Free Objection - District Court of Arizona - Arizona

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Charles D. Onofry ­ 012837 Luane Rosen ­ 013391 ReNae A. Nachman ­ 022614 SCHNEIDER & ONOFRY, P.C. 3101 North Central Avenue, Suite 600 Phoenix, Arizona 85012-2658 Telephone: (602) 200-1280 Fax: (602) 230-8985 E-mail: [email protected] Attorneys for Third-Party Defendant Chemical Lime Company of Arizona IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA STEVEN SCHRUM, Plaintiff, vs. THE BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, a corporation, Defendant, THE BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, a corporation, Third-Party Plaintiff, vs. CHEMICAL LIME COMPANY OF ARIZONA, a corporation; ABC Corporations I-IV, fictitious corporations, Third-Party Defendants. No. CIV04-619-PHX-RCB THIRD-PARTY DEFENDANT CHEMICAL LIME COMPANY OF ARIZONA'S OBJECTION TO BNSF'S MOTION FOR IN CAMERA INSPECTION

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Third-Party Defendant Chemical Lime Company of Arizona, by and through its counsel Schneider & Onofry, P.C., hereby objects to Third-Party

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Plaintiff BNSF's motion for an in camera inspection of its itemized statement of attorneys' fees. Chemical Lime asks this Court to deny the motion. BNSF filed a 151-page statement of attorneys' fees totaling $219,045. Approximately $65,000 of those fees are based upon redacted time entries that provide insufficient time descriptions under Local Rule 52.4(e), Local Rules of Practice of the United States District Court for the District of Arizona. Based on the redactions, there is no way to determine the reasonableness of those time entries or their relation to the case. BNSF either was, or should have been, aware of the Local Rule requirements to provide sufficient descriptions, which requirements are set forth in Chemical Lime's response in objection to BNSF's application for attorneys' fees. Had BNSF determined it needed to obtain some sort of protection of its fee descriptions, it could have sought relief from this Court before Chemical Lime expended a significant amount of hours going through BNSF's 151 pages of itemized fees. In at least two recent cases, federal district courts have refused to award attorneys' fees where the time entries were redacted. See Chip Berry

Produce v. Thomas, 2007 WL 2219342 1, 3 (E.D.Mich. 2007) (plaintiff not entitled to reimbursement for fees based on redacted time entries because it would be mere speculation to determine how much time should be charged to those tasks; presumption is against the author of the bills); C.I.T. Leasing Corp. v. BrasmexBrasil Misas Express Ltda., 2007 WL 870287 1, 6 (S.D.N.Y. 2007) (redacted time entries are insufficient to warrant award of attorneys' fees). This Court should do the same in this case. BNSF now seeks to have this Court review its time entries in camera because "BNSF is concerned about the use of privileged information during the [pending] appellate proceedings." BNSF does not say how Chemical Lime could
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or would use the information from unredacted time entries to BNSF's disadvantage in the appeal. In fact, Chemical Lime is aligned with BNSF's interests on Plaintiff Steven Schrum's appeal. The issues on appeal are straight-forward and Chemical Lime doubts there is any information contained in BNSF's time entries that Chemical Lime could somehow use against BNSF. BNSF also states it is concerned because "plaintiff's counsel regularly sues BNSF and other railroads." However, because plaintiff Steven Schrum has no position to take regarding the attorneys' fees that BNSF is asking Chemical Lime to pay, BNSF could have asked this Court for an order allowing it to submit the unredacted time entries under seal, with copies provided only to the Court and Chemical Lime. It has not done so. Rather, BNSF seeks to have this Court make a belated review on its own of the numerous time entries, previously redacted, in order to make a determination as to the reasonableness of the fees, and to do so without Chemical Lime being able to address the reasonableness of the fees or their relation to the lawsuit ­ i.e., without having Chemical Lime provide this Court with its specific objections as required by the Local Rules. Further, granting BNSF's belated request for relief would prejudice Chemical Lime in requiring it to expend a significant amount of additional time in reviewing the fees yet again. For these reasons, this Court should deny BNSF's motion for in camera inspection of its unredacted time entries. Dated this 10th day of August, 2007. . . . . . .

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SCHNEIDER & ONOFRY, P.C.

By

/s/ Luane Rosen Charles D. Onofry - 012837 Luane Rosen ­ 013391 ReNae A. Nachman - 022614 3101 North Central Avenue, Suite 600 Phoenix, Arizona 85012-2658 Attorneys for Third-Party Defendant Chemical Lime Company of Arizona

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CERTIFICATE OF SERVICE I hereby certify that on August 10, 2007, I electronically transmitted the attached document to the Clerk's office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: George T. Burgess, Esq. Hoey & Farina, PC 542 South Dearborn, Suite 200 Chicago, Illinois 60605 Attorneys for Plaintiff William L. Thorpe, Esq. Sal J. Rivera, Esq. Melissa Wilson Rawlinson Fennemore Craig 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for BNSF I hereby certify that on August 10, 2007, I served the attached document by facsimile and US mail on the following, who are not registered participants of the CM/EFC System: William D. Black, Esq. One East Camelback Road, Suite 630 Phoenix, Arizona 85012-1658 /s/ Janice Froechte

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