Filed: Jan. 13, 2015
Latest Update: Jan. 13, 2015
Summary: ORDER BOYD N. BOLAND, Magistrate Judge. This matter arises on Plaintiffs' Application for Attorneys' Fees and Expenses [Doc. # 98, filed 12/15/2014] (the "Motion for Attorneys' Fees"), which is GRANTED as specified. I previously granted the Plaintiffs' Motion for Order for Spoliation Sanctions, Order [Doc. # 85], finding that "the defendants destroyed evidence by altering the profit and loss statements" and that defendant William Clark directed that the evidence be altered "in bad faith and
Summary: ORDER BOYD N. BOLAND, Magistrate Judge. This matter arises on Plaintiffs' Application for Attorneys' Fees and Expenses [Doc. # 98, filed 12/15/2014] (the "Motion for Attorneys' Fees"), which is GRANTED as specified. I previously granted the Plaintiffs' Motion for Order for Spoliation Sanctions, Order [Doc. # 85], finding that "the defendants destroyed evidence by altering the profit and loss statements" and that defendant William Clark directed that the evidence be altered "in bad faith and ..
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ORDER
BOYD N. BOLAND, Magistrate Judge.
This matter arises on Plaintiffs' Application for Attorneys' Fees and Expenses [Doc. # 98, filed 12/15/2014] (the "Motion for Attorneys' Fees"), which is GRANTED as specified.
I previously granted the Plaintiffs' Motion for Order for Spoliation Sanctions, Order [Doc. # 85], finding that "the defendants destroyed evidence by altering the profit and loss statements" and that defendant William Clark directed that the evidence be altered "in bad faith and with a malicious intent." Id. at 15. In addition, however, I found that the "resulting prejudice to the plaintiffs is slight because either the information is available elsewhere or the probative value of the evidence is not great." Id. at 18. Because it was impossible to fashion a proportional evidentiary sanction to address the spoliation, but some sanction is necessary to deter future misconduct and to make clear that the destruction or alteration of evidence is not tolerated, I imposed a monetary sanction against the defendants in the amount of the plaintiffs' reasonable expenses, including attorneys' fees, incurred in connection with the despoiled evidence. Id. at pp. 18-20.
To facilitate the sanction, I ordered the plaintiffs to file a fee application specifying the attorneys' fees and expenses claimed. Id. at 20. The plaintiffs have complied. They seek attorneys' fees for time incurred by four lawyers, totaling 195.75 hours, in the amount of $53,807.50, plus costs of $5,054.80, for a total award of $58,862.30. Motion for Attorneys' Fees [Doc. # 98] at 2. The defendants object to the request, arguing that the number of hours claimed by plaintiffs' counsel is unreasonable, fees are claimed for duplicative effort, and fees are claimed based on vague time entries and block billing. Opposition [Doc. # 103].
I have reviewed with care the time entries of plaintiffs' counsel as well as considered the reasonableness of the claim as a whole. In general, I find that a claim for 195.75 hours and $53,807.50 to be unreasonable. The discovery of the altered and destroyed profit and loss statements was made possible by a disclosure made by the defendants' former bookkeeper and did not require substantial investigation. The law on spoliation of evidence is well-settled in this circuit. The hearing on the Spoliation Motion [Doc. # 52] lasted less than one day. In my view, the plaintiffs could and should have presented the Spoliation Motion in not more than 100 hours, and I will award fees for that amount of time only. Although the plaintiffs may prefer a line-by-line assessment of their claim, I "need not, and indeed should not, become [a] green-eyeshade accountant[]" auditing individual time entries. Fox v. Vice, 131 S.Ct. 2205, 2217 (2011). To the contrary, a "district court need not identify and justify every hour allowed or disallowed, as doing so would run counter to the Supreme Court's warning that a `request for attorney's fees should not result in a second major litigation.'" Malloy v. Monahan, 73 F.3d 1012, 1018 (10th cir. 1996) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). This is because "[t]he essential goal in shifting fees (to either party)is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time." Fox, 131 S.Ct. at 2216.
The second step in assessing a reasonable fee is to determine a reasonable hourly rate. Here, three of the four lawyers bill at $300 per hour. The defendants do not object to that rate, and I find that it is reasonable. Guides, Ltd. v. Yarmouth Group Property Mgmt., Inc., 295 F.3d 1065, 1079 (10th Cir. 2002) (holding that a trial court may use its own knowledge in determining a reasonable rate). See Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1259 (10th Cir. 2005) (approving the district court's determination of the applicable hourly rate by "relying of its knowledge of rates of lawyers with comparable skill and experience" practicing in the relevant market).
Multiplying the number of hours reasonably incurred (100) by the reasonable hourly rate ($300) results in the award of a reasonable attorneys' fees of $30,000.
In addition, I find that the plaintiffs incurred reasonable costs of $4,841.25 in expert witness fees; $34.50 for transcription of the Clark voice mail; and $179.30 for duplication and preparation of exhibit notebooks, for a total cost award of $5,055.05. For unexplained reasons, the plaintiffs seek costs of only $5,054.80, which I will award.
IT IS ORDERED:
(1) The plaintiffs are awarded their reasonable expenses, including attorneys' fees, incurred in connection with the despoiled evidence, in the amount of $35,054.80;
(2) The award is made jointly and severally against all defendants, but not defense counsel; and
(3) The defendants shall satisfy this award on or before January 30, 2015.