EASTERN COLORADO SEEDS, LLC, a Colorado limited liability company, Plaintiff, v. AGRIGENETICS, INC., d/b/a MYCOGEN SEEDS, Defendant Civil Action No. 19-cv-01885-LTB-KMT United States District Court, D. Colorado Signed October 05, 2020 Counsel Andrew John Helm, Jack Markham Tanner, Fairfield & Woods, P.C., Denver, CO, for Plaintiff. Isaac T. Smith, Faegre Drinker Biddle & Reath LLP, Denver, CO, Ross W. Johnson, Faegre Drinker Biddle & Reath LLP, Des Moines, IA, Megan M. Farooqui, Faegre Drinker Biddle & Reath LLP, Boulder, CO, for Defendant. Tafoya, Kathleen M, United States Magistrate Judge ORDER *1 This matter is before the court on “Defendant's Application for Attorneys’ Fees and Expenses” [Doc. No. 55] filed June 19, 2020. Plaintiff responded on July 10, 2020 [Doc. No. 62] (“Resp.”), and Defendant replied on July 24, 2020. Agrigenetics, Inc. d/b/a Mycogen Seeds (“Mycogen”) served its First Set of Requests for Admission, Requests for Production, and Interrogatories on Plaintiff on January 30, 2020. (Mot., Ex. A, B and C.) Plaintiff's responses to Mycogen's Discovery Requests were originally due on March 2, 2020, but the parties agreed to a one-week extension. When due a week later, however, Plaintiff informed Mycogen that it anticipated producing its discovery the following day. That did not happen. Having made several more inquiries, finally on March 27, 2020, Plaintiff's counsel informed Defendant that the Plaintiff's sole owner had received news that his wife had been diagnosed with cancer and that discovery would be delayed. Although the Defendant kept inquiring of Plaintiff, as of May 7, 2020 the responses still had not been sent. After the Defendant finally filed a Motion to Compel [Doc. No. 17], Plaintiff promised the court, in its briefs, that the outstanding discovery could be produced by no later than May 14, 2020. (Resp. at ¶ 3.) That did not happen, and on May 28, 2020 this court granted the Defendant's motion to compel and required Plaintiff to respond to the long overdue Interrogatories and Requests for Production of Documents by June 5, 2020, while at the same time deeming Requests for Admissions numbers 1-24 admitted. [Doc. No. 53.] The court also awarded Defendant its “reasonable expenses incurred in making the Motion, including attorney's fees and including its time and costs in compiling a submission of expenses for the court's review.” (Id. at 6.) The application at issue is Defendant's request pursuant to that order. Since then, on June 5, 2020, Plaintiff submitted responses to the Defendant's Requests for Admissions that had already been deemed admitted. [Doc. No. 54-1.] Plaintiff also produced several spreadsheets purporting to contain QuickBooks data reflecting Plaintiff's sales statistics for Mycogen products.[1] [Doc. No. 54-3.] The responses were inadequate, however, to fully respond to discovery, containing unwarranted objections and generally evading even the most basic discovery into the basis for its claims. (Id.) Therefore, on October 1, 2020, this court recommended to the District Court that the Amended Complaint be dismissed with prejudice and the case closed as a result of Plaintiff's continued failure to comply with even the most basic discovery. [Doc. No. 71.]. LEGAL STANDARDS *2 “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended ... multiplied by a reasonable hourly rate” which will result in what is commonly called the loadstar calculation. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services.” Id. “[A] claimant is entitled to the presumption that this lodestar amount reflects a ‘reasonable’ fee.” Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998) The party seeking an award of fees should submit specific evidence supporting the hours worked and rates claimed. Hensley, 461 U.S. at 433. The Tenth Circuit has noted that “[c]ounsel for the party claiming the fees has the burden of proving hours to the district court by submitting meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks.” Case v. Unified School Dist. No. 233, 157 F.3d 1243, 1250 (10th Cir. 1998). “A district court is justified in reducing the number of hours considered if the attorney's time records are ‘sloppy and imprecise’ and fail to document adequately how he or she utilized large blocks of time.” Id.; see also Robinson, 160 F.3d at 1281. Once the court has adequate time records, it must then ensure that the attorneys requesting fees have exercised reasonable billing judgment under the circumstances of the case. Id. “Billing judgment consists of winnowing the hours actually expended down to the hours reasonably expended.” Id; see also Hensley, 461 U.S. at 434, 437 (counsel are expected to exercise their billing judgment, “mak[ing] a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary”). When a court examines the specific tasks listed by an attorney claiming fee reimbursement, the court must first determine if the fees are properly chargeable under the circumstances of the case and then whether the number of hours expended on each task is reasonable. Id. Among the factors to be considered are: (1) whether the tasks being billed would normally be billed to a paying client, (2) the number of hours spent on each task, (3) the complexity of the case, (4) the number of reasonable strategies pursued, (5) the responses necessitated by the maneuvering of the other side, and (6) potential duplication of services by multiple lawyers. Robinson, 160 F.3d at 1281. “In this analysis, [the court should] ask what hours a reasonable attorney would have incurred and billed in the marketplace under similar circumstances.” Id. The Tenth Circuit has also opined that “[a] general reduction of hours claimed in order to achieve what the court determines to be a reasonable number is not an erroneous method, so long as there is sufficient reason for its use.” Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1203 (10th Cir. 1986) (reduction in fees appropriate due to inexperience of an attorney which led to over-billing). ANALYSIS 1. Attorney Billing Rates A reasonable hourly billing rate is defined as the prevailing market rate in the relevant community for an attorney of similar experience. Guides, Ltd. v. Yarmouth Grp. Prop. Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002). A court may use its own knowledge of the prevailing market rate to determine whether the claimed rate is reasonable. Id. at 1079; see also 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 on its knowledge of rates for lawyers with comparable skill and experience practicing” in the relevant market). The party requesting fees bears “the burden of showing that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1203 (10th Cir. 1998) (internal citations omitted). In order to satisfy this burden, the party requesting fees must produce “satisfactory evidence - in addition to the attorney's own affidavits - that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). *3 Defendant sets forth the hourly billing rates for the attorneys working on this case at paragraph 5 of Exhibit A [Doc. No. 56]. The billing rate being claimed is significantly below Faegre Drinker Biddle & Reath's normal billing rates because of the client relationship with Mycogen. Id. Defendant seeks reimbursement consistent with the court's order for the lower hourly rates it actually charges to it client. Id. at ¶ 9. Defendant has set forth sufficient rationale for finding that these rates are consistent with the prevailing market rate in the Denver and Colorado Springs metropolitan area for attorneys of similar experience. See id. at ¶ 11. Although in its Response Plaintiff spends most of its time asking the court to reconsider the award of fees and costs to the Defendant, it does devote a few pages to complaints about how the calculation of hours was submitted to the court. (Resp. at 5-6.) Nowhere does the Plaintiff challenge the hourly rates of the attorneys and paralegal on the case; therefore, the court infers that Plaintiff agrees that the hourly rates of the billing attorneys and paralegal are consistent with prevailing market rates. 2. Hours Claimed Defendant has chosen to present its time calculations in a sectioned approach, advising the court of the hours spent by law firm personnel on various aspects of the discovery dispute, such as Efforts to Obtain Plaintiff's Responses to Discovery Requests, Motion to Compel, Reply Brief, Hearing Preparation and Fee Application. Within those general topics, Defendant further breaks down how many hours were spent on subcategories of items such as Internal communications and strategies, external communications, drafting, research, revision of drafts, finalization of exhibits, and review of documents or other case related materials. Not every topic contained entries in every subcategory. Further Defendant asserts that the totals presented have been previously culled of hours that were “voluntarily written down in the exercise of billing judgment” nor time spent in certain internal law firm communications which could be duplicative. What is not included, however, are “meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks.” Case, 157 F.3d at 1250. The court does not find this fatal to the application, but notes that the court cannot compare the hours spent on a task to the attorney level who expended the hours; in general, attorneys with less experience are likely to expend more hours on research and drafting an argument than attorneys who have confronted the same issue repeatedly over years of practice, and who can presumably come to the correct argument faster. Since the fee calculations were submitted in summary form, the court is justified in a summary, or blanket, reduction when appropriate. See Mares, 801 F.2d at 1203. Further, the court is unaware whether the fees extrapolated into the summary calculation are an average or whether the figure is based on the actual attorney who did the billing. The Defendant states, “Of the total billable hour services Mycogen incurred that are addressed herein, approximately 75% are attributable to [Megan Farooqui], 13% are attributable to partner Ross Johnson, and 11% are attributable to associate Isaac Smith and 1% are attributable to paralegal Michelle Soule.” Id. at 8. This language infers that a true calculation based on who actually performed services underlies the summary figure. Since the court has found that all attorneys are billing at a reasonable rate given their level of experience, having a full breakdown is less important. *4 The court is disallowing the entire category of costs for “Efforts to Obtain Plaintiff's Responses to Discovery Requests.” Most of Plaintiff's behavior that could be said to fall into this category is not strictly sanctionable, and in fact, fees falling into this category were not part of the court's order as quoted herein. Plaintiff's counsel for the most part was in communication with Defendant's counsel and was engaging in the discovery process, albeit not producing any actual discovery responses. In any litigation there is a substantial amount of time spent in conversations between counsel and the normal sparring about the appropriateness of certain discovery requests or the availability of the material at all. The court is also eliminating time chargeable to hearing preparation since there was no hearing. Under the category of the Motion to Compel, the court finds that the hours spent on research are unreasonably high considering the legal issues involved and also finds that internal communications are not compensable. The court is reducing this category to a reasonable total of $ 4,000.00. The same is true of drafting the Reply Brief. The research category is far too high to be reasonable. Therefore, this category will be reduced to $4,000 which is a reasonable attorney fee award for the task performed. Plaintiff objects to the portion of this court's fee award that is attributable to Defendant's time spent in calculating the amount of fees it had incurred after the court had decided that fees were an appropriate sanction, citing Klein v. Tiburon Dev. LLC, 2017 Colo. App. 109, ¶ 33, 405 P.3d 470, 478 (2017). First, Plaintiff confuses the facts of Klein where the issue before the court was attorney time spent on trying to obtain an award of fees under Colo. Rev. Stat. § 13-17-102. This is in contrast to this case where the calculation is on time spent gathering the billing records and putting the information together in useable form for the court after having already won an award of fees. Second, the award of fees made by this court was pursuant to Fed. R. Civ. P. 37 as a sanction for discovery abuse, a procedural matter, and is not controlled by state statutory or case law. That said, however, the court finds that the amount of time submitted for the collection of billing records, which are kept in the ordinary course of business in large law firms, and preparing a presentation to the court is not reasonable. The court will allow $2,000.00 for this part of the sanctions award. Therefore, costs and fees in the total amount of $10,000.00 are and shall be awarded to Defendant from Plaintiff pursuant to the court's May 28, 2020 Order. IT IS ORDERED 1. “Defendant's Application for Attorneys’ Fees and Expenses” [Doc. No. 55] is accepted in part. The Plaintiff shall pay to Defendant the total sum of $10,000.00 pursuant to the court's May 28, 2020 Order sanctioning the Plaintiff for discovery abuse. 2. Plaintiff shall remit the total sum of $ 10,000.00 to the Defendant on or before October 26, 2020. Footnotes [1] This data, as described, is not fully reliable even if the data was sufficient as a complete response – which it is not. By producing only a small part of its QuickBooks data, which it selectively exported to Excel in the context of this litigation, Plaintiff has omitted all metadata that would show when Plaintiff entered its purchase data and what changes it made to that data over time, and thus has deprived the defendant of the opportunity to test the accuracy of that data. Not only does that render the data unreliable, but it is also not in “reasonably useable form” pursuant to Fed. R. Civ. P. 34 and is not compliant with the parties’ ESI Protocol, in which they agreed to produce documents in native form, with metadata. (See Doc. 30, Ex. A, ¶ 4; Doc. 38 (adopting same).)