Free Motion to Produce - District Court of Colorado - Colorado

Case 1:02-cv-00671-ZLW-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-cv-0671 ZLW-BNB DIANE C. McINNIS Plaintiff, v. FAIRFIELD COMMUNITIES, INC., d/b/a, FAIRFIELD RESORTS, INC., a Delaware corporation, Defendant.

SECOND MOTION FOR DISCOVERY RE: PLAINTIFF'S MOTION FOR ATTORNEYS' FEES

Plaintiff submits the following Motion requesting discovery of the billing records of Defendant's counsel and in support states as follows: 1. Plaintiff's counsel conferred with Defendant's counsel concerning this Motion.

Defendant is opposed to this Motion. 2. Plaintiff filed her Motion for Attorneys' Fees and Expert Witness Fees ("Motion")

on July 23, 2004. Before filing the Motion, Plaintiff's counsel attempted to confer with Defendant's counsel about the Motion and settlement of the attorneys' fees sought. Defendant's counsel did not return messages and failed to fully confer with Plaintiff's attorneys. Instead, after Plaintiff had filed the Motion, Defendant's attorney only informed Plaintiff's counsel that the Motion was "opposed." Consequently, Plaintiff had no information from Defendant on what

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grounds her Motion was "opposed" until Defendant filed its Response.1 3. On or about August 5, 2004, Defendant filed its Response to Plaintiff's Motion for

Attorneys' Fees and Expert Witness Fees ("Response"). In Defendant's Response, Defendant challenges the reasonableness of the hourly rates and amount of time spent on the case by Plaintiff's attorneys, including allegations of unreasonable amounts of time spent in conferences between Plaintiff's attorneys and conferences between attorneys and client, excessive nonattorney time, and travel time by Plaintiff's attorneys2. As a result of Defendant's challenges to Plaintiff's Motion, Plaintiff now needs discovery concerning her attorneys' hourly rates and reasonable time expended on this case.3

"[A] party who does not make a sincere, good faith effort to settle [an attorneys' fee] issue may be subject to sanctions." Dickerson v. City Bank & Trust Co., 590 F.Supp. 714, 720 (D.Kan. 1984). "If an agreement is not reached, the court, in making its own determination of the hours reasonably expended and the reasonable hourly rate, has wide discretion and may also consider the good faith, or lack thereof, of the parties in attempting to negotiate a settlement." Id. (citations omitted). Plaintiff specifically seeks the amount Defendant's counsel charged his client for his last-minute charter flight to Durango for depositions. Plaintiff's counsel, Ms. Kershner, drove to Durango the night before the depositions. Whereas, Mr. Oade was scheduled to fly via United Airlines to Durango. Mr. Oade's flight was cancelled shortly before it was scheduled to leave Denver. As a result, Mr. Oade had to charter a private plane to fly him to Durango in order to attend the scheduled depositions in Durango. Plaintiff is certain that Defendant's billing records would prove that Ms. Kershner's trip to Durango was less expensive than Mr. Oade's private chartered flight. As a result, Ms. Kershner's travel time would be reasonably incurred fees. (Further, Ms. Kershner's travel time was lost opportunity for otherwise billable hours.) Plaintiff will also be seeking reimbursement from Defendant for the expert witness fees incurred in seeking recovery of her attorneys' fees. 2
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4.

"The Tenth Circuit has long accepted the proposition that one of the factors useful

in evaluating the reasonableness of the number of attorney hours in a fee request is `the responses necessitated by the maneuvering of the other side.'" Robinson v. City of Edmond, 160 F.3d 1275, 1284 (10th Cir. 1998)(citing Ramos v. Lamm, 713 F.2d 546, 554 (10th Cir. 1983)). "The Supreme Court has also recognized that part of an attorney's calculus of the amount of time reasonably necessary for a case is the vigor which the opponents bring to the dispute." Id. (citing City of Riverside v. Rivera, 477 U.S. 561, 580 n. 11 (1986)("The government cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.") 5. Consequently, evidence of the opposing party's attorney fees and expenses are

relevant to the reasonableness of plaintiff's attorney fees. See Statsny v. S. Bell, 77 F.R.D. 662, 663 (W.D.N.C. 1978), rev'd in part on other grounds, 628 F.2d 267 (4th Cir. 1980); Pollard v. E.I. DuPont, 2004 WL 784489, *2 (W.D.Tenn. 2004); Coalition to Save Our Children v. State Bd. of Educ., 143 F.R.D. 61, 65 nn 2-3 (D.Del. 1992); and, Chicago Prof'l Sports Ltd. P'ship v. Nat'l Basketball Ass'n, 1996 WL 66111, *3 (N.D.Ill. 1996). See also Johnson v. Univ. of Alabama, 706 F.2d 1205, 1209 (11th Cir. 1983)(Court allowed plaintiffs to inquire about defense counsel's hourly rate charged in the case). 6. Plaintiff seeks discovery of Defendant's attorney billing records. Many of the

conferences between counsel and telephone conferences with Ms. McInnis and Mr. McInnis were a direct result of Mr. Oade's actions. Further, Defendant challenges the hourly rate of Mr. Schaefer, Ms. Kershner and their paralegals, but does not provide comparative information about its attorneys' and paralegal rates. This information is relevant because Defendant cannot, for 3

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example, claim that Mr. Schaefer's rate is excessive when Mr. Oade's rate is as much, if not more, than Mr. Schaefer's rate. Mr. Schaefer has been practicing law approximately eight years longer than Mr. Oade. Moreover, Defendant challenges the amount of detail of Plaintiff's time entries. This, however, is the common time keeping practice within the Denver legal field. Hence, Plaintiff should be able to review HRO's billing records to determine if it has enumerated every task with a specific amount of time as Defendant alleges Plaintiff's time records should be required to show. In addition, Defendant's challenges to Plaintiff's attorneys' fees are predicated on Mr. Oade's and his paralegal's Affidavits. As a result, Plaintiff is entitled to review Mr. Oade's and Ms. Torok-Glover's billing records and practices that allegedly support the opinions set forth in their affidavits. 7. Plaintiff also seeks discovery of Defendant's attorney expenses. Plaintiff is entitled

to review these records because of numerous issues raised by Defendant's Response. For example, Defendant challenges Plaintiff's attorney time for travel to the depositions held in Durango, Colorado. Defendant complains that the hours charged are excessive because it only takes an hour to fly to Durango. Defendant fails to mention, however, that its counsel had to charter a private plane to Durango at the last minute because the flights to Durango are sporadic and unreliable. Defendant also fails to provide information about the amount of money it expended on Mr. Oade's private flight. 8. Anyone that is remotely familiar with plaintiffs' civil rights litigation knows that all

plaintiffs are concerned with keeping expenses to a minimum. The majority of plaintiffs in this situation are not required to pay attorneys' fees. As a result, the goal of a plaintiff's attorney is to 4

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keep expenses as low as possible. Therefore, it would seem more reasonable for a Plaintiff's attorney to bill an hourly rate for travel than to incur exorbitant expenses by chartering a private plane and renting a car in Durango. To be certain, however, Plaintiff is entitled to review Defendant's expenses in order to compare her attorney fees with Defendant's expenses. 9. Plaintiff requests permission from the Court to serve a subpoena duces tecum on

Defendant's counsel, Holme Roberts & Owen LLP, for all of its billing records, including attorneys' billing rates, attorney fees and costs for this case. DATED this 22nd day of September, 2006. ELWYN F. SCHAEFER & ASSOCIATES, P.C. _/s Elwyn F. Schaefer______________________ Elwyn F. Schaefer 600 17th Street, Suite 2005 South Denver, Colorado 80202 (303) 825-1961 Attorneys for Plaintiff Certificate of Service I hereby certify that on this 22nd day of September, 2006 a true and correct copy of the foregoing SECOND MOTION FOR DISCOVERY RE: PLAINTIFF'S MOTION FOR ATTORNEYS' FEES was filed electronically with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: K. Preston Oade, Jr. [email protected] _/s Lori Fraser, Legal Assistant

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