Management Registry, Inc. v. A.W. Companies, Inc.

Background

The court had previously granted Eric Berg’s motion to intervene for the limited purpose of enforcing a protective order. It also ordered Wendy Brown, A.W. Companies, Inc., and their counsel, Alexander Loftus, to pay the expenses, including attorney’s fees, caused by their intentional violations of that order. The earlier order relied on Federal Rule of Civil Procedure 37(b)(2), which concerns sanctions for violating discovery orders.

Berg’s attorney, Scott Moriarty, submitted a declaration supporting the requested fees and expenses. Moriarty billed 32.8 hours at $350 per hour, for $11,480. His paralegal billed 3.5 hours at $190 per hour, for $665. Berg also sought $422 for an expedited transcript of Wendy Brown’s deposition. The total request was $12,567.

The defendants argued that the amount should be reduced to less than $3,000. They challenged particular billing entries, including time spent preparing for a hearing, preparing court filings, and communicating with opposing counsel. They also argued that a later state-court order requiring Berg to produce certain consulting agreements had effectively resolved the issue.

Court’s analysis

Rule 37(b)(2)(C) generally requires a court to order the party, the advising attorney, or both to pay reasonable expenses caused by disobedience of a discovery order, unless the failure was substantially justified or an award would otherwise be unjust. The court used the lodestar method, which calculates a fee by multiplying reasonable hours by a reasonable hourly rate.

The court found Moriarty’s $350 hourly rate and the paralegal’s $190 hourly rate reasonable. It also found the $422 expedited-transcript expense reasonable and caused by the violations of the protective order. The court concluded that Moriarty’s 32.8 hours and the paralegal’s 3.5 hours were reasonable because Moriarty had first attempted to resolve the matter through communications with opposing counsel, then had to prepare and litigate the intervention and sanctions motion after those efforts failed.

The court also rejected the argument that the later state-court order eliminated the basis for the fee award. That order did not negate the conduct that caused the additional expenses, substantially justify the failure to follow the protective order, or make an award unjust.

Disposition

Judge Katherine Menendez ordered that Eric Berg’s application for expenses and attorney’s fees was GRANTED. Under Rule 37(b)(2), the order required Wendy Brown, A.W. Companies, Inc., and Alex Loftus to pay Berg $12,567 in reasonable expenses, including attorney’s fees, within 30 days of the order.