Muniz v. United Parcel Service, Inc., No. 4:2009cv01987 - Document 251 (N.D. Cal. 2011)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART MOTION TO QUASH THIRD PARTY SUBPOENA ON THE CUSTODIAN OF RECORDS FOR THE JAFFE LAW FIRM, AND DENYING RELATED MOTIONS. Motion to Quash 180 is GRANTED in part and DENIED in part. The following are DENIED: 179 , 193 , 214 , 223 , 226 , 235 , 238 , 218 , 247 . Signed by Magistrate Judge Donna M. Ryu on 1/28/2011. (dmrlc2, COURT STAFF) (Filed on 1/28/2011)
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Muniz v. United Parcel Service, Inc. Doc. 251 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 KIM MUNIZ, 11 For the Northern District of California United States District Court 10 No. C-09-01987-CW (DMR) Plaintiff, 12 v. 13 UNITED PARCEL SERVICE, INC., 14 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO QUASH THIRD PARTY SUBPOENA ON THE CUSTODIAN OF RECORDS FOR THE JAFFE LAW FIRM, AND DENYING RELATED MOTIONS Defendants. ____________________________________/ 15 16 Before the Court is the Motion to Quash Third Party Subpoena on the Custodian of Records 17 for The Jaffe Law Firm (“Motion to Quash”). See Docket No. 180. Defendant United Parcel 18 Service (“UPS”), opposes the Motion to Quash. Having considered the respective briefs and 19 accompanying submissions, as well as the oral argument of counsel at the January 27, 2011 hearing, 20 the Court hereby GRANTS in part and DENIES in part the Motion to Quash, as set forth fully 21 below. 22 The Court has also taken under submission numerous other motions relating to this discovery 23 dispute, which are deemed suitable for disposition without oral argument pursuant to Civil Local 24 Rule 7-1(b): Motion for Limited Intervention and to Quash Defendant’s Subpoenas (“Motion for 25 Limited Intervention”) filed by the Consumer Attorneys of California (“CAOC”) [Docket No. 179]; 26 Joinder of California Employment Lawyers Association (“CELA”) in Motion for Limited 27 Intervention and to Quash Defendant’s Subpoenas Filed by CAOC [Docket No. 193]; UPS’ 28 Administrative Motion to Vacate as Moot Motion of CAOC for Limited Intervention and to Quash Dockets.Justia.com 1 Subpoenas and Joinder of CELA [Docket No. 214]; UPS’ Motion to Strike (1) Unauthorized Filings 2 of Non-Party CELA and (2) Plaintiff’s Joinder to Non-Party CELA’s Unauthorized Filings [Docket 3 No. 223]; UPS’ Motion to Strike (1) CELA’s Opposition to UPS’ Administrative Motion to Vacate 4 as Moot CAOC’s Motion for Limited Intervention and to Quash Subpoenas and CELA’s Joinder in 5 CAOC’s Motion and (2) Plaintiff’s Opposition to UPS’ Administration Motion to Vacate as Moot 6 CAOC’s Motion for Limited Intervention and to Quash Subpoenas and CELA’s Joinder in CAOC’s 7 Motion [Docket No. 226]; UPS’ Motion to Strike the Unauthorized Declaration of David M. 8 DeRubertis in Support of Joinder of CELA in Motion for Limited Intervention and to Quash 9 Defendant’s Subpoenas by CAOC or, in the Alternative, to Strike Portions of the DeRubertis Declaration [Docket No. 235]; UPS’ Motion to Strike Unauthorized Declaration of Eric Bailey in 11 For the Northern District of California United States District Court 10 Support of Motion for Limited Intervention and to Quash Defendant’s Subpoenas by CAOC or, in 12 the Alternative, to Strike Portions of the Bailey Declaration [Docket No. 238]. The foregoing 13 motions are DENIED as moot for the reasons indicated below. 14 Finally, the Request for Referral of Paul Hastings and Attorneys from its Office to California 15 State Bar for Investigation [Docket No. 218], and UPS’ Motion to Strike (1) Limited Response by 16 CELA to Paul Hastings’ Response to Request for Referral of Paul Hastings and Attorneys from its 17 Office to California State Bar for Investigation and (2) Declaration of Jeffrey K. Winikow in 18 Support [Docket No. 247] are DENIED. 19 20 I. BACKGROUND This matter arises out of a state court action filed in April 2009 by Plaintiff alleging various 21 forms of discrimination and retaliation by her employer, UPS. Plaintiff’s state court complaint, 22 which charged UPS with violations of the California Fair Employment and Housing Act (“FEHA”) 23 and negligence, was removed by UPS to federal court based on diversity of citizenship. 24 Subsequently, two of Plaintiff’s four causes of action were dismissed on summary judgment, while 25 the remaining claims proceeded to trial. At trial, Plaintiff pursued a gender discrimination claim 26 based on three adverse actions alleged against UPS, and was awarded a jury verdict on her claim 27 resulting from one of those adverse actions. Both Plaintiff and UPS contend that each is the 28 prevailing party in this matter and seek fees under Government Code § 12965. See Cal. Gov’t. Code 2 1 2 § 12965 (b) (authorizing reasonable attorneys’ fees to prevailing parties under FEHA). In anticipation of Plaintiff’s fee motion, on December 15, 2010,1 UPS served a subpoena on 3 The Jaffe Law Firm for the following categories of non-privileged documents:2 (1) all writings 4 describing the “work” of Plaintiff’s counsel, Stephen Jaffe (“Jaffe”) and Daniel Zaheer (“Zaheer”), 5 in this case; (2) all writings describing Jaffe’s and Zaheer’s “efforts” and/or “events” in the case; (3) 6 all writings describing or recording the amount of time that Jaffe, Zaheer, and any other employee of 7 their respective firms spent working on the case, and the work performed by each during that time; 8 and (4) all writings describing or recording the collected hourly rate for Jaffe, Zaheer, and any other 9 employee of their respective firms who worked on this case, during the three years prior to service 11 For the Northern District of California United States District Court 10 of the UPS subpoena. For the first two categories of information that request “writings” describing the “work”and 12 “efforts” of Plaintiff’s counsel and case “events,” UPS defined “writings” to include “electronic 13 communications through email distribution lists or groups (including but not limited to any 14 distribution lists or groups for professional organizations or associations such as the California 15 Employment Lawyers Association, the Consumer Attorneys of California, the San Francisco Trial 16 Lawyers Association, and the National Employment Lawyers Association), websites and/or blogs... 17 MySpace, Facebook, Twitter, LinkedIn, and/or any other internet service provider.” 18 Jaffe filed a Motion to Quash the UPS subpoena on December 23, 2010. As part of its 19 opposition papers, UPS attached as exhibits certain listserv postings, even though UPS knew at the 20 time that the third party custodian of the listserv had asserted a claim of privilege and protection 21 1 22 23 Plaintiff filed her fee motion on December 28, 2010. UPS, which has been granted an extension of time to file its opposition to Plaintiff’s fee motion, must submit its opposition by February 10, 2011. 2 24 25 26 27 28 The Court summarizes the categories, which overlap to some degree, in the interest of brevity and clarity. Furthermore, although the subpoena also requests information with respect to Daniel Zaheer (“Zaheer”) and any other employee of the firm Kerr & Wagstaff, UPS did not serve a subpoena on Kerr & Wagstaff, Zaheer, or any other employee of that firm. In support of the Motion to Quash, Plaintiff’s counsel, Stephen Jaffe (“Jaffe”), has attested that the documents described in UPS’ subpoena created by or relating to Kerr & Wagstaff are not under his care, custody, or control. See Docket No. 181 (Jaffe Decl. ¶ 20). As neither Kerr & Wagstaff, Zaheer, or any other employee of the firm is subject to a subpoena from UPS, their documents and records of which Jaffe does not have possession, custody, or control are not properly at issue here. UPS does not attempt to dispute this fact; it opposes the Motion to Quash only as it relates to Jaffe. 3 1 over them. UPS’ action triggered a firestorm of motions and filings before the Court – by Jaffe, 2 UPS, and various third parties – that revolve around the issue of whether Jaffe’s listserv postings 3 should be produced in response to the subpoena, and whether defense counsel had acted improperly 4 in attaching the exhibits to UPS’ opposition papers, thereby inserting them into the public record 5 without an adjudication as to their protected status. In resolving the instant Motion to Quash, the 6 Court also disposes of the other pending motions relating to this discovery dispute. 7 8 9 A. Legal Standard Since this case arises under diversity jurisdiction, the evaluation of UPS’ subpoena is governed by both federal and California law. 11 For the Northern District of California United States District Court 10 II. DISCUSSION 1. 12 In a diversity action, discovery is a procedural matter governed by federal law. See Relevance standards for discovery related to fee litigation. 13 Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996); Balarezo v. Nth Connect 14 Telecom, Inc., No. C 07-5243 JF (PVT), 2008 WL 2705095, at *1 n.3 (N.D. Cal. July 8, 2008). 15 Under the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any non- 16 privileged matter that is relevant to any party’s claim or defense....” Fed.R.Civ.P. 26(b)(1). 17 Moreover, “[r]elevant information need not be admissible at the trial if the discovery appears 18 reasonably calculated to lead to the discovery of admissible evidence.” Id. 19 Although relevance generally “has a very broad meaning” for discovery purposes, see 20 Heathman v. U.S. Dist. Court for Central Dist. of California, 503 F.2d 1032, 1035 (9th Cir. 1974), 21 discovery in the context of post-trial fee disputes should not involve “the type of searching 22 discovery that is typical” in resolving the merits of a case. See Nat’l Ass’n of Concerned Veterans v. 23 Secretary of Defense, 675 F.2d 1319, 1329 (D.C. Cir. 1982). “[U]nlimited adversarial discovery is 24 not a necessary – or even a usual – concomitant of fee disputes.” In re Thirteen Appeals Arising Out 25 of San Juan Dupont Plaza Hotel Fire Litigation, 56 F.3d 295, 303 (1st Cir. 1995) (citation omitted). 26 Indeed, the Supreme Court has cautioned that “[a] request for attorney’s fees should not result in a 27 second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); see also Nat’l Ass’n of 28 Concerned Veterans, 675 F.2d at 1329 (“The sound administration of justice requires a balanced, 4 1 informed approach to fee awards accomplished in reasonable time without turning such matters into 2 a full trial.”). Thus, a court is well within its discretion to deny discovery in fee disputes that would 3 lead to “wasteful and time-consuming satellite litigation.” See In re Thirteen Appeals, 56 F.3d at 4 304 (internal quotation omitted). To this end, a district court “retains substantial discretion based on 5 its view of the submissions as a whole to guide any further inquiry” and limit discovery. See Nat’l 6 Ass’n of Concerned Veterans, 675 F.2d at 1329. In this regard, the court should ensure that 7 discovery requests “relating to issues other than rates and hours are pointed to clearly relevant 8 issues” and are “precisely framed.” See id. 9 2. Determination of reasonable attorneys’ fees under California law. Although federal law governs the scope of relevant discovery, state law establishes the 11 For the Northern District of California United States District Court 10 standards and factors to be considered in determining an award of attorneys’ fees in a diversity 12 action. See Winterrowd v. Am. General Annuity Ins. Co., 556 F.3d 815, 827 (9th Cir. 2009); Willis 13 Corroon Corp. of Utah v. United Capitol Ins. Co., No. C-97-2208 MHP, 1998 WL 196472, at *1 14 (N.D. Cal. April 9, 1998). 15 Under California law, the general rule is that the amount of an attorneys’ fee award is within 16 the sound discretion of the trial court in the absence of a patent abuse of that discretion. Hancock 17 Labs., Inc. v. Admiral Ins. Co., 777 F.2d 520, 526 (9th Cir. 1986). Judges may rely on their own 18 knowledge and experience to ascertain reasonable attorneys’ fees. See Scott, Blake & Wynne v. 19 Summit Ridge Estates, Inc., 251 Cal. App. 2d 347, 358 (1967). However, the California Supreme 20 Court has “circumscribed [the trial court’s] discretion to some extent by approving the touchstone or 21 lodestar adjustment method of calculating the amount of an award.” Flannery v. California 22 Highway Patrol, 61 Cal. App. 4th 629, 639 (1998) (discussing Serrano v. Priest, 20 Cal. 3d 25, 48- 23 49 (1977) (hereinafter “Serrano III”)). If a court finds that attorneys’ fees should be awarded, 24 computation of those fees is based on the lodestar method as set forth in Serrano III. Chavez v. City 25 of Los Angeles, 47 Cal. 4th 970, 985 (2010) (discussing fees under FEHA). Using this method, “the 26 trial court first determines a touchstone or lodestar figure based on a careful compilation of the time 27 spent by, and the reasonable hourly compensation for, each attorney, and the resulting dollar amount 28 is then adjusted upward or downward by taking various relevant factors into account.” Id. (citations 5 1 omitted). Such factors include “(1) the novelty and difficulty of the questions involved, (2) the skill 2 displayed in presenting them, (3) the extent to which the nature of the litigation precluded other 3 employment by the attorneys, [and] (4) the contingent nature of the fee award.” Ketchum v. Moses, 4 24 Cal. 4th 1122, 1132 (2001) (citing Serrano III, 20 Cal. 3d at 49). 5 Thus, the ultimate goal of the lodestar method is to determine a reasonable fee amount. 6 Chavez, 47 Cal. 4th at 985. A fee amount may be challenged as unreasonable where the attorney 7 time spent is excessive, duplicative, or unnecessary. See Premier Med. Mgmt. Sys., Inc. v. 8 California Ins. Guar. Ass’n, 163 Cal. App. 4th 550, 560-62 (2008). 9 Accordingly, with the foregoing standards in mind, the Court analyzes whether the discovery sought by UPS is relevant to the determination of the reasonableness of a fee request under 11 For the Northern District of California United States District Court 10 California law.3 12 B. 13 Relevance of Subpoenaed Information In simplified terms, UPS’ subpoena seeks four categories of documents: (1) documents 14 describing the “work” of Plaintiff’s counsel in this case; (2) documents describing the “efforts” of 15 Plaintiff’s counsel and/or “events” in the case; (3) documents describing or recording the amount of 16 time that Plaintiff’s counsel or any other employee at their respective firms spent on the case; and 17 (4) documents describing or recording the collected hourly rate for Plaintiff’s counsel and any other 18 employee at their respective firms who worked on the case, for the past three years. 19 For analytical purposes, the Court discusses the four categories of documents in a different 20 order than that presented in UPS’ subpoena. First, the Court will address UPS’ request for time 21 records in category (3) of the subpoena. Next, the Court will discuss the hourly rate information 22 sought in category (4). Finally, the Court will turn to categories (1) and (2) that demand documents 23 describing the “work’” and “efforts” of Plaintiff’s counsel in this case and/or case “events,” in which 24 UPS requests electronic postings on various listservs and social media networks. As set forth below, 25 the Court finds that documents describing or recording the time spent on this case as well as 26 27 28 3 Assessing the relevance of UPS’ discovery request does not involve the threshold determination of which party is the prevailing party – a determination which is properly before the trial judge in this case. 6 1 previously-awarded hourly rates are relevant to Plaintiff’s fee motion. However, UPS’ request for 2 other documents, including Jaffe’s electronic postings on listservs and social media networks, that 3 describe the “work” or “efforts” of Plaintiff’s counsel and/or case “events” is vague and overbroad 4 and calls for irrelevant information. 5 1. 6 UPS’s subpoena seeks documents describing or recording the amount of time that Plaintiff’s Documents describing or recording time spent on the case. 7 counsel and their employees spent on the case, from January 1, 2007 to the present. As the party 8 challenging Plaintiff’s fee motion, UPS “is entitled to the information... require[d] to appraise the 9 reasonableness of the fee requested and in order... [to] present any legitimate challenges to the application....” See Nat’l Ass’n of Concerned Veterans, 675 F.2d at 1329 (addressing the question of 11 For the Northern District of California United States District Court 10 when opponent of fee award is entitled to discovery of fee information). The party opposing the fee 12 motion should have access to information “essential in the calculation of the fee award” regarding 13 the “nature and extent of the work done by the [fee] applicant’s counsel on various phases of the 14 case.” Id. 15 Under California law, “[g]eneral arguments that fees claimed are excessive, duplicative, or 16 unrelated do not suffice.” Premier Med. Mgmt. Sys., 163 Cal. App. 4th at 564. Rather, it is the 17 burden of the challenging party to point to specific evidence that the hours spent by opposing 18 counsel are duplicative or excessive. See id. at 562, 564. As a result, “[t]he party opposing the fee 19 award can be expected to identify the particular charges it considers objectionable.” Gorman v. 20 Tassajara Dev. Corp., 178 Cal. App. 4th 44, 101 (2009). In turn, “trial courts must carefully review 21 attorney documentation of hours expended; ‘padding’ in the form of inefficient or duplicative efforts 22 is not subject to compensation.” Ketchum, 24 Cal. 4th at 1132 (citation omitted). To this end, “[t]he 23 evidence should allow the court to consider whether the case was overstaffed, how much time the 24 attorneys spent on particular claims, and whether the hours were reasonably expended.” Christian 25 Research Inst. v. Alnor, 165 Cal. App. 4th 1315, 1320 (2008). 26 The Court recognizes that in contrast to some federal courts, California courts do not require 27 contemporaneous time records in order to recover fees. See Martino v. Denevi, 182 Cal. App. 3d 28 553, 559 (1986). For purposes of a fee request, a reconstruction of time spent on tasks performed in 7 1 the case may be provided. See PLCM Group, Inc. v. Drexler, 22 Cal. 4th 1084, 1096 n.4 (2000). 2 However, the fact that California courts do not mandate the submission of contemporaneous time 3 records in order to prevail on a fee motion does not mean that a court may not find time records 4 relevant when a fee opponent challenges the reasonableness of a fee request. See, e.g., Christian 5 Research Inst., 165 Cal. App. 4th at 1320 (court may require fee applicant to produce records 6 sufficient to provide proper basis for determining how much time was spent on particular claims); 7 Drumm v. Morningstar, Inc., 695 F. Supp. 2d 1014, 1022, 1023 n.7 (N.D. Cal. 2010) (recognizing 8 that California law does not require detailed time records, but noting the court was “dissatisfied” 9 with level of detail in fee motion and required submission of additional documentation in order to 11 For the Northern District of California United States District Court 10 distinguish work done on claims). Here, UPS may properly seek information that would enable it to challenge Plaintiff’s fee 12 motion and ascertain if specific evidence exists of duplicative, excessive, or unrelated hours. Jaffe 13 has attested that because he worked on a contingency fee basis, he did not maintain “separate time 14 records” of the services he performed on this matter. See Docket No. 184-10 (Jaffe Decl. ¶ 27). As 15 a result, Jaffe presents a summary of the hours he worked on various general categories of activities 16 in the case, beginning from the date of Jaffe’s “pre-filing activity” on the case in December 2008.4 17 See id. (Jaffe Decl. ¶¶ 9, 27). Jaffe attests that in order to arrive at this summary information, he 18 “exhaustively examined [his] records, files, documents and electronic data for this case, all of the 19 entries for which were made in the ordinary course of business contemporaneously on or about the 20 date they bear.” See id. (Jaffe Decl. ¶ 27). To this end, Jaffe provides the protocol he used in 21 tabulating the hours he spent on various activities, which included the actual time spent “together 22 with any associated travel time and preparation” for tasks with a finite time span; actual time spent 23 in court plus “travel and daily preparations for the next day” for trial time spent; and his estimation 24 of the length of time it took him to compose email documents, correspondence, and court-filed 25 26 27 28 4 At the hearing, UPS conceded that to the extent the subpoena seeks documents relating to time spent by Plaintiff’s counsel on this case, the subpoena should be limited to the time when counsel first began representing Plaintiff in December 2008 through the present. 8 1 documents. See id. (Jaffe Decl. ¶ 28). Thus, Jaffe’s declaration appears to indicate that he 2 reconstructed his time spent on this case based on a review of underlying materials. 3 At the January 27, 2011 hearing, Jaffe clarified his process of reconstructing the time he 4 spent working on this case. Jaffe represented that for tasks with a finite time span where a transcript 5 exists, such as a deposition, he looked at the time indications in the transcript to determine his actual 6 time spent. For other tasks such as travel time, he based his estimates on his knowledge of the time 7 it takes, for example, to fly to the location where the deposition took place. For his time estimates 8 drafting emails, correspondence, pleadings and other documents, Jaffe stated that his estimates were 9 based on a “subjective” process in which he viewed the documents on his computer or in his files and estimated how much time he took to compose the document. He also made various 11 For the Northern District of California United States District Court 10 representations about the types of emails, for example, that he included in his time estimates and 12 those that he discounted (e.g., he did not count emails that were very short). Finally, Jaffe stated that 13 to calculate the hours he worked on the case, he reviewed the underlying materials as described 14 above, while tallying his time estimates on a calculator. He represented to the Court that he had no 15 documents to support his estimation, tallying and calculation process other than a “few scraps of 16 paper” that he may still have, upon which he made “cryptic” notes of his calculations. 17 Accordingly, to the extent Plaintiff is seeking fees for the time Jaffe spent on various case- 18 related activities (e.g., travel time, task preparation, drafting correspondence or briefs), Jaffe’s 19 underlying records or notes from which he reconstructed the total time spent on these activities 20 constitute information relevant to this fee dispute. Therefore, with respect to this subpoena request, 21 the Court orders that Jaffe produce by no later than February 3, 2011 all responsive documents in his 22 possession or control as follows: all documents that were created or that otherwise evidence the 23 process of reconstructing the time spent on Plaintiff’s case by any timekeeper. 24 In addition, Jaffe shall submit a sworn declaration to UPS by no later than February 3, 2011 25 setting forth: (i) his good faith efforts to locate any and all underlying time records or documents 26 evidencing his reconstruction of time spent on this case (including an attestation if no such 27 documents exist); (ii) a list of every document (email, correspondence, brief, etc.) that he reviewed 28 in the process of reconstructing time spent on this case, identified by the date of the document, 9 1 to/from information (where applicable), the document’s subject matter, and the size of the 2 document; and (iii) every deposition or court appearance for which he is claiming time spent on this 3 case, by date and subject matter. 4 2. 5 UPS seeks documents describing or recording “collected hourly rates” for Plaintiff’s counsel Documents describing or recording previously-awarded hourly rates. 6 and other employees who worked on the case based on fee recoveries in previous cases, from 7 December 2007 to the present. UPS argues such information is relevant to the fee dispute because it 8 would inform the reasonable hourly rate for Plaintiff’s counsel and other staff who worked on this 9 case. Under California law, the reasonable hourly rate is the prevailing market rate in the 11 For the Northern District of California United States District Court 10 community for similar work. See PLCM Group, 22 Cal. 4th at 1095-96. The reasonableness of an 12 hourly rate may be demonstrated if it falls “within the range of reasonable rates charged by and 13 judicially awarded comparable attorneys for comparable work.” See Children’s Hosp. & Med. Ctr. 14 v. Bonta, 97 Cal. App. 4th 740, 783 (2002). In addition, the hourly rates awarded the fee applicant’s 15 counsel in other cases may be considered.5 See Margolin v. Reg’l Planning Comm’n, 134 Cal. App. 16 3d 999, 1005-06 (1982) (trial court did not err by admitting into evidence hourly rates awarded to 17 fee applicant’s counsel in nine other public interest lawsuits litigated during period of the suit at 18 issue). 19 At the hearing, Jaffe represented that in the past three years he has not applied for, nor been 20 awarded attorneys’ fees at a specific hourly rate. Rather, he has settled cases and received a lump 21 sum contingent fee. Jaffe also stated that he did not have any documents from which a collected 22 hourly rate could be derived. 23 UPS’ subpoena calls for documents from which one could calculate a “collected” rather than 24 court-awarded hourly rate. For example, if an attorney received a lump sum in a contingency case, a 25 “collected” hourly rate theoretically could be calculated by dividing the total fee by the hours 26 5 27 28 How much weight to accord this information, if any, is another question that is not before the undersigned. In addition, this Court is not expressing an opinion about whether and when a court should consider historical hourly rates of counsel versus the current rate in determining the reasonable market rate. 10 1 worked on the case. The “collected” hourly rate is arguably quite different from a market hourly 2 rate. Given the relative paucity of information provided by Jaffe in support of Plaintiff’s fee motion, 3 the Court finds it appropriate in this case to order the production of all documents evidencing a 4 “collected” hourly rate for the period of three years preceding service of the subpoena. Jaffe is not 5 required to reconstruct or calculate collected hourly rates for that period. The trial court shall decide 6 what, if any, weight to give to such evidence in determining the reasonable hourly rate in this case. 7 To the extent that Jaffe represents that, after a good faith search he has found no responsive 8 9 3. Documents describing the “work” and “efforts” of Plaintiff’s counsel in this case and/or case “events,” including postings on listservs and social media networks. 11 For the Northern District of California United States District Court 10 documents, he shall attest to that fact in the declaration described above in Section II.B.1, above. UPS separately demands documents describing the “work” and “efforts” of Plaintiff’s 12 counsel in this case and/or case “events,” including postings on listservs and social media networks. 13 The Court quashes this subpoena request for two reasons. 14 First, to the extent this demand overlaps with UPS’ request for records describing the time 15 spent by Jaffe on this case, the Court has already ordered the production of Jaffe’s underlying time 16 records and notes, as described above. This request is therefore duplicative. 17 Second, UPS’ request for documents describing “work,” “efforts” or “events” is vague and 18 overbroad, and calls for irrelevant information. As a hypothetical example, a document where Jaffe 19 comments that he cross-examined a certain witness on the third day of trial, or states that he 20 conducted a deposition in the case, is arguably a writing describing his “work” or “events” in the 21 case. However, any possible bearing that such a writing may have on the fee dispute is far too 22 remote to support its production. 23 To the extent that UPS attempts to demonstrate relevance by relying on Jaffe’s electronic 24 postings on listservs and social media networks, the Court finds this claim to be unpersuasive. UPS 25 contends that Jaffe’s electronic postings about the case will reveal relevant evidence of his time 26 spent on this case, his market rates, and his skill in handling the instant litigation – and that this 27 information is necessary because Jaffe failed to provide such evidence in support of Plaintiff’s fee 28 request. In an attempt to demonstrate that its discovery demand would yield relevant information, 11 1 UPS submitted some postings from Jaffe’s Facebook page, as well as three postings from one of the 2 listservs at issue, that of the California Employment Lawyers Association (“CELA”).6 3 The Court finds that Jaffe’s postings on various listservs and social media networks are calculated to lead to the discovery of admissible evidence. The exhibits that UPS submitted do not 6 indicate otherwise. The CELA postings indicate Jaffe’s personal feelings, speculation, or opinions 7 about the case, including the size and character of the jury award, how he viewed the District 8 Judge’s actions during the trial, and whether a multiplier on the lodestar is likely to be granted. 9 Whatever Jaffe may think about such matters is wholly irrelevant to the fee dispute. Jaffe’s personal 10 impressions about what transpired in the case are not – as argued by UPS – “admissions” that a court 11 For the Northern District of California irrelevant to the fee dispute and that UPS’ discovery request for this information is not reasonably 5 United States District Court 4 may consider in the fee analysis. 12 Furthermore, UPS’ reliance on Jaffe’s Facebook postings to demonstrate either the relevance 13 or probative value of Jaffe’s electronic postings is similarly groundless. UPS argues that the 14 Facebook postings reveal evidence contradicting Plaintiff’s purported claim in her fee motion that 15 Jaffe was “severely impaired” from working on other matters while working on this case. UPS 16 appears to hinge its contention on a posting dated August 22, 2010, in which Jaffe mentions settling 17 another case in mediation, as a smoking gun admission that Jaffe in fact worked on other matters 18 besides this case. But UPS misstates the argument made by Plaintiff in her fee motion, in which she 19 actually states that “[b]ecause [Jaffe] is a solo practitioner, any time Mr. Jaffe spent on this case was 20 necessarily time sacrificed working on cases for other clients.” See Docket No. 184 (Mot. at 18:20- 21 21). In support of this assertion, Plaintiff cites to Jaffe’s declaration, in which Jaffe attests he was 22 precluded from working on other matters “[d]uring the trial” in this case. See Docket No. 184 23 (Mot. at 18:20-24; Docket No. 184-10 (Jaffe Decl. ¶ 25) (emphasis added). First, as a general 24 matter, the fact that time may have been sacrificed on other cases does not mean that Jaffe did not 25 work at all on other cases, so no inconsistency is presented here. Second, this posting by Jaffe 26 occurred prior to the September start date of the trial in this case. Therefore, the posting does not 27 6 28 UPS’ unilateral submission of CELA’s records, in full knowledge that CELA had asserted that the documents were protected from disclosure, is discussed below. 12 1 contradict Plaintiff’s fee motion, in which Jaffe contends that he was precluded from working on any 2 other cases during the trial in this case. 3 In sum, with respect to Jaffe’s listserv and social media postings, UPS’ subpoena is not by Jaffe on various tasks in this case. The Court underscores that discovery relating to fee litigation 6 should not involve “the type of searching discovery that is typical where issues on the merits are 7 presented.” See Nat’l Ass’n of Concerned Veterans, 675 F.2d at 1329. Even if UPS had been able 8 to support its claim that production of Jaffe’s postings on various listservs or social media sites 9 might unearth some information that has some possible bearing on the fee dispute, the relevance of 10 such information would be so attenuated, and the likelihood of finding such information so slight, 11 For the Northern District of California appropriately geared toward revealing information relevant to the fee dispute, such as the time spent 5 United States District Court 4 that the Court is well within its discretion to limit such fee-related discovery requests that are not 12 “precisely framed.” Nat’l Ass’n of Concerned Veterans, 675 F.2d at 1329. Moreover, it is clear 13 from the disproportionate number of filings arising from this fee-related discovery dispute – not less 14 than twelve motions in the course of one month, accompanied by a flood of opposition and reply 15 papers – that the situation has spiraled into precisely the kind of “wasteful and time-consuming 16 satellite litigation” that should not occur in the proper course of post-trial fee disputes. See In re 17 Thirteen Appeals, 56 F.3d at 304 (internal quotation omitted). 18 Thus, the Court quashes the portion of UPS’ subpoena seeking documents describing the 19 “work” and “efforts” of Plaintiff’s counsel and case “events,” to the extent UPS seeks information 20 beyond that ordered to be produced above in sections II.B.1 and II.B.2. Accordingly, Jaffe’s 21 postings on listservs and social media networks shall not be produced. 22 The CELA listserv and Facebook postings submitted by UPS are not only irrelevant, but the 23 CELA postings are also inflammatory – as admitted by UPS’ counsel at the hearing. They are 24 prejudicial and serve no legitimate purpose. For these reasons, the Court strikes from the record 25 Exhibits H, I, J, and M to the Declaration of Elena Baca in support of UPS’ opposition to the Motion 26 to Quash, paragraph 17 in Baca’s Declaration that sets forth the content of one of these postings, and 27 the corresponding discussion of Exhibits H, I, J, and M in UPS’ opposition brief. See, e.g., Scott v. 28 Unum Life Ins. Co., No. C 09-1841 SBA, 2010 WL 5368807, at *10 n.2 (N.D. Cal. Dec. 3, 2010) 13 1 (striking settlement agreement and declaration submitted in support of summary judgment 2 opposition brief as irrelevant under Fed.R.Evi. 401); Wolcoff v. United States, No. 3:08-cv-0032- 3 JWS, 2010 WL 3210695, at *5 (D. Alaska Aug. 12, 2010) (striking statements made in opposition 4 brief as irrelevant and unduly prejudicial under Fed.R.Evi. 401, 402, and 403); Madsen v. Idaho 5 Emergency Physicians, No. CV-08-243-S-EJL-LMB, 2010 WL 1248255, at *3-5 (D. Idaho March 6 23, 2010) (striking as inadmissible evidence portions of affidavits in support of summary judgment 7 brief); Cruz v. Oxford Health Plans, Inc., No. 03 Civ. 8863(LTS)(JCF), 2008 WL 509195, at *11 8 (S.D.N.Y. Feb. 26, 2008) (striking as irrelevant paragraphs of attorney’s certification accompanying 9 opposition brief). Finally, the Court denies the parties’ respective requests for monetary sanctions and denies 11 For the Northern District of California United States District Court 10 the request by Plaintiff and third party CELA to refer UPS’ counsel to the State Bar for 12 investigation. Nevertheless, the Court notes that the conduct of UPS’ counsel interfered with the 13 judicial process and threatened to impede the fair resolution of this dispute. At the January 27, 2011 14 hearing, UPS’ counsel admitted that she attached the CELA listserv postings to UPS’ opposition 15 brief, even though she was fully aware at the time that CELA had asserted a claim of privilege and 16 protection over the postings which, if upheld, would bar the postings from disclosure. This action 17 significantly contributed to the unwarranted cascade of filings, which unnecessarily consumed the 18 resources of the parties, third parties, and the Court. It was inappropriate for UPS to make an extra- 19 judicial, unilateral determination of the merits of its own discovery request by publicly disclosing 20 this information before the Court had ruled on the matter. Moreover, during the hearing, UPS’ 21 counsel herself stated that she believed the contents of the postings were not only “inflammatory” 22 but also posed a “security risk” to the Court. Under such circumstances, counsel should have 23 questioned the propriety of disseminating such postings to a wider audience by filing them in the 24 public record. UPS’ counsel could have vigorously represented her client’s interests, while acting 25 within the judicial process, by seeking the Court’s prior approval before filing any documents or by 26 requesting an in camera review by the Court. 27 28 III. CONCLUSION Plaintiff’s Motion to Quash is GRANTED in part and DENIED in part. 14 1 2 3 Jaffe shall produce to UPS all responsive documents and the declaration ordered above by no later than February 3, 2011. To the extent UPS’ subpoena requests information beyond that ordered to be produced 4 above, including electronic communications posted by Jaffe on various listservs and social media 5 networks, the Motion to Quash is GRANTED. As this portion of the subpoena is quashed on 6 grounds of irrelevance, the Court need not reach alternative arguments for withholding this 7 information, including those based on attorney-work product protection and the federal and state 8 Constitution. The Court strikes from the record Exhibits H, I, J, and M attached to the Declaration 9 of Elena Baca [Docket No. 197] in support of UPS’ opposition to the Motion to Quash, as well as paragraph 17 in Baca’s Declaration. The Court also strikes the corresponding discussion of 11 Exhibits H, I, J, and M in UPS’ opposition brief [Docket No. 200], as follows: page 8, lines 7-21, 12 26-28; page 9, lines 15-17. 13 Accordingly, the Court instructs the Clerk to remove from ECF the following 14 documents: Docket No. 197 and Docket No. 200. Within 5 (five) court days after receiving 15 notice that the above documents have been removed from ECF by the Clerk, UPS shall re-file 16 the documents with redactions corresponding to the material stricken from the record as 17 indicated above. The other pending motions in this discovery dispute relate to the question of whether UPS’ 19 subpoena seeking listserv communications should be allowed. Because the Court has quashed this 20 portion of the subpoena request, the other pending motions [Docket Nos. 179, 193, 214, 223, 226, 21 235, and 238] are DENIED as moot. Finally, the request to refer UPS’ counsel to the State Bar for 22 investigation [Docket No. 218], and UPS’ corresponding Motion to Strike [Docket No. 247] are 23 DENIED. RT u a M. Ry ge Donn Jud DONNA M. RYU ER United States Magistrate Judge C N F D IS T IC T O R H 28 NO 27 Dated: January 28, 2011 R NIA 26 D RDERE OO IT IS S 15 FO 25 LI IT IS SO ORDERED. A 24 ISTRIC ES D TC AT T RT U O S 18 UNIT ED For the Northern District of California United States District Court 10
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