United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART DEFENDANTS' MOTION FOR
ADMINISTRATIVE RELIEF RE: DKT. NO. 41
H. KOH, UNITED STATES DISTRICT JUDGE.
October 8, 2019, Defendants filed a motion for administrative
relief, requesting that the Court order Plaintiff to provide
an unredacted line-item fee invoice in compliance with
General Order 56. ECF No. 41 (“Mot.”). Plaintiff
filed an opposition. ECF No. 44
(“Opp'n”).Defendants filed a court-ordered reply,
requesting in the alternative that the Court order Plaintiff
to provide a full and unredacted version to the Mediator and
a redacted version to Defendants. ECF No. 46
(“Reply”). The Court GRANTS in part
Defendants' request, as explained below.
Order 56 provides that, “[i]f the parties reach a
tentative agreement on injunctive relief, plaintiff shall
forthwith provide defendant with a statement of costs and
attorney's fees incurred to date.” General Order 56
further provides that, if requested, a plaintiff
“should provide documentation and support for its
attorney's fees similar to what an attorney would provide
in a billing statement to a client.”
information Plaintiff has provided to Defendants is a billing
summary that identified twelve billers as attorneys, and the
total number of hours and amounts billed by each biller. ECF
No. 41-1 at 6. There is no description of what, when, and for
how long the billers performed any tasks in this case.
Defendants' request for more information, Plaintiff
refuses to provide anything further and argues that General
Order 56 does not require Plaintiff to provide any more
information, citing the word “should” in the
General Order. Opp'n at 3. The Court disagrees with
Plaintiff's interpretation of the word “should,
” which would render the provision without meaning.
Opp'n at 3-4. Because Plaintiff has not identified any
reason that merits an exception, General Order 56 requires
that Plaintiff provide “documentation and support for
its attorney's fees” to Defendants.
also refuses to provide more information on the basis that
such information is protected by attorney-client privilege.
Opp'n at 1-2. The Court finds that California law does
not squarely address the privilege in this context. The
California Supreme Court has held that, “[w]hen a legal
matter remains pending and active, the privilege encompasses
everything in an invoice, including the amount of aggregate
fees.” Los Angeles Cty. Bd. of Supervisors v.
Superior Court, 2 Cal. 5th 282');">2 Cal. 5th 282, 297 (2016). However, the
same opinion also contemplated an exception where “this
very same information no longer communicates anything
privileged, because it no longer provides any insight into
litigation strategy or legal consultation, ” such as
for “legal matters that concluded long ago.”
Id. at 298.
the request for billing invoices comes after the parties'
agreement on statutory damages and remedial measures. Reply
at 2. Defendants note that the “scope of injunctive
relief has been agreed for months.” Id.
Plaintiff even acknowledges that Defendants have already
“voluntarily removed the barriers at issue in this
case.” Opp'n at 2. The parties are planning to
engage in mediation to resolve the amount and reasonableness
of attorney's fees. Reply at 2.
further argues that “no level of redaction can protect
the privilege.” Opp'n at 5. However, Plaintiff
previously publicly disclosed information of this nature,
such as the description of Plaintiff's attorney Mary
Melton's work when she was “tasked with
rescheduling the site inspection.” ECF No. 20 at 2.
Mary Melton is listed as one of the attorney timekeepers in
Plaintiff's billing summary, ECF No. 41-1 at 6, and
Plaintiff does not explain why such descriptions would be
unworkable. Moreover, Plaintiff represented in a declaration
to the Court that he has already provided “an
unredacted copy of the billing statement in this matter to
the mediator, ” ECF No. 44-1 at 2. The Court finds that
fee information may be disclosed without “provid[ing]
any insight into litigation strategy or legal
consultation.” See Los Angeles Cty. Bd. of
Supervisors, 2 Cal. 5th 282');">2 Cal. 5th 282, 297.
the Court agrees with Defendants' concerns that a
contrary interpretation of General Order 56 would allow
plaintiffs' attorneys to improperly inflate
attorney's fees. This risk would not only contravene the
spirit of General Order 56 but could incentivize
plaintiffs' attorneys to forgo meaningful relief for
their clients over attorney's fee disputes. These
concerns are particularly prevalent here, where the record
reveals unusual behavior from Plaintiff's attorneys.
These deviations include “two failed attempts to
conduct a joint site inspection, ” during which
Plaintiff failed to appear but Defendants showed up as
scheduled, incurring “substantial attorneys' fees
and costs.” Mot'n at 2. These failed attempts
without prior notice to Defendants resulted in multiple
administrative motions for Plaintiff to comply with General
Order 56, see ECF Nos. 18, 25, 26.
fact, the Court issued an Order to Show Cause to Plaintiff
and instructed Plaintiff to file a written response to
explain why the case should not be dismissed for failure to
prosecute. ECF No. 19. The Court described how, following
Plaintiff's failure to appear at the first scheduled site
inspection, Defendants' counsel received no response to
“multiple emails to Plaintiff's counsel seeking
reimbursement for fees and expenses incurred as a result of
the incomplete inspection, and requesting an alternative date
for the inspection.” Id. The Court further
noted that this inactivity mirrored the docket in the case,
where the only activity since the initially scheduled site
inspection was “two notices of appearances and one
notice of withdrawal.” Id. (citing ECF Nos.
15, 16, 17). Plaintiff then failed to respond to
Defendants' motion for leave to file a motion for
sanctions. Id. “Simply put then, ” as of
the Court's July 27, 2018 Order to Show Cause,
“Plaintiff [had] not substantively engaged with this
case since March 1, 2018.” Id. The Court only
vacated the hearing on the Order to Show Cause when Plaintiff
finally submitted a written response, alleging that
“[p]rior counsel for Plaintiff, Mary Melton, had been
tasked with rescheduling the site inspection on a date that
was workable for Mr. Johnson. This did not occur and Ms.
Melton has since left the firm.” ECF No. 20 at 2.
Plaintiff's track record in this case, the Court agrees
that the billing information requested by Defendant is
necessary to understand what work was performed by whom to
enable Defendants to effectively challenge any fees that may
have been improperly charged. For example, Defendants noted
that Plaintiff initially provided billing information that
incorrectly charged for multiple site inspections by
Plaintiff, even though Plaintiff did not appear at two of the
attempted inspections. Mot. at 2. After Defendants noted the
discrepancy, Plaintiff purportedly provided a different
billing summary with “substantially increased”
attorney's fees, attempting to
“‘transfer' money around to get to the same
result.” Reply at 2. As stated above, Plaintiff's
latest billing summary claims that twelve different attorneys
worked on this case. ECF No. 41-1 at 6. This list is
surprising given Plaintiff's limited activity on the
matter. See ECF No. 19. Although the Court need not
wade into the thicket surrounding these discrepancies, the
Court finds that providing more detailed billing information
is amply justified in light of this record.
on the foregoing, the Court views that a compromise solution
best effectuates General Order 56 in light of the
attorney-client privilege concerns raised by Plaintiff in
this case. The Court hereby ORDERS that Plaintiff provide a
line-item fee invoice that identifies the date, the biller,
the hourly rate, justification for the hourly rate, the task,
and the amount of time billed per task. Plaintiff shall
provide this information to Defendants and to the Mediator by
October 31, 2019. Plaintiff may describe each task to avoid
revealing “the type of research, ” ECF No. 44-1
at 2-3, or other matters directly relevant to
“litigation strategy or legal consultation, ”
see Los Angeles Cty. Bd. of Supervisors, 2 Cal. 5th
at 298. For example, Plaintiff may frame the task
descriptions at a high level (e.g., “legal research,
” “drafting complaint, ” etc.), which will
mitigate any risk of revealing privileged information.
the Court DENIES Plaintiff request for certification of this
order for interlocutory review. This Order does not meet the
standards set forth in 28 U.S.C. § 1292(b), requiring a
“controlling question of law” that “may
materially advance the ultimate termination of the