*1 Before the court are several discovery-related issues. These include: (1) the plaintiff's motion for contempt and motion for sanctions [Doc. No. 112]; (2) the defendant's detailed specification and itemization of requested attorney's fees [Doc. No. 119]; and (3) the plaintiff's motion to compel production of documents [Doc. No. 142].

I. The plaintiff's motion for contempt and sanctions [Doc. No. 112]

On June 12, 2020, the court granted cross-motions to compel and, among other things, ordered the defendant to supplement its response to the plaintiff's First Continuing Interrogatories Nos. 1 and 7 with seven days from the entry of its order. After receiving the discovery responses the plaintiff filed her motion for contempt and sanctions, arguing that the defendant's responses were deficient and untimely. She asks the court to “hold Defendant in civil contempt and enter a default judgment against them [sic]. In the alternative, Plaintiff prays that this Court excludes and/or strikes said supplemental response,” “exclude[s] the testimony of all Defendant's witnesses,” and awards the plaintiff reasonable attorney's fees. Mot. for Sanctions at 6–7 [Doc. No. 112].

The plaintiff's timeliness argument can be dealt with quickly. She claims, “Pursuant to the June 11, 2020 Order the parties were required to file supplemental responses on or before June 18, 2020[,]” but that the defendant did not provide its supplement responses until June 19, 2020. Id. at 2–3. While the plaintiff is correct that the court's order was signed on June 11, 2020, it was not entered by the Clerk until the following day. The court, cognizant that such a delay occurs on occasion, intentionally sets all deadlines from the date of entry. The defendant's supplemental responses were timely.

The plaintiff also claims that the supplemental response was deficient and in violation of the court's order because the defendant failed to provide the contact information for the employees identified in its response to the plaintiff's First Continuing Interrogatory No. 1. Id. at 3. This interrogatory requested, among other things, the names and addresses of persons known to the defendant who were witnesses concerning the facts alleged in the complaint. In its previous responses, the defendant identified 16 such witnesses, but only provided the contact information for Angel Carter (a non-party) and withheld the contact information for its employees. The court's June 12, 2020 order required the defendant to provide the contact information of each witness identified in its response to Interrogatory No. 1 in a manner consistent with Georgia Rule of Professional Conduct 4.2.[1] The defendant, however, again failed to provide contact information for any of its employees identified in response to Interrogatory No. 1.

*2 In its response, the defendant indicates that it is “contemporaneously filing supplemental responses with the last known address” for each employee at issue. Resp. to Mot. for Sanctions at 6 [Doc. No. 113]. While this brought the defendant in compliance with the court's order, it may not be enough to avoid sanctions. The mere fact that the plaintiff had to file another motion seeking the production of this information warrants sanctions, unless the defendant's objection or failure to make the disclosure was substantially justified. See FED. R. CIV. P. 37(a) (explaining that even if disclosures are made after a motion is filed, the court must award fees incurred in making the motion unless the opposing party's nondisclosure, response, or objection was substantially justified or other circumstances make an award of expenses unjust).

To explain its nondisclosure the defendant points to the plaintiff's motion for sanctions, where she states, “Plaintiff suffered injuries and damages following Defendant's negligence of serving a dish containing shellfish to the Plaintiff; despite Defendant being provided advanced written notice of Plaintiff's shellfish allergies.” Mot. for Sanctions at 1–2 [Doc. No. 112]. The defendant contends that, based on the plaintiff's allegations that she was negligently served the entrée with shellfish, it continues to believe that the banquet servers are individuals whose acts or omissions could be imputed to the organization for purposes of civil liability. Resp. to Mot. for Sanctions at 5 [Doc. No. 113]. Thus, it was the defendant's position that Rule 4.2 did not require it to provide the contact information. The defendant also acknowledges that it should have sought further clarification from the court on this issue. Id. at 6.

The plaintiff's theory of the case presented in her motion for sanctions—that the defendant negligently served her shellfish after being placed on written notice of her allergy—is different from her theory at the outset of the litigation. The plaintiff alleges in her complaint that the defendant owed a duty of care to provide adequate warning that the chicken entrée contained seafood and that it violated that duty when it served a chicken dish without disclosing it contained crab meat. Compl. at Count I [Doc. No. 1]. Further, in her portion of the joint preliminary report and discovery plan, the plaintiff claims “that Defendant failed to warn and disclose that a chicken entrée served to Plaintiff at a banquet held at the Atlanta Evergreen Marriott Conference Resort was stuffed with crabmeat. Plaintiff alleges that she unknowingly consumed the crabmeat resulting in physical injuries ....” Joint Prelim. Report at 2 [Doc. No. 13].

The plaintiff's basis for liability has clearly shifted from a failure-to-disclose theory of negligence to a notice-based theory. The court was unaware of this change when it issued the June 11, 2020 order and acknowledges that, under such a theory, there is plausibly a scenario where a server's actions might subject the defendant to liability.[2] Accordingly, the court finds that the defendant's objection and interpretation of Rule 4.2 was not unreasonable, and it further finds that a change in the plaintiff's theory of liability qualifies as a circumstance that would make an award of expenses unjust.

II. The defendant's detailed specification and itemization of requested attorney's fees [Doc. No. 119]

On January 9, 2020, the defendant filed a motion to quash four deposition notices and the accompanying subpoenas served upon the defendant's employees. This triggered a round of briefing where each party requested sanctions, including fees, against the other. Ultimately, the court granted in part the defendant's motion, found that the plaintiff's brief contains numerous misleading statements and factual inaccuracies, and ordered her to show cause why the court should not award the defendant all the attorney's fees and expenses it incurred in replying to the misleading brief. Subsequently, the plaintiff's counsel made additional misrepresentations to the court, leading it to grant the defendant's request for costs and fees. Currently before the court is the defendant's detailed specification and itemization of requested attorney's fees [Doc. No. 119].

*3 The defendant submitted two time entries associated with the preparing and filing of the defendant's reply in support of its motion to quash. The first narrative entry reads, “Prepare response to Plaintiff's emergency motion to dismiss Marriott's motion to quash subpoenas to employees.” Detailed Itemization at 2 [Doc. No. 119]. The task took 0.80 hours and was billed at an hourly rate of $225. Id. The second narrative similarly states, “Prepare response in opposition to Plaintiff's emergency motion to strike motion to quash subpoenas and request for sanctions and attorney's fees.” Id. This task took 4.20 hours and was also billed at an hourly rate of $225. Id. Defense counsel attests that these fees, which total $1,125, reflect all the time incurred in replying to the plaintiff's brief and that the defendant was actually billed for these fees. Saxby Aff. [Doc. No. 119-1]. He further attests that those five hours were spent reviewing email communications, reviewing the court's scheduling order, reviewing the docket entries regarding the original and amended deposition notices, drafting the reply brief, and editing the reply brief. Id.[3]

The starting point in fashioning an award of attorney's fees is to multiply the number of hours reasonably expended by a reasonable hourly rate.” Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994); Moton v. Nathan & Nathan, P.C., 297 F. App'x 930, 931–32 (11th Cir. 2008). The product of the reasonable hourly rate and the reasonable hours expended is known as the lodestar calculation. See Davis v. Locke, 936 F.2d 1208, 1215 (11th Cir. 1991). Once the lodestar is calculated, the amount may be adjusted. Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1292, 1302 (11th Cir. 1988). Such an adjustment, however, is “rare” because “the lodestar method yields a fee that is presumptively sufficient to achieve this objective.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010).

The plaintiff first claims that defense counsel's time entries are, essentially, block-billed, which limits her ability to determine the reasonableness of the time. Objection to Detailed Itemization at 2 [Doc. No. 131]. The court recognizes that the defendant's time entries essentially indicate that it took five hours to prepare the brief at issue and fail to provide any additional detail. However, defense counsel's affidavit states that the five hours consisted of drafting the motion, revising the motion, reviewing communications between the parties, reviewing this court's order, and reviewing other relevant documents. The court finds that the allegedly block-billed time entries, when read with the affidavit, “set out with sufficient particularity” the tasks performed. Norman, 836 F.2d at 1303.

Next, the plaintiff contends “that reasonable fees for a nine-and-a-half-page document drafted with twenty (20) years' experience in legal services should have taken no more than two hours (2) hours [sic] to prepare.” Objections to Detailed Specification at 3 [Doc. No. 131]. The plaintiff, however, provides no additional basis for her position that $450 is a more reasonable fee award and the insinuation that the defendant's brief is a run-of-the-mill document that an experienced attorney could quickly draft is misplaced. The defendant's brief is a fact-intensive filing that points out and refutes nine different misrepresentations contained in the plaintiff's brief. Documentation is also attached, where necessary. The plaintiff's unsupported assertion that two hours is reasonable does not convince the court that a reduction in the requested fees is necessary.[4] Accordingly, the court finds that the defendant is entitled to recoup $1,125 in attorney's fees associated with its reply to the motion to quash.

III. The plaintiff's motion to compel production of documents [Doc. No. 142]

*4 On June 29, 2020, the court issued an order informing the parties that prior to filing any additional motions related to their continuing discovery disputes, counsel must send a one-page email to the undersigned's courtroom deputy clerk that copies opposing counsel and explains the purported dispute succinctly in a non-argumentative manner. On the evening of July 21, 2020, the court received such an email from the plaintiff's counsel, requesting permission to file a motion to compel the production of the July 21, 2018 incident report prepared in response to the incident that gives rise to this litigation. The court granted the plaintiff's request on July 23, 2020.

That same day, defense counsel emailed the plaintiff's counsel and stated that they “just received a correspondence from Marriott and we will be producing the incident report on tomorrow.” July 23, 2020 2:10 p.m. Email [Doc. No. 142-3]. Based on this assertion, the plaintiff states that she refrained from filing her motion to compel on July 23, 2020. When she did not receive the incident report via email by close of business on July 24, 2020, the plaintiff filed the pending motion to compel [Doc. No. 142], which argues that the incident report is not subject to the work-product privilege and should be produced.

The defendant responded, arguing that the motion to compel is moot because on July 23, 2020, it agreed to produce the incident report the following day and did in fact produce the incident report on July 24, 2020 via the United States mail. Resp. to Mot. to Compel at 2–3 [Doc. No. 114]. It explains, “The parties have not conducted discovery via electronic service throughout this litigation and had not previously agreed to (or discussed) electronically serve discovery responses.” Id. at 2. The defendant further contends that the certificate of service it filed on July 24, 2020—about five hours before the plaintiff filed her motion to compel—shows that the document was served via U.S. Mail. Id. After the plaintiff filed her motion to compel, the defendant provided the incident report via email on Sunday, July 26, 2020. In her reply, the plaintiff acknowledges that she received the incident report, but points out that incident report was postmarked July 26, 2020, and “submits that failure to email the approximately four-page incident report to the Plaintiff on July 24, 2020 when the Rule 5.4 Certificate [of Service] was filed is consistent with the stonewalling illustrated by the Defendant.” Reply to Mot. to Compel at 4–5 [Doc. No. 152]. She requests that the defendant be sanctioned for “unlawfully concealing” the incident report. Id. at 6.

There is no dispute that the defendant provided the incident report but, as explained above, sanctions may be appropriate if it was provided after the motion was filed. See Fed. R. Civ. P. 37(a). In federal court, parties may serve discovery responses in any way permitted under Rule 5—which includes service by mail—or by “any other means that the person consented to in writing.” Fed. R. Civ P. 5(b). It seems that the plaintiff's counsel assumed the incident report would be produced by email, based on defense counsel's statement he would “be producing the incident report on tomorrow.” Mot. to Compel at 7–8 [Doc. No. 142]. However, defense counsel contends that there was never any written agreement that discovery responses would be served via email and that, in the past, the parties have produced discovery documents through the mail. Resp. to Mot. to Compel at 2 [Doc. No. 144]. The plaintiff does not refute either of these assertions. Furthermore, the certificate of service filed on the docket prior to the plaintiff's motion to compel clearly indicates the document was being served “via U.S. Mail.” July 24, 2020 Cert. of Service [Doc. No. 141]. Finally, the mere fact that the envelope containing the incident report was postmarked July 26, 2020, does not, in and of itself, prove that the defendant did not place the incident report in the mail on Friday, July 24, 2020.[5]

*5 Because the defendant agreed to produce the document at issue prior to the filing of the plaintiff's motion to compel, and because the certificate of service [Doc. No. 141] indicates that the incident report was indeed placed in the U.S. Mail on the day the defendant agreed to produce it, the plaintiff's motion is moot.

IV. Conclusion

Based on foregoing analysis, the court issues the following rulings:

The plaintiff's motion for contempt and motion for sanctions [Doc. No. 112] is DENIED.

The defendant's detailed specification and itemization of requested attorney's fees [Doc. No. 119] is APPROVED. The defendant is entitled to recoup $1,125.00 in attorney's fees from the plaintiff's counsel. To be clear, the monetary sanctions awarded shall be paid by the plaintiff's counsel or the plaintiff's counsel's law firm and shall not be passed on to the plaintiff herself. The plaintiff's counsel is ORDERED to pay this amount to the defendant within 30 days.

The plaintiff's motion to compel production of documents [Doc. No. 142] is DENIED as moot.

SO ORDERED this 24th day of September, 2020.

This rule prohibits plaintiff's counsel from communicating with an agent or employee of the defendant who supervises, directs or regularly consults with the defendant's lawyer concerning this matter or has authority to obligate the defendant with respect to the matter, or whose act or omission in connection with the matter may be imputed to the defendant for purposes of civil or criminal liability. The court indicated that many of the disclosed employees working that evening—including, but not limited to, the servers and security guards—are neither agents of the defendant nor individuals whose actions that evening may be imputed on the defendant for purposes of liability in this matter.

To be clear, the court is not holding that a server's actions on the night in question will be imputed on the defendant. That issue is not before it. The court is merely finding that the defendant's position on this issue is reasonable.

The plaintiff contends that defense counsel's affidavit is defective because, while it is purportedly notarized, there is no visible seal. Objection to Detailed Itemization at 2 [Doc. No. 131]. Defense counsel, however, explained that the embossed seal was not visible on the e-filed copy of the affidavit and provided a pencil-shaded version where the seal is clearly visible [Doc. No. 143]. The court also notes that 28 U.S.C. § 1746 sets forth the procedures for the submission of unsworn declarations in federal court.

The plaintiff does not claim that $225 is an unreasonable hourly rate.

The envelope displaying this postmark was not attached to the plaintiff's reply brief. Regardless, there are certainly alternative explanations for why an item placed in the mail on a Friday afternoon was not postmarked that same day.