BASF AGRO B.V. et al v. CIPLA Limited et al, No. 3:2007cv00125 - Document 266 (M.D. Ga. 2012)
Court Description: ORDER granting 251 Motion to Compel; granting 251 Motion for Extension of Time. Ordered by Judge Clay D. Land on 07/25/2012 (ajp)
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION BASF AGRO B.V., MERIAL LIMITED, and MERIAL SAS, * * Plaintiffs, * vs. * CIPLA LIMITED, et al., * Defendants, CASE NO. 3:07-CV-125 (CDL) * VELCERA, INC., and FIDOPHARM, INC., * * Intervenors. * O R D E R In Limited a previous and Order, Intervenors (collectively, the Court Velcera, “Velcera”) in found Inc. contempt Defendant and Cipla, FidoPharm, for Inc. violating an injunction prohibiting infringement of Plaintiffs Merial Limited and Merial SAS’s (collectively, “Merial”) ‘329 Patent. In that Order, the Court concluded that monetary sanctions against Cipla and Velcera, determined at including a attorneys’ subsequent damages fees and hearing. costs, The would Court be has scheduled the damages hearing to begin August 27, 2012, and the parties are presently conducting discovery regarding the damages phase of the action. Pending before the Court is Velcera’s Emergency Motion to Compel Unredacted Attorneys’ Fees Invoices and To Extend the Expert Disclosure Deadline (ECF No. 251). For the following reasons, Velcera’s motion is granted to the extent described in this Order. DISCUSSION Velcera argues in its motion to compel that the reasonableness of Merial’s attorneys’ fees will be at issue in the damages hearing, and Velcera asserts that the attorneys’ fee invoices that Merial has produced during discovery are so heavily redacted that Velcera cannot meaningfully challenge the reasonableness of the fee requests. Merial argues that the attorneys’ fee invoices are protected by the attorney-client and work product privileges. I. Merial’s Redaction of Its Attorneys’ Fee Invoices “[T]he starting point in any determination for an objective estimate of the value of a lawyer’s services is to multiply hours reasonably expended by a reasonable hourly rate.” Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988); see also Sizzler Family Steak Houses v. Western Sizzlin Steak House, Inc., 793 F.2d 1529, 1534 (11th Cir. 1986) (noting that “an award of attorney fees to the injured party in a civil contempt case is within the district court’s discretion” and that “reimbursement to a prevailing movant may include expenses reasonably and necessarily incurred in the attempt to enforce compliance”) (internal quotation marks omitted). 2 Merial, as the fee applicant, “bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates.” Am. Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999); accord Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1195 (11th Cir. 2002) (“Our precedent places the burden of documenting the appropriate hours and hourly rates on the fee applicant.”). “That burden includes ‘supplying the court with specific detailed and evidence from which determine the reasonable hourly rate.’” the court can Am. Civil Liberties Union of Ga., 168 F.3d at 427 (quoting Norman, 836 F.2d at 1303). Counsel should “maintain[] records to show the time spent on the different claims, and the general subject matter of the time expenditures ought to be set out with sufficient particularity so that the district court can assess the time claimed for each activity.” Id. (quoting Norman, 836 F.2d at 1303); see also M.D. Ga. R. 54.1 (requiring a prevailing party to provide the Court with, among other things, “[a]n itemized bill in which all segments of time are identified as to the nature of the work performed”). Moreover, counsel must exercise “billing judgment” and must exclude from their fee applications “excessive, redundant, or otherwise unnecessary” hours. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Review of Merial’s attorneys’ fee invoices reveals that the descriptions of the activities conducted by each attorney are so 3 heavily redacted sufficient that they particularity reasonableness of the do time provide the for not Court claimed for the to each Court with assess the activity. For example, the redacted invoices contain time entries that include descriptions that say “Prepare REDACTED,” “Review REDACTED” and “Draft REDACTED.” E.g., Velcera’s Mot. to Compel Ex. B, Fee Invoice MER-CIPLA-001336, ECF No. 251-2. to evaluate would be whether Merial extremely attorneys’ hours exercised difficult are to excessive, If the Court attempted “billing decide judgment,” whether redundant, or it Merial’s otherwise unnecessary, because the Court cannot decipher from the redacted invoices the task that each attorney worked on for each time entry. that See Oxford Asset Mgmt., Ltd., 297 F.3d at 1196 (noting fee applications that were “so redacted that it [was] impossible to tell (beyond ‘research’) what the attorney was doing” were likely inadequate because the court “could not have determined how many hours were spent defending each claim or accomplishing any particular task,” and the court “could not have assessed whether any hours should [have been] excluded (as redundant or unnecessary) or the hourly rate reduced (because the number of hours submitted for a particular activity was excessive)”). conducted a Providing “review,” or a description “research,” or that an “drafted” attorney a non- specified document is too vague to allow the Court to assess 4 whether the time spent on the activity was reasonable. See id. at 1197 (cautioning “that where a significant number of entries are severely redacted or it appears that fee counsel has failed to use billing judgment, it may be an abuse of discretion to award fees based on redacted entries”). Velcera, as the party opposing the fee application, has obligations as well. “In order for courts to carry out their duties in this area, ‘objections and proof from fee opponents’ concerning hours that should be excluded must be specific and ‘reasonably precise.’” Am. Civil Liberties Union of Ga., 168 F.3d at 428 (quoting Norman, 836 F.2d at 1301). Thus, for Velcera to satisfy its obligation to specifically and precisely object to Merial’s fee requests as unreasonable, Velcera must have access to Merial’s attorneys’ fee invoices without the extensive redaction that is currently hindering any meaningful review of the activities conducted by Merial’s attorneys. Velcera’s obligation to make specific objections to Given Merial’s invoices, Merial’s concession that it will submit the attorneys’ fee invoices Velcera an to the Court opportunity to in camera contest the is inadequate reasonableness to of give the charges. The Court finds that Merial’s fee invoices that have been produced to Velcera are so heavily redacted that they do not provide sufficient descriptions of the activities conducted by 5 Merial’s attorneys to allow Velcera or the Court to conduct a meaningful review into whether the fees claimed by Merial are reasonable. Thus, the Court grants Velcera’s motion to compel unredacted versions of Merial’s fee invoices and requires Merial to provide sufficient descriptions of the tasks worked on by each attorney for each time entry. II. Merial’s Claim of Product Privilege Attorney-Client Privilege and Work Merial argues that the fee invoices are protected by the attorney-client privilege and constitute protected work product. The general rule, however, is that the receipt of attorneys’ fees is not a privileged matter. In re Grand Jury Matter No. 91-01386, 969 F.2d 995, 997 (11th Cir. 1992). Beyond Merial’s blanket privileged assertion protected work that the product, fee invoices Merial has are made no attempt and to demonstrate that each particular entry is protected by either the attorney-client privilege or the work product privilege. Accordingly, at this point, Merial has failed to demonstrate that any unlikely of that the entries any future are protected. attempt privilege would be successful. by Moreover, Merial to it is establish The Court cannot conceive of any justification for seeking fees for particular legal work and yet not being required to describe in reasonable detail the nature of the work for which compensation is sought. 6 The Court clarifies that in granting the motion to compel, the Court is not prohibiting Merial from redacting clearly privileged material while also providing the Court and Velcera with sufficient information regarding the work done to enable the Court and Velcera to reasonably evaluate the fee request. The Court finds, however, that Merial’s first redactions are overly broad. In conclusion, the Court grants Velcera’s motion to compel unredacted versions of Merial’s fee invoices sufficient to provide Velcera with a description of the task worked on by each attorney for each time entry. To the extent that Merial continues to maintain that certain entries are protected by the attorney client and/or work product privileges, the Court orders Merial Velcera to minimize and performed. the its Court redactions to in ascertain a the manner nature that of allows the work Merial shall produce the fee invoices to Velcera within seven days of today’s Order, and Velcera shall supplement its expert report within seven days after receiving the production.1 1 Velcera noted in its reply brief that it would serve an initial expert report if the July 16, 2012 expert report deadline passed prior to the Court’s ruling on the motion. The Court presumes that Velcera has done so, and the Court grants Velcera’s motion to extend the expert report deadline to allow Velcera to supplement, rather than initially serve, its report. 7 CONCLUSION For the reasons explained above, Velcera’s Motion to Compel Unredacted Attorneys’ Fees Invoices and To Extend the Expert Disclosure Deadline (ECF No. 251) is granted to the extent described in this Order. IT IS SO ORDERED, this 25th day of July, 2012. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE 8
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