Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, N.D. Illinois, Eastern Division

December 6, 2004.

RONALD PORTIS, MADRIC LANCE, and EMMETT LYNCH, individually and on behalf of a class, Plaintiffs,
CITY OF CHICAGO, et al. Defendants.

The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge


Plaintiffs Ronald Portis, Mardric Lance and Emmett Lynch have brought this class action lawsuit against defendants City of Chicago, Terry Hillard, Joseph Griffin, John Risley, Francis Kehoe, Evert Johnson and Robert Johnson asserting claims under 42 U.S.C. § 1983 for violations of their federal civil rights. Plaintiffs, who were arrested for nonviolent ordinance violations which impose only a fine, allege they were "unlawfully detained for prolonged periods of time after completion of all administrative steps incident to their arrests for non-custodial ordinance violations," in violation of their civil rights. Portis v. City of Chicago, No. 02 C 3139, 2004 WL 1284010, at *1 (N.D. Ill. June 10, 2004).*fn1 This matter is before the court for ruling on Plaintiffs' Motion to (a) Quash Defendants' (1) Notices to Depose Plaintiffs' Computer Consultant and Paralegals, and (2) Requests for their Invoices and Salary Information; and (b) Advise the Parties How it Intended Plaintiffs' Costs for the Creation of Plaintiffs' Database to be Calculated ("plaintiffs' motion"). To understand plaintiffs' motion, some background information is necessary.


  Plaintiffs' motion is related to a ruling issued by this court on July 6, 2004 regarding defendant City of Chicago's motion to compel discovery. In its motion to compel, the City sought production of a database that was compiled at the direction of plaintiffs' attorneys. Plaintiffs' database is a compilation of factual information selected from "computer databases and hard copies of arrest reports produced by the City in response to plaintiffs' discovery requests." Portis v. City of Chicago, No. 02 C 3139, 2004 WL 1535854, at *1 (N.D. Ill. July 7, 2004).*fn2 The City produced records regarding 15,000 to 20,000 arrestees. Early in the litigation, plaintiffs' counsel suggested that the parties work together on the time-consuming and expensive project and produce a joint database, but defendants declined to do so. Id. The City subsequently filed a motion to compel production of the database. As explained more fully in the court's order of July 6, 2004, over plaintiffs' objections, the court found that although the database was entitled to fact work product protection, the City had demonstrated "a substantial need for access to the database and that the City could not obtain the substantial equivalent of the database without the undue hardship of expending extensive, duplicative resources." Id. at *5. The court therefore granted the motion to compel in part, finding that: (i) "such a consolidated compilation of relevant data is an invaluable tool for both sides to assess the merits of the litigation[;]" (ii) "giving the City access to the database should expedite the class-notice process considerably[;]" (iii) "plaintiffs will not be unduly prejudiced by sharing [the database] with the City now, provided they are fairly compensated for their extensive work[;]" and (iv) even though the City had all the information necessary to create a similar database, requiring the City to duplicate plaintiffs' effort "would be a complete waste of time and money." Id. at *4. In order to avoid seriously prejudicing plaintiffs, who had expended considerable resources to create the database, the court further ordered the City to pay its fair share of the expenses incurred to create the database. Specifically, the order of July 6, 2004 stated:

The parties are each ordered to pay half of the total expenses plaintiffs have incurred to date to compile the database; the defendants' half shall be reduced by $5,000.00 as compensation toward special programming expenses defendants may have incurred. As for any future expenses incurred to complete the database, those expenses shall be split evenly. Such future expenses shall include not only plaintiffs' expenses, but any special programming expenses incurred by defendants to provide the necessary data to plaintiffs.
Id. at *6 (footnote omitted). Neither side appealed the court's order compelling production of the database and ordering the City to split the expense of the database. Now, more than four months after the opinion was issued, it has come to the court's attention that the parties disagree about what the court meant by "expenses" in the July 6th order.

  Plaintiffs' counsel have calculated their expenses based on the number of hours their computer consultant, Mr. Soule, and their paralegals spent creating the database, multiplied by the consultant's and the paralegals' respective billing rates.*fn3 Defense counsel objects to that formula, contending that the order of July 6, 2004 "clearly contemplates out of pocket expenses," not the equivalent of costs that might be assessed after a case ended. (Def.'s Resp. ¶ 8.) In other words, the City believes its fair share should be based on the hourly rate plaintiffs' counsel paid Mr. Soule and the paralegals (i.e., a proportion of their respective salaries), not on their billing rates.*fn4 Thus, on October 12, 2004, the City served plaintiffs with document requests seeking invoices, pay stubs, payroll records, time records, etc. relating to (i) the hours worked by Mr. Soule and the paralegals, and (ii) their respective salaries. In a letter dated October 15, 2004, defense counsel further informed plaintiffs' counsel that they intended to take depositions regarding the expenses incurred to compile the database. On November 12, 2004, plaintiffs filed the pending motion, asking the court to quash those discovery requests and advise the parties what it meant by "expenses."


  A. The Meaning of "Expenses" in the Order of July 6, 2004

  When the court issued the July 6, 2004 order requiring the City to pay its fair share of the expenses plaintiffs incurred to compile the database, the court meant for the bill to be calculated based on the number of hours Mr. Soule and the paralegals spent on the project, multiplied by their hourly billing rates, plus other costs, if any.*fn5 In deciding to order the parties to split the expenses — i.e., the costs — incurred to compile the database, the court found Fauteck v. Montgomery Ward & Co., Inc., 91 F.R.D. 393, 399 (N.D. Ill. 1980) and Williams v. E.I. duPont de Nemours & Co., 119 F.R.D. 648, 651 (W.D. Ky. 1987) instructive. Portis, 2004 WL 1535854, at *5. Both Fauteck and Williams involved compilations of facts in computer databases that were prepared for trial. Fauteck, 91 F.R.D. at 398 (employment discrimination case in which defendant created a database compiling facts selected from its personnel records); Williams, 119 F.R.D. at 650 (employment discrimination case in which EEOC created a database of facts gleaned from defendant's employment records). As in the case at bar, in both Fauteck and Williams, the party seeking its opponent's database had access to all of the underlying records that were used to create the database, so the party had the ability to create its own database. Fauteck, 91 F.R.D. at 398; Williams, 119 F.R.D. at 649-50. Like this court, the Fauteck and Williams courts compelled production of the databases because creating a similar database from scratch would have been a "time-consuming, duplicative and expensive effort." Williams, 119 F.R.D. at 650; Fauteck, 91 F.R.D. at 398. Regarding cost-sharing, in Fauteck, the court compelled production of the database "contingent on plaintiffs' willingness to reimburse defendant for 50% of compilation costs." Fauteck, 91 F.R.D. at 399. Likewise, in Williams, the court ordered the defendant to pay its "`fair portion of the fees and expenses incurred' in the past by the [EEOC] for the work of the [EEOC's] expert in encoding the requested data and formulating the database." Williams, 119 F.R.D. at 651. Neither the Williams court nor the Fauteck court found it necessary to explain what "costs" or "fees and expenses" meant. In this case, however, the parties have requested further explanation.

  Here, to avoid prejudicing plaintiffs, plaintiffs' expenses must include the value of Mr. Soule's and the paralegals' time, calculated based on the number of hours they worked on the database, multiplied by their respective billing rates. Regarding Mr. Soule, this is a non-issue. He works as a consultant for plaintiffs' counsel at a given hourly rate. Prior to July 2004, Mr. Soule charged plaintiffs' counsel $150/hour; since July 2004, he charges plaintiffs' counsel $190/hour. Plaintiffs' counsel pays Mr. Soule for every hour he works at the designated billing rate.*fn6 Unlike the paralegals, he is not an employee who is paid one rate and billed at another. Thus, under either parties' interpretation of the July 6th order, the cost of Mr. Soule's time spent working on the database is unquestionably an expense incurred to compile the database.

  As for the paralegals, a fair resolution requires calculation of paralegal expenses based on a reasonable hourly billing rate. In the context of petitions for attorneys' fees and costs after a party succeeds on the merits, paralegal services are compensated at the market rate — i.e., an hourly billing rate. See In re Continental Ill. Sec. Litig. 962 F.2d 566, 569 (7th Cir. 1992) (error not to compensate paralegal expenses based on market value of paralegal services).*fn7 The City argues that cases involving fee petitions are not instructive here because no party has succeeded on the merits. The court disagrees.

  Requiring the City to pay for half of the paralegal services based on an hourly billing rate effectively puts the parties in the position as if each side had contributed to the development of the database from its inception. Had the City agreed to undertake a collaborative effort to create the database, it is reasonable to assume that the parties would have contributed equal resources toward the project. For example, if four paralegals were needed, counsel for each side could have assigned two paralegals to the project (or worked out some other equitable arrangement). Instead, plaintiffs provided all of the paralegal services. The paralegals' billing rate is $125 per hour.*fn8 When plaintiffs' paralegals were working on the database, they were unavailable to do other billable work, whereas defense counsel's paralegals were free to do other work, billing their an hourly rate. Whether defense counsel's paralegals were free to do other work for the City or for other clients makes no difference. If defense counsel had to create their own database, the City would have to pay for 100% of the paralegal time based on defense counsel's hourly billing rate for paralegals. Compensating plaintiffs for 50% of the paralegal time, based on the hourly billing rate, simply levels the playing field.

  For these reasons, when the court ordered the City to share the expenses incurred to create the database, the court expected the expense of the services provided by Mr. Soule and the paralegals to be calculated based on hourly billing rates.*fn9 B. Challenges Regarding the Work Performed on the Database

  In addition to challenging the method for calculating paralegal services, the City also questions whether the work was actually done by paralegals. Plaintiffs' counsel has clarified through an affidavit that the work was done by 3 full-time paralegals, 2 part-time paralegals, and 3 law students who performed paralegal work during the spring and summer of 2004. Counsel's representation satisfies the court on this issue.

  The City further argues that the paralegals did not perform paralegal work. According to the City, "[i]t is data entry work, for which plaintiffs' counsel could go out into the market place and presumably hire someone for under $20 per hour to perform the work on a temporary basis." (Def.'s Resp. ¶ 11.) Plaintiffs counter that it was necessary to use careful, skilled workers for the work, in part because the City produced boxes of arrest records in no particular order, which complicated the task of creating the database. The City that had the opportunity to be involved in creating the database from its inception, but declined to do so. Had the City chosen to work with plaintiffs to create the database, the City could have had input regarding how to create the database most efficiently and cost-effectively. It was the City's prerogative to decline plaintiffs' offer. But one ramification of that decision is that the City's complaints about what could have been done differently are not well-taken.

  The City has raised no specific challenges to the number of hours that Mr. Soule or the paralegals spent to create the database, and declined the court's offer to review the billing records in camera for reasonableness. Regarding the paralegals' billing rate of $125 per hour, at the hearing on November 22, 2004, defense counsel represented that it charges the City less for paralegal time, but did not reveal its rate. A specific rate suggestion from the City would have been helpful. Nevertheless, the court's research shows that the district court recently approved a rate of $105.00 per hour for paralegal services. Zaghloul v. Daimler Chrysler Services, LLC, 03 C 4499, 2004 WL 2203427, at *2 n. 2 (N.D. Ill. Sept. 29, 2004) (Gettleman, J.). Following Zaghloul, the court orders paralegal expenses to be calculated at a rate of $105 per hour.

  C. The Discovery Served by the City is Unnecessary

  The purpose of the document requests and deposition notices the City served is to ascertain how much plaintiffs' counsel paid Mr. Soule and their paralegals. This discovery is unnecessary. Paralegal services shall be reimbursed at a rate of $105 per hour, and Mr. Soule's services shall be reimbursed at his applicable hourly rate. Plaintiffs' counsel has provided redacted billing records that explain the dates each person worked, the amount of time worked, and the work performed. No further information is necessary. Accordingly, the document requests relating to the amounts paid to Mr. Soule and the paralegals are quashed. Likewise, the City is barred from deposing the paralegals and Mr. Soule on this issue.

  D. The City Argues Against Cost-Shifting in Any Form

  The City also argues that there is no basis for cost-shifting, regardless of the method of calculation, because plaintiffs intend to use the information in the database as substantive evidence. In the City's view, such cost-shifting — which is tantamount to requiring the City to pay plaintiffs to create evidence against it — is unprecedented. The court disagrees.

  As an initial matter, the City's argument is untimely. Regardless whether there was room for disagreement regarding how the court intended the expenses to be calculated, the order of July 6, 2004 clearly stated that the court was requiring the City to pay for the database. If the City wanted to challenge that ruling, it should have appealed the court's order of July 6, 2004 within ten days as required by Rule 72(a) of the Federal Rules of Civil Procedure.

  As for the court's decision to shift costs, under Rule 26(c) of the Federal Rules of Civil Procedure, a court has authority to "make any order which justice requires to protect a party or person from . . . undue burden or expense. . . ." Fed.R.Civ.P. 26(c). As the Seventh Circuit has explained, Rule 26(c) gives "trial courts considerable discretion in determining whether expense-shifting in discovery production is appropriate in a given case." Spears v. City of Indianapolis, 74 F.3d 153, 158 (7th Cir. 1996); Fed.R.Civ.P. 34, Advisory Committee Notes, 1970 amendment ("[T]he courts have ample power under Rule 26(c) to protect respondent against undue burden or expense, either by restricting discovery or requiring that the discovering party pay costs."). And despite the City's belief to the contrary, courts have required parties to share the costs of creating computer databases that will be part of their opponent's evidence against them.*fn10 For example, in Fauteck, the court required the plaintiffs to share the costs of a database that was expected to serve as the foundation for the defendant's expert trial testimony. Fauteck, 91 F.R.D. at 398.

  Similarly, in Williams, the plaintiff's expert compiled facts from the defendant's records into a computer database, which the expert used as a tool to analyze the facts. 119 F.R.D. at 649. The expert's final report included his statistical analysis, opinion, and aggregate factual data. The plaintiff resisted turning over the underlying database, however, because it had expended considerable resources to create the database and all of the raw data that went into the database came from defendant's own records. Id. at 649-50. The defendant argued that it required access to the database in order to effectively cross-examine the expert, examine the accuracy of the database, and properly assess the aggregate factual data. Id. at 650. The court agreed that it would be wasteful and duplicative to require defendant to create its own database. Accordingly, the court compelled production of the database, but required the defendant to pay a fair portion of the fees and expenses incurred to create the database. Id. at 651.

  The Williams case is factually analogous to the case at bar, regardless whether plaintiffs intend to introduce their facts through an expert or a lay witness. At trial, plaintiffs will introduce their aggregate factual data regarding the length of the arrestee's detentions. As in Williams, plaintiffs will have to provide that aggregate factual data to the City during discovery when it is in final, or close to final, form. But if the City wants the database in order to check the accuracy of plaintiffs' facts without going through the underlying records (i.e., the City's own records), then pursuant to the court's authority under Rule 26(c), the City must pay its fair portion of the expenses incurred to create the database.


  Plaintiffs' motion is granted. As explained in more detail above, the expenses incurred to create the database shall be calculated based on the number of hours Mr. Soule and the paralegals spent on the project, multiplied by their respective hourly billing rates ($150/$190 for Mr. Soule, $105 for the paralegals), plus other costs, if any. Further, because there is no need for discovery regarding the salaries paid to Mr. Soule and the paralegals, the document requests and deposition notices relating to their salaries are quashed.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.