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
MEMORANDUM OPINION & ORDER
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
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
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
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.