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Jill and Robert Webb In Their Own Proper Persons, and As Parents and v. Cbs Broadcasting

September 28, 2011

JILL AND ROBERT WEBB IN THEIR OWN PROPER PERSONS, AND AS PARENTS AND NEXT FRIENDS OF THEIR MINOR CHILDREN, PLAINTIFFS,
v.
CBS BROADCASTING, INC., A FOREIGN CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Geraldine Soat Brown

Judge Amy J. St. Eve

MEMORANDUM OPINION AND ORDER

Geraldine Soat Brown, United States Magistrate Judge

This matter is before the court on defendant CBS Broadcasting Inc.'s ("CBS") motion for attorneys' fees and costs to determine the appropriate amount of sanctions previously ordered. (Def.'s Mot.) [Dkt 239.] CBS seeks a total sanction amount of $79,336.10. (Id. at 1.) For the reasons set forth below, CBS's motion is granted in part and denied in part, and plaintiffs Jill and Robert Webb ("the Webbs") and their counsel are sanctioned $76,529.04. The Webbs and their counsel are jointly and severally liable for that amount, and shall remit payment to CBS within 30 days of this order.

Background

Sanctions were imposed against the Webbs and their counsel for the second time in this case due to their failure to comply with their discovery obligations under the Federal Rules of Civil Procedure, for providing misleading statements in depositions and false affidavits to the court about the existence of discoverable information, for the Webbs' counsel's active concealment of confidential CBS documents, and for violation of the court's order closing discovery. (Mem. Op. & Order, May 6, 2011.) [Dkt 238.] As a result of that misconduct, CBS was compelled to hire a computer forensics expert to examine the Webbs' personal computer and review the results, take additional depositions of the Webbs, and spend considerable time bringing motions to compel the return of confidential documents and for sanctions. Accordingly, the Webbs and their counsel were held jointly and severally liable to pay CBS: (1) the fees and costs charged by computer forensics expert James Murray in the amount of $3,241.25;*fn1 (2) the additional costs CBS incurred to resume the Webbs' depositions in the amount of $414.29;*fn2 and (3) the reasonable attorneys' fees and costs incurred by CBS in bringing and briefing the following: CBS's Renewed Motion for Sanctions; CBS's Motion to Compel Return of Confidential Documents and to Dismiss; and CBS's Supplemental Memorandum in support thereof, including CBS's response to the Webbs' Motions to Supplement their Reply to the Court's Query. (Id. at 33.)

The court instructed CBS to calculate the amount of the third category and communicate it to the Webbs' counsel. (Id. at 33-34.) CBS thereafter sent a letter to plaintiffs' counsel, John DeRose, with a calculation of $79,336.07 as a total proposed sanction amount, which included the aforementioned $3,241.25 for fees charged by Mr. Murray, $414.29 for CBS's counsel's hotel bill necessitated by the additional depositions, and CBS's calculation of $75,187.10 in attorneys' fees and $493.46 in costs for bringing and responding to the various motions. (Def.'s Mem., Ex. A.) [Dkt 240.] The letter refers to an itemization of the hours worked and hourly fees charged by attorney and paralegal who worked on the motions. (Id.) CBS represented that the amount requested was in fact a reduction from the $86,813.06 CBS actually spent in attorneys' fees and costs. (Id.) CBS did not receive a response to its letter, and according to Mr. Levine, Mr. DeRose purportedly indicated he and his clients would not willingly pay any amount during a June 1, 2011 conversation with CBS counsel. (Def.'s Mem. Mot., Group Ex. B, Aff. Lee Levine ¶¶ 9-10.)

In support of its present motion and fee calculation, CBS has submitted affidavits from four attorneys and one paralegal who worked on the motions, reflecting the following breakdown of fees and costs: 36.1 hours for attorney Lee Levine at an hourly rate of $375 prior to January 1, 2011 and $390 thereafter; 108.4 hours for attorney Ashley I. Kissinger at an hourly rate of $350 prior to January 1, 2011 and $370 thereafter; 20.6 hours for attorney Brian A. Sher at an hourly rate of $435 prior to January 1, 2011 and $450 thereafter; 12.7 hours for attorney Katherine Larsen at an hourly rate of $280; and 43.3 hours for paralegal Marla D. Kelley at an hourly rate of $190 prior to January 1, 2011 and $195 thereafter; and $493.46 in travel expenses incurred by Mr. Levine in connection with appearing before the court on the motions. (Def.'s Mem., Group Ex. B.)

The Webbs have raised specific objections to most of the time CBS's attorneys spent on these motions on the basis that it was duplicative, excessive, and/or unnecessary. (See Pls.' Resp.) [Dkt 244.] The Webbs also argue that the affidavits CBS's attorneys provided do not support their hourly rates because they do not describe their qualifications. (Id. at 2.) Finally, the Webbs request a hearing before the court for the following purposes: to be heard on the subject of whether sanctions should be imposed, to inquire of CBS's counsel about the hours charged and to voice objection that such claims are inappropriate, and "to explain to this Honorable Court the actions taken by them during discovery, their attempt to withhold nothing from the defense, their eager cooperation to join in the search for all relevant material, the unilateral obstruction of the discovery process by CBS, and the freedom from any contumacious conduct by plaintiffs and their attorney." (Id. at 12.)

Discussion

The Webbs' last argument is addressed first: the Webbs have had ample opportunity to be heard on the subject of whether sanctions should be imposed and to object to CBS's calculations of those sanctions, and they will not be granted yet another opportunity to do so at this belated stage. When CBS filed its initial renewed motion for sanctions, the Webbs filed a response along with supporting affidavits from Jill Webb and the Webbs' counsel. [Dkt 156.] After CBS filed its later motion for dismissal as a sanction, the Webbs and their counsel knew what was potentially at stake: sanctions up to and including dismissal of the case. This court provided the Webbs with the opportunity to respond to that motion and explicitly instructed, "[P]laintiffs shall file a response to defendants' motion to dismiss showing cause why this Court should not recommend to the District Judge that this case be dismissed with prejudice as a sanction and why additional sanctions should not be imposed." (Order, Feb. 17, 2011.) [Dkt 196.] The Webbs did, in fact, file a response, complete with supporting exhibits. [Dkt 202.] After CBS filed a supplement to its motion, the Webbs were again given the opportunity to respond, with the specific instruction, "Plaintiffs' response shall also include any argument plaintiffs have as to why the case should not be dismissed." (Order, March 24, 2011.) [Dkt 211.] The Webbs responded and were further granted leave to file supplements to that response on two occasions with additional briefing and supporting exhibits. [Dkt 213, 225, 231, 233.] At the conclusion of that extensive briefing, CBS' motions were granted in a lengthy opinion. (May 6, 2011 Opinion.)

The Webbs chose not to raise any objections to the May 6, 2011 Opinion to the District Judge within the time allotted under the Federal Rules. See Fed. R. Civ. P. 72(a). As for objections to the specific amount of sanctions at issue in the present motion, the Webbs were again given the opportunity to object, and they did. (Order, June 10, 2011; Pls.' Resp.) [Dkt 242, 244.] The Webbs have been fully heard on these issues.

Turning to the matter of CBS's attorney's hourly rates, the Webbs argue that all of the claimed rates should be "dismissed out of hand" on the basis that they are not supported by affidavits sufficiently describing the attorneys' experience and qualifications. (Pls.' Resp. at 2.) However, this court previously found the rates charged by Mr. Levine, Mr. Sher, and Ms. Larsen prior to January 1, 2011 to be reasonable in connection with the prior sanctions order in this case, based on affidavits they submitted in support of CBS' earlier motion. (Mem. Op. & Order, Oct. 5, 2010 at 4.) [Dkt 127.] The Webbs did not object to those rates in their response to that motion. (Id.) As for the rates charged by Ms. Kissinger and Ms. Kelley, they are what CBS was billed for the work performed. (See Def.'s Mem. Mot., Group Ex. B, Aff. Ashley I. Kissinger ¶ 4, Aff. Marla D. Kelley ¶ 4.) A court awards an attorney's hourly rate at the "market rate," and "the best evidence of the market value of legal services is what people pay for it." TruServ Corp. v. Flegles, Inc., 419 F.3d 584, 593 (7th Cir. 2005). For this reason, the $15 increase in Mr. Sher, Mr. Levine, Ms. Kissinger, Ms. Kelley's rates in 2011 is also reasonable. Furthermore, while the Webbs objected to the evidence establishing CBS's attorneys' rates, they did not submit evidence of what their own counsel charged for his work on the motions.

That leaves the question of whether the time CBS's legal team spent on the motions was reasonable. Before addressing the Webbs' specific objections to the attorneys' time entries, it is important to recall that the Webbs' and their counsel's misconduct warranting the imposition of sanctions in the first place resulted in a tangled web of documents, deposition testimony, and disputes that had to be sorted through in connection with the underlying motions. See May 6, 2011 Opinion at 29: "[T]he Webbs and their counsel have distorted the process of litigating this case beyond any reasonable relationship to the simple claim that is actually at issue." With that said, the Webbs' specific objections to the hours charged are taken in turn.

1. Drafting CBS's Renewed Motion for Sanctions The Webbs object to much of the time CBS's legal team spent preparing and drafting its renewed motion for sanctions on the basis it was excessive, unnecessary, and involved duplication of effort. (Pls.' Resp. at 2-4.) First, they object to 2.3 hours Ms. Kissinger, a partner at the law firm of Levine Sullivan Koch & Schulz, L.L.P., spent reviewing the case history and formulating strategy for the motion, as well as 26.3 hours Ms. Kissinger spent ...


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