Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

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

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Filed 07/09/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-cv-02199-MSK-MEH MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, v. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC., Defendants.

PLAINTIFF'S MOTION FOR LIMITED DISCOVERY IN REGARD TO ATTORNEY FEES AND COSTS AND REQUEST FOR EXPEDITED RELIEF

The plaintiff, Michael E. Clawson through his undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit his Motion for Limited Discovery In Regard to Attorney Fees and Costs and Request for Expedited Relief, and in support thereof, state as follows: CERTIFICATE OF CONFERRAL On July 6, 2007, plaintiff's counsel spoke to defense counsel regarding this motion, or whether the records being sought could be obtained through voluntary action, without court intervention. Lead defense counsel was beginning an arbitration on July 9, 2007, and lacked time to thoroughly review and research the issue. For this reason defendants oppose the motion and voluntary compliance.

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

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I.

Relief Being Requested 1. Plaintiff Clawson is requesting that defense counsel be compelled to produce all

billing records associated with this litigation, or that discovery be reopened and Clawson be allowed to subpoena such records. The deadline for Clawson's reply brief in support of his request for attorney fees is July 19, 2007. Therefore, Clawson requests that defense counsel be compelled to produce such records by July 16, 2007. In the alternative, if expedited relief is infeasible, Clawson requests that he be allowed to supplement his reply upon obtaining the documents from defense counsel. II. Legal Authority For Relief Requested 2. The issue of whether to order discovery in regard to attorney fees is one that is

within the trial court's discretion. Roe v. Cheyenne Mnt. Conference Resort, Inc., 1999 U.S. App. LEXIS 2611, *8-*9 (10th Cir. Feb. 19, 1999) (Exhibit 1). "Control of discovery . . . lies in the sound discretion of the district court." Rodriquez v. IBP, Inc., 243 F.3d 1221, 1230 (10th Cir. 2001). In exercising this discretion the court has authority to enter discovery orders after trial. Rodriquez, 243 F.3d at 1229-1230. In a race discrimination case Judge Babcock allowed discovery of the billing records of defense counsel, Holland and Hart, on the attorney fees issue. He refers to this order in a published opinion denying post judgment relief seeking an award of punitive damages based on information learned from the billing records. Berry v. Stevinson Chevrolet, 828 F.Supp. 827, 828 (D. Colo. 1993). Judge Kane allowed discovery on the issue of attorney fees available under the Sherman Antitrust Act. Westman Comm. Co. v. Hobart Corp., 541 F.Supp. 307, 319-320 (D. Colo. 1982). The court should not be concerned that granting additional discovery regarding attorney fees might slow the entry of a final judgment. The award 2

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of attorney fees constitutes a separate judgment, and thus an order of discovery on attorney fees will not upset the final judgment on damages. See Fed. R. Civ. P. 58(a)(1)(C); 58(c)(1) and (2). 3. The hourly rate charged by defense counsel is relevant to the determination of the

reasonableness of the hourly rate charged by plaintiff's counsel. Sussman v. Patterson, 108 F.3d 1206, 1212 (10th Cir. 1997). Additionally, the amount of time and effort spent by defense counsel litigating the case is a relevant consideration in determining the reasonableness of plaintiff counsel's billing. Case v. United Sch. Dist. No. 2, 157 F.3d 1243, 1253 (10th Cir. 1998). "The court can look to how many lawyers the other side utilized in similar situations as an indication of the effort required [by plaintiff's counsel]." Ramos v. Lamm, 713 F.2d 546, 554 (10th Cir. 1983). Attorney fees determinations are based on local market, and plaintiffs counsel should be allowed to bill in the same manner and for the same items as defense counsel. Missouri v. Jenkins, 491 U.S. 274, 285-287(1989) (the fact that defense counsel billed separately for paralegal time was relevant to whether plaintiff should receive an attorney fee award for paralegal time). III. Basis for Relief Requested 4. In their response to plaintiff's request for attorney fees, defendants challenged

plaintiff counsel's billing on several bases. One basis is the hourly rates charged by certain of plaintiff's attorneys. As stated in Sussman, defense counsel's billing is relevant on this issue. 5. Defendants have challenged the number of timekeepers, attorneys and paralegals,

who worked on the case for Clawson. Obviously, the number of attorneys and paralegals who worked on the case for defendants is relevant to the reasonableness of plaintiffs' counsels'

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efforts. Both Case and Ramos stand for the proposition that plaintiff is entitled to meet defense counsel's effort with equal effort by his own attorneys. 6. The information on the number of attorneys and paralegals who worked on the

case for defendants is also relevant to the issue of the number of hours expended. The case was hard fought, with a take no prisoners style defense. The amount of time spent on the case by defense counsel is relevant to the amount of time reasonably spent by plaintiff's counsel. 7. Defendants have challenged Clawson's use of a jury consultant. Defense counsel,

Holland and Hart, have several in house trial consultants. (Exhibit 2, Biographical Information on Holland and Hart trial consultants). Clawson should be allowed to learn whether any of these Holland and Hart trial consultants were utilized in this case. Obviously, if this case warrants the use of a trial consultant for defendants, it would warrant the use of a trial consultant by Clawson. 8. Clawson can only obtain the relevant information on defense counsel's billing

with a court order. Defense counsel has thus far refused to turn it over voluntarily. Clawson could not know whether defense counsel's billing would be relevant until defendants' response to the request for attorney fees was received. The information being sought is relevant to the issue of attorney fees. It will also assist the magistrate judge in determining the reasonableness of plaintiff counsel's fees. The currently assigned magistrate is the fourth to be assigned to the case, and thus will not particularly familiar with the case and how it was fought.1 Defense counsel's billing information will assist in putting the case into perspective for the magistrate.

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The prior magistrates were Rice, Robb, and Schlatter.

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Conclusion WHEREFORE, Clawson requests that the court order defense counsel to produce all billing for the underlying case, or allow plaintiff's counsel to subpoena the same, to be produced by July 16, 2007. Alternatively, Clawson request that the court order production of all billing in the underlying case, or allow plaintiff's counsel to subpoena the same, to be produced in due course, and allow Clawson to supplement his reply within fifteen days of receipt of the information. RESPECTFULLY SUBMITTED this 9th day of July, 2007.

s/ J. Keith Killian J. Keith Killian Damon Davis Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 FAX: (970) 242-8375 E-mail: [email protected] Attorney for Plaintiff Michael E. Clawson

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

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on the 9th day of July, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: [email protected] [email protected]

and, I hereby certify that I have mailed or served the document or paper to the following nonCM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Mr. Michael Clawson 38506 Back River Road Paonia, CO 81428 Mail

s/J. Keith Killian ___ J. Keith Killian, Esq. No. 9042 Attorney for Plaintiffs Killian, Guthro & Jensen, P.C. 225 North 5th Street Grand Junction, Colorado 81501 Telephone: (970) 241-0707 Fax: (970) 242-8375 [email protected]

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