ORDER

KIMBERLY J. MUELLER, District Judge.

This matter is before the court on defendants' objections to the first invoice submitted by the neutral expert appointed in this matter. See ECF No. 6064 (amending ECF No. 6033).1 Although the matter of payment of the neutral expert's fees has been referred to the magistrate judge, see ECF No. 6064 at 5, defendants' objections implicate provisions of this court's appointment order. For that reason, those objections have been submitted to this court, see ECF No. 6082, and are resolved by this order.

I. BACKGROUND

As required by the December 14, 2018 Order Appointing Neutral Expert, on January 3, 2019, the neutral expert submitted a proposed summary invoice to the magistrate judge for review. See ECF No. 6033 at 5.2 The magistrate judge sent the invoice to the parties on January 9, 2019. See ECF No. 6064 at 5. A copy of that invoice is filed concurrently with this order, along with more detailed billing entries provided to the court alone, under seal. As the neutral expert recommended, in order to protect the integrity of the investigation, the magistrate judge did not send the detailed entries to the parties. Attachment A, Email dated January 3, 2019 from Charles J. Stevens, Esq. (filed under seal). The neutral expert seeks compensation for six attorneys at a blended hourly rate of $775 per hour. Attachment A, Invoice dated January 3, 2019 (filed under seal). Each of the six attorneys spent a different amount of time on this matter. Id. The bill seeks compensation for 170.1 hours at $775 per hour, totaling $131,827.50 in services rendered plus $459.93 in costs, totaling $132,287.43.

On January 16, 2019, defendants submitted to the magistrate judge objections to the proposed final invoice. See Attachment B, January 16, 2019 Letter from Deputy Attorney General Tyler V. Health to Honorable Deborah Barnes. Therein, defendants objected that this court "did not require the expert to establish an adequate factual record to support a fee request," and, specifically, that neither the services performed nor the basis for determination of the blended rate was adequately explained. Id. at 1.

By letter to the magistrate judge dated January 22, 2019, a copy of which was served on the parties, a member of the neutral expert's team explained the proposed invoice was accompanied by ten pages of detailed billing entries,

Attachment C, January 22, 2019 Letter from Benjamin Wagner, Esq. to Honorable Deborah Barnes, at 2. This letter once again "recommended to the Court that it share only the invoice itself with the parties, since providing the parties with the detailed day-by-day chronicle of the activities of the investigating attorneys might compromise the integrity of the investigation." Id. The letter also explained the blended rate is a reasonable blend of the "otherwise-applicable hourly rates for attorneys assigned to this matter [which] range from nearly $700 per hour to over $1200 per hour." Id. It also explained that "[t]he majority of attorneys assigned to this matter have a standard hourly rate that exceeds the $775 blended hourly rate in this matter." Id. Finally, it explained the blended rate "was based on the rate currently being applied in another investigations matter involving the State of California," and includes "a small adjustment in light of the firm's current hourly rates." Id.

By order filed January 31, 2019, the magistrate judge directed defendants to, within five days, inform the court "whether the neutral expert's response resolved some or all of their objections." ECF No. 6079. By letter dated February 4, 2019, defendants reasserted their objections. Attachment D, Letter dated February 4, 2019 from Supervising Deputy Attorney General Adriano Hrvatin to Honorable Deborah Barnes. Thereafter, by order filed February 7, 2019, the magistrate judge directed submission of defendants' objections to this court, ECF No. 6082, a referral this court accepts in order to clarify matters and expedite the magistrate judge's review of future invoices submitted by the neutral expert.

II. ANALYSIS

A. Reasonableness of Hours Spent

Defendants initially objected that the summary invoice did not provide sufficient detail to allow either the magistrate judge or defendants to assess the reasonableness of the work performed by the neutral expert and his team. Attachment B at 2. As noted, however, the neutral expert's representative has provided a level of detail to the court as client to allow it to properly evaluate the reasonableness of the bill and reiterated the position that the detail should not be provided to the parties now because doing so would risk compromising the integrity of the independent investigation that is his charge. Attachment C at 2. In response, defendants now contend they "cannot verify" the neutral expert's explanation, and that "the Court's appointment orders do not contemplate that the parties would receive a different invoice than the Court to evaluate the reasonableness of the expert's work." Attachment D at 1.

Defendants rely on Padgett v. Loventhal, 706 F.3d 1205, 1208-09 (9th Cir. 2013), to support this objection. Padgett articulated the principle that a court should "show [its] work when calculating attorney's fees" and to "`specify reasons'" when it denies an award of costs; it did so in the distinguishable context of evaluating fees and costs awarded to a prevailing party. Padgett, 706 F.3d at 1208 (quoting Ass'n of Mexican-Am. Educators v. State of California, 231 F.3d 572, 591 (9th Cir. 2000)). The reason for the rule in Padgett, to permit appellate review of orders on costs and attorneys' fees, does have force here.3 The detailed invoice provided by the neutral expert is sufficient to allow this court to meet its obligation under Federal Rule of Evidence 706(c) to set "reasonable compensation" for the neutral expert. And the detailed billing statements will be made a part of the record, filed under seal until the investigation is concluded, and so available for appellate review. Defendants provide no authority for the proposition that they are entitled to withhold payment directed by the court unless they can "verify" the court's independent assessment that the compensation sought is reasonable; the court is unaware of any such authority.

As the court previously has determined, a neutral, independent investigation is essential to aid this court in the proper and efficient disposition of the numerous and serious allegations presented by Dr. Golding's whistleblower report. The neutral expert, whom all agree is exceedingly well-qualified for the task, has advised the court that providing the parties with a more detailed description of services now would risk compromising the integrity of the investigation. The court accepts his representation of this risk. It is a risk no party should countenance and the court will not take.

As for the substance of his bill, the neutral expert seeks compensation for 170.1 hours spent by him and his team to conduct background research on the numerous serious issues identified for his investigation, to review "voluminous documents" and to begin initial contacts with parties and other individuals central to this investigation. In a case of this magnitude, the remedial phase of which has been going on for over two decades, and given the centrality of the issues raised, this is an entirely reasonable amount of time for the neutral expert and his team to spend on these tasks. Defendants' first objection is overruled.

B. Hourly Rate

Defendants also object to the blended hourly rate of $775 per hour. Attachment D at 2. Although defendants acknowledge the "impressive backgrounds" of the neutral expert and his partner, they contend there is no justification in the record for paying firm associates at the same rate as Mr. Stevens and Mr. Wagner. Id. Defendants also object to the fact that the blended rate was not set in the appointment order and the court did not specify how the rate "would be determined to be reasonable." Id. These objections are also overruled.

First, defendants were given ample opportunity prior to the court's appointment of the neutral expert, including at the December 14, 2018 status conference, to raise questions about what the neutral expert's rate of compensation would be and how it would be set; they did not raise concerns then. See, e.g., ECF No. 6002 at 7 (order to show cause why court should not appoint independent investigator using Fed. R. Evid. 706 procedures for, inter alia, costs of investigator and require defendants to pay those costs; ECF No. 6018 at 8-9 (confirming decision to appoint neutral expert under Fed. R. Evid. 706 and to have defendants pay expert's compensation and granting parties seven days to submit views on expert identified by the court); ECF No. 6054 at 12-30 (Transcript of December 14, 2018 hearing).

Second, the case cited by defendants to support this part of their objections, United States v. City of Akron, 2013 WL 2422859 (N.D. Ohio 2013), stands for the proposition that assessment of a Rule 706 expert's hourly rate is grounded in the expert's "education, training and experience, and the prevailing market rate" within the venue of the court. 2013 WL 2422859, slip op. at 2. Defendants have presented no evidence that the blended hourly rate exceeds the prevailing market rate for the kind of expertise the neutral expert's team brings to bear, or is unwarranted by the education, training, or experience of any member of the neutral expert's team.

Finally, the court observes that, to the extent the neutral expert's standard billing rate is "presumptively" reasonable, see United States v. City of Akron, 2013 WL 2422859, slip op. at 1, the neutral expert has in fact significantly reduced his own standard billing rate by providing services at the blended rate for the rest of the team. Moreover, the neutral expert has explained that most of the team bills at rates above the $775 blended billing rate. No leap of imagination is required to reasonably conclude that use of the blended rate may well have resulted in an invoice reflecting a discount from a standard invoice using current billing rates for the neutral expert and members of his team.4

For the foregoing reasons, the blended billing rate of $775 is approved and defendants' objections to the rate are overruled.

C. Conclusion

As the court's prior orders explain, several factors informed the court's decision to appoint a neutral expert to assist in investigating the serious allegations made in the Golding Report. One was the need for highly informed neutrality and independence. Another was the need for efficiency and to allow the Special Master to continue his remedial work with defendants on a parallel track, to the extent possible, while the independent investigation was ongoing. Since it began presiding over this case nearly five years ago, the court has been clear that its goal is to bring remediation of constitutionally inadequate mental health care in California's prisons to completion sooner rather than later. The state's continued failure to complete the remedial work necessary to end federal court supervision does indeed have cost consequences, including ongoing payment for the work of the Special Master and his team, as well as quarterly undisputed attorneys' fees to plaintiffs' counsel, not to mention the costs borne by the plaintiff class. The short-term costs of the court's neutral expert are far outweighed by any of these other costs. At this juncture, paying the neutral expert's fees now, as billed, is the right and most cost-effective way forward for defendants.

In accordance with the above, IT IS HEREBY ORDERED that within five days from the date of this order defendants shall pay to the neutral expert the amount of $132,287.43 as reflected in the final invoice rendered through December 2018.

ATTACHMENT B

RE: Coleman, et al, v. Newsom, et al., U.S. District Court, Eastern District of California, Case No. 2:90-cv-00520

Dear Magistrate Judge Barnes:

Under the District Court's orders appointing Mr. Charles J. Stevens as a neutral expert under Federal Rule of Evidence 706 (see ECF Nos. 6033 & 6064), Defendants object to the expert's invoice for services rendered through December 31, 2018, which this Court's courtroom deputy circulated to the parties on January 9, 2019. The information provided by the invoice does not allow Defendants to meaningfully analyze the invoice's reasonableness; nor does it provide the information included with the Special Master's and Plaintiffs' invoices submitted to Defendants in this case. And, without more detail, the invoice does not meet the legal requirements for fee awards. For any fee order to withstand scrutiny on appeal, courts must explain how they determined a fee award to be reasonable, including with respect to the hourly rate and work performed. See Padgett v. Loventhal, 706 F.3d 1205, 1208-09 (9th Cir. 2013).

The District Court did not require the expert to establish an adequate factual record to support a fee request. The Court stated that the expert would be "compensated at a reasonable blended hourly rate per hour" and required the expert to provide an invoice "summarizing time spent and expenses incurred." (ECF No. 6033 at 4; ECF No. 6064 at 5.) Accordingly, the expert submitted an invoice for $132,287.43. Each timekeeper billed his or her services at $775 per hour, regardless of experience. The invoice simply set forth the total number of hours six timekeepers worked on the case, without any additional information describing the specific work performed by each timekeeper or how the blended rate was determined. Without requiring additional information, the Magistrate Judge cannot meaningfully evaluate the reasonableness of the expert's rate or the work performed based on the current record.

For example, Rule 706 states that the "expert is entitled to reasonable compensation, as set by the court." Fed. R. Evid. 706 (emphasis added). Here, the District Court stated that "the expert and his staff shall be compensated at a reasonable blended hourly rate per hour for services performed as approved by the court." (ECF No. 6033 at 4 & ECF No. 6064 at 5.) But the Court's orders did not set that "reasonable blended hourly rate"—the first time Defendants learned that the expert would apply a $775 per hour rate for all timekeepers was when the Magistrate Judge's courtroom deputy circulated the expert's first invoice on January 9, 2019. Courts generally set reasonable expert fees by analyzing the expert's education, training and experience, the prevailing rate for comparable experts, and the nature and complexity of the information sought, as well as whether or not the party paying the fee is a government agency. See United States v. City of Akron, No. 5:09CV272, 2013 WL 2422859, at *1-2 (N.D. Ohio June 3, 2013) (evaluating reasonable expert fees under Federal Rule of Civil Procedure 26(b)(4)(E)). Defendants object because there is presently no record establishing the expert's $775 per hour rate, or any other rate, is reasonable for the work to be performed in this case.

The District Court's orders directing the expert to "summarize[e] time spent" did not instruct the expert to provide records describing the work he and his team performed to allow the Magistrate Judge to determine the reasonableness of the work performed by each timekeeper. But the law governing the reasonableness of attorneys' fees is clear. Any party claiming fees "bears the burden of submitting detailed time records justifying the hours claimed to have been expended." In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1305 (9th Cir. 1994) (citing Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986)). Where the documentation of hours is inadequate, a district court may reduce the award accordingly. See id. (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)); see also Cognizant Tech. Solutions U.S. Corp. v. McAfee, No. 14-1146, 2014 WL 3885868, at *2-3 (N.D. Cal. Aug. 7, 2014) (fifty-percent reduction for vague entries, such as "attention was given to some subject without further description"). The Special Master and Plaintiffs' counsel in this case submit itemized billing records to Defendants in connection with their invoices and the Court should not require any less of the expert's invoice. Given the present lack of detail in the invoice, the Defendants cannot evaluate its reasonableness, nor is the Magistrate Judge able to "show its work" to determine the reasonableness of the work performed by the expert and his team between December 14, 2018 and December 31, 2018. See Padgett, 706 F.3d at 1208-09.

The present structure for compensating the neutral expert and the first invoice do not provide sufficient information for Defendants or the Magistrate Judge to analyze the compensation's reasonableness. The lack of detail required by the Court and present in the invoice is of paramount concern given that the District Court ordered state taxpayers to pay all fees and costs associated with the expert's evaluation of Dr. Michael Golding's allegations. Defendants concern is compounded by the fact that the process for analyzing the invoices takes place outside the public record. As required by the District Court, the expert submitted to the Magistrate Judge by email (not through an application for fees filed in the public record) his first proposed monthly invoice for services rendered to the Magistrate Judge for an "initial[] review." The Magistrate Judge then circulated the proposed invoice to the parties by email, who have seven days after receipt to submit objections to the amount billed—again, not with a public filing, but by reply email. The expert then has seven days to submit to the Court and serve on the parties a final monthly invoice by email, accompanied by his response to any party's objections. The Magistrate Judge then will issue an order, which is the first time the public will have notice of these fee-specific proceedings. (See ECF Nos. 6033 at 4-5 & 6064 at 5-6.) The expert's first invoice seeks $132,287.43 for two weeks' worth of work analyzing Dr. Golding's allegations. State taxpayers deserve to know the amount requested, whether or not the amount was reasonable, and how the Court determined it was reasonable.

In sum, the District Court's orders governing how the expert would be compensated do not require enough specificity to justify the expert's hourly rate or the hours claimed by the expert's team for services rendered. As stewards for state taxpayers in this matter, Defendants object to the expert's invoice.

ATTACHMENT C

Re: Coleman, etal. v. Newsom. et al.: Response to Defendants' objection

Dear Judge Barnes:

The District Court's orders appointing my partner, Charles J. Stevens, as the Court's neutral expert in the matter of Coleman v. Newsom, provide that "the neutral expert and his staff shall be compensated at a reasonable blended hourly rate per hour for services performed as approved by the court." See ECF Nos. 6033 and 6064, at C. The orders also state that all reasonable expenses incurred by the neutral expert in performing the duties under the order shall be reimbursed as costs. Id. Under the orders, the neutral expert is to submit an initial invoice to the Court, and any party may submit objections, if any, within seven days of receipt of the invoice. Within seven days thereafter, the neutral expert is to respond to the objection and submit to the Court and serve on the parties the final monthly invoice. Id.

On January 3, 2019, the neutral expert submitted an invoice for work done pursuant to the Court's Orders since the neutral expert was appointed on December 14, 2018. The plaintiffs have submitted no objection to the invoice. The defendants, in a letter sent by email on January 16, 2019, submitted an objection to the invoice ("Def. Obj."). Per the Court's orders, the neutral expert responds herein to the defendants' objection, submits the final invoice, and requests that the Court review, approve, and issue an order directing payment of, that final invoice.

The defendants object to the hourly blended attorney rate of $775 (Def. Obj. at 1-2), and also object that the invoice does not provide sufficient information for the defendants or the Magistrate Judge to analyze the reasonableness of the compensation (Def. Obj. at 2-3). For the reasons set forth below, the defendants' objections should be overruled.

The rate of $775 per attorney hour is "a reasonable blended hourly rate per hour for services performed" under the Court's order. Gibson Dunn has a nationally-recognized investigations practice, and the team assigned to this matter includes two former United States Attorneys and several highly-experienced associates. The otherwise-applicable hourly rates for attorneys assigned to this matter range from nearly $700 per hour to over $1200 per hour. The majority of attorneys assigned to the matter have a standard hourly rate that exceeds the $775 blended hourly rate in this matter. The investigation in this matter involves a significant number of witnesses and several complex factual issues.

The blended rate in this case was based on the rate currently being applied in another investigations matter involving the State of California. Gibson Dunn was recently retained by another California state agency to perform neutral investigative work using nearly the same blended rate. (The rate in this matter includes a small adjustment in light of the firm's current hourly rates). As in that other matter, Gibson Dunn does not charge for travel time between its offices in the Bay Area and Sacramento.

There is sufficient information in the invoice submitted to the Court in this matter for defendants to formulate an objection (which they have), and for the Court to analyze the reasonableness of the invoice. The neutral expert submitted an invoice to the Court which also included 10 pages of detailed entries, reflecting a description of work done by each attorney on each date during the two week period covered by the invoice, during which the assigned attorneys researched the background of the issues identified for investigation, received and reviewed voluminous documents, made initial contact with the parties and the whistleblowers, and otherwise took steps to commence the investigation of multiple issues. The neutral expert recommended to the Court that it share only the invoice itself with the parties, since providing the parties with the detailed day-by-day chronicle of the activities of the investigating attorneys might compromise the integrity of the investigation.

In accordance with the Court's order, we are submitting herewith the final invoice to the Court, and requesting that it be approved for payment.

Attachment: Final invoice dated January 3, 2019

ATTACHMENT D

RE: Coleman, et al. v. Newsom, et al. U.S. District Court, Eastern District of California, Case No. 2:90-cv-0520 KJM DB

Dear Magistrate Judge Barnes:

Defendants continue to object to Gibson, Dunn & Crutcher's invoice for two weeks of work in December 2018 totaling $132,287.43 in attorneys' fees and costs. Gibson Dunn's response to Defendants' objections did not "resolve[] some or all of [Defendants'] objections" (see ECF No. 6079), but rather raised further concerns. Based on the current record, which remains inadequate to meaningfully evaluate the reasonableness of Gibson Dunn's work, the Court should reject the invoice.

First, Gibson Dunn's response does not allow the Court and Defendants to evaluate the reasonableness of the work performed. Gibson Dunn contends that "there is sufficient information in the invoice submitted to the Court in this matter for defendants to formulate an objection (which they have), and for the Court to analyze the reasonableness of the invoice." (B. Wagner Jan. 22, 2019 Letter at 2.) Defendants cannot verify this contention. When Defendants objected to Gibson Dunn's invoice for failing to include itemized time records, the firm responded by disclosing that it had, in fact, submitted ten pages of itemized time records to the Court, but not to Defendants. (Id.) Gibson Dunn "recommended" that the Court not distribute those records to Defendants because doing so "might compromise the integrity of the investigation." (Id. (italics added).) There is no authority supporting this sub rosa submission, and the Court's appointment orders do not contemplate that the parties would receive a different invoice than the Court to evaluate the reasonableness of the expert's work. (See ECF No. 6064 at 5.) The submission of a separate "sealed" invoice interferes with the Court's mandate to "show its work" when evaluating fee demands. See Padgett v. Loventhal, 706 F.3d 1205, 1208-09 (9th Cir. 2013).

Gibson Dunn generally describes the work the firm's team performed, but this is insufficient to justify the invoice and does not give Defendants the opportunity to evaluate whether the work was reasonable. Gibson Dunn purportedly "researched the background of the issues identified for investigation, received and reviewed voluminous documents, made initial contact with the parties and the whistleblowers, and otherwise took steps to commence the investigation of multiple issues." (B. Wagner Jan. 22, 2019 Letter at 2.) Gibson Dunn's invoice reflects that six different timekeepers billed between three and sixty-five hours over a two-week period. But because Gibson Dunn failed to provide Defendants with the underlying time records, Defendants (and state taxpayers) cannot evaluate how much time was spent on any given task to determine its reasonableness. For example, although the Court limited Gibson Dunn's investigation of Dr. Michael Golding's allegations to seven discrete issues, the Special Master provided Gibson Dunn with hundreds of records related to his Twenty-Sixth Round Monitoring Report and Defendants' 2018 continuous quality improvement monitoring, which have no bearing on Dr. Golding's allegations. To the extent that the time spent by Gibson Dunn reviewing "voluminous documents" included the Special Master's tangential documents, Defendants and the Court cannot evaluate the reasonableness of that work on the current record.

Similarly, Defendants cannot evaluate whether Gibson Dunn billed Defendants (and ultimately state taxpayers) for research and investigation that duplicates work performed by the Special Master and his team regarding Dr. Golding's allegations. A Rule 706 appointment presupposes that the expert is providing scientific, technical, or other specialized expertise not otherwise available to the court. But in the absence of further detail, Defendants and the Court cannot evaluate whether Gibson Dunn is charging state taxpayers for allegedly expert work not provided by the Special Master or that is otherwise unavailable to the Court.

Second, Gibson Dunn's response does not resolve Defendants' concerns regarding the $775 hourly rate applied to all timekeepers. The Court's appointment order provided that "the neutral expert and any of his staff shall be compensated at a reasonable blended hourly rate per hour for services performed as approved by the court." (ECF No. 6064 at 5.) But the Court did not specify the rate or how it would be determined to be reasonable. There is presently no record to show that Gibson Dunn's $775 per hour blended rate is reasonable for the work already performed or still to be performed in this case. Gibson Dunn contends that the rate is reasonable because the firm applied the same rate in another matter involving the State of California. (B. Wagner Jan. 22, 2019 Letter at 2.) But it does not identify that engagement, state whether the appointment was governed by Federal Rule of Evidence 706 (like this one), or describe the engagement's scope or nature to allow Defendants or the Court to compare the two matters. (See, e.g., id.)

Gibson Dunn separately refers to the credentials and qualifications of its team to justify the $775 hourly rate. Gibson Dunn apparently currently charges private clients between $700 and $1,200. (Id.) Defendants acknowledge Messrs. Stevens and Wagner's impressive backgrounds. But the Gibson Dunn team includes five associates, and the record does not justify why an associate with three years of experience should be compensated at the same rate as more senior associates or Messrs. Stevens and Wagner. The Court ordered that state taxpayers alone bear all fees and expenses associated with Gibson Dunn's allegedly highly-specialized work under Federal Rule of Evidence 706 in this matter (ECF No. 6064 at 5), which further warrants transparency and accountability in evaluating the expert's compensation.

* * *

This Court's January 31, 2019 order requesting Defendants' response to Gibson Dunn's effort to justify its fees and costs reflects an appropriate level of caution—Defendants, who are charged with protecting state resources, are unable to meaningfully evaluate Gibson Dunn's invoice. The law governing attorneys' fees and costs is clear—a "rubber stamp" will not withstand appellate review. Instead, federal courts must show their work to justify an award of attorneys' fees and costs. The current record regarding Gibson Dunn's December 2018 invoice is inadequate and lacks transparency. Defendants object to the invoice.