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New Mexico Oncology and Hematology Consultants, Ltd. v. Presbyterian Healthcare Services

United States District Court, D. New Mexico

March 28, 2018




         This 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.

         I. Procedural History

         The 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.

         Defendants 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.

         On July 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. 606.

         On May 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.

         II. Legal Standard

         To 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 (1984)).[1]

         It is 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).

         III. Analysis

         A. Plaintiff cannot recover fees unassociated with Defendants' privilege over- designation.

         In its 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. 753-1.

         First, 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 ...

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