R&R adopted, 2019 WL 1299660 (E.D.N.Y. Mar. 21, 2019) (citation omitted).

Plaintiff requests fees for two partners, two associates, and two paralegals:

(See Reschly Aff. at 4; Ex. A to the Reschly Aff.) Attorneys Reschly, Grover, and McClurg are based in Charlotte, North Carolina, while attorney Kordalis is based in New York, New York. Paralegals Ciulei and Meyers are based in New York, New York. In support of their requested fees, Plaintiff's counsel relies on market data from the Thomson Reuters Peer Monitor survey (Reschly Aff. ¶¶ 18-23) and Reschly's knowledge of “customary, reasonable, and necessary attorneys’ fees and expenses” in North Carolina and New York City, where these lawyers and paralegals are located (id. ¶ 24). In opposition, Defendant argues that Kordalis's rate of $925.00 and Grover's rate of $470 are excessive, without further explanation. (Supp. Opp. at 1.)

To establish that these fees are reasonable, Plaintiff must either show that the same rates apply in the Eastern District of New York or that a reasonable client would pay the out-of-district rates. Plaintiff's fee application does not address the forum rule or compare the requested rates to those found reasonable in the Eastern District. The Reschly Affidavit's reference to the reasonableness of rates in “New York City” is not evidence of the rates in this District, which includes some but not all of New York City, and which also includes counties outside the city. (See Reschly Aff. ¶ 24.) Cf. New York Ass'n for Retarded Child. v. Cuomo, No. 72-CV-356 (RJD), 2019 WL 3288898, at *3 (E.D.N.Y. July 22, 2019) (denying counsel's request for the higher rates in the Southern District of New York); Schwartz, 2019 WL 1299192, at *7-8 (noting that Simmons controls and rejecting use of Southern District rates in an Eastern District case despite the “proximity” of Manhattan). The Reschly Affidavit's reliance upon comparative market data showing the rates charged by K&L Gates’ peer firms in the Charlotte and New York City markets similarly fails to establish market rates in this District. (See Reschly Aff. ¶¶ 19-21.)

*11 Plaintiff also fails to make the “ ‘particularized showing’ demonstrating ‘the likelihood that the use of in-district counsel would have produced a substantially inferior result.’ ” Cuomo, 2019 WL 3288898, at *2 (citing McDaniel v. Cty. Of Schenectady, 595 F.3d 411, 421 n.6 (2d Cir. 2010)) (alterations omitted). Plaintiff therefore does not make a sufficient showing to rebut the forum rule.

The Court therefore applies the forum rule to determine the reasonable rates for Plaintiff's counsel and reduces the requested rates for the reasons below.

Plaintiff requests an hourly rate of $595.00 for Reschly and $925.00 to $965.00 for Kordalis. Both Reschly and Kordalis have over 20 years’ experience and work on complex commercial litigation. (See Ex. A to the Reschly Aff., ¶¶ 1-2.) Kordalis's rates are substantially above even the highest rates awarded in this District for attorneys with specialized experience in complex matters. See Schwartz, 2019 WL 1299192, at *9 (citing to several cases awarding hourly rates of $500 - $655 per hour for supervisory partners with specific subject-matter expertise and finding $500 to be a reasonable hourly rate for senior partners); Value Wholesale, Inc. v. KB Ins. Co., No. 18-CV-5887 (KAM)(SMG), 2020 WL 6393016, at *5 (E.D.N.Y. Nov. 2, 2020), reconsideration denied, 2020 WL 7625411 (E.D.N.Y. Dec. 22, 2020) (awarding $550 for senior partners, “slightly higher than the rates often awarded under fee-shifting statutes,” because such rates were “not unreasonable rates for a paying client to incur in connection with a complex trademark infringement suit brought by a sophisticated medical device company.”); Cuomo, 2019 WL 3288898, at *3 (“Most recently, fees in complex cases in the Eastern District have ranged between $400-$600 per hour for partners ...”); Nat'l Env't Safety Co., Inc. v. Katz, No. 18-CV-02161 (JMA)(GRB), 2019 WL 1994049, at *2 (E.D.N.Y. May 6, 2019) (awarding rates of $500 to $600 for partners). Given the substantial experience of both partners and the fact that this breach of contract action involves an international dispute, overseas parties and large contracts, the Court finds that an hourly rate of $550.00 is reasonable for both Reschly and Kordalis.

Plaintiff requests a $400.00 to $470.00 rate for Grover (depending on the year), and $360.00 for McClurg. Grover, a 2013 law school graduate, has several years’ experience in federal judicial clerkships and at large law firms practicing in complex commercial litigation. (Ex. A to the Reschly Aff. ¶ 3.) McClurg is a 2018 law school graduate, a former federal judicial law clerk, and practices with “an emphasis on contract disputes and commercial tort cases.” (Ex. A to the Reschly Aff. ¶ 4.) Plaintiff's requested rates are above those normally awarded in this district for similarly qualified attorneys. See, e.g., Cuomo, 2019 WL 3288898, at *3 (“Most recently, fees in complex cases in the Eastern District have ranged between ... $200-$400 per hour for associates ...”); Katz, 2019 WL 1994049, at *2 (awarding $300 for associates where “plaintiff failed to provide any support for the reasonableness of the requested rates”); Cap. One, N.A. v. Auto Gallery Motors, LLC, No. 16-CV-6534 (PKC)(SIL), 2020 WL 423422, at *4 (E.D.N.Y. Jan. 27, 2020) (awarding $300 per hour for associates with more than eight years’ experience and $250 per hour for those with fewer than five years’ experience for a non-complex case); McLaughlin v. IDT Energy, No. 14-CV-4107 (ENV)(RML), 2018 WL 3642627, at *17 (E.D.N.Y. July 30, 2018) (complex class action settlement awarding $350 for senior associates with six to nine years’ experience and $300 for associates with three to five years’ experience). Given the nature of this case and the associates’ credentials, the Court finds that an award of $400 per hour for Grover's time and $325 per hour for McClurg's time is reasonable.

*12 Finally, Plaintiff seeks hourly rates of $415.00 for Deborah Meyers and $340.00 for Roxana Ciulei. Both are senior paralegals; Meyers has thirty-eight years’ experience, while Ciulei has served as a paralegal for twenty years. (Ex. A to the Reschly Aff. ¶¶ 5-6.) Paralegal rates in this district are substantially lower than the requested rates. See, e.g., Gesualdi v. Nastasi & Assocs., Inc., No. 19-CV-2077 (JS)(AYS), 2021 WL 966326, at *2 (E.D.N.Y. Feb. 11, 2021), R&R adopted, 2021 WL 1115606 (E.D.N.Y. Mar. 24, 2021) (awarding $120 per hour for paralegals); Cuomo, 2019 WL 3288898, at *3 (noting courts have awarded $75-100 per hour for paralegals in this district); Katz, 2019 WL 1994049, at * 2 (awarding $100 per hour for paralegal time); Capital One, N.A., 2020 WL 423422, at *4 (awarding $100 per hour for paralegals with “significant experience”). The Court therefore finds that the reasonable rates for Meyers and Ciulei should be reduced to $120.00 per hour.

B. Hours Expended

Attorneys must submit contemporaneous records with their fee applications to document the hours reasonably billed. See Scott v. City of New York, 626 F.3d 130, 133 (2d Cir. 2010). In determining a reasonable number of hours, district courts should “exclude excessive, redundant or otherwise unnecessary hours.” Quarantino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999). However, courts “need not, and indeed should not, become green-eyeshade accountants.” Fox v. Vice, 563 U.S. 826, 838 (U.S. 2011). If a fee application has “such surplusage, the court has discretion simply to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application.” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (quotation and citation omitted).

Plaintiff has submitted contemporaneous time records to support its fee application for the period from December 21, 2020 through April 22, 2021. (See Ex. A to the Motion, “Fee Statement,” Dkt. 40-2.) Plaintiff limits its fee request to “only those reasonable fees and costs Plaintiff incurred as a result of securing Defendants’ compliance with Defendants’ discovery obligations and the Court's February 26, 2021 Order.” (Reschly Aff. ¶ 8.) Plaintiff's counsel acknowledges that it “employed general ‘block billing’ (i.e., grouping of hours for total daily activities) in this matter through April 12, 2021,” but shifted to a “modified task billing procedure” on April 13, 2021. (Id. ¶ 28.)

Defendants object to most of Plaintiff's counsel's time entries, primarily arguing that they are block billed and excessive or duplicative.[8] (Supp. Opp. at 1-4.) “While ‘block billing is not prohibited in this Circuit’ ... [it] renders it difficult to determine whether, and/or the extent to which, the work done by [the] attorneys is duplicative or unnecessary.” Callari v. Blackman Plumbing Supply, Inc., 11-CV-3655 (ADS)(AKT), 2020 WL 2771008 at *14 (E.D.N.Y. May 4, 2020), R&R adopted, 2020 WL 2769266 (E.D.N.Y. May 28, 2020) (quoting Sea Spray Holdings, Ltd. v. Pali Fin. Grp., Inc., 277 F. Supp. 2d 323, 325–26 (S.D.N.Y. 2003)) (internal quotations and alterations in original). As with other reductions, “the court has discretion simply to deduct a reasonable percentage of the number of hours claimed” to adjust for block billing. Callari, 2020 WL 2771008 at *12. Plaintiff's block billing merits a modest reduction in its requested hours.

*13 Defendants also object to billing for internal conversations among Plaintiff's counsel, but provide no citations or substantive arguments for why it is inappropriate for an associate to be supervised by a partner on a complex case, or for attorneys to confer with each other in prosecution of a case. (Supp. Opp. at 1-4.) Similarly, Defendants’ objections to time spent revising Plaintiff's motions and letters in this matter (see id.) are unpersuasive, as the quality of Plaintiff's briefing reflects the time devoted to those endeavors.

Defendants’ objections to certain specific entries are largely meritless. Defendants object to the April 2, 2021 entry by Grover, a block-billed entry that includes unspecified time to “[a]nalyze discovery responses.” (Supp. Opp. at 2; Fee Statement at 3.) Defendants argue that “[r]eviewing discovery responses is not an appropriate item to include in claim for failure to comply with discovery.” (Supp. Opp. at 2.) Here, where Defendants have argued that they did substantially comply with their discovery obligations, analyzing what discovery responses were provided is appropriate in order to rebut that argument.

Defendants object to the April 16, 2021 Reschly entry, a 2.8 hour block that includes:

(Fee Statement at 4.) Defendant argues that this was “[e]xcessive time spent on matter counsel was or should have been familiar with. Block billing. Reviewing Grover's work should not be included. Vague.” (Supp. Opp. at 3.) While, for the reasons explained above, the block billing of this entry merits a modest reduction in requested hours, the remaining time billed is not unreasonable. The hearing on April 16, 2021 was on the record for 39 minutes. (Minute Order dated April 17, 2021.) The time spent in the hearing, along with preparation, follow-up, and additional work on the motion for sanctions, after reduction for block billing, is not excessive. In addition, a senior partner supervising the work of an associate is not unreasonable.

Defendants object to the April 13, 2021 entry for 0.60 hours by Ciulei, “Prepare for and electronically file letter motion for leave to file reply and email correspondence with R. Grover regarding the same” (Fee Statement at 4), arguing that “[p]reparing to file a letter electronically is excessive.” (Supp. Opp. at 3.) Defendants similarly object to a February 17, 2021 Ciulei entry, which block-bills 0.70 hours to

(Fee Statement at 2), arguing that “reviewing Judge Kuo's individual rules and electronically filing the letter is an unreasonable billing.” (Supp. Opp. at 2.) These tasks are necessary and appropriately performed by a paralegal. Reviewing a judge's individual rules to ensure compliance with them is not unreasonable.

The Court finds Plaintiff's requested hours largely reasonable, but finds a reduction for block billing appropriate. The Court therefore applies a 10% reduction to the requested hours for each timekeeper, as all timekeepers engaged in block billing.

C. The Fee Award

*14 Applying the reasonable rates above to the hours expended by each timekeeper, the Court awards $16,025.40 in fees, as detailed below:

III. Conclusion

For the foregoing reasons, the Motion is granted, and Defendants are ordered to pay a sanction in the form of attorneys’ fees to Allied of $16,025.40 by September 30, 2021.