United States District Court, D. New Mexico
NEW MEXICO ONCOLOGY AND HEMATOLOGY CONSULTANTS, LTD., Plaintiff,
PRESBYTERIAN HEALTHCARE SERVICES, et al., Defendants.
MEMORANDUM OPINION AND ORDER
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE
matter comes before the Court pursuant to the Court's
order that Defendants pay Plaintiff reasonable expenses
incurred in connection with Defendants' privilege
over-designation (doc. 745), Plaintiff's Fee
Affidavit seeking $332, 243.17 in costs (doc. 753),
and Defendants' Objection to Plaintiff's Fee
Affidavit (doc. 768). For the following reasons, the
Court awards Plaintiff $179, 840.
procedural history in this case is extensive, and the Court
only recites those facts relevant to the instant issue here.
On January 22, 2016, Defendants produced privilege and
redaction logs to Plaintiff, which identified 4, 143
documents that were either withheld or produced with
redactions. Doc. 768 at 4. On March 15, 2016,
Plaintiff objected to 2, 831 of these designations. Doc.
753 at 3; doc. 768 at 4.
responded to Plaintiff's objections on April 1, 2016 and
agreed to re- review the disputed documents on April 8, 2016.
Doc. 768 at 4. Plaintiff then began to prepare a
Motion to Compel on April 11, 2016. Doc. 753-1 at
29-33. On April 18, 2016, Defendants produced an additional
1, 959 documents. Doc. 768 at 4; doc. 753
at 5. Plaintiff again reviewed Defendants' logs and on
April 25, 2016 objected to the remaining 1, 312 documents
that had not initially been challenged and requested a
Special Master in camera review. Doc. 753
at 6; doc. 768 at 5. That same day, Defendants
agreed to review the remaining 1, 312 documents and produced
861 of them by April 30, 2016. Doc. 753 at 6;
doc. 768 at 5.
14, 2016, Plaintiff filed a Motion to Compel and for
Sanctions, which included the repeated request that the Court
appoint a Special Master. Doc. 445. On August 11,
2016, the Court denied the Motion to Compel without prejudice
and appointed a Special Master to perform an in
camera review all remaining records withheld or redacted
by Defendants and to consider arguments on general and
subject matter waiver. Doc. 470. The parties
provided the Special Master with materials in accordance with
the Special Master's briefing schedule. Doc. 768
at 6. The Special Master issued his Report and Recommendation
on February 17, 2017, finding that Defendants should be made
to produce an additional 197 documents “not protected
by the attorney client privilege or work product doctrine or
…. as part of a subject-matter waiver.” Doc.
604 at 30. The Court adopted the Report and ordered
Defendants to produce the additional documents. Doc.
17, 2017, Plaintiff filed a Motion for Sanctions against
Defendants, seeking relief on grounds including
Defendants' privilege over-designation. Doc.
673. On August 16, 2017, in his Findings and Recommended
Disposition, the Court ordered Defendants to pay Plaintiff
costs associated with Defendants' “privilege over-
designation, ” including work performed on its Motion
to Compel and for Sanctions (doc. 445), its briefing
before the Special Master (doc. 604), and its
preparation of objections to Defendants' privilege
designations throughout the lawsuit. Doc. 745 at 32.
In response, Plaintiff filed its Fee Affidavit on August 26,
2017, seeking $332, 243.17 in costs. Doc. 753.
Defendants filed their objections to Plaintiff's Fee
Affidavit on September 9, 2017, requesting that
Plaintiff's fee award be reduced to $69, 629.68. Doc.
768. The matter of the reasonableness of Plaintiff's
Fee Affidavit is now before the Court.
determine reasonable attorney fees, the Court “must
arrive at a ‘lodestar' figure by multiplying the
hours plaintiffs' counsel reasonably spent on the
litigation by a reasonable hourly rate.” Jane L. v.
Bangerter, 61 F.3d 1505, 1509 (10th Cir. 1995) (citing
Blum v. Stenson, 465 U.S. 886, 888
Plaintiffs' burden “to prove and establish the
reasonableness of each dollar, each hour, above zero.”
Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1210
(10th Cir. 1986). “Counsel for the prevailing party
should make a good faith effort to exclude from a fee request
hours that are excessive, redundant, or otherwise
unnecessary.” Hensley v. Exkerhart, 461 U.S.
424, 434 (1983). The Court should, therefore, exclude hours
not “reasonably expended, ” and although
“[t]here is no precise rule or formula for making these
determinations[, t]he court necessarily has discretion in
making this equitable judgment.” Id. at
434-437. Notably, “a district court does not abuse its
discretion in reducing a plaintiff's fee request when the
request is based on time records that are rather sloppy and
imprecise.” Robinson v. City of Edmond, 160
F.3d 1275, 1284-85 (10th Cir. 1998). However, the district
court may not merely “eyeball the fee request and cut
it down by an arbitrary percentage.” Id. at
1281 (internal quotations and citations omitted).
Plaintiff cannot recover fees unassociated with
Defendants' privilege over- designation.
Findings, the Court awarded Plaintiff reasonable costs
associated with Defendants' privilege over-designation.
Doc. 745. Plaintiff is not entitled to fees that are
not encompassed by this category. However, many of the hours
reflected in Plaintiff's Fee Affidavit fall outside the
parameters to which the Court limited its award. Doc.
Plaintiff seeks $16, 425 in fees associated with 86.3 hours
of review of what appears to be its own privilege documents,
a task unassociated with Defendants' privilege
over-designation. See Doc. 768-1. For example,
Plaintiff seeks to recover fees for 1.5 hours spent on
January 5, 2016 devoted to “privilege review.”
Doc. 753-2 at 3. Defendants did not serve its
privilege logs on Plaintiff until January 22, 2016, so the
Court can only conclude that Plaintiff reviewed its own
documents during the time in question. Had Defendants
properly produced all of their documents, Plaintiff would
have nevertheless been required to spend ...