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Jensen v. BMW of North America, LLC

United States District Court, S.D. California

July 23, 2019

MICHAEL JENSEN, Plaintiff,
v.
BMW OF NORTH AMERICA, LLC; BRECHT ENTERPRISES, INC. dba BMW OF ESCONDIDO; and DOES 1-100, inclusive, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S EX PARTE APPLICATION FOR PRODUCTION OF DOCUMENTS RELATED TO FEES [ECF NO. 118]

          HON. NITA L. STORMES UNITED STATES MAGISTRATE JUDGE

         Before the Court is the Defendant BMW of North America, LLC's (“BMW”) ex parte application for an order requiring production of certain documents related to Plaintiff's attorneys' fees. ECF No. 118. Plaintiff filed an opposition. ECF No. 120. The Court ordered a reply from BMW, which BMW timely filed. ECF No. 122. Plaintiff then filed an objection to BMW's reply.[1] ECF Nos. 124, 126. After due consideration and for the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART the motion.

         I. BACKGROUND

         In his complaint, Plaintiff alleges that he purchased a 2011 BMW 550i vehicle manufactured and distributed by BMW, which was covered by an express written warranty for the utility and performance of the vehicle for a period of time. ECF No. 1-3 at ¶¶ 8-9. Plaintiff alleges that, during the warranty period, he experienced numerous defects with the vehicle. Id. at ¶ 10. He claims that Defendants were unable to adequately repair the defects but failed to replace the vehicle or buy it back. Id. at ¶ 11. Plaintiff brings causes of action under the Song-Beverly Consumer Warranty Act, for breach of warranty, and for fraud.

         After the pretrial conference was held in this case, the parties filed a Notice of Acceptance with Offer of Judgment. ECF No. 117. According to this document, BMW made Plaintiff an offer of judgment, pursuant to Federal Rule of Civil Procedure 68, in the amount of $246, 000 in exchange for repurchasing the vehicle back from Plaintiff and Plaintiff accepted the offer on June 24, 2019. Id. The agreement further includes a provision, stating that BMW would “pay plaintiff's costs, expenses and attorney fees. in accordance with Civil Code section 1794, subdivision (d), as determined by agreement of the parties or by noticed Motion.” Id. at 2. As required under Rule 68, on July 18, 2019, the Court entered judgment in favor of Plaintiff in the same amount. ECF No. 123; see Fed. R. Civ. P. 68(a) (stating that the clerk must enter judgment upon filing of the offer and notice of acceptance).

         II. DISCUSSION

         BMW seeks to have the Court issue an order compelling Plaintiff to produce the following three categories of documents at least seven days prior to the filing of a motion for attorneys fees: (1) Plaintiff's fee agreement with his attorneys; (2) his attorneys' billing records; and (3) invoices from vendors for which Plaintiff seeks reimbursement. ECF No. 118 at 2. Plaintiff opposes the requests for several reasons, as will be addressed below.

         A. Form of Motion and Timeliness

         As a threshold matter, Plaintiff makes two procedural arguments as to why the Court should reject BMW's motion-that it is an inappropriate ex parte motion since there is no exigency in the request and that it is an untimely request because discovery in this case is closed. ECF No. 120 at 4-7.

         Whether or not this motion would be more appropriately filed ex parte or as a joint motion governing discovery disputes, the Court finds that the parties have had sufficient time and opportunity to brief this matter fully and will adjudicate the issues in the motion as presented. See ECF Nos. 119-122, 124.

         As to the timeliness issue, the Court has wide discretion to manage discovery in its cases. See, e.g., Hunt v. Cty. of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (“District courts have broad discretion to manage discovery.”) (citation omitted); Jardin v. DATAllegro, Inc., No. 10-CV-2552-IEG WVG, 2011 WL 3299395, at *5 (S.D. Cal. July 29, 2011) (noting that Rule 26 provides magistrate judge with discretion to mange discovery in a way that ensures fairness). Because Plaintiff accepted a Rule 68 offer and the Court has already entered judgment, the only issue left for adjudication is fees. As agreed upon by the parties in the offer of judgment, fees will either be determined by agreement of the parties or if they are unable to settle the issue, then by the Court via motion practice. Thus, the Court finds it appropriate to permit discovery into fees at this point in time, as will be further outlined below, so that the parties may most efficiently engage in settlement discussions regarding fees and if unable to agree, so that a motion on fees can be efficiently briefed and presented to the Court.

         B. Retainer Agreement

         BMW seeks to compel production of Plaintiff's retainer agreement with his counsel, arguing that such information is relevant to the calculation of fees. ECF No. 118 at 3-4. Plaintiff objects to this request, both on relevancy grounds and privilege grounds. ECF No. 120 at 14.

         The Court agrees with Plaintiff that privilege covers his retainer agreement with his attorneys. The privilege issue appears to hinge on which law applies-federal common law or California state law. Under federal common law, retainer agreements between clients and counsel are generally not protected by the attorney client privilege. Stanley v. Bayer Healthcare LLC, No. 11CV862-IEG BLM, 2011 WL 5569761, at *4 (S.D. Cal. Nov. 16, 2011) (“The Ninth Circuit has repeatedly held retainer agreements are not protected by the attorney-client privilege or work product doctrine.”) (citation omitted); Gusman v. Comcast Corp., 298 F.R.D. 592, 600 (S.D. Cal. 2014) (“[T]he attorney-client privilege generally does not preclude disclosure of fee agreements.”). However, under California state law, a “written fee contract shall be deemed to be a confidential communication” that is not subject to discovery.” Moriarty v. Am. Gen. Life Ins. Co., No. 17-CV-1709-BTM-WVG, 2018 WL 2966787, at *1 (S.D. Cal. June 13, 2018) (citing Cal. Bus. & Prof. Code § 6149); Madrigal v. Allstate Indem. Co., No. CV ...


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