KAREN WELLS ROBY
ORDER
Before the Court is Defendant PHI Inc.'s Motion to Fix Attorneys' Fees and Costs (R. Doc. 707), filed by Defendant PHI, Inc. ("PHI"), seeking an order from this Court fixing the amount of costs and attorney's fees to be awarded to it, pursuant to the Court's December 7, 2011 order, which granted PHI costs and attorney's fees reasonably incurred from the date Defendant Sikorsky Aircraft Corporation ("Sikorsky") produced Dr. Wonsub Kim's expert report to PHI to the present, related to PHI's investigation of Sikorsky's spoliation of evidence, the taking of the additional depositions related to Dr. Kim's report, Sikorsky's failure to preserve Dr. Kim's data files, and PHI's written submissions to the Court. (R. Doc. 704.) The motion is opposed. (R. Doc. 751.) I. Factual Background
As discussed at length in the Court's order awarding reasonable costs and attorney's fees to PHI, Dr. Kim, a Staff Engineer of Structures Methodology and Prognosis, was retained by Sikorsky in 2009 to conduct an analysis of a simulated bird strike on a S76 aircraft cockpit to help Sikorsky determine the strike on the S76 canopy structure. Due to the volume of information considered here, the Court decided to use endnotes.
This product liability lawsuit arose as a result of the January 4, 2009, crash of a Sikorsky S- 76C++ helicopter, N748P, in Terrebonne Parish, Louisiana, which caused the death of seven people and severely injured the only surviving passenger, Steven Yelton. The accident allegedly occurred as a result of a female red tailed hawk striking the windscreen of the helicopter, resulting in a loss of engine power.
During the course of the litigation, PHI sought information regarding Sikorsky's investigation, testing, analysis, or studies of the helicopter windshield, cockpit engine controls, engine control quadrant throttle lever, or low rotor warning system. Initially, Sikorsky responded that it had no responsive documents related to testing. However, over a year and half later, it finally produced documents regarding Dr. Kim's tests, analysis, and report. Additionally, the computer files and data used by Dr. Kim were deleted, due to Sikorsky's failure to include him in the litigation hold.
As a result, the Court, upon motion by PHI and Cross-Claimant National Union Fire Assurance Company of Louisiana ("National Union"), issued an order issuing sanctions and recommending an adverse inference against Sikorsky. (R. Doc. 74.) The order also awarded reasonable costs and attorney's fees to PHI. The order required PHI to file a motion fixing attorney's fees in the record along with: (1) an affidavit attesting to each attorney's education, background, skills and experience; (2) sufficient evidence of rates charged in similar cases by other local attorneys with similar experience, skill and reputation; and (3) the documentation required by Local Rule 54.2.
In compliance with the order, PHI filed the instant motion, seeking an order from this Court fixing the amount of costs and attorney's fees owed to PHI. PHI seeks a total of $2,019,355.22 in costs and attorney's fees, including $987,084.00 for 3,543.5 hours of work and $1,032,271.22 in costs. PHI contends that these amounts were reasonably and necessarily incurred from the date Sikorsky produced Dr. Kim's report to PHI to the present.
Sikorsky opposes the motion and argues that PHI's request for costs and attorney's fees is grossly inflated, as it includes costs and attorney's fees entries that are wholly unrelated to PHI's investigation of Sikorsky's spoliation of evidence, the taking of the additional depositions related to Dr. Kim's report, Sikorsky's failure to preserve Dr. Kim's data files, and PHI's written submissions to the Court. Thus, PHI's request for costs and attorney's fees should be substantially reduced. It further contends that PHI failed to provide it with actual attorney and expert invoices. Thus, it should not be required to pay the amount requested by PHI.
Sikorsky also contends that the expert fees incurred by PHI will not be paid by PHI nor National Union, and that most of the attorney time entries are impermissibly vague and/or do not explain how they fall within the parameters set out by the Court. Sikorsky further contends that the costs and attorney's fees requested relate to almost all of the legal expenses allegedly incurred by PHI in this litigation, or work not done at all.
Having set forth the position of both parties, the Court will now proceed with its analysis of the subject matter. II. Standard of Review
Plaintiffs' complaint, which was filed in this Federal District Court, alleged violation of federal law and state products liability and negligence law. As a result, the lodestar calculation of the reasonable attorney's fees is applicable.
R. Doc. 1.
The Supreme Court has indicated that the "lodestar" calculation is the "most useful starting point" for determining the award of attorney's fees. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar equals "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. The lodestar is presumed to yield a reasonable fee. La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). After determining the lodestar, the court must then consider the applicability and weight of the twelve factors set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The court can make upward or downward adjustments to the lodestar figure if the Johnson factors warrant such modifications. See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). However, the lodestar should be modified only in exceptional cases. Id.
The twelve Johnson factors are (1) the time and labor involved; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment by the attorney due to this case; (5) the customary fee; (6) whether fee is fixed or contingent; (7) time limitations; (8) the amount involved and results obtained; (9) the experience, reputation and ability of counsel; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. See Johnson, 488 F.2d at 717-19.
After the calculation of the lodestar, the burden then shifts to the party opposing the fee to contest the reasonableness of the hourly rate requested or the reasonableness of the hours expended "by affidavit or brief with sufficient specificity to give fee applicants notice" of the objections. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). III. Analysis
PHI contends that the cost and attorney's fees it requests were reasonably incurred from the date Sikorsky produced Dr. Kim's report, and relate to PHI's investigation of Sikorsky's spoliation of evidence, the taking of the additional depositions related to Dr. Kim's report, Sikorsky's failure to preserve Dr. Kim's data files, and PHI's written submissions to the Court. PHI seeks attorney's fees for fourteen (14) different attorneys, whose hourly rates range from $190.00 to $400.00 per hour. Additionally, PHI seeks fees for the work performed by five (5) paralegals, whose hourly rate is $140.00 per hour.
PHI did not, however, provide the Court with the required affidavits for either the attorneys or the paralegals. Instead, it provided each attorney's biography taken from the law firm's website, or a resume. While not technically compliant with the Court's order, the Court will accept these website biographies and resumes as adequate proof of each attorney's education, background, and experience. Not having received any documents evidencing each paralegal's education, background, or experience, the Court hereby denies PHI's request for fees associated with the worked performed by them.
The paralegals are: Dessa Watson-Ferris, Tonja Sanchez, Jodi Jesser, Paulette Keheley, and Tammy Hintz.
+-----------------------------------------------------------+ ¦Paralegal ¦Hours ¦Rate ¦Total amount excluded ¦ +-------------------+-------+-------+-----------------------¦ ¦Dessa Watson-Ferris¦109.10 ¦$140.00¦$15,274.00 ¦ +-------------------+-------+-------+-----------------------¦ ¦Tonja Sanchez ¦8.70 ¦$140.00¦$1,218.00 ¦ +-------------------+-------+-------+-----------------------¦ ¦Jodi Jesser ¦8.80 ¦$140.00¦$1,232.00 ¦ +-------------------+-------+-------+-----------------------¦ ¦Paulette Keheley ¦12.00 ¦$140.00¦$1,680.00 ¦ +-------------------+-------+-------+-----------------------¦ ¦Tammy Hintz ¦497.20 ¦$140.00¦$69,608.00 ¦ +-------------------+-------+-------+-----------------------¦ ¦Total Excluded ¦ ¦ ¦$89,012.00 ¦ +-----------------------------------------------------------+ Therefore, these billing entries are excluded from consideration.
A. Calculating a Reasonable Hourly Rate
In support of its motion, PHI submitted the website biographies for Martin E. Rose ("M. Rose"), Don Swaim ("Swaim"), Randall K. Theunissen ("Theunissen"), S. Brian Perry ("Perry"), Ross Cunningham ("R. Cunningham"), Alan J. Meche ("Meche"), Steve Sanfelippo ("Sanfelippo"), Tammy Cole ("Cole"), Elizabeth Cunningham ("E. Cunningham"), Elizabeth Lemoine ("Lemoine"), Bryan Rose ("B. Rose"), and Alex Whitman ("Whitman"). PHI submitted the resumes of the following lawyers Stephen L. Baker ("Baker") and Stephanie L. Reaugh ("Reaugh").
M. Rose, received his J. D. from Southwestern University in 1974. He has been practicing law for thirty-seven (37) years, and is admitted to practice law in all of the state Courts in Texas and California as well as all of the federal courts in Texas , California, and Colorado. According to his biography, he has tried complex cases in fourteen (14) states, and focuses his practice on tort-personal injury cases, commercial disputes, and intellectual property disputes. His billable hourly rate is $400.00.
Exhibit I, website biography of Martin E. Rose.
Swaim received his J.D. from Baylor Law School in 1982. He has been practicing law for twenty-nine (29) years. He is licensed in the State of Texas, and is admitted to practice in the U.S. District Court for Northern, Southern, Western, and Eastern Districts of Texas and the Fifth and Sixth Circuit Courts of Appeals. He has represented aircraft owners, operators, and manufacturers. His billable hourly rate is $350.00.
Exhibit J, website biography of Don Swaim.
Theunissen received his J.D. from Louisiana State University in 1977. He has been practicing law in the State of Louisiana for thirty-four (34) years, and has been licensed in the State of Texas for seventeen (17) years. According to his biography, he is noted for his maritime practice and is a featured speaker at various maritime seminars. His billable hourly rate is $330.00.
Exhibit K, website biography of Randall K. Theunissen.
Perry received his J.D. from Loyola University in 1997. He has been practicing law in the State of Louisiana for fourteen (14) years. According to his biography, he generally represents pipeline companies, offshore platform operators, crew boats, drilling companies and exploration companies. His billable hourly rate is $330.00.
Exhibit L, website biography of S. Brian Perry.
R. Cunningham received his J.D. in 1988 from Southern Methodist University Law School. Cunningham has been licensed to practice in the state of Texas for thirteen (13) years. His biography indicates that he handles complex litigation involving aircraft disasters, product liability, construction defects, catastrophic personal injury, and commercial breach of contract cases. His billable hourly rate is $330.00.
Exhibit M, website biography of Ross Cunningham.
Meche received his J.D. in 1999 from South Texas College of Law. He has been practicing law for twelve (12) years, and is a partner in the Lafayette office of the Allen & Gooch law firm. Meche concentrates his practice in the areas of maritime defense and personal injury. His billable hourly rate is $330.00.
Exhibit N, website biography of Alan J. Meche.
Sanfelippo received his J.D. in 2000 from St. Mary's University School of Law. He has been practicing law for eleven (11) years. He is a partner in the Rose Walker's appellate department and is responsible for handling all appellate and insurance coverage matters. His billable hourly rate is $300.00.
Exhibit O, website biography of Steve Sanfelippo.
Cole received her J.D. in 1996 from the University of Texas School of Law. She has been practicing law for fifteen (15) years, and is licensed in the State of Texas. Her biography indicates that she works in Rose Walker's commercial litigation department, and that her practice includes products liability cases. Her billable hourly rate is $300.00.
Exhibit P, website biography of Tammy Cole.
E. Cunningham received her J.D. in 1998 from The George Washington University School of Law. She has been licensed to practice law for thirteen (13) years. Her areas of practice include commercial, employment, and product liability defense. Her billable hourly rate is $300.00.
Exhibit Q, website biography of Elizabeth Cunningham.
Lemoine received her J.D. in 2000 from The George Washington University School of Law. She has been licensed to practice law for eleven (11) years. Her areas of practice include products liability, complex commercial matters, and class actions. Her billable hourly rate is $300.00.
Exhibit R, website biography of Elizabeth Lemoine.
Rose received his J.D. in 2007 from St. Mary's University School of Law. He has been practicing law for four (4) years. His practice includes aircraft disasters, products liability, catastrophic personal injury, and commercial disputes. His billable hourly rate is $225.00.
Exhibit S, website biography of Bryan Rose.
Baker received his J.D. in 2008 from Baylor Law School. Baker has been practicing law for three (3) years at Rose Walker in Dallas, Texas. According to his resume, he handles general discovery issues, and reviews and analyzes discovery in complex litigation matters. His billable hourly rate is $200.00.
Exhibit T, resume of Stephen L. Baker.
Whitman received his J.D. in 2010 from Emory University School of Law. He is a former federal judicial law clerk. His billable hourly rate is $190.00.
Exhibit U, website biography of Alex Whitman.
Reaugh received her J.D. in 1999 from the University of Houston Law Center. Her resume, however, is not updated. According to her resume, she worked at Hunton & Williams as recent as 2008. Her resume does not indicate, however, that she is currently employed at Rose Walker. Nonetheless, her billing entries are included in PHI's motion. The Court's independent research reveals that, according to the Texas State Bar website, Reaugh is currently employed at Rose Walker. PHI indicates that she has eight (8) years of experience, and that her billable hourly rate is $275.00.
Exhibit V, resume of Stephanie Reaugh.
Attorney's fees must be calculated at the "prevailing market rates in the relevant community for similar services by attorneys of reasonably comparable skills, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 895 (1984). The applicant bears the burden of producing satisfactory evidence that the requested rate is aligned with prevailing market rates. See NAACP v. City of Evergreen, 812 F.2d 1332, 1338 (11th Cir. 1987). Satisfactory evidence of the reasonableness of the rate necessarily includes an affidavit of the attorney performing the work and information of rates actually billed and paid in similar lawsuits. Blum, 465 U.S. at 896, n.11. However, mere testimony that a given fee is reasonable is not satisfactory evidence of a market rate. See Hensley, 461 U.S. at 439, n.15.
Rates may be adduced through direct or opinion evidence as to what local attorneys charge under similar circumstances. The weight to be given to the opinion evidence is affected by the detail contained in the testimony on matters such as similarity of skill, reputation, experience, similarity of case and client, and breadth of the sample of which the expert has knowledge. See Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292 (11th Cir. 1988); see also White v. Imperial Adjustment Corp., No. 99-03804, 2005 WL 1578810, at *8 (E.D. La. Jun. 28, 2005) (Engelhardt, J.) (recognizing that attorneys customarily charge their highest rates only for trial work, and lower rates should be charged for routine work requiring less extraordinary skill and experience).
Where "an attorney's customary billing rate is the rate at which the attorney requests the lodestar to be computed and that rate is within the range of prevailing market rates, the court should consider this rate when fixing the hourly rate to be allowed. When that rate is not contested, it is prima facie reasonable." La. Power & Light, 50 F.3d at 328.
PHI acknowledges that some of its attorneys charged higher rates than others, despite having less experience in terms of years of practice. PHI contends, however, that these rates are reasonable and justified because of each attorney's experience and specialized skills. The specialized training and experience cited by PHI includes aviation litigation experience and former judicial law clerks to Federal Judges.
In opposition, Sikorsky points out that PHI's motion seeks attorney's fees for fourteen (14) different lawyers. Sikorsky contends that the motion does not seek reasonable rates because the rates sought are not consistent with the rates charged in the New Orleans market, where the claim was filed. Sikorsky further contends that the affidavit of Richard Broussard, should be disregarded by the Court because, while he suggests that the rates sought are reasonable in the New Orleans market, he is a Lafayette, Louisiana-based attorney without knowledge of the rates charged in New Orleans.
The Court finds that PHI has not provided the Court with adequate support for the requested billing rates for the less experienced attorneys namely, Whitman, B. Rose, Baker, and Reaugh. See Creecy v. Metro. Prop. & Cas. Ins. Co., No. 06-9307, 2008 WL 553178, at *3 (E.D. La. Feb. 28, 2008) (Roby, J.) (awarding $175.00 an hour to a lawyer who had practiced law for five (5) years and $200.00 an hour to an attorney with eleven (11) years of experience); Drs. Le and Mui, Family Med. v. St. Paul Travelers, No. 06-10015, 2007 WL 4547491, at *2-3 (E.D. La. Dec. 19, 2007) (Roby, J.) (awarding hourly rates of $175.00 to an attorney with seven (7) years of legal experience and $200.00 for an attorney with eleven (11) years of experience). The Court therefore finds that a reasonable rate for Whitman, B. Rose, Baker is $170.00 per hour and $195.00 for Reaugh.
Regarding the more experienced attorneys, Meche, E. Cunningham, Sanfelippo, Perry, and Lemoine, whose experience ranges from 11-15 years, the Court finds that $250.00 is reasonable rate, based upon the rates awarded in this District and each attorney's background and experience. St. Paul Travelers, 2007 WL 4547491, at *2-3.
PHI also seeks $330.00 per hour for R. Cunningham (thirteen (13) years of experience), $350.00 per hour for Swaim (twenty-nine (29) years of experience), and $400.00 per hour for M. Rose (thirty-seven (37) years of experience), and $330.00 per hour for Theunissen (thirty-four (34) years of experience). PHI suggests that the rates are reflective of the nature of the work performed by its attorneys since the discovery of Dr. Kim's report.
In support of its position, PHI refers the court to Hornbeck Offshore Servs., L.L.C. v. Salazar No.10-1663, 2011 WL 2214765 (E.D. La. June 1, 2011) (setting reasonable hourly rates for partners with sixteen (16) to thirty-seven (37) years of experience in a complex litigation case at $300.00 to $450.00 per hour, and for associates with one (1) to five (5) years of experience at $180.00 to $200.00). However, PHI's motion requests a rate of $330.00 per hour for R. Cunningham, who has only thirteen (13) years experience. As a result, the Court finds that an appropriate rate for R. Cunningham, as well as the other attorneys in his experience range, is $250.00 per hour.
The Court further finds that PHI's request for a rate of $330.00 per hour for Swaim and Theunissen is reasonable based on their years of experience. See Hebert v. Rodriguez, No. 08-5240, 2010 WL 2360718, at *2 (E.D. La. June 8, 2010) (Barbier, J) (awarding $300.00 per hour to "a seasoned civil rights attorney with over 33 years of experience"); see also Peacock v. U.S., No. 07-0988, 2009 WL 3094953, at * 2 (E.D. La. Sept. 21, 2009) (Knowles, J.) ($350 per hour is reasonable given lawyers background, education experience and the nature and complexity of the matter).
Regarding PHI's request for a rate of $400.00 per hour for M. Rose (thirty-seven (37) years), the Court finds that the rate is reasonable. See Hornbeck Offshore Servs., L.L.C., 2011 WL 2214765, at *8.
Having determined the reasonable hourly rates, the court will proceed with assessing the reasonableness of the billing entries.
B. Determining the Reasonable Hours Expended
PHI contends that the hours of work submitted for reimbursement are reasonable. PHI suggests further that it exercised billing judgment, as it only requested fees for the activities that fall within the parameters of the Court's order.
In opposition, Sikorsky argues that PHI's fee request is excessive and unreasonable. Sikorsky contends that 273 days elapsed between the date of Sikorsky's production of Dr. Kim's report and the Court's sanctions order. During that time frame PHI claims that it's attorneys expended 3,362.80 hours investigating Sikorsky's spoliation, taking additional depositions of witnesses related to Dr. Kim's data files, and drafting related written submissions to the Court. Under this theory, PHI's lawyers would have worked 12.30 hours per day, including all weekends and holidays that occurred during that time frame. Sikorsky therefore contends that PHI fee request is "unbelievable."
Sikorsky further points out that by the date it produced Dr. Kim's report to PHI, PHI had settled with every Louisiana plaintiff except Carly Schoen ("Schoen"), who brought suit on behalf of her minor child. It further contends that PHI eventually settled with Schoen. Sikorsky also contends that PHI's hull claim was settled in November and December 2011 and the Alabama litigation closed on March 18, 2011. As a result, the only remaining claims were the claim by Schoen, and the Cantu claim in Texas state court, in which Sikorsky was a co-defendant. Sikorsky contends that the instant motion seeks reimbursement of almost all of PHI's legal expenses allegedly incurred in this litigation, and not only the fees reasonably incurred in association with Dr. Kim's report, data, and files.
In order to properly determine whether there should be a reduction in the amount of time expended, a review of the billing records submitted by PHI must be undertaken by the Court to exclude any excessive, redundant, or unnecessary hours. Also, it is noted that Sikorsky is not required to pay for duplicative work among the attorneys. Raspanti v. United States Dept. of the Army, No. 00-2379, 2001 WL 1081375, at *6 (E.D. La. Sept. 10, 2001).
In reviewing attorney's fees applications, the court may also reduce or eliminate hours if the documentation of those hours is "vague or incomplete," and must consider whether proper billing judgment was exercised. Lalla v. City of New Orleans, 161 F.Supp.2d 686, 706 (E.D. La. Apr. 4, 2001). Attorneys who submit fee requests must exercise billing judgment, write off excessive, redundant, or unproductive time, and do not have the right to bill for inadequately documented time or on issues which they do not prevail. Id. (citing Walker v. U.S. Dept. of Housing & Urban Dev., 99 F.3d 761, 769 (5th Cir. 1996)).
The record reflects that PHI's initially submitted a spreadsheet of hours recorded by its attorneys and not its original attorney invoices. Yet, it sought a significant sum, along with reimbursement of its expert expenses. Subsequently, PHI filed its billing invoices. The total amount of hours billed in the subsequently submitted invoices is 3,836.30, including the hours spent drafting the instant motion. This amount is 292.80 hours more than the number of hours PHI seeks reimbursement for in its motion.
As a result of PHI's failure to submit its original attorney invoices, Sikorsky requested an extension of time to file its opposition to the motion and limited discovery. On January 6, 2012, the Court held a status conference with both parties, during which it upheld its original order and again instructed PHI to submit (1) its original invoices and (2) expert invoices so that Sikorsky could fully and appropriately prepare memorandum in opposition. (R. Doc. 730.) In opposition, Sikorsky contends that despite this Court's instructions, PHI never provided it with its attorney invoices. Instead, PHI provided it with a spreadsheet, drafted by PHI, of the purported hours worked by its attorneys.
The Court finds that PHI has exercised very limited billing judgment, which is insufficient under the circumstances and in contravention of this Court's order and instructions. The Court is further guided in its analysis by the reasoning of the Sixth Circuit Court of Appeals in an analogous case. See Coulter v. State of Tenn., 805 F.2d 146 (6th Cir. 1986). In Coulter, a Title VII sex discrimination action, the plaintiff was represented by two attorneys - a "lead" attorney who conducted the trial and deposition examinations, and another attorney who assisted in legal research, conceptualizations of the case, and reviewed documents and court papers. The Court noted that the "non-lead" attorney's efforts, while contributing to the successful outcome, warranted reduction as duplication of effort. Therefore, the Court reduced the "non-lead" attorney's pretrial preparation hours by fifty percent. Id. at 151.
The fee seeker's attorneys are "charged with the burden of showing the reasonableness of the hours they bill and, accordingly, . . . proving that they exercised billing judgment." Walker, 99 F.3d at 770. When billing judgment is lacking, the court must exclude from the lodestar calculation the hours that were not reasonably expended. Hensley, 461 U.S. at 434.
The Court notes that such "block billing" is not favored by the courts. It is the duty of the attorney seeking his fees to set forth his time on his billing sheets adequately and specifically. The Court cautions PHI relative to the block billing reflected in the spreadsheets initially submitted to the Court, but also recognizes that PHI subsequently exercised some billing judgment in its subsequent submission to the Court.
A careful review of the attorney invoices provided to the Court illustrates that despite PHI's representation it paired down the original fee application so that it complied with the Court's instructions, it failed to eliminate clearly vague, block billed, and irrelevant time entries. While the task of dissecting the submitted application is tedious, the undersigned conducted the required analysis as illustrated below.
1. Vague Entries
It is well settled that supporting documentation for attorney's fees must be of sufficient detail and probative value to enable the court to "determine with a high degree of certainty" that the billing is reasonable. Miss. State Chapter Operation Push v. Mabus, 788 F.Supp. 1406, 1416 (N.D. Miss. 1992); see League of United Latin American Citizens No. 4552 v. Roscoe ISD, 119 F.3d 1228 (5th Cir. 1997) (noting that litigants "take their chances" when submitting vague fee applications). Descriptions such as " legal issues," " conference re: all aspects," and "call re: status" are vague descriptions. In re Donovan, 877 F.2d 982, 995 (D.C. Cir. 1989); Lalla, 161 F.Supp.2d at 706.
After reviewing the time records, the Court concludes that the following entries are vague, and while potentially related to PHI's motion for sanctions, a full allocation for the billing entries is not appropriate, such that only 50% of the value of the time will be allocated to these billing attorneys.
Vague Entries
+-----------------------------------+ ¦Don Swaim ¦1.7 hours ¦ +------------------+----------------¦ ¦Randall Theunissen¦0.25 hours ¦ +------------------+----------------¦ ¦Ross Cunningham ¦267.10 hours ¦ +------------------+----------------¦ ¦Stephen L Baker ¦22.30 hours ¦ +-----------------------------------¦ +-----------------------------------+
2. Irrelevant Billing Entries
A review of the billing entries submitted by PHI reveals that many of the entries are not related to Dr. Kim's report, PHI's sanctions motion, or the instant motion.
By way of example, many of the billing entries are related to an appeal of an unrelated order, including the review and filing of the appellate brief. Further, many of the billing entries are for hours spent attempting to settle other cases in different jurisdictions arising out of the helicopter crash, rather than time related to the delayed discovery or spoilation of Dr. Kim's data and files. PHI's motion also contains billing entries for time spent deposing representatives of the FAA, as well as time spent securing documents from the FAA, unrelated to the delayed discovery or spoilation. PHI failed to exercise reasonable billing judgment in submitting the subject motion. As a result, a significant portion of the amount requested will be disallowed as demonstrated below:
Billing Entries Not Related to
Discovery/Spoilation
+--------------------------------------+ ¦Don Swaim ¦179.3 hours ¦ +---------------------+----------------¦ ¦Ross Cunningham ¦281.4 hours ¦ +---------------------+----------------¦ ¦Steve D. Sanfelippo ¦250.49 hours ¦ +---------------------+----------------¦ ¦Stephen L. Baker ¦186.70 hours ¦ +---------------------+----------------¦ ¦Tammy Cole ¦31.30 hours ¦ +---------------------+----------------¦ ¦Randall K. Theunissen¦92.60 hours ¦ +---------------------+----------------¦ ¦S. Brian Perry ¦0.50 hours ¦ +--------------------------------------+ +-----------------------------------------------------------------------------------------------+ ¦Reasonable Attorney's Fees ¦ +-----------------------------------------------------------------------------------------------¦ ¦ ¦ Total ¦ ¦ ¦ Net ¦ ¦ ¦ ¦ ¦ ¦ Vague ¦ Irrelevant ¦ ¦ Reasonable ¦ Reasonable ¦ ¦ Billing Attorney ¦ Hours ¦ ¦ ¦ Reasonable ¦ ¦ ¦ ¦ ¦ ¦ Entries ¦ Entries ¦ ¦ Rate ¦ Fee ¦ ¦ ¦ Billed ¦ ¦ ¦ Hours ¦ ¦ ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦M. Rose ¦2.10 ¦ ¦ ¦2.10 ¦$400.00 ¦$840.00 ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦Swaim ¦385.10 ¦1.70 ¦179.30 ¦204.10 ¦$330.00 ¦$67,353.00 ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦Theunissen ¦123.40 ¦0.25 ¦92.60 ¦30.55 ¦$330.00 ¦$10,081.50 ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦Perry ¦43.80 ¦ ¦0.50 ¦43.30 ¦$250.00 ¦$10,825.00 ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦R. Cunningham ¦1,201.00¦267.10 ¦281.40 ¦652.50 ¦$250.00 ¦$163,125.00 ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦Meche ¦0.40 ¦ ¦ ¦0.40 ¦$250.00 ¦$100.00 ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦Sanfelippo ¦323.30 ¦ ¦250.49 ¦72.81 ¦$250.00 ¦$18,202.50 ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦Cole ¦40.80 ¦ ¦31.30 ¦9.50 ¦$250.00 ¦$2,375.00 ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦E. Cunningham ¦588.20 ¦ ¦ ¦588.20 ¦$250.00 ¦$147,050.00 ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦Lemoine ¦3.10 ¦ ¦ ¦3.10 ¦$250.00 ¦$775.00 ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦B. Rose ¦16.60 ¦ ¦ ¦16.60 ¦$170.00 ¦$2,822.00 ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦Whitman ¦155.30 ¦ ¦ ¦155.30 ¦$170.00 ¦$26,401.00 ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦Baker ¦923.50 ¦22.30 ¦186.70 ¦714.50 ¦$170.00 ¦$121,465.00 ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦Reaugh ¦29.70 ¦ ¦ ¦29.70 ¦$195.00 ¦$5,791.50 ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦Billed before ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦PHI's ¦3,836.30¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦adjustment ¦ ¦ ¦ ¦ ¦ ¦ ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦Less billing judgment ¦292.80 ¦ ¦ ¦ ¦ ¦ ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦Net hours sought ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦3,543.50¦ ¦ ¦2,522.66 ¦ ¦ ¦ ¦by PHI ¦ ¦ ¦ ¦ ¦ ¦ ¦ +-----------------------+--------+---------+------------+------------+------------+-------------¦ ¦Total Attorney's ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦$577,206.50 ¦ ¦Fees Awarded ¦ ¦ ¦ ¦ ¦ ¦ ¦ +-----------------------------------------------------------------------------------------------+
C. Costs
Next, PHI contends that it is entitled to recover all of its costs including expert costs because of the delayed production of Dr. Kim's report. PHI notes that the Court's order awarded costs from the March 9, 2011 disclosure of Dr. Kim's report. It contends, therefore, that it has reasonably incurred costs totaling $1,032,271.22, and requests that the court award the costs as a sanction for Sikorsky's spoliation, concealment of evidence.
According to the attorney billing statements submitted by PHI, its are as follows:
PHI contends that it incurred considerable compensable costs as part of its efforts to determine the scope of Sikorsky's spoliation, and to fully litigate the issues surrounding Dr. Kim's report and the issues it raised, including obtaining hearing and deposition transcripts, copying charges, and reasonable postage. PHI points out that because the Court specifically provided for fees and costs expended on the taking of additional depositions related to Dr. Kim's report, it also included the costs of traveling to and transcribing the depositions of the aforementioned deponents. It further seeks reimbursement for its expert expenses directly related to Dr. Kim's report and analysis.
PHI contends that it included a request for travel, including airfare, lodging and meals for attorneys who traveled to Connecticut and elsewhere to depose Dr. Kim and other Sikorsky employees on matters relating to the spoliation and Dr. Kim's report and for the costs of travel to New Orleans for the September hearing on the Motion for Sanctions. PHI submits that these trips and expenses were only necessary because of Sikorsky's spoliation and would not have taken place but for the discovery of Dr. Kim's report.
PHI contends that it expended costs for its experts to recreate Dr. Kim's spoliated data files and to respond to, analyze, and test the validity of Dr. Kim's report and conclusions. PHI has provided affidavits from each expert in which they describe and state that the expenses that were directly attributable to Dr. Kim's analysis and report, and it further reiterates that it only seeks costs that are within the confines of this court's order.
Regarding reasonable costs, courts have held that certain expenses incurred by a prevailing party, including postage, reproduction, and phone bills may be included in attorney fee awards. See Gorini v. AMP, Inc., No. 99-2215, 2004 WL 1354465, at *7 (M.D. Pa. March 14, 2004). Further, the Federal Rules of Civil Procedure require Sikorsky to pay PHI's expenses where, as here, the failure to comply with its discovery obligation was substantially justified or other circumstances would make an award of expenses unjust. See Fed.R.Civ.P. 37(d)(3).
In considering PHI's request for costs, the Court finds that the costs requested exceed the scope of this Court's order and include costs that PHI incurred prior to the production of Dr. Kim's report. Further, the costs sought are largely undocumented.
For example, PHI contends that it incurred $62,307.77 in transcription costs for depositions. Yet, it failed to provide an invoice from the court reporting service it paid indicating when the depositions occurred and who was actually deposed. PHI also failed to provide proof of the costs allegedly incurred for copying/outside printing, delivery services, out-of-state travel expenses, local travel expenses, meals, travel services fees, and litigation support. As a result, the Court deems these costs unreasonable, and hereby excludes $ 208,309.48 in costs.
In support of its costs request, PHI submitted Exhibit A-4 which purportedly details the coss of all deposition transcripts, travel expenses and litigation support, meals, out of town travel and copying and printing. However, this report is insufficient as the corresponding back ups were not included. The court notes that some of the printing costs included an appellate brief for an unrelated claimant.
Next, PHI contends that it should be awarded a total of $833,612.75 in expert costs, which are purportedly related to Dr. Kim's report and recreation of his lost data and files. In support of its request, PHI submitted the affidavits of its experts, who describe and attempt to explain how their fees are directly related to Dr. Kim's report and the recreation of his lost data and files. PHI contends that Sikorsky's attorneys abused the judicial process by concealing and destroying evidence, misrepresenting facts, and making false statements to the Court and counsel. PHI therefore contends that its expert costs were a direct result of Sikorsky's conduct.
In support of its request, PHI submitted the affidavit of Roch Shipley ("Shipley") of ProAaCI, who contends that due to delayed production of Dr. Kim's analysis, he was required to conduct additional work for PHI which resulted in an additional $176,158.29 in expert fees. However, Shipley's affidavit falls short of explaining how the delayed production of Dr. Kim's report resulted in specific work that he otherwise would not have had to do. A review of the invoices submitted fails to further indicate the scope of the additional work in relation to the late production of Dr. Kim's report. As a result, the Shipley or ProAACI "extra" costs totaling $176,158.29 are excluded from the recovery.
Shipley indicates that the total amount of expert fees charged by ProAaCI was $348,453.08.
--------
Next, PHI submitted the affidavit of Douglas E. Stimpson ("Stimpson") of Accident Investigations & Reconstruction. Mr. Stimpson contends that his work in the case began on December 12, 2011 and ended on December 17, 2011, well before the delayed production of Dr. Kim's report. He states, that PHI incurred $46,844.50 in expert fees related to the delayed production of Dr. Kim's report.
In opposition, Sikorsky contends that Stimpson was identified as an expert witness by PHI to provide testimony to rebut the anticipated opinions, observations and testimony of Vaughn Ross. See R. Doc. 657, p. 93; R. Doc. 751, p. 35.
The Court notes that Stimpson mentions that he read Dr. Kim's reports. However, neither his affidavit, nor the attendant invoices describe the nature of any additional work he was required to perform because of the delayed production or the inability to locate the supporting data and files Dr. Kim used to formulate his report. Therefore, the Court finds that the $46,844.50 requested for the "additional" work purportedly performed by Stimpson is not sufficiently documented, and therefore not reasonable.
Next, PHI submitted the affidavit of Donald Gillespie ("Gillespie"), an aerospace structural engineer and consultant, who was retained by PHI to provide testimony and analysis regarding the reconstruction, failure, and mechanical systems of the subject helicopter. Gillespie contends that he was retained by PHI in early August 2008 to assist it with the technical aspects of this litigation. He further contends that in March 2010 he and Dr. John Meyer ("Meyer") began working on a computer simulation and analysis of the bird strike. According to Gillespie, he advised PHI's attorneys that it would be extremely beneficial if they had access to certain Sikorsky design and fabrication documents and data, such as CATIA 3-D computer model files, structural engineering files and reports, in addition to any computer simulation data. He states that he assisted PHI's attorneys in drafting PHI's discovery requests, which sought the information he needed, including computer simulation data. He argues that Sikorsky's failure to produce this information resulted in the need for PHI to engage engineers and technicians to hard-measure and/or laser scan virtually every piece of the S-76 forward canopy area in an effort to generate and or verify data required for the modeling effort.
After attending Dr. Kim's deposition, and receiving the data from Sikorsky, Gillespie states that he identified 7,258 files with no explanation of usage and no known naming convention or organization. He contends that he was required to spend an inordinate amount of time going through the approximately 200 gigabytes of data in order to understand and review it. He further contends that despite the attempted production by Sikorsky, a significant amount of data was not produced, namely the input pulses nor data defining the specifics of the out of the quadrant shaker table testing.
He opines that had he been provided with access to the Sikorsky design, engineering and modeling data, PHI would have saved more than a year and half of wasted effort attempting to recreate a reasonable and accurate set of engineering and material data for use in building a finite element model. He therefore estimates that between March 11, 2011 and December 15, 2011, he charged $389,403 for time spent investigating Dr. Kim's report, data, and files, related depositions, and Sikorsky's document production, developing alternate data, and preparing the subject affidavit.
In opposition, Sikorsky argues that during Gillespie's deposition, which was taken shortly before the scheduled Yelton trial, he was asked about the whereabouts of any test results PHI obtained from any tests or analysis performed by him in connection with the instant lawsuit. Sikorsky further contends that while PHI started its own simulation and analysis, when Dr. Kim's report was discovered and his data and files were made available, PHI's focused shifted, and it did not rely upon its previous work. Sikorsky argues that because PHI's work was done before Dr. Kim's report was produced, by its very terms, it does not fall within the parameters of this Court's order and should be excluded.
PHI does not respond to this suggestion, but notes that it only seeks to recover expert fees that fall within the parameters of this Court's order. The Court notes, however, that while Gillespie states that his fees were incurred after the production of Dr. Kim's report, its unclear how his fees are the result of additional work performed by him after the production of Dr. Kim's report, when Gillespie testified that R. Cunningham refused to permit him to produce the results of his independent simulation and analysis.
Further, Gillespie acknowledges in his affidavit that at the time he prepared the affidavit, he had not reviewed the S-92 model and data produced by Sikorsky. Thus, the Court is not persuaded that the $389,403.00 requested amounts to the additional fees incurred by PHI in association with the delayed production of Dr. Kim's report - since Gillespie never reviewed Dr. Kim's S-92 model or the data. Consequently, the court finds that the $389,403.00 requested is not a reasonable.
Finally, PHI submitted the affidavit of John Meyer ("Meyer"), a mechanical engineer who served as a accident investigation and reconstruction consultant. He states that he was retained in August 2009 to assist with several technical aspects of this litigation, including the recreation and analysis of the bird strike that led to the helicopter crash. Meyer contends that he worked with Gillespie on a computer simulation and analysis of the bird strike, and like Gillespie, felt that having access to certain Sikorsky design and fabrication documents, including electronic data such as CATIA 3-D, would have been helpful. He alleges that he also attended Dr. Kim's deposition, and like Gillespie, has not yet reviewed the S-92 model or its data. He estimates that between March 11, 2011 and December 15, 2011, he charged Plaintiffs and PHI $221,206.96 in fees for time spent investigating Dr. Kim's report, attending related depositions, reviewing Sikorsky's document production, and preparing the subject affidavit.
Meyer contends that he spent time between March and December 2011 investigating Dr. Kim's report. Yet, the subject of PHI's sanctions motion and this Court's subsequent order was the delayed production of Dr. Kim's report and his lost data and files, which Meyer acknowledges he had not reviewed at the time he prepared his December 16, 2011 affidavit. The Court therefore finds that the $221,206.96 requested by PHI for the extra work purportedly done by Meyer as result of Sikorsky's delayed production and spoliation of Dr. Kim's data and files is not reasonably supported. Therefore, it is excluded.
D. Adjusting the Lodestar
As indicated above, after the lodestar is determined, the Court may then adjust the lodestar upward or downward depending on the twelve factors set forth in Johnson, 488 F.2d at 717-19. To the extent that any Johnson factors are subsumed in the lodestar, they should not be reconsidered when determining whether an adjustment to the lodestar is required. Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998). The Court has carefully considered the Johnson factors and concluded that they do not warrant an upward or downward departure here. Having considered each of the lodestar factors in this matter, the Court finds that an adjustment upward is not warranted. IV. Conclusion
Accordingly,
IT IS ORDERED that Defendant PHI Inc.'s Motion to Fix Attorneys' Fees and Costs (R. Doc. 707) is GRANTED IN PART and DENIED IN PART. The Court finds that attorney's fees in the amount of $577,206.50 are reasonable in this matter.
IT IS FURTHER ORDERED that Defendant Sikorsky Aircraft Corporation shall submit payment to Defendant PHI, Inc. in the amount of $577,206.50 no later then thirty (30) days from the date of this order.
New Orleans, Louisiana, this 14th day of August 2012.
_________________
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE
+-----------------------------------------------------------------------------+ ¦Transcribing depositions ¦$62,307.77 ¦ +-------------------------------------------------------------+---------------¦ ¦Copying/Outside Printing ¦$6,162.32 ¦ +-------------------------------------------------------------+---------------¦ ¦Delivery Services ¦$16,730.00 ¦ +-------------------------------------------------------------+---------------¦ ¦Out of State Travel Expenses ¦$44,057.07 ¦ +-------------------------------------------------------------+---------------¦ ¦Local Travel Expenses ¦$2,150.34 ¦ +-------------------------------------------------------------+---------------¦ ¦Meals ¦$352.64 ¦ +-------------------------------------------------------------+---------------¦ ¦Travel Service Fees ¦$12.50 ¦ +-------------------------------------------------------------+---------------¦ ¦Litigation Support ¦$76,536.84 ¦ +-------------------------------------------------------------+---------------¦ ¦Expert costs related to Dr. Kim's report and recreating Lost ¦$883,612.75 ¦ ¦Data ¦ ¦ +-------------------------------------------------------------+---------------¦ ¦TOTAL ¦$1,091,922.23 ¦ +-----------------------------------------------------------------------------+