United States District Court, E.D. California
ORDER
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
Plaintiffs
have filed a motion for monetary sanctions, and have noticed
it to be heard before the undersigned on August 10, 2016. ECF
No. 206.[1] In connection with that motion, plaintiffs
have now filed a “Request for Leave To File Invoices
In Camera” in support of their motion for
sanctions. ECF No. 207. According to plaintiffs, they wish to
submit invoices in support of their motion, and wish to
“preserve their rights with respect to privilege and
work product immunity.” ECF No. 207 at 1. In asserting
legal support for this request, plaintiff state:
The Ninth Circuit has long endorsed the in camera
procedure to protect invoices submitted in support of motions
for fees. See, e.g., Fed. Sav. & Loan Ins. Corp. v.
Ferm, 909 F.2d 372, 374-75 (9th Cir. 1990).
ECF No. 207 at 2.
I.
ANALYSIS
According
to the Ninth Circuit, “[t]he conclusion that the
amount, date, and form of legal fees paid is not a
confidential communication protected by the attorney-client
privilege is a mixed question of law and fact.”
Tornay, 840 F.2d at 1426. Here, plaintiffs have
shown no legal or factual basis for their blanket assertion
of the privilege, and such a blanket assertion does not
appear to be warranted by Ninth Circuit law:
The district court awarded the fees, amounting to $80, 881,
after it had received the defendants’ lawyers’
timesheets in camera. No reason appears why the
timesheets should not have been made available to MGIC
[plaintiff] and MGIC given the opportunity to challenge
them. We remand for the sole purpose of a hearing in
which MGIC may challenge the reasonableness of the fees
awarded. The court may withhold from MGIC any information it
finds protected by the lawyer-client privilege.
MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 505 (9th
Cir. 1986) (emphasis added).
Despite
plaintiffs’ claim that the Ninth Circuit “has
long endorsed the in camera procedure” in
connection with motions for attorneys’ fees, they have
cited no cases that actually support that proposition, or
illustrate this alleged long endorsement. Ferm, the
one case plaintiffs do cite, only undermines
plaintiffs’ claim. According to Ferm,
“[f]ee information is generally not
privileged.” Ferm, 909 F.2d at 374
(emphasis added) (citing Tornay v. United States,
840 F.2d 1424, 1426 (9th Cir.1988)). In turn, Tornay
states that “[p]ayment of fees is incidental to the
attorney-client relationship, and does not usually involve
disclosure of confidential communications arising from the
professional relationship.” Tornay, 840 F.2d
at 1426.
In
fact, Ferm has nothing to do with protecting
invoices that, as plaintiffs claim, were “submitted in
support of motions for fees.” To the contrary,
Ferm did not even involve a motion seeking fees. In
that case, the district court entered a preliminary
injunction freezing defendant’s assets during the
pendency of the lawsuit against her. Ferm, 909 F.2d
at 373. Later “the district court modified the
injunction, permitting Ferm to withdraw funds to pay for
reasonable attorney’s fees.” Id. Later
still, the court further modified the preliminary injunction
by issuing an “accounting order” that required
defendant’s attorneys to submit to the court “all
invoices for legal services and expenses rendered in
connection with Ferm’s defense . . . for an in
camera review, so that the district court could
determine whether the firm’s fees were
reasonable.” Id. The accounting order was
appealed to the Ninth Circuit, which affirmed. Id at
375.
The in
camera review in Ferm was intended solely to ensure
that defendant did not improperly dissipate frozen assets in
violation of the court’s preliminary injunction:
the district court’s accounting order protects already
frozen assets from possible excessive dissipation due to
unreasonable attorneys’ fees. It ensures compliance
with the preliminary injunction’s requirement that
otherwise frozen funds be used solely for fees which are
“reasonable.”
Id at 374 (emphasis added). The review had nothing
to do with any determination of a motion for ...