PLAINTIFF’S MOTION TO REDUCE DEFENDANTS’ REQUESTED ATTORNEYS’ FEES
AND COSTS RELATED TO SUBPOENA DISCOVERY
CASE NO. 2:22-CV-002052-SB-MAA
DLA PIPER LLP (US)
WW W.D LA PI PE R.CO M
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JOHN SAMUEL GIBSON (SBN 140647)
john.gibson@us.dlapiper.com
JASON TAYLOR LUEDDEKE (SBN 279242)
jason.lueddeke@us.dlapiper.com
DLA PIPER LLP (US)
2000 Avenue of the Stars
Suite 400 North Tower
Los Angeles, California 90067-4735
Tel: 310.595.3000
Fax: 310.595.3300
Attorneys for Plaintiff
BREAKING CODE SILENCE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BREAKING CODE SILENCE, a
California 501(c)(3) non-profit,
Plaintiff,
v.
MCNAMARA, an
individual, JEREMY WHITELEY, an
individual, and DOES 1 through 50,
inclusive,
Defendants.
CASE NO. 2:22-CV-002052-SB-MAA
Hon. Maria A. Audero
PLAINTIFF’S MOTION TO
REDUCE DEFENDANTS’
REQUESTED ATTORNEYS’ FEES
AND COSTS RELATED TO
SUBPOENA DISCOVERY
Hearing Date: May 22, 2024
Hearing Time: 10:00 a.m.
Complaint Filed: March 28, 2022
Trial Date: Not Set
Case 2:22-cv-02052-MAA Document 203 Filed 04/24/24 Page 1 of 17 Page ID #:8363
PLAINTIFF’S MOTION TO REDUCE DEFENDANTS’ REQUESTED ATTORNEYS’ FEES
AND COSTS RELATED TO SUBPOENA DISCOVERY
CASE NO. 2:22-CV-002052-SB-MAA
DLA PIPER LLP (US)
WW W.D LA PI PE R.CO M
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TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE THAT on May 22, 2024, at 10:00 a.m., or as
soon as the matter may be heard in Courtroom 880 of the Roybal Federal Building
and United States Courthouse, located at 255 E. Temple St., Los Angeles, California
90012, Plaintiff Breaking Code Silence (“BCS”) will and hereby does move,
pursuant to the Court’s April 10, 2024 Order (Dkt. 200), for an order reducing
Defendant McNamara and Jeremy Whiteley’s (“Defendants”) requested
attorneys’ fees and costs incurred in Phase 1 (“Subpoena Discovery”) from
$30,253.00 to $9,290.15 or substantially less.
The Motion is made on the following grounds. Defendants’ requested
attorneys’ fees and costs are unreasonable or impermissible because Defendants
seek to recover (a) attorneys’ fees incurred by multiple attorneys attending the same
August 9, 2023 IDC (as well as Mr. Tate attending the October 5, 2023 IDC); (b)
attorneys’ fees from block billed time entries that sweep in multiple tasks unrelated
to Subpoena Discovery, as well as duplicative tasks; and (c) costs incurred in issuing
unnecessary subpoenas to non-material witnesses.
The Motion is based on the Notice, Memorandum of Points and Authorities,
Declaration of Jason Lueddeke, such matters as the Court may take judicial notice,
all pleadings and other documents on file with the Court, and such other evidence as
may be presented at the hearing on the Motion.
Dated: April 24, 2024 Respectfully submitted,
DLA PIPER LLP (US)
By: /s/ Jason Taylor Lueddeke
John Samuel Gibson
Jason Taylor Lueddeke
Attorneys for Plaintiff
BREAKING CODE SILIENCE
Case 2:22-cv-02052-MAA Document 203 Filed 04/24/24 Page 2 of 17 Page ID #:8364
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PLAINTIFF’S MOTION TO REDUCE DEFENDANTS’ REQUESTED ATTORNEYS’ FEES
AND COSTS RELATED TO SUBPOENA DISCOVERY
CASE NO. 2:22-CV-002052-SB-MAA
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TABLE OF CONTENTS
I. INTRODUCTION ……………………………………………………………………………… 1
II. RELEVANT BACKGROUND ……………………………………………………………. 3
A. The Court’s Orders Regarding Subpoena Discovery. ……………………. 3
B. Defendants’ Requested Attorneys’ Fees and Costs Related to
Subpoena Discovery. ………………………………………………………………… 4
III. ARGUMENT ……………………………………………………………………………………. 5
A. Defendants Cannot Recover Attorneys’ Fees for IDC Travel and
Attendance. ………………………………………………………………………………. 5
B. Defendants Improperly Seek to Recover Attorneys’ Fees for
Block Billed Entries and Tasks Unrelated to Subpoena
Discovery. ……………………………………………………………………………….. 7
C. Defendants Cannot Recover Costs Incurred in Issuing
Unnecessary Subpoenas to Non-Material Witnesses……………………. 10
D. Defendants’ Requested Attorneys’ Fees and Costs Should be
Reduced. ………………………………………………………………………………… 11
IV. CONCLUSION ……………………………………………………………………………….. 12
Case 2:22-cv-02052-MAA Document 203 Filed 04/24/24 Page 3 of 17 Page ID #:8365
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PLAINTIFF’S MOTION TO REDUCE DEFENDANTS’ REQUESTED ATTORNEYS’ FEES
AND COSTS RELATED TO SUBPOENA DISCOVERY
CASE NO. 2:22-CV-002052-SB-MAA
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TABLE OF AUTHORITIES
Page(s)
Cases
Dahn World Co. v. Chung,
2006 WL 3313951 (D. Ariz. Nov. 13, 2006) ………………………………………………. 6
Ketchum v. Moses,
24 Cal. 4th 1122 (2001) ……………………………………………………………………………. 6
PLCM Grp. v. Drexler,
22 Cal. 4th 1084 (2000) ……………………………………………………………………………. 5
Welch v. Metro. Life. Ins. Co.,
480 F.3d 942 (9th Cir. 2007) …………………………………………………………………….. 7
Yeager v. Bowlin,
2010 WL 1689225 (E.D. Cal. Apr. 26, 2010) ……………………………………………… 7
Other Authorities
Fed. R. Civ. P. 37(a)(5)(A) ……………………………………………………………………………. 5
Case 2:22-cv-02052-MAA Document 203 Filed 04/24/24 Page 4 of 17 Page ID #:8366
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PLAINTIFF’S MOTION TO REDUCE DEFENDANTS’ REQUESTED ATTORNEYS’ FEES
AND COSTS RELATED TO SUBPOENA DISCOVERY
CASE NO. 2:22-CV-002052-SB-MAA
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I. INTRODUCTION
As part of Phase 1 (“Subpoena Discovery”) of the Court’s August 21, 2023
Order (Dkt. 132), Defendants McNamara and Jeremy Whiteley
(“Defendants”) request $26,265.00 in attorneys’ fees and $3,988.00 in costs
($30,253.00 in total) for issuing nine substantively identical subpoenas. These
attorneys’ fees and costs are unreasonable and should be reduced to $9,290.15 or
substantially less as set forth herein.
The Court’s August 21, 2023 Order limits Defendants’ claim to attorneys’
fees and costs for Subpoena Discovery to those “incurred by Defendants in any
subpoena and related motion practice.” As is clear from the text of the Order and
the spirit of the two-phase subpoena framework discussed at the August 9, 2023
IDC, the Court and parties intended that Defendants may attempt to recover only
fees and costs incurred in issuing and enforcing the subpoenas themselves.
Defendants issued substantively identical subpoenas to nine custodians. This
is a rote task requiring minimal legal work. Nonetheless, Defendants have
improperly sought to capitalize on the Order by requesting exorbitant attorneys’ fees
and costs at BCS’ expense. Even a cursory review of Defendants’ counsel’s time
entries reveals that a significant number appear facially unreasonable or go well
beyond what is permitted by the Order. These transparent tactics should be rejected.
Specifically, Defendants’ requested attorneys’ fees and costs are unreasonable
or impermissible for the following reasons. First, Defendants request attorneys’ fees
incurred by four attorneys traveling to and from, and attending, the same August 9,
2023 IDC (as well as Mr. Tate attending the October 5, 2023 IDC). Indeed, of
Defendants’ 76.8 claimed hours, 30.2 of them—or 39%—relate to the August 9,
2023 IDC. And of Defendants’ $26,265.00 claimed attorneys’ fees, $10,800.00 of
them—or 41%— relate to the August 9, 2023 IDC. Attorneys’ fees incurred in
attending IDCs—let alone one that occurred before the Order was issued—do not
constitute fees “incurred in any subpoena and related motion practice.”
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PLAINTIFF’S MOTION TO REDUCE DEFENDANTS’ REQUESTED ATTORNEYS’ FEES
AND COSTS RELATED TO SUBPOENA DISCOVERY
CASE NO. 2:22-CV-002052-SB-MAA
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Second, Defendants request attorneys’ fees from block billed time entries that
sweep in multiple tasks unrelated to Subpoena Discovery, as well as duplicative
tasks among Defendants’ counsel. For instance, on June 22, 2023, both Ms. Close
and Ms. Saller separately block billed, and expect BCS to pay twice, for
communicating with (i) the process server, (ii) each other, and (iii) their clients.
And on August 18, 2023, Mr. Tate block billed an even 4.0 hours—constituting
$1,800.00—for four grouped tasks, only one of which related to Subpoena
Discovery, and even then on a de minimis basis. The practice of block billing is
highly disfavored because it leads to inflated fees and makes it impossible for a
court to determine whether time spent on any individual task is reasonable.
Third, Defendants requests costs incurred in issuing unnecessary subpoenas to
non-material witnesses. While Defendants issued nine subpoenas, six of them were
issued to witnesses who Defendants knew were highly unlikely to possess
responsive documents. It is apparent that Defendants issued these subpoenas not to
obtain probative information, but to incur additional subpoena-related costs that
could be charged to BCS in connection with Phase 1.
As a result, in Exhibit B to the Declaration of Jason Lueddeke filed herewith,
BCS has indicated which time entries should be stricken and which should be
reduced. The result is that Defendants’ requested attorneys’ fees and costs should
be reduced from $30,253.00 to $9,290.15 or substantially less.
In connection with its recently filed Request for Voluntary Dismissal with
Prejudice (Dkt. 198), BCS submitted a declaration stating that it has a bank balance
of only $2,308.68 (Dkt. 201). While any non-de minimis award of attorneys’ fees
and costs will likely force BCS into bankruptcy or other financial predicament,
Defendants’ request is facially unreasonable and should be substantially reduced.
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PLAINTIFF’S MOTION TO REDUCE DEFENDANTS’ REQUESTED ATTORNEYS’ FEES
AND COSTS RELATED TO SUBPOENA DISCOVERY
CASE NO. 2:22-CV-002052-SB-MAA
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II. RELEVANT BACKGROUND
A. The Court’s Orders Regarding Subpoena Discovery.
On August 9, 2023, the parties attended an in-person IDC before the Court
regarding Defendants’ Motion for Evidentiary and Monetary Sanctions Under FRCP
37. In an attempt to resolve Defendants’ Motion, the parties agreed on a two-phase
procedure. Dkt. 120.
On August 21, 2023, the Court issued an Order detailing the two-phase
procedure. Dkt. 132. As part of Phase 1, Defendants were permitted to issue
subpoenas to any Custodian who (i) produced documents as part of the agreed-upon
framework and who Defendants have a reasonable basis to believe may have
additional responsive documents that were not produced or identified as withheld; or
(ii) did not produce documents as part of the agreed-upon framework. Id. ¶¶ 4-5.
“The reasonable attorneys’ fees and costs incurred by Defendants in any subpoena
and related motion practice necessary to obtain or compel the production of the
discovery at issue in the Motion from the officers and directors of BCS—whether
incurred as part of Phase 1 or heretofore—shall be borne by Plaintiff, upon order of
this Court on a motion by Defendants at the conclusion of Phase 1.” Id. ¶ 7. The
Court and parties refer to Phase 1 as “Subpoena Discovery.”
Defendants issued subpoenas to the following custodians: Dorit Saberi,
Lenore Silverman, Apryl Alexander, Jesse Jensen, Eugene Furnace, Vanessa
Hughes, Jennifer Magill, Megan Hurwitt, and Shelby Kirchoff. Lueddeke Decl.
Ex. A (Tate Decl. at 18-20). Not all these custodians were served. Id.
On April 10, 2024, the Court issued an order stating that by April 17, 2024,
“Defendants shall submit to Plaintiff an accounting of the attorneys’ fees and costs
they incurred for the Subpoena Discovery, including supporting documentation.”
Dkt. 200 at 4. The Court also stated that if BCS “contests the reasonableness of
Defendants’ claimed attorneys’ fees and costs for the Subpoena Discovery,” BCS
may file the instant Motion to do so. Id. at 5.
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PLAINTIFF’S MOTION TO REDUCE DEFENDANTS’ REQUESTED ATTORNEYS’ FEES
AND COSTS RELATED TO SUBPOENA DISCOVERY
CASE NO. 2:22-CV-002052-SB-MAA
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B. Defendants’ Requested Attorneys’ Fees and Costs Related to
Subpoena Discovery.
On April 17, 2024, Defendants’ counsel sent BCS’ counsel Mr. Tate’s
declaration claiming that Defendants incurred $26,265.00 in attorneys’ fees and
$3,988.00 in costs ($30,253.00 in total) related to Subpoena Discovery. Lueddeke
Decl. Ex. A.
Specifically, Mr. Tate’s declaration states that Defendants incurred the
following attorney’s fees in connection with Subpoena Discovery:
Attorney Hours Fees
Ms. Close 22.8 $10,270.00
Mr. Tate 18.8 $8,836.00
Ms. Saller (paralegal) 22.5 $4,504.00
Mr. Schwartz 5.0 $1,500.00
Ms. Chamberlin 7.7 $1,155.00
76.8 $26,265.00
Specifically, Mr. Tate’s declaration states that Defendants incurred the
following costs in connection with issuing subpoenas to these custodians as part of
Subpoena Discovery:
Custodian Costs
Lenore Silverman $701.50
Jesse Jensen $640.00
Jennifer Magill $590.00
Vanessa Hughes $440.00
Eugene Furnace $400.00
Dorit Saberi $390.00
Shelby Kirchoff $345.00
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PLAINTIFF’S MOTION TO REDUCE DEFENDANTS’ REQUESTED ATTORNEYS’ FEES
AND COSTS RELATED TO SUBPOENA DISCOVERY
CASE NO. 2:22-CV-002052-SB-MAA
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Megan Hurwitt $251.50
Apryl Alexander $230.00
$3,988.00
III. ARGUMENT
A party may only recover attorneys’ fees and costs that are reasonable. To
determine the reasonableness of attorney’s fees requested, courts apply a “lodestar”
analysis: “the number of hours reasonably expended multiplied by the reasonable
hourly rate.” PLCM Grp. v. Drexler, 22 Cal. 4th 1084, 1095 (2000).
In connection with Subpoena Discovery, BCS challenges only the
reasonableness of the attorneys’ fees and costs requested by Defendants.
Defendants’ claimed attorneys’ fees and costs are unreasonable because Defendants
seek to recover (a) attorneys’ fees incurred by multiple attorneys attending the same
August 9, 2023 IDC (as well as Mr. Tate attending the October 5, 2023 IDC); (b)
attorneys’ fees from block billed time entries that sweep in multiple tasks unrelated
to Subpoena Discovery, as well as duplicative tasks; and (c) costs incurred in issuing
unnecessary subpoenas to non-material witnesses. Accordingly, the requested
attorneys’ fees and costs should be reduced as set forth herein.1
A. Defendants Cannot Recover Attorneys’ Fees for IDC Travel and
Attendance.
A substantial portion of the attorneys’ fees Defendants claim relate to four of
their attorneys’ travel to and from, and attendance at, the August 9, 2023 IDC.
Specifically, 30.2 of 76.8 claimed hours (39%) and $10,800 of $26,265 (41%)
claimed attorneys’ fees relate to the August 9, 2023 IDC:
1
Separately, under Fed. R. Civ. P. 37(a)(5)(A), “the court must not order this payment
if…(ii) the opposing party’s non-disclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.” BCS acted with substantial
justification because it diligently sought to obtain and facilitate the discovery disclosures at issue.
BCS is financially unable to pay any non-de minimis expenses. See Dkt. 201.
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PLAINTIFF’S MOTION TO REDUCE DEFENDANTS’ REQUESTED ATTORNEYS’ FEES
AND COSTS RELATED TO SUBPOENA DISCOVERY
CASE NO. 2:22-CV-002052-SB-MAA
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Date Attorney Description Hours Fees
8/9/2023 Mr. Tate Prepare for and attend in person
hearing in Los Angeles regarding
custodian motion.
10.5 $4,935.00
8/9/2023 Ms. Close Travel and attend IDC regarding
custodian motion for sanctions.
Telephone conference with clients
regarding outcome of same.
7.2 $3,240.00
8/9/2023 Mr.
Schwartz
Attend in-person informal discovery
conference regarding 37(b) motion
re: custodian collection. Travel to
and from Roybal Federal Building
for in-person informal discovery
conference on 37(b) motion re:
custodian collection.
5.0 $1,500.00
8/9/2023 Ms.
Chamberlin
Travel and attendance at in-person
IDC on custodian motion.
7.5 $1,125.00
30.2 $10,800
The Court’s August 21, 2023 Order permits Defendants to claim attorneys’
fees and costs “incurred by Defendants in any subpoena and related motion
practice.” Dkt. 132 ¶ 7 (emphasis added). The Order does not permit Defendants to
claim any such fees or costs in relation to any other activity, such as attending the
August 9, 2023 IDC before the Order was even issued. As is clear from the text of
the Order as well as the spirit of the two-phase framework discussed at the August 9,
2023 IDC, the Court and the parties intended that Defendants may attempt to
recover only those attorneys’ fees and costs incurred in issuing and enforcing the
subpoenas themselves.
Moreover, not only are Defendants trying to recover attorneys’ fees related to
the August 9, 2023 IDC, but they are trying to recover those fees fourfold—once for
each of the four attorneys that attended the IDC. Duplicative work is not
recoverable. See, e.g., Ketchum v. Moses, 24 Cal. 4th 1122, 1132 (2001) (“[T]rial
courts must carefully review attorney documentation of hours expended; ‘padding’
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PLAINTIFF’S MOTION TO REDUCE DEFENDANTS’ REQUESTED ATTORNEYS’ FEES
AND COSTS RELATED TO SUBPOENA DISCOVERY
CASE NO. 2:22-CV-002052-SB-MAA
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in the form of inefficient or duplicative efforts is not subject to compensation.”);
Dahn World Co. v. Chung, 2006 WL 3313951, at *6 (D. Ariz. Nov. 13, 2006)
(reducing attorneys’ fees award to “account for…the duplicative effort”).2
Separately, Mr. Tate also billed 2.1 hours constituting $987.00 for attending
another IDC on October 5, 2023. Defendants likewise cannot recover these
attorneys’ fees for the same reason.
As a result, the Court should strike no less than $11,787.00 from
Defendants’ requested attorneys’ fees. The time entries to be stricken are
highlighted in red in Exhibit B to the Lueddeke Declaration.
B. Defendants Improperly Seek to Recover Attorneys’ Fees for Block
Billed Entries and Tasks Unrelated to Subpoena Discovery.
The majority of time entries for which Defendants seek to recover attorneys’
fees are block billed, and many include tasks unrelated to Subpoena Discovery.
Despite knowing that Defendants would be claiming attorneys’ fees as part of the
two-phase framework, Defendants’ counsel made no effort to specifically delineate
tasks related to Subpoena Discovery, instead grouping large swaths of unrelated
tasks together and seeking attorneys’ fees for all of them.
Block billing “is fundamentally inconsistent with the lodestar method because
it ‘render[s] it virtually impossible to break down hours,’ leaving the court without
the ability to accurately determine whether a reasonable amount of time was spent
by counsel on a discrete task.” Yeager v. Bowlin, 2010 WL 1689225, at *1 (E.D.
Cal. Apr. 26, 2010) (quoting Bell v. Vista Unified Sch. Dist., 82 Cal. App. 4th 672,
689 (2000); Welch v. Metro. Life. Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007)
(according to the California State Bar, block billing “may increase time by 10% to
30%”) (citation omitted).
2
If the Court determines that attorney time traveling to and from, and attending, the
August 9, 2023 IDC is recoverable (which BCS submits it is not), the Court should award
attorney’s fees for only one attorney, not four.
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PLAINTIFF’S MOTION TO REDUCE DEFENDANTS’ REQUESTED ATTORNEYS’ FEES
AND COSTS RELATED TO SUBPOENA DISCOVERY
CASE NO. 2:22-CV-002052-SB-MAA
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Thus, with respect to blocked billed time entries, the Court should “exercise
its discretion in assigning a reasonable percentage to the [block billed] entries, or
simply cast them aside.” Yeager, 2010 WL 1689225, at *2 (refusing to award fees
for any block billed entries) (emphasis added).
Block billed entry that should be stricken in its entirety. The Court should
strike one block billed entry in its entirety because it has only a de minimis
relationship to Subpoena Discovery. On August 18, 2023, Mr. Tate block billed 4.0
hours constituting $1,880.00 for:
Draft supplemental declaration regarding attorneys’ fees. Emails
regarding the same. Emails regarding postponement of in-person
hearing. Attention to memorandum regarding status of service of
subpoenas and responses. Lueddeke Ex. B at 8/18/23 Tate entry.
Due to block billing, it is not possible to tell how much time each of these
tasks took to effectively assess their reasonableness. What’s worse, only one of
these four tasks arguably relates to the Subpoena Discovery (“Attention to
memorandum regarding status of service of subpoenas and responses.”). “Attention
to memorandum” is so vague as to render the task meaningless for purposes of
assessing its reasonableness. Nonetheless, even reviewing or updating a
memorandum related to the service status of a handful of subpoenas should have
only taken several minutes at most, not four hours.
This time entry to be stricken is highlighted in red in Exhibit B to the
Lueddeke Declaration.
Block billed entries that should be reduced. A significant number of time
entries are block billed to include various tasks, including tasks that do not bear on
Subpoena Discovery. For instance, on September 20, 2023, Ms. Close billed 2.7
hours constituting $1,215.00 for:
Email correspondence with Jeremy Whiteley (several) regarding
custodian declarations and subpoenas to custodians. Telephone
conferences with A. Tate and A. Schwartz regarding same. Preparation
of subpoena, notice of subpoena, and attachment A for Eugene Furnace
and Lenore Silverman. Review Court’s order regarding issuance of
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PLAINTIFF’S MOTION TO REDUCE DEFENDANTS’ REQUESTED ATTORNEYS’ FEES
AND COSTS RELATED TO SUBPOENA DISCOVERY
CASE NO. 2:22-CV-002052-SB-MAA
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subpoenas and assemble service package of all required documents for
each subpoena. Lueddeke Decl. Ex. B at 9/20/23 Close entry.
Due to block billing, it is not possible to tell how much time each of these
tasks took in order to assess their reasonableness. Further, the vast majority of Ms.
Close’s time entries for which Defendants seek recompense (like the example
above) include time for corresponding with clients and/or colleagues. However,
corresponding with clients and/or colleagues is not a cost “incurred by Defendants
in any subpoena and related motion practice” for which BCS should be required to
compensate Defendants. Dkt. 132 ¶ 7. And, preparing a subpoena for Mr. Furnace
should be a quick task since all the custodian subpoenas are substantially similar and
are largely lifted from one another.
As another example, on June 22, 2023, Ms. Close billed an even 1.0 hour
constituting $450.00 for:
Email correspondence with H. Saller and Array regarding status
of service of subpoenas on custodians. Email correspondence
(numerous) with clients regarding same. Legal research regarding
manner of service of third-party subpoenas. Email correspondence with
clients regarding same and requesting that the custodians accept
service. Draft proposed email to custodians regarding accepting
service. Email correspondence with clients regarding revisions to same.
Lueddeke Decl. Ex. B at 6/22/2023 Close entry.
On that same day, Ms. Saller also billed an even 1.0 hour constituting
$200.00 for substantially similar work:
Review status reports re: attempts on service of federal
subpoenas. Email to clients with status updates. Email to Array
regarding same. Emails (multiple) regarding service of subpoenas.
Lueddeke Decl. Ex. B at 6/22/2023 Close entry.
These block billed entries by Ms. Close and Ms. Saller are representative of
an issue that pervades their entries. Namely, there is significant overlap and
duplication of tasks between Ms. Close and Ms. Saller. For instance, in the above
entries alone, both Ms. Close and Ms. Saller billed, and expect BCS to pay twice,
for (i) communicating with the process server (Array), (ii) communicating with each
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PLAINTIFF’S MOTION TO REDUCE DEFENDANTS’ REQUESTED ATTORNEYS’ FEES
AND COSTS RELATED TO SUBPOENA DISCOVERY
CASE NO. 2:22-CV-002052-SB-MAA
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other, and (iii) communicating with their clients.
Further, Ms. Close billed repeatedly for administrative tasks that should have
been performed by Ms. Saller at a significantly lower rate. Those tasks include
communicating with the process server regarding subpoena service status (such as in
the example above) and “assembl[ing] service package of all required documents for
each subpoena.” See Lueddeke Decl. Ex. B at 9/20/23 Close time entry.
To account for Defendants’ counsel’s extensive block billing and duplicative
work—two issues which affect the vast majority of entries—BCS submits that all
block billed entries be reduced by two-thirds, or 67%, at the least.3
For the benefit
of the Court, BCS’ counsel has highlighted in yellow all block billed entries in
Exhibit B to the Lueddeke Declaration. The yellow block billed entries total
$7,805.00. When reduced by two-thirds, the resulting total is $2,575.65.
Thus, with respect to block billed entries, the Court should strike $1,880 (Mr.
Tate’s 8/18/2023 entry is highlighted in red in Exhibit B to the Lueddeke
Declaration) and reduce the remainder by $5,229.35 (highlighted in yellow in
Exhibit B to the Lueddeke Declaration). The total reduction for block billed entries
should therefore be no less than $7,109.35.
C. Defendants Cannot Recover Costs Incurred in Issuing Unnecessary
Subpoenas to Non-Material Witnesses.
Defendants claim to have incurred $3,998.00 in issuing subpoenas to nine
custodians. However, Defendants issued subpoenas to Saberi, Silverman,
Alexander, Furnace, and Kirchoff knowing that they are not material witnesses and
that each of them was highly unlikely to possess responsive documents. It is
3
As set forth in Section III.C, infra, six of the nine subpoenas Defendants issued were
unnecessary and to non-material witnesses. Nonetheless, Defendants’ counsel requests attorneys’
fees incurred in connection with the six unnecessary subpoenas. See, e.g., Lueddeke Decl. Ex. B
at 6/23/2023 Close entry (Furnace and Hassanpour); id. at 9/20/2023 Close entry (Furnace and
Silverman). Because the majority of the time entries containing those attorneys’ fees are part of
block billed entries, it is not possible to excise them. BCS submits that the 67% reduction
accounts for these unnecessary attorneys’ fees.
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PLAINTIFF’S MOTION TO REDUCE DEFENDANTS’ REQUESTED ATTORNEYS’ FEES
AND COSTS RELATED TO SUBPOENA DISCOVERY
CASE NO. 2:22-CV-002052-SB-MAA
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apparent that Defendants issued these subpoenas not to obtain probative
information, but to incur additional subpoena-related costs that could be charged to
BCS in connection with Phase 1.
Thus, Defendants should not be able to recover the following claimed costs:
Saberi. Defendants claim to have incurred $390.00 in connection with
issuing a subpoena to Saberi. Saberi was never an officer or director of BCS, and is
therefore not a “Custodian” under the EDO or for purposes of Phase 1.
Silverman. Defendants claim to have incurred $701.50 in connection with
issuing a subpoena to Silverman. Silverman is a former BCS Board member who
was not involved in the March 2022 events giving rise to this lawsuit.
Alexander. Defendants claim to have incurred $230.00 in connection with
issuing a subpoena to Alexander. Alexander was not an officer or director of BCS
at the time of the March 2022 events giving rise to this lawsuit, and is therefore not
a “Custodian” under the EDO or for purposes of Phase 1.
Furnace. Defendants claim to have incurred $400.00 in connection with
issuing a subpoena to Furnace. Defendants have made no attempt to explain how
Furnace is a material witness or how subpoenaing him is proportional to the needs
of the case. Indeed, Furnace was only a BCS member for a few months.
Kirchoff. Defendants claim to have incurred $345.00 in connection with
issuing a subpoena to Kirchoff. Defendants have made no attempt to explain how
Kirchoff is a material witness or how subpoenaing her is proportional to the needs of
the case.
As a result, the Court should strike no less than $2,066.50 from Defendants’
requested costs.
D. Defendants’ Requested Attorneys’ Fees and Costs Should be
Reduced.
The Court should therefore reduce Defendants’ claimed attorneys’ fees and
costs from the requested $30,253.00 to $9,290.15 or substantially less. As explained
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PLAINTIFF’S MOTION TO REDUCE DEFENDANTS’ REQUESTED ATTORNEYS’ FEES
AND COSTS RELATED TO SUBPOENA DISCOVERY
CASE NO. 2:22-CV-002052-SB-MAA
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above and summarized here, BCS’ requested reductions are as follows:
Attorneys’ fees related to IDC attendance should be reduced by no less than
$11,787.00.
Attorneys’ fees for block billed and unrelated tasks should be reduced by no
less than $7,109.35.
Costs for unnecessary subpoenas to non-material witnesses should be reduced
by no less than $2,066.50.
IV. CONCLUSION
For the foregoing reasons, BCS requests that Defendants’ requested
attorney’s fees and costs be reduced from $30,253.00 to $9,290.15 or substantially
less.
Dated: April 24, 2024 Respectfully submitted,
DLA PIPER LLP (US)
By: /s/ Jason Taylor Lueddeke
John Samuel Gibson
Jason Taylor Lueddeke
Attorneys for Plaintiff
BREAKING CODE SILIENCE
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PLAINTIFF’S MOTION TO REDUCE DEFENDANTS’ REQUESTED ATTORNEYS’ FEES
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L.R. 11-6.2 CERTIFICATION
The undersigned, counsel of record for Defendants certifies that this brief
contains 3,349 words, which complies with the word limit of L.R. 11-6.1.
Date: April 24, 2024 /s/ Jason Taylor Lueddeke
JASON TAYLOR LUEDDEKE
Case 2:22-cv-02052-MAA Document 203 Filed 04/24/24 Page 17 of 17 Page ID #:8379