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requiring the defendants to pay, as sanctions under Rule 16 and the court's inherent authority, "reasonable attorneys' fees and expenses incurred" even though the plaintiff's lawyer had handled the case "on a pro bono basis at the request of the Court"
Summary of this case from Usherson v. Bandshell Artist Mgmt.Opinion
No. 95 Civ. 9076 (LTS)(RLE)
December 5, 2003
ORDER
As permitted by the Court's January 3, 2003 Order, Plaintiff seeks reimbursement for certain attorneys' fees and expenses incurred in opposing Defendants' belated application for discovery of material pertaining to Plaintiffs participation in a rehabilitation program. The opposition to the discovery application was asserted on substantive and procedural grounds although the Court's ultimate decision was made on the basis of untimeliness. The Court has reviewed thoroughly the parties' supplemental submissions in support of and in opposition to the application.
The Court finds that Defendants' application, made on the eve of trial and some three years after the Court-imposed discovery cutoff date, was not substantially justified and that Plaintiffs attorneys' interposition of prompt, pertinent, written opposition was appropriate under the circumstances. The Court further finds that the complexity and expense of the preparation of that opposition was directly related to Defendants' counsel's failure to disclose in its initial papers relevant governmental restrictions on the provision of the information, which restrictions had in fact been cited to Defendants' counsel by the institution from which the discovery had been sought. This failure prompted a great deal of original research on the part of Plaintiff's counsel, research that would not have been necessary had Defendants' counsel made full and appropriate disclosure in the first instance of the legal issue raised by the document custodian. The Court further finds that Plaintiffs preparation and submission of a surreply letter, while not specifically authorized by the Court, was not unjustified in light of Defendants' failure to disclose, much less argue, the information restriction issue until their reply papers were served.
The Court has power under Rule 16 of the Federal Rules of Civil Procedure, as well as power derived from its inherent authority to manage proceedings before it (Roadway Express. Inc. v. Piper. 447 U.S. 752, 766 (1980); Chambers v. NASCO. 501 U.S. 32, 43-50 (1991)), to impose sanctions in respect of conduct violative of scheduling orders and wasteful of the time of the Court and opposing counsel. The Court finds that it is appropriate in this matter to require Defendants to pay to Plaintiffs counsel, who represented Plaintiff on a pro bono basis at the request of the Court, the reasonable attorneys' fees and expenses incurred in opposing Defendants' discovery application.
Having reviewed the documentation of work and billing rates submitted by Plaintiffs counsel, the Court finds reasonable (in light of prevailing rates, the experience of the individuals involved and the unusual circumstances under which the work was performed) the hourly rates and time charged by Plaintiffs counsel for the work performed in opposing the application. The Court also finds reasonable the expenses recorded. As to the billing for electronic research services, which is specifically challenged by Defendants, the Second Circuit has recognized that such costs are compensable as proxies for attorney research time. See Evergreen Pipeline Construction Co. v. Merritt Meridian Construction Corp., 95 F.3d 153, 173 (2d Cir. 1995) ("computer research is merely a substitute for an attorney's time that is compensable under an application for attorneys' fees and is not a separately taxable cost" in the 28 U.S.C. § 1920 context); General Motors Corp. v. Villa Marin Chevrolet. Inc., 240 F. Supp.2d 182, 189 (E.D.N.Y. 2002). Construing Plaintiffs counsel's separate billing of these expenses as a representation that the firm did not otherwise account for these charges in setting the hourly attorney fee rates on which its application is based and that the hours charged at those rates do not include the research services that are the subject of the electronic research item, the Court finds that the charged expenses are compensable.
Accordingly, Defendants are hereby directed to pay to Plaintiffs counsel the total sum of $26,981.57 (the breakdown of which is detailed in the February 7, 2003 Affirmation of Beth D. Diamond).
The Clerk of Court shall enter judgment in accordance with the jury's verdict and this Order and this case shall be closed.
SO ORDERED.