Discovery Dispute Order

MARK R. ABEL, Magistrate Judge.

Plaintiff NetJets brought this action alleging that IntelliJet infringed its INTELLIJET registered trademark. This matter is before the Magistrate Judge to determine the amount of attorneys fees IntelliJet it entitled to under my July 2, 2013 Discovery Dispute Conference Order (doc. 52).

July 2, 2013 Discovery Dispute Conference Order. That Order held that NetJets' delayed production of all documents regarding marketing surveys, reports and the like, including memos and email transmitting or discussing market surveys and reports warranted the sanction of an award of attorney fees because NetJets had "given no explanation for the delayed production . . . ." Id., pp. 1 and 6, PageID 2475 and 2480.

IntelliJet's itemization of attorney fees and NetJets' response. IntelliJet's counsel Mary R. True submitted an affidavit (doc. 75), which included copies of the communications between counsel submitted to me on April 29, 2013 (Attachment A, doc. 75-1), the communications between counsel submitted to me on May 13, 2013 (Attachment B, doc. 75-2), and IntelliJet's counsel's itemized attorney fees. The total attorney fees sought is $9,011.50.

NetJets filed a reponse to True's affidavit and supporting exhibits. It argues that onl $3,438.50 in attorney fees were related to the dispute decided by the July 2, 2013 Discovery Dispute Conference Order. (Doc. 76.) NetJets' indicates the attorney fees it does not dispute by taking Attachment C to doc. 75 (IntelliJet's itemized attorney fees) and drawing a box around the undisputed attorney fees. (Doc. 76-1.)

Decision. In general, IntelliJet is entitled to recover all attorney fees it incurred to compel the production of the marketing surveys, reports, and related documents because NetJets had no excuse for not timely producing them. Having reviewed the descriptions of the legal service rendered and considered NetJets' response, I determine that InteliJet is entitled to recover attorney fees in the amount of $6,178.30.

In determining the amount of attorney fees reasonably related to the dispute giving rise to the award of attorney fees, I have made the following analysis of the descriptions of the legal services rendered in IntelliJet's counsel's invoices to their clients. Each billing entry is addressed separately.

March 11, 2013. The invoice describes these legal services as "review and revise document requests; draft letter to opposing counsel re discovery deficiencies" (1.25 hours/$368.75). October 9, 2013 Affidavit of Mary R. True, Attachment C, Doc. 75-3, PageID 4815. IntelliJet characterizes these legal services as: "Attorney time on preparation of March 11, 2013 letter to Mr. Speed regarding discovery deficiencies, including review of discovery responses: 1.25 hrs." October 9, 2013 Affidavit of Mary R. True, p. 2, Doc. 75, PageID 4712. The March 11 letter addresses NetJets' refusal to produce documents (1) sufficient to show its corporate structure and its parent, subsidiary and affiliated companies; (2) that mention its competitors in the fractional share aviation business (Third Set Document Request No. 12); and (3) that contain references to aircraft tail numbers used on aircraft it is currently offering to sell to unrelated third parties. March 11, 2013 Letter from Mary R. True to Michael Speed, October 9, 2013 Affidavit of Mary R. True, Attachment A, Doc. 75-1, Attachment A, PageID 4718-19. Categories (1) and (3) are unrelated to the discovery dispute giving rise to the award of attorney fees. Although Category(2) does not expressly mention market surveys or reports, it is clear from the letter that IntelliJet is contesting NetJets' witnesses' assertion that it competes with everyone so it is seeking documents that identify NetJets' competitors. And, of course, marketing surveys and the like fall within that category of requested document. I conclude that IntelliJet is entitled to re-cover $123 of the $368.75 billed for March 11.

March 20, 2013. The invoice describes these legal services as "draft follow up letter to Mr. Speed re outstanding discovery; research issue re attys fees for defendants" (2.00 hours/$590). True Aff., Attach. C, Doc. 75-3, PageID 4816. IntelliJet characterizes these legal services as: "Attorney time on preparation of March 20, 2013 letter to Mr. Speed regarding discovery deficiencies, including review of discovery responses, drafting of additional responses and review of documents produced: 2.0 hrs." True Aff., p. 2, above. The March 20 letter addresses Categories (1) and (2) addressed in the March 11 letter. True Affidavit., Attach. A, PageID 4720-21. I conclude that IntelliJet is entitled to recover $280 of the $590 billed for the March 20 letter and research.

April 11, 12 and 18, 2013. The invoice describes these legal services as "Review documents on competitors of NetJets" (0.80 hours/$292), and "review responses to 5th set of document requests; review and revise follow up letter to opposing counsel" (1.00 hours/$295). True Aff., Attach. C, Doc. 75-3, PageID 4819. IntelliJet characterizes these legal services as:

True Aff., p. 3, above, PageID 4713.1 The invoices do not compare easily to the description of the legal services in True's affidavit. The April 12 review by Mr. Dreitler of documents on NetJets' competitors is compensable.2 There is no claim to recover the 1.25 hours billed on April 11 for a preliminary review of recently produced documents. The $663.75 referenced for Ms. True was billed on April 23, so that amount cannot be recovered for an April 18 letter.3 I conclude that IntelliJet is entitled to recover $292 for the April 12 document review.

April 23 and 24, 2013. The invoice describes these legal services as "review letter from Marsh re Fryefield deposition; draft response; TC with Mr. Spivack re same" (2.25 hours/$663.75), and "review of recently produced documents; TC with Mr. Spivack; draft letter to opposing counsel" (3.75 hours/$1,106.25). True Aff., Attach. C, Doc. 75-3, PageID 4819. IntelliJet characterizes these legal services as:

True Aff., p. 3, above. The April 24 letter from True to Speed solely relates to NetJets' belated production of some market survey documents and its continued failure to produce related emails and memos. True Aff., Attach. A, above, PageID 4726-28. NetJets concedes that the 3.75 hours/$1,106.25 billed on April 24 is recoverable. It would exclude the (2.25 hours/$663.75 billed on April 23. I believe those hours are related to the discovery dispute because Ms. Fryefield was the deponent who appeared to be most knowledgeable about marketing yet failed to produce marketing surveys and related documents. IntelliJet was seeking to depose Fryefield about those documents. I conclude that IntelliJet is entitled to recover the entire $1,770.00 sought.

April 25 and 29 and May 2, 3, 6, 7, 9 and 13, 2013. The invoice describes these legal services as "TC with Opposing counsel re discovery dispute; TC with court to schedule hearing" (1.00 hours/$295); "prepare for and participate in hearing before magistrate judge Abel regarding discovery disputes" (4.00 hours/$1,180.00); "Review order from Judge Abel; TC with Mr. Spivack re order and Chasser deposition (1.00 hours/$295); "Telephone call with Magistrate on issues of witnesses and exclusion thereto" (0.75 hours/$273.57); "TCs with Court re discovery dispute" (0.75 hours/$221.25); "Legal research on exclusion of supplemental disclosure witness testimony" (2.00 hours/$230.00); "Continue. legal research on exclusion of witness testimony and awarding of fees" (1.00 hours/$115.00); "Drafting on motion to exclude new witnesses" (1.40 hours/$511.00); "Begin drafting letter brief" (2.00 hours/$590.00); and "Review research on sanctions under Rule 37" (0.50 hours/$147.50). True Aff., Attach. C, Doc. 75-3, PageID 4819-21. IntelliJet characterizes these legal services as:

Attorney time in preparing letter brief submitted on May 13 to Magistrate Judge Abel rediscovery deficiencies, including research, additional telephone conferences with the court, review of Plaintiff's letter brief of May 8, and assembling exhibits for submission: 18.3 hours JRD Attorney fees: $1040.25 MRT Attorney fees:$ 2374.75 TT Legal Assistant fees: $437.00

True Aff., p. 3, above. Relating to the April 29 conference with me, NetJets agrees that the $1,457.00 sought are reasonable attorney fees recoverable under the July 2, 2013 Discovery Dispute Conference Order. Doc. 76-1, PageID 4833-34. Regarding the invoice for legal services related to the May 13 hearing, NetJets maintains that the only relevant, reasonable legal services were the 0.75 hours/$273.75 invoiced for May 3 and the 5.30 hours/$1,468.60 invoiced for May 13. Id., PageID 4835-36.

Attorney fees were awarded for NetJets' failure to timely disclose marketing surveys and related documents. No attorney fees were awarded with respect to IntelliJet's attempt to prevent NetJets from supplementing its witnesses disclosures. I conclude that the 1.00 hours/$115 invoiced for May 7 and 1.40 hours/$115.00 invoiced for May 9 regarding supplementation of the witnesses disclosures are not recoverable. On the other hand, the 1.00 hours/$295 on May 2 invoiced for reading my order and telephone conference about that order and the 2.00 hours/$590 invoiced May 9 for drafting of a letter brief and 0.50 hours/ $147.50 invoiced the same day for research on sanctions are recoverable.

In summary, I conclude that IntelliJet is entitled to recover $1,475.00 in connection with legal services related to the April 29 conference with me. With respect to the May 13 hearing, the $3,198 invoiced will be reduced 15% to reflect that attorneys fees were awarded for the failure to produce market surveys but not with respect to the dispute regarding the very late supplemental disclosure of witnesses. Accordingly, IntelliJet is entitled to recover $2,718.30 of the legal fees invoiced related to the May 13, 2013 hearing.

Conclusion. IntelliJet is AWARDED $6,178.30 in attorney fees.

Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P., and Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by the District Judge. The motion must specifically designate the Order, or part thereof, in question and the basis for any objection thereto. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.