242 Order Re P Sanctions

Case 1:07-cv-00026-OWW-TAG

Document 242

Filed 10/15/2008

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID F. JADWIN, D.O.,

Case No. 1:07-cv-00026-OWW-TAG

Plaintiff,

ORDER GRANTING PLAINTIFF’S REQUEST FOR SANCTIONS

vs. (Doc. 215)

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COUNTY OF KERN, et al.,

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Defendants.

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___________________________________/

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Plaintiff’s motion to compel further production of documents and request for monetary

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sanctions (Doc. 215) came on regularly for hearing before United States Magistrate Judge

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Theresa A. Goldner on September 29, 2008 at 9:00 a.m. in the United States District Court

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courtroom at 1300 18th Street, Suite A, Bakersfield, California. Eugene D. Lee appeared for

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Plaintiff and Mark A. Wasser appeared for Defendants. The Court ruled from the bench as to the

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majority of the requests for production that were the subject of the motion, agreed to and

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thereafter did conduct an in camera review as to the documents identified on Defendants’

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privilege log as Bates Stamp numbers 16683-16894, ordered the parties to meet, confer, and

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report back to the Court as to the requests for production numbered 66 and 67, and took the

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request for sanctions under submission.

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On October 6, 2008, the Court issued a written order granting the motion to compel

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further production in part and denying it in part, including granting the motion as to the

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documents identified as Bates Stamp numbers 16683-16894. (Doc. 240). On October 10, 2008,

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Defendants’ attorney advised the Court by letter copied to Plaintiff’s attorney, that the parties had

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met, conferred, and resolved their disagreements regarding the requests for production numbered

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66 and 67. Thus, the only issue left to be decided is Plaintiff’s request for monetary sanctions.

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Analysis When a motion for an order compelling disclosure or discovery is granted in part and

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denied in part, the Court “may, after giving an opportunity to be heard, apportion the reasonable

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expenses for the motion.” Fed. R.Civ.P. 37(a)(5)(C). What constitutes reasonable expenses is a

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matter for the Court’s discretion. See Biovail Laboratories, Inc. v. Anchen Pharmaceuticals, Inc.

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233 F.R.D. 648, 654 (C.D. Cal. 2006).

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Here, Plaintiff’s motion was granted in part and denied in part, and Plaintiff has requested

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an award of $5,120.00 in attorney’s fees. Plaintiff’s requests for production of documents were

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directed to Defendant County of Kern. In determining whether to apportion fees, the Court has

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considered whether Defendant County of Kern was substantially justified in refusing to produce

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the requested documents before the motion was filed, and concludes that it was not, because the

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majority of its responses to Plaintiff’s requests for production asserted unfounded objections

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including a non-applicable state law medical peer review privilege that had already been the

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subject of a prior discovery motion in this case.

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In determining how to apportion Plaintiff’s expenses in bringing the motion, the Court

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has also considered Plaintiff’s relative degree of success in bringing the motion, the number of

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hours reasonably expended by Plaintiff’s attorney, and the propriety of the hourly rate requested

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by counsel in light of his experience and the level of sophistication required in this matter. See

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Green v. Baca, 225 F.R.D. 612, 614-615 (C.D. Cal. 2005). At the motion hearing, the attorneys

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were given an opportunity to argue each item or category of documents sought to be compelled

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as well as the sanction request, each were given an opportunity to consider the opposing party’s

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position, and each of them made concessions. For example, Plaintiff withdrew his motion to

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compel as to three items on Defendant’s privilege log and four of the requests for production,

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albeit after Defendants’ attorney represented that the latter had already been produced or could

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not be located. Similarly, Defendant agreed to produce at least three of the items on the privilege

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log and the documents that are the subject of at least five of the requests for production, albeit

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subject to a stipulated protective order. As reflected in the Court’s written order after hearing

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(Doc. 240), the motion to compel was granted as to all but two of the requests for production.

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Plaintiff asks the Court to order that he be compensated at the rate of $400.00 per hour for

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time spent by his attorney. The declaration of Plaintiff’s attorney states that he charges $400 per

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hour, spent in excess of 8.8 hours meeting and conferring with opposing counsel, researching and

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drafting the moving papers, and anticipated spending and additional 4 hours, traveling and

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attending the motion hearing. (Doc. 227-2, pp. 179-180)1. Plaintiff seeks “ $5,120 in

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compensation for the 8.8 hours charged ($3,520), and 4 hours anticipated to be charged ($1,600),

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in connection with this motion and underlying dispute.” (Id. at p. 180). The Court finds no need

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to reduce the requested number of hours. However, the Court finds that the hourly rate requested

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is excessive given the experience of counsel, the nature of the work performed in this matter,

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and the community standard for attorneys’ fees.

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The Court has considered the relative merits of each party’s position on the motion, the

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degree of success in bringing the motion, the hours reasonably expended by Plaintiff’s attorney,

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and the propriety of the hourly rate requested by Plaintiff’s attorney, as part of the totality of the

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circumstances surrounding this discovery dispute. Based on the totality of the circumstances,

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the Court concludes that Plaintiff is entitled to recover attorney’s fees in the amount of

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$3,200.00, which the Court finds is an appropriate apportionment of Plaintiff’s reasonable

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expenses for bringing the instant motion.

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The page numbers reflect the Court’s electronic case filing headers.

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Document 242

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Order

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for sanctions on the motion to compel (Doc. 215) is GRANTED as

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follows: Plaintiff is awarded $3,200.00 in attorney’s fees as reasonable expenses pursuant to

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Fed.R. Civ.P. 37(a)(5)(C), to be paid by Defendant County of Kern within thirty days from the

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date of this Order.

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IT IS SO ORDERED. Dated: October 15, 2008 j6eb3d

/s/ Theresa A. Goldner UNITED STATES MAGISTRATE JUDGE

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