Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02199-MSK-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 01-cv-02199-MSK-MEH MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, vs. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC., Defendants. DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR LIMITED DISCOVERY IN REGARD TO ATTORNEY FEES AND COSTS Defendants Mountain Coal Company, L.L.C., Arch Western Resources, L.L.C., and Arch Coal, Inc., by their attorneys, Holland & Hart LLP, hereby submit their Response to Plaintiff's Motion for Limited Discovery in Regard to Attorney Fees and Costs and Request for Expedited Relief (Dkt. No. 506), filed July 9, 2007 (the "Motion"). I. INTRODUCTION

Plaintiff Clawson waited more than a month after Defendants filed their response to his motion for attorneys' fees ­ and, in the interim, filed motions requesting leave to engage a "rebuttal" expert witness and more time to prepare his reply brief, without ever mentioning the need for discovery of Defendants' billing records, see Dkt. No. 496, filed June 8, 2007, and Dkt. No. 502, filed June 22, 2007 ­ and then, on the eve of his submission, requested extensive discovery on defense counsel's billing records, on an expedited basis. In his Motion, Plaintiff

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also mischaracterizes Defendants' position and the matters truly at issue with regard to his motion for attorneys' fees. Throughout this case, Plaintiff's litigation strategy and unfounded arguments have greatly increased the time and expense of litigating this matter, and he should not be allowed to do the same again here. Indeed, as the U.S. Supreme Court warned in Hensley v. Eckerhart, "[a] request for attorney's fees should not result in a second major litigation." 461 U.S. 424, 437 (1983). Yet, Plaintiff's Motion threatens to do just that. II. ARGUMENT

Plaintiff is correct that this Court has discretion in determining whether to allow any discovery on the issue of attorneys' fees. See Motion at 2. See also Hernandez v. George, 793 F.2d 264, 268 (10th Cir. 1986); Martinez v. Schock Transfer & Warehouse Co., 789 F.2d 848, 850 (10th Cir. 1986). However, none of the reasons offered by Plaintiff support his request for discovery of defense counsel's billing records. First, Plaintiff suggests that the billing records are discoverable for the purpose of establishing defense counsel's billing rates, because Defendants have challenged the rates charged by some of Plaintiff's attorneys. Motion at 3. In truth, Defendants have not challenged Plaintiff's attorneys' billing rates per se. Rather, Defendants' challenge to Plaintiff's requested hourly rates is limited to the rates of three attorneys ­ Damon J. Davis, Joanna C. Jensen, and Beecher Threatt ­ whose time was charged at a rate not commensurate with their experience at the time the work was performed. More specifically, Defendants take issue with the fact that Plaintiff seeks the current Killian Guthro & Jensen fifth-year associate rate for a substantial amount of work performed by Davis as a first- and second-year associate, and seeks the Killian Guthro & Jensen shareholder rate for work performed by Jensen and Threatt when neither of

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them was a shareholder. See Defs.' Resp. to Pl.'s Mot. for Attorneys' Fees, Costs and Interest, Dkt. No. 492, at 11-15. Defendants' billing records can have absolutely no bearing on that issue. 1 Second, Plaintiff insists that the billing records are relevant to Defendants' arguments concerning the number of timekeepers employed by Plaintiff to work on the case, as the records would establish how many attorneys and paralegals assisted Defendants in defending this action. Motion at 3-4. However, Defendants' arguments are focused not simply on the number of timekeepers who billed time in this case but, rather, on the inefficiencies that resulted from Plaintiff's regular practice of having multiple attorneys (and often a paralegal) at hearings, on conference calls, and in meetings. See Defs.' Resp. to Pl.'s Mot. for Attorneys' Fees, Costs and Interests, Dkt. No. 492, at 26. As to Defendant's practice in this regard, the Court records will indicate how many attorneys were in attendance at hearings; and as Plaintiff's counsel is well aware, Defendants rarely, if ever, had more than one or two attorneys on a conference call. Thus, Plaintiff's request for the billing records for this purpose is disingenuous at best. Third, Plaintiff states that "[t]he amount of time spent on the case by defense counsel is relevant to the amount of time reasonably spent by plaintiff's counsel." Motion at 4. However, while the Tenth Circuit has held 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 At any rate, Plaintiff's cited authority does not support his argument for discovery of defense counsel's billing records for the purpose of establishing their hourly rates. On this point, Plaintiff cites only Sussman v. Patterson, 108 F.3d 1206 (10th Cir. 1997). Motion at 3. Yet Sussman did not involve a motion to compel discovery of billing records. In that case, defense counsel submitted an affidavit setting forth his hourly rate to illustrate that Plaintiff's proposed rate was too high. 108 F.3d at 121. The Tenth Circuit ultimately concluded that this information was irrelevant because defense counsel represented a governmental entity. Id.
1

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of the other side," Robinson v. City of Edmond, 160 F.3d 1275, 1284 (10th Cir. 1998), it has also recognized that there are other means, aside from compelling discovery of the billing records, through which a court can ascertain that information. See, e.g., McInnis v. Fairfield Communities, Inc., 458 F.3d 1129, 1146-47 (10th Cir. 2006) (affirming denial of motion for discovery of billing records, despite plaintiff's argument that such records were relevant to the issue of assessing defendant's maneuvering of the case, because plaintiff's motion for fees had "detail[ed] the degree to which [defendant's] alleged maneuvering affected her attorneys' fees" and there was "no evidence that the district court was not intimately aware of [defendant's] maneuvering"); Roe v. Cheyenne Mtn. Conference Resort, Inc., 1999 U.S. App. LEXIS 2611, at *8-9 (10th Cir. 1999) (Ex. 1 to Plaintiff's Motion) (affirming denial of motion to compel discovery of billing records, because "[t]he district court clearly was familiar with . . . the reasonable number of hours expended"). See also Hernandez, 793 F.2d at 268 (affirming denial of motion to compel discovery of billing records, in part because "the district judge had available to him information" needed to resolve the fee issue). Here, the parties' pleadings on the attorneys' fees issue and the Court's docket are more than sufficient to provide the information necessary to ascertain how hard this case was fought on both sides and how many hours were reasonably spent prosecuting the case on behalf of Plaintiff Clawson. The briefing on the attorneys' fee issue has been extensive and detailed, with numerous exhibits, various references to the positions taken by the parties throughout this litigation, and citations to the relevant portions of the docket. Thus, contrary to Plaintiff's suggestion, Motion at 4, the fact that different magistrate judges have been involved in this case

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at different times is irrelevant; all of the needed information can be gleaned from other sources without requiring Defendants to produce their counsel's entire billing records. At any rate, the question of how hard this case was fought is not truly at issue here. Indeed, the bulk of Defendants' argument in their opposition to motion for attorneys' fees concerns the very limited success achieved by the four original plaintiffs, the various items for which Plaintiff Clawson should not receive any fees at all, and other particularized issues which have nothing at all to do with Defendants' alleged "maneuvering" in defending this action. 2 For example, Defendants argue that Plaintiff's requested fees should be reduced for the time spent on filings which resulted in sanctions on Plaintiff's counsel, which were unfounded or unnecessary, which resulted from Plaintiff's counsel's own mistakes, or which were otherwise unsuccessful. See Defs.' Resp. to Pl.'s Mot. for Attorneys' Fees, Costs and Interests, Dkt. No. 492, at 27-35. As Defendants indicated in their response brief, such proposed reductions are based on the unnecessary costs caused by Plaintiff's own inefficient (and often misguided) litigation strategy, and have nothing to do with Defendants' alleged zealousness in defending this action: "Defendants do not seek to deny Plaintiff his fees for responding to motions filed by Defendants, except where Plaintiff's position was clearly indefensible or obviously without merit." Id. at 28. Accordingly, defense counsel's billing records are irrelevant on this issue as well. See also The only issues on which Defendants urge that Plaintiff's counsel expended too much time are (1) the time spent working with Plaintiff's expert Ron Brennan, who was the subject of three separate Daubert hearings due to Plaintiff's counsel's non-preparedness at the first two hearings, and whose opinions were largely disallowed, (2) the use of a trial consultant, (3) excesses attributable solely to Plaintiff's counsel, such as spending large amounts of time preparing charts that were not used at trial, preparing over-inclusive exhibit lists, and filing multiple amendments of the complaint, and (4) the 200 hours spent preparing the fee application. Defs.' Resp. to Pl.'s Mot. for Attorneys' Fees, Costs and Interests, Dkt. No. 492, at 39-44, 47-49. These issues also are entirely unrelated to Defendants' "maneuvering" in this action.
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Hernandez, 793 F.2d at 268 (affirming denial of motion to compel disclosure of defendants' counsel's billing records, in part because "defendants' counsel were required to spend unnecessary time and effort due to lack of diligent prosecution on the part of plaintiffs' counsel"). Finally, Plaintiff suggests that because Holland & Hart employs in-house trial consultants, and because Defendants challenge Plaintiff's use of a trial consultant, Plaintiff is entitled to Defendants' counsel's billing records to determine whether or not they used a trial consultant. Motion at 4. The mere fact that Holland & Hart has access to in-house consultants is irrelevant. In any event, counsel for Defendants hereby represent to the Court that they did not utilize any trial consultants, either in-house or otherwise, in this case. Thus, discovery of their billing records for this purpose is unwarranted. In short, defense counsel's billing records would be of little, if any, relevance in considering the issues presented in Plaintiff's motion for attorneys' fees. On the other hand, the burden that would be placed on Defendants if they had to compile, review, and produce these records would be quite onerous. Defendants would have to review both their raw billing records and their final bills for the six years this case has been pending to ascertain the completeness of the records and ensure that any privileged matters were redacted. Notably, in preparing the motion for fees, Plaintiff's counsel spent more than 200 hours over the course of several months reviewing their own billing records; their consolidated billing records total 481 pages. See Defs.' Resp. to Pl.'s Mot. for Attorneys' Fees, Costs and Interests, Dkt. No. 492, at 18, Ex. I. While Defendants' records would not require the "synching up" and "rounding corrections" made by Plaintiff's counsel in preparing his motion, see Defs.' Resp. to Pl.'s Mot. for Attorneys' Fees,

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Costs and Interests, Dkt. No. 492, at 18, to review the billing records in a four-plaintiff lawsuit spanning a six-year period would still be a daunting ­ and expensive ­ task, which would no doubt take several weeks ­ all to the end of producing materials that would be of marginal relevance at best. For these reasons, the Tenth Circuit has repeatedly affirmed decisions denying requests for discovery of defense counsel's billing records in employment discrimination cases. See, e.g., McInnis, 458 F.3d at 1146-47 (affirming denial of Title VII plaintiff's motion for discovery of defense counsel's billing records); Martinez, 789 F.2d at 849-50 (affirming denial of discovery motions by both parties in Title VII action); Roe, 1999 U.S. App. LEXIS 2611, at *8-9 (affirming denial of ADA plaintiff's motion for discovery of defense counsel's billing records). See also Anderson v. Sec'y of Health & Human Servs., 80 F.3d 1500, 1507 (10th Cir. 1996) (affirming denial of FOIA plaintiff's motion for discovery of, inter alia, the amount of intervenor's attorneys' fees); Hernandez, 793 F.2d at 268 (affirming denial of Section 1983 plaintiff's motion to compel discovery of defense counsel's billing records). Nor do the authorities cited by Plaintiff support a contrary result. In fact, almost all of the cases Plaintiff cites do not even concern the discoverability of billing records. For instance, Plaintiff suggests that Judge Kane allowed discovery on the issue of attorneys' fees in Westman Commission Co. v. Hobart Corp., 541 F. Supp. 307 (D. Colo. 1982). Motion at 2. In fact, Judge Kane was never presented with the question of whether defense counsel's billing records were discoverable in that case; rather, he simply ordered that "[a]ny necessary discovery on the issue of attorney fees" be completed within a certain time frame. Westman, 541 F. Supp. at 320. And while Judge Babcock did refer in the Berry v. Stevinson Chevrolet decision to information that

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was gleaned from defense counsel's billing records, it was not in the context of determining the proper amount of attorneys' fees to award and in no way supports compelling the disclosure of such records in this case. 828 F. Supp. 827, 828 (D. Colo. 1993), cited in Motion at 2. In fact, as indicated above, the vast weight of authority supports the denial of requests for such discovery. III. CONCLUSION

For the foregoing reasons, Plaintiff's Motion for Limited Discovery in Regard to Attorney Fees and Costs and Request for Expedited Relief should be denied. Dated: July 23, 2007. Respectfully submitted, s/ Jeffrey T. Johnson Jeffrey T. Johnson Christina Gomez HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 Phone: (303) 295-8000 ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE
I hereby certify that on July 23, 2007, I have caused to be electronically filed the foregoing with the Clerk of Court using CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] (Keith Killian) [email protected] (Damon Davis)

s/ Jeffrey T. Johnson

3738106_2.DOC

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