DANIEL D. DOMENICO, District Judge.
A status-discovery conference before the Special Master commenced at 1:30 p.m., November 21, 2019, at the offices of Plaintiff's counsel. Darren Lemieux and Abby Harder appeared for Plaintiff. Rob Zavaglia and Brooks Fortune appeared for Defendants. Although certain deadlines were set at the conference, Plaintiff's counsel, with the consent of Defendants' counsel, has proposed extending the deadlines because of the intervening holiday and other unspecified issues. The Special Master agrees, and the deadlines set herein reflect the extension upon which the parties have agreed.
The parties reviewed with the Special Master the status of current discovery disputes. The disputes fall into four categories: (1) the adequacy and completeness of Defendants' response to certain interrogatories propounded by Plaintiff in Plaintiff's first set of written interrogatories; (2) issues arising from Defendants' assertion that certain documents sought by Plaintiff are protected by the attorney-client privilege or the attorney work product privilege, including the adequacy of the privilege log supplied by Defendants; (3) issues concerning Defendants' compliance with the ESI protocol in the case; and (4) issues concerning whether Defendants should be sanctioned under Fed. R. Civ. P. 37 for several violation of the Court's oral rulings on September 17, 2019.
Plaintiff has narrowed the number of interrogatories as to which there remains an issue and has furnished Defendants' counsel and the Special Master with a notebook documenting all outstanding discovery matters. Argument concerning the interrogatories in question are set forth in a letter dated September 24, 2019 from Plaintiff's counsel to Defendants' counsel (Tab R) and in an emailed response from Defendants' counsel (Tab V). The Special Master will review the disputed interrogatories and responses, together with the letter and email, and will enter a separate order concerning the dispute. No further briefing or submission is required.
The threshold issue is the adequacy of the privilege log that Defendants have supplied. The controlling rule requires that the party claiming the privilege "describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." FED. R. CIV. P. 26(b)(5)(ii). To assess Defendants' claim, the privilege log should contain: (1) a Bates-numbered description of the document; (2) the date of the document; (3) the identity of the document's author, including his/her name, position, and/or title; (4) the identity of each recipient of the document, including his/her name, position, and/or title; (5) the identity (including name, position, and/or title) of any person to whom the document has been disclosed; (6) the privilege claimed and the factual basis for the claim. The privilege log shown to the Special Master (Tab W) appears to be insufficient in two ways. First, it supplies persons' names without disclosing the persons' title, position, or other information connecting the persons to the subject matter of this case. Second, in many cases, the basis for asserting the privilege is stated in terms of a bare legal conclusion without any indication whatsoever of the factual basis for the conclusion. The factual basis for the conclusion that a document is protected by attorney-client privilege is the classic formulation by Judge Wyzanski in United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358 (D. Mass. 1950) (reciting elements of privilege and thereafter examining documents in light of those elements). Defendants need to reformulate the privilege log in accordance with these principles, pursuant to the schedule set out in the "Orders" section below. Thereafter, in accordance with the same schedule, the parties can brief the issues presented by privilege claims.
Defendants reported during the conference that they were holding some ESI material which they had not produced because the Court in the interim appointed the Special Master. They should forthwith produce the additional ESI material in accordance with the schedule set forth in the "Orders" section below. One or both sides also need to produce the ESI Protocol for the Special Master.
In a bench order entered at a telephonic discovery conference on September 17, 2019, Judge Jackson ruled as follows:
Because Plaintiff contended that Defendants failed in several respects to comply with the bench ruling entered during the conference on September 17, Judge Jackson held a second telephonic conference on October 16, 2019. He heard argument from both sides. Plaintiff maintained that there had been insufficient compliance with the September 17 order and that Defendants should be sanctioned for violating the order. Defendants argued that they had complied with the order. Judge Jackson deferred ruling on the matter:
In compliance with the Court's direction, the Special Master will order that the Rule 37 issues be briefed and will issue either a ruling or a recommendation on the matter.
The Special Master explained the documents which he relied on in arriving at the suggested hourly rate of $400 per hour. The first document is a schedule prepared by the Office of Special Masters of the United States Court of Federal Claims for the year 2017. That schedule, a copy of which is attached as Exhibit 1, suggests an hourly rate from $394 to $440 for special masters having more than 31 years in practice. The Special Master also relied on two compensation orders entered by other judges in this district setting hourly rates of $400, one entered by Magistrate Judge Watanabe on June 2, 2016 (Exhibit 2, at 4-5), and the other entered by Judge Domenico on August 14, 2019 (Exhibit 3, at 6-7). No party objected to the hourly rate of $400 per hour. The parties also agreed that the Special Master would submit monthly statements to counsel and that the statements would be paid within 15 days, unless any party objected to a statement within 14 days after the statement was transmitted by email. See FED. R. CIV. P. 53(f)(2) (court may set time to object). Unless otherwise ordered by the Court, each side will pay one-half of each statement.
In accordance with the foregoing findings and conclusions, it is
1. The schedule above applies to work performed in calendar year 2017.
2. Beginning with the 2015-2016 Attorneys' Forum Hourly Rate Fee Schedule, the Office of Special Masters (OSM) prepared ranges of hourly rates for attorneys of varying experience and for paralegals for the purpose of evaluating motions for attorneys' fees in vaccine cases filed in the United States Court of Federal Claims.
3. The above 2017 rates were derived by adjusting the
4. The PPI-OL calculation of 2017 rates was derived by multiplying the
5. The Federal Circuit has approved the use of the lodestar approach to determine the "reasonable attorneys' fees" under the Vaccine Act.
6. The rates listed herein are forum rates. The forum is the location in which the deciding tribunal sits, which is Washington, DC.
7. The
8. The years of experience listed in this schedule refer to an attorney's years of experience practicing law, which generally will be calculated based on the year an attorney was admitted to the bar. Individual facts and circumstances may warrant an adjustment to the schedule.
9. As stated in
This parties were given notice of the need to appoint a Special Master and were given the opportunity by this Court to agree upon a Special Master. (Docket No. 47) The parties have failed to agree upon a single Special Master as ordered. See Joint Status Report Regarding Special Master (Docket No. 52). Therefore, this Court selects the Honorable John P. Leopold (Retired) to serve as Special Master in this case.
Based upon my review of Judge Leopold's Affidavit (Docket No. 54), I find that Judge Leopold is well qualified to serve as a Special Master in this case. I further find that an hourly rate of $400.00 is fair and reasonable and that there are no grounds for disqualification under 28 U.S.C. § 455. Furthermore, I find that Judge Leopold is willing to serve as a Special Master in this case.
Accordingly, pursuant to Fed. R. Civ. P. 53 and D.C.COLO.LCivR 72.1(b)(10), it is
The Court, having heard and considered the parties' request for appointment of a special master, having reviewed the Declaration of Robbie M. Barr, and being otherwise fully advised, hereby makes the following findings and orders.
1. Pursuant to Federal Rule of Civil Procedure 53(a)(1)(A), the Court may appoint a special master to perform duties consented to by the parties.
2. The Court previously entered an order awarding Plaintiffs their reasonable attorneys' fees. [Doc. 263.]
3. A determination of the amount of attorneys' fees to be awarded to Plaintiffs was deferred pending appeal to the Tenth Circuit Court of Appeals. [Doc. 267.] The Tenth Circuit issued its decision on February 12, 2019. Nelson v. United States, 915 F.3d 1243 (10th Cir. 2019). The time for any appeal from that decision has expired, and the Tenth Circuit's mandate issued on April 8, 2019. [Doc. 273.] The determination of the amount of attorneys' fees to be awarded Plaintiffs is now ripe for consideration.
4. On July 12, 2019, the parties filed a Joint Status Report [Doc. 278] suggesting that the Court appoint a special master pursuant to Federal Rule of Civil Procedure 54(d)(2)(D) to make a recommendation to the Court concerning the appropriate amount of attorneys' fees to be awarded to Plaintiffs, including any additional costs incurred by Plaintiffs since completion of the appeal.
5. The parties' counsel further discussed the appointment of a special master during the status conference held before the Court on July 18, 2019. [See Minute Entry, Doc. 280.]
6. The parties mutually recommend and consent to the appointment of Judge Robbie M. Barr ("Judge Barr") as Special Master.
7. Judge Barr's contact information is:
8. Judge Barr is a former Florida state judicial officer and currently provides mediation services in Colorado.
9. Judge Barr has agreed to accept the appointment and provide the Court with a recommendation regarding the appropriate amount of attorneys' fees.
10. Plaintiffs have filed the Declaration of Robbie M. Barr [Doc. 284], in which Judge Barr affirms that she does not have a relationship to the parties, attorneys, action, or Court that would require disqualification pursuant to 28 U.S.C. § 455. See Fed. R. Civ. P. 53(a)(2).
In consideration of the above, the Court APPOINTS Judge Robbie M. Barr as Special Master in this action pursuant to Federal Rules of Civil Procedure 53 and 54(d)(2)(D). Special Master Barr is to proceed with all reasonable diligence in carrying out her duties under this appointment.
Federal Rule of Civil Procedure 53(b)(2)(A) requires the Court to state "the master's duties, including any investigation or enforcement duties, and any limits on the master's authority under Rule 53(c)."
Special Master Barr shall review the revised application for attorneys' fees by Plaintiffs' counsel, including any application for additional costs incurred by Plaintiffs since completion of the appeal in this matter, and briefing from the parties. Based on her review of the parties' submissions, she shall provide a written recommendation to the Court as to the amount of attorneys' fees she believes the Court should award under the governing law.
Federal Rule of Civil Procedure 53(b)(2)(B) requires the Court to state "the circumstances, if any, in which the master may communicate ex parte with the court or a party."
Special Master Barr shall not communicate ex parte with the Court on any substantive matter. However, Special Master Barr may communicate ex parte with the Court, without notice to the parties, regarding general administrative matters, logistics, and the status of her activities and review. Special Master Barr may communicate ex parte with any party or any party's attorney, but must provide notice to the other party along with the reason for the need to communicate ex parte. Any concerns or objections concerning ex parte communications shall be resolved in good faith among the parties, or by the Court if the parties are unsuccessful in reaching a resolution.
Federal Rule of Civil Procedure 53(b)(2)(C) requires the Court to state "the nature of the materials to be preserved and filed as the record of the master's activities."
Special Master Barr shall preserve all documents and records necessary for the Court's review of any reports or recommendations made by Special Master Barr during the course of her appointment. All materials and evidence reviewed and considered by Special Master Barr shall be recorded, preserved, and filed with the Court. Special Master Barr shall maintain normal billing records with reasonably detailed descriptions of costs incurred and time spent on this appointment.
Federal Rule of Civil Procedure 53(b)(2)(D) requires the Court to state "the time limits, method of filing the record, other procedures, and standards for reviewing the master's orders, findings, and recommendations."
Special Master Barr shall proceed with all reasonable diligence in carrying out her duties under this appointment. Fed. R. Civ. P. 53(b)(2). The Court may periodically request status updates from the Special Master concerning her progress.
Plaintiffs shall, within thirty days of entry of this order, submit their opening brief and revised application for attorneys' fees; Defendant shall have thirty days from Plaintiffs' filing to submit a response; and Plaintiffs shall have fifteen days thereafter to submit a reply, if any. All briefs and supporting information shall be submitted directly to Special Master Barr, and not filed with the Court. Special Master Barr shall "make and file a complete record of the evidence considered in making or recommending findings of fact on the basis of evidence." Fed. R. Civ. P. 53 Advisory Committee Notes on 2003 Amendment.
Special Master Barr shall make a recommendation to the Court no later than sixty days following the submission of Plaintiffs' reply. This and the above deadlines may be extended upon motion or request to the Court by the parties or by Special Master Barr. The recommendation shall be promptly served on each party. Fed. R. Civ. P. 53(e).
Pursuant to Federal Rule of Civil Procedure 53(f)(1), "[i]n acting on a master's order, report, or recommendations, the court must give the parties notice and an opportunity to be heard; may receive evidence; and may adopt or affirm, modify, wholly or partly reject or reverse, or resubmit to the master with instructions." Accordingly, the parties shall file any objections to—or motions to adopt or modify—Special Master Barr's recommendation no later than twenty-one days after the recommendation is served. Fed. R. Civ. P. 53(f)(2). The Court will decide de novo all objections to findings of fact and conclusions of law made or recommended by Special Master Barr. Fed. R. Civ. P. 53(f)(3), (4).
Federal Rule of Civil Procedure 53(b)(2)(E) requires the Court to state "the basis, terms, and procedure for fixing the master's compensation under Rule 53(g)."
Special Master Barr shall only incur such fees, costs, and other expenses as may be reasonably necessary to fulfill her duties under this order. Special Master Barr shall be compensated at the rate of $400 per hour, with travel time billed at $200 per hour. To assist in carrying out her duties under this appointment, Special Master Barr may, with the consent of the parties and the Court, employ support staff and personnel. Special Master Barr's fees, costs, and other expenses shall be assessed equally against the parties. Special Master Barr shall submit monthly invoices to the parties for review, approval, and payment. Such invoices shall be paid directly to Special Master Barr.
This order "may be amended at any time after notice to the parties and an opportunity to be heard." Fed. R. Civ. P. 53(b)(4).
