United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S EX PARTE APPLICATION FOR PRODUCTION OF
DOCUMENTS RELATED TO FEES [ECF NO. 118]
NITA L. STORMES UNITED STATES MAGISTRATE JUDGE
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. 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.
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.
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).
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.
Form of Motion and Timeliness
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.
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.
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.
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.
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 ...