EEOC v. Fluor Fed. Global Projects, Inc.
EEOC v. Fluor Fed. Global Projects, Inc.
2023 WL 8114816 (D.S.C. 2023)
September 14, 2023
McDonald, Kevin F., United States Magistrate Judge
Summary
The defendants sought attorney fees and costs associated with the EEOC's 30(b)(6) deposition, which they argued was unprepared and uncooperative. The court found that sanctions were warranted and ordered the EEOC to pay. The defendants accepted some of the deposition testimony, resulting in a reduced sanction. The court also found the defendants' requested fees and costs to be reasonable.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
and
Dave Hall, Plaintiff-Intervenor,
v.
FLUOR FEDERAL GLOBAL PROJECTS, INC., Fluor Corporation, and Fluor Enterprises, Inc., Defendants
and
Dave Hall, Plaintiff-Intervenor,
v.
FLUOR FEDERAL GLOBAL PROJECTS, INC., Fluor Corporation, and Fluor Enterprises, Inc., Defendants
Civil Action No. 6:22-cv-1960-HMH-KFM
United States District Court, D. South Carolina, Greenville Division
Signed September 14, 2023
Counsel
Chantal Gabrielle Revere, Pro Hac Vice, Robyn Margaret Flegal, Pro Hac Vice, Equal Employment Opportunity Commission, Atlanta, GA, Mary Katherine Littlejohn, Equal Employment Opportunity Commission, Greenville, SC, for Plaintiff.Camden Navarro Massingill, Eleanor Winn Nordholm, Wallace K. Lightsey, Wyche PA, Greenville, SC, Kimberly Worth, Pro Hac Vice, Stephen Revis, Pro Hac Vice, Worth Jarrell, Atlanta, GA, for Plaintiff-Intervenor.
Daniel Louis Russell, Jr., Pro Hac Vice, Raymond B. Biagini, Pro Hac Vice, Covington and Burling LLP, Washington, DC, Dennis P. Duffy, Pro Hac Vice, Michael W. Twomey, Pro Hac Vice, Kane Russell Coleman Logan PC, Houston, TX, Jennifer S. Cluverius, Maynard Nexsen, Greenville, SC, for Defendants.
McDonald, Kevin F., United States Magistrate Judge
ORDER
*1 This matter is before the court on the defendants’ notice of their attorney's declaration of attorney fees and costs (doc. 132). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
On August 23, 2023, the undersigned held a hearing regarding various discovery motions in the instant matter (docs. 125; 126; 127). As stated in a text order filed on the same date, the undersigned granted the defendants’ motion to strike portions of the errata sheet of Treit Bui (“Mr. Bui”), the Equal Employment Opportunity Commission's (“EEOC”) 30(b)(6) witness, and denied the EEOC's motion for protective order prohibiting continuation of the EEOC's 30(b)(6) deposition (doc. 126). The undersigned also directed the defendants to file an affidavit reflecting their fees and costs within 15 days should they wish to seek fees and costs associated with the EEOC's 30(b)(6) deposition (doc. 126). Dennis Duffy (“Mr. Duffy”), an attorney for the defendants, filed a declaration of fees and costs for the 30(b)(6) deposition on September 7, 2023 (doc. 132). The EEOC filed a response on September 13, 2023 (doc. 133). Accordingly, this matter is ripe for review.
Federal Rule of Civil Procedure Rule 37(d) applies when a corporate designee either (1) does not appear for the deposition or (2) appears but is unwilling or unprepared to testify knowledgeably on the noticed deposition topics. Power Home Solar, LLC v. Sigora Solar, LLC, 339 F.R.D. 64, 73 (W.D. Va. 2021) (citations omitted). Courts assessing sanctions under Rule 37(d)(1) generally “must” require the party failing to act, its counsel, or both “to pay the reasonable expenses, including attorney's fees, caused by the failure.” Fed. R. Civ. P. 37(d)(3) (mandating fee-shifting “unless the failure was substantially justified or other circumstances make an award of expenses unjust”). To calculate an attorney fee award under the circumstances, the court must “ ‘determine a lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate.’ ” Gue v. Nationwide Ins. Co. of Am., C.A. No. 3:21-CV-123, 2021 WL 5570117, at *2 (S.D. W. Va. Nov. 29, 2021) (quoting Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009)). The burden of establishing a reasonable rate and demonstrating that a reasonable number of hours were expended rests with the party seeking attorney fees. Id. (citation omitted). The Court of Appeals for the Fourth Circuit enumerated twelve factors that should guide a district court's discretion when determining a lodestar figure:
(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys’ fees awards in similar cases.
*2 Robinson, 560 F.3d at 243-44 (quoting Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978)). An hourly rate is considered reasonable when it is “in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 890 n.11 (1984).
The defendants request attorney fees for Mr. Duffy totaling $6,120.00 for 13.6 hours at a rate of $450 per hour and $2,983.68 in costs for the court reporter and videographer for the 30(b)(6) deposition (doc. 132-1, Duffy decl. ¶¶ 10-12). Mr. Duffy's time entries indicate that he spent 2.8 hours preparing for the deposition on April 13, 2023; 2.8 hours preparing for the deposition on April 16, 2023; and 8 hours preparing for and taking the deposition on April 17, 2023 (doc. 132-1 at 10-11). Further, an invoice from the court reporter reflects a total of $1,801.18, and an invoice from the videographer reflects a total of $1,182.50 (doc. 132-1 at 13-14). Mr. Duffy states in his declaration that based on discussions during the hearing and given the fact that the defendants accepted Mr. Bui's testimony with respect to certain deposition topics, the defendants are not requesting reimbursement of the following fees and costs:
(i) costs relating to my travel from Houston to Atlanta and associated accommodations; (ii) time expended by other Firm attorneys and paralegals in deposition preparation and assembling deposition exhibits; (iii) legal fees with respect to the attendance of Fluor's local counsel at the first 30(b)(6) deposition and costs incurred by her for travel from Greenville to Atlanta and associated accommodations; (iv) travel and accommodations expenses incurred by Fluor's representative to attend the deposition in Atlanta; and (v) attorney's fees and costs associated with preparing Fluor's Motion to Strike the EEOC's Errata Sheet and its Opposition to the EEOC's Motion for Protective Order.
(Doc. 132-1, Duffy decl. ¶ 13).
As discussed during the hearing, the defendants noticed and attempted to take the EEOC's 30(b)(6) deposition on April 17, 2023, and the notice included 27 topics (doc. 121-1 at 2-7). The EEOC presented Mr. Bui as its 30(b)(6) representative (see generally doc. 117-1, 30(b)(6) dep.). However, Mr. Bui was unprepared. For example, Mr. Bui testified as follows:
Q. If you flip back to the topics, there are a number of topics I asked you about. Before today, were you aware that these were topics that I might be asking you about?A. No.Q. And given that answer, is it fair to say that you did nothing to specifically prepare for your testimony on many of the topics that are listed in Exhibit 1.MS. REVERE: Objection.A. No, I did not prepare for this.
(Id. at 136:8-16). Mr. Bui testified that he had one meeting to prepare for the deposition, which was with the EEOC's counsel and lasted about 15 to 25 minutes (id. at 138:10-139:5). Moreover, Mr. Bui testified that he did not review the entire investigative file but only a single document - the charge of discrimination - in preparation for the deposition (id. at 14:6-25, 24:11-19). In addition, a review of Mr. Bui's testimony reflects that although he remembered some information about the investigation, he could not recall many key details and repeatedly stated that the information sought could be found in the investigative file (see generally id.).
*3 The EEOC argues that the defendants’ motion should be denied because it acted in good faith by producing documents in discovery; designating Mr. Bui as the 30(b)(6) representative; attempting to prepare Mr. Bui for the deposition by discussing with Mr. Bui his recollections, investigative interviews, and discussions relating to his investigations of Mr. Hall's charge of discrimination; and conferring with the defendants in all of the discovery disputes (doc. 133 at 1-4). The EEOC also asserts that the defendants’ prejudice in reconvening the deposition is limited, as the defendants admit that they obtained adequate testimony on some of the noticed deposition topics (id. at 4). Further, the EEOC argues that simply reconvening the deposition is an effective, less drastic sanction (id. at 4).
However, in light of Mr. Bui's testimony described above and the EEOC's obligation to designate a person or persons prepared to testify “about information known or reasonably available to the organization” regarding the noticed deposition topics, Fed. R. Civ. P. 30(b)(6), the undersigned finds that sanctions are warranted. Moreover, given the fact that the defendants have accepted Mr. Bui's testimony regarding some of the noticed deposition topics, the undersigned finds that the reduced sanctions that the defendants request is reasonable. Further, the undersigned finds that the defendants have established that Mr. Duffy's rate and hours expended are reasonable.[1] Wherefore, based on the foregoing, the undersigned awards $6,120.00 (13.6 × $450) in attorney fees for Mr. Duffy's time spent preparing for and taking the EEOC's 30(b)(6) deposition and $2,983.68 in costs for the court reporter and videographer, for a total of $9,103.68. The EEOC will have until September 28, 2023, to pay the aforementioned amount in full.
IT IS SO ORDERED.
Footnotes
Mr. Duffy testified in his declaration that his law firm charges the defendants $450 per hour for his services in this case and that it is his understanding that this hourly rate is consistent with the hourly rate charged by experienced labor and employment law practitioners representing employers in the Greenville, South Carolina market (doc. 132-1, Duffy decl. ¶ 11).