Overzealous Lawyers Learn a Valuable e-Discovery Lesson
June 9, 2009In this contract dispute, the prevailing defendant, ChoicePoint, moved for attorneys’ fees, including fees for document review and production.
The plaintiff, Corinthian Mortgage Corporation, d/b/a, SouthBanc Mortgage (”SouthBanc”), and Defendant ChoicePoint Precision Marketing, LLC (”ChoicePoint ”), a mailing list broker, entered into an agreement (the “Service Agreement”) wherein ChoicePoint agreed to assist in developing a methodology for creating lists of names and individuals to whom SouthBanc could mail targeted promotional materials. Soon after, Theresa Ritter (”Ms. Ritter”), Vice President at SouthBanc, was terminated. Ms. Ritter formed a competing company in Virginia, Summit Financial LLC (”Summit”). Subsequently, Summit requested names from ChoicePoint, using name selection criteria similar to SouthBanc’s. ChoicePoint provided the requested information to Summit and continued to supply names. Of course SouthBanc was not happy and sued ChoicePoint, alleging that ChoicePoint violated the covenant of good faith and fair dealing (Count I), violated Massachusetts’ Unfair Trade Practices Act (Count II), and breached the Contract between the parties (Count III).
Most importantly, the Service Agreement provided that, if litigation between the parties arises out of it, the prevailing party “shall be entitled to an award of its reasonable attorneys’ fees and costs.” ChoicePoint argued that per its Service Agreement, SouthBanc is obligated to reimburse the costs ChoicePoint incurred in its successful defense. Among the costs incurred, ChoicePoint claims to have incurred $86,769.92 in expenses related to copying, delivery, production, court reporters, travel expenses, and legal research costs. In addition, ChoicePoint’s damages expert cost $ 76,112. Overall, ChoicePoint requests attorneys’ fees of $ 887,882.58 and costs and expenses of $ 162,881.92.
Court’s Analysis:
The Court used the 12-factor Johnson test to determine the reasonable hourly rate and reasonable number of hours spent working on the litigation.
The Johnson factors are:
- The time and labor required;
- The novelty and difficulty of the questions;
- The skill requisite to perform the legal service properly;
- The preclusion of other employment by the attorney due to the acceptance of the case;
- The customary fee;
- Whether the fee is fixed or contingent;
- Time limitations imposed by the client or the circumstances;
- The amount involved and the results obtained;
- The experience, reputation, and ability of the attorneys;
- The “undesirability” of the case;
- The nature and length of the professional relationship with the client; and
- Awards in similar cases.
See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).
SouthBanc does not question the reasonableness of ChoicePoint ’s showing with respect to the Johnson factors, except for ChoicePoint ’s analysis of factors (1) and (8), regarding the time and labor required and the amount involved and results obtained in the litigation, respectively.
In support of its claim that its counsel expended a reasonable amount of time on the litigation, ChoicePoint notes that the case involved ten substantive motions requiring research, briefing, and argument. Mainly, ChoicePoint argues that its time spent on discovery was reasonable because: (1) more than 2.6 million document pages were reviewed in order to produce 1.2 million pages; (2) it took extra care to avoid spoliation, used an outside vendor, and assembled a team of 8-10 associates that worked for several weeks to begin producing the documents; and (3) its review of the SouthBanc’s documents was hindered by the plaintiff’s disorganized fashion of production.
SouthBanc counters, arguing that of the 1.2 million pages ChoicePoint claims to have produced, most of the pages were part of large spreadsheets and reports irrelevant to the case. For example, ChoicePoint read 800,000 pages of printed paper received from SouthBanc, which was related to a subpoena for Ritter’s documents from the previous litigation, but that were also produced electronically. SouthBanc argues that it shouldn’t have to pay for ChoicePoint’s decision to copy the paper documents and review them individually. In addition, SouthBanc claims it produced most documents in searchable native format or with Summation load files that allow electronic searching. According to SouthBanc, they were not produced in a disorganized fashion.
The Court agreed with SouthBanc that the hours spent on production by ChoicePoint were excessively high and that full compensation for such work would inflate the total fee award to an unreasonable extent. The Court agreed that ChoicePoint’s motion for reconsideration, motion to strike, and defense against SouthBanc’s spoliation motion were each somewhat part of its ultimately successful defense on the merits against claims “related” to the breach of contract claim. The Court, however, found the excessive attorney hours spent on each of them were unreasonable because they were “unrelated” to ChoicePoint ’s ultimate success. Therefore, the Court reduced the fee for discovery and document production and for the motion to reconsider, the motion to strike SouthBanc’s expert, and fees related to SouthBanc’s motion for sanctions. The Court found for a $165,000 reduction in the requested fee, partly by using SouthBanc’s estimates for the costs associated with the motion for sanctions, the motion to strike, and its estimated range of costs associated with discovery. In addition, the Court discounted the attorney hourly rate fees charged by ten percent to bring the hourly rates down to an amount the Court believes to be reasonable. In conclusion, the final amount granted to ChoicePoint included attorneys’ fees and award fees of $641,595 and costs of $140,279.20.
Overzealous lawyers are sometimes appreciated by their clients, as is the “leave no stone unturned or theory untested” approach to litigation. However, it is always important to convince the Court that discovery in a case was handled in a manner that was efficient and uncumbersome.
Tanya Basu is a Pharmacist and a third year student at Seton Hall Law School, focusing on Health and Intellectual Property Law.
More... Tagged as: Cost Sharing & Shifting, Production of Data, Spoliation.
View more articles implicating: In-House Counsel
Subscribe to this post's comments through its RSS 2.0 feed.
We have many nfl jerseys in stock,if you need ,you can open nfl jerseys site.
[Reply to this comment]
All carat weights and measurements are approximate and may vary slightly from the listed dimensions. Treatment code CR. See Gemstone Treatments for further information.
[Reply to this comment]
hhl The web Discount Windows Product Key has cheap Windows Key changed wholesale Office Product KeyAnd DiscountWindows Activation there’s a cheap wholesale Windows Activation Key new way wholesale DiscountOffice Activation Key of Discount thinking cheapWindows Generator about wholesaleWindows Key Generator your DiscountOffice Key Generator applications.cheapWindows Keygen You wholesaleWindows Key can’t DiscountOffice Keygen</ajust write cheapWindows Upgradesome wholesaleOffice UpgradeHTML and DiscountMicrosoft UpgradesCSS cheapWindows 7 Product Keyanymore wholesale and DiscountWindows 7 Keyexpect cheapWindows 7 Ultimate Keyto be wholesaleWindows 7 Home Premium Keythe next DiscountWindows 7 Professional Key Twitter. Hear cheapWindows 7 Product Keyhow to wholesaleMicrosoft Office 2010 Product Keymake your site wholesaleMicrosoft Office 2007 Product Keysocially
[Reply to this comment]
http://illliveon.com/blog.php?user=uggs216&blogentry_id=594
[Reply to this comment]
Peyton Manning Colts Jersey | Peyton Manning Colts Jersey Anquan Boldin Ravens Jersey | Anquan Boldin Ravens Jersey Brandon Marshall Dolphins Jersey | Brandon Marshall Dolphins Jersey Tom Brady Patriots Jersey | Tom Brady Patriots Jersey Troy Polamalu Steelers Jersey | Troy Polamalu Steelers Jersey Ndamukong Suh Lions Jersey | Ndamukong Suh Lions Jersey Tim Tebow Broncos Jersey | Tim Tebow Broncos Jersey Sam Bradford Rams Jersey | Sam Bradford Rams JerseyIt was a very nice idea! Just wanna say thank you for the information you have shared wholesale nfl jerseys | wholesale nfl jerseys. Drew Brees Saints Jersey | Drew Brees Saints Jersey.Philip Rivers Chargers Jersey | Philip Rivers Chargers Jersey.Reggie Bush Saints Jersey | Reggie Bush Saints Jersey.If you pay attention on the Tim Tebow Broncos Jersey | Tim Tebow Broncos Jersey,you will see that so many famouse nfl stars jerseys such as Troy Polamalu Steelers Jersey | Troy Polamalu Steelers Jersey.Now we also have Brett Favre Vikings Jersey | Brett Favre Vikings Jersey.Additionally, we also provide you with comfortable and fashionable Donovan McNabb Redskins Jersey | Donovan McNabb Redskins Jersey.Just have Tom Brady Patriots Jersey | Tom Brady Patriots Jersey now!
[Reply to this comment]
Thank you for your sharing.I’m very interested in wholesale mlb jerseys | wholesale mlb jerseys.There are so many famouse mlb stars jerseys,we have Derek Jeter Yankees Jersey | Derek Jeter Yankees Jersey.So I an fascinated to the Chase Utley Phillies Jersey | Chase Utley Phillies Jersey,no matter any one of mlb stars juse like Joe Mauer Twins Jersey | Joe Mauer Twins Jerseyand Dustin Pedroia Red Sox Jersey | Dustin Pedroia Red Sox Jersey,which are my best witness as the Albert Pujols Cardinals Jersey | Albert Pujols Cardinals Jersey fans!
[Reply to this comment]
Many Internet users from the end of mens gucci belts July, the Empress Dowager Cixi cheap gucci belts of the Department mens designer belts of gucci belts on sale administrative louis vuitton belt for men barriers oppose Westgate mens fabric belts speech armani belts promoting versace belts mountain Taiga forums ed hardy belts frequented by 18 to the city. Under, chanel belts but provides common common³µáñdoes Dolce & Gabbana Belts does my license prada belts plate e-friends photos two stimulating boss belts mountain city management and district and Ward Valley and the new emperor, Simon 18, the Eastern Gateway Security Department in c o m m o n d µ ³ á ñ o e s Castle tube seems to go out of your own. License plate
[Reply to this comment]
Many Internet users mens gucci belts from the cheap gucci belts end mens designer belts of July, the Empress gucci belts on sale Dowager Cixi of the Department louis vuitton belt for men of administrative mens fabric belts barriers armani belts oppose Westgate speech versace belts promoting mountain ed hardy belts Taiga forums frequented chanel belts by Dolce & Gabbana Belts 18 to the city. prada belts Under, but provides common boss belts common³µáñdoes does my license plate e-friends photos two stimulating mountain city management and district and Ward Valley and the new emperor, Simon 18, the Eastern Gateway Security Department in c o m m o n d µ ³ á ñ o e s Castle tube seems to go out of your own. License plate
[Reply to this comment]
Excellent reproduction Arsenalmerchandise sells at resonable price.The Real Madrid merchandise with high quality and exclusive design.Choose one amazing of
England Premier League merchandise to highlight your life style.
[Reply to this comment]
fendi handbags
fendi bags
Fendi Satchel
Fendi Shoulder
Fendi Tote
Fendi Scarves
Fendi Shoulder SL1401
Fendi Shoulder SL1402
Fendi Shoulder SL1403
Fendi Shoulder SL1404
Fendi Shoulder SL1405
Fendi Shoulder SL1420
Fendi Shoulder SL1421
Fendi Shoulder SL1422
Gucci handbags
Gucci bags
Burberry Handbags
Chanel Handbags
Gucci Handbags
Hermes Handbags
Jimmy Choo Handbags
Louis Vuitton Handbags
Prada Handbags
Hermes Birkin 35CM Crocodile Veins Leather Bag
Hermes Birkin 35CM Togo Leather Bag
Chanel 2.55 Double Flap
Chanel 2.55 Classic Double Flap
Louis Vuitton Speedy 30(Blanc) M92643
Louis Vuitton Speedy 35 M41524
Louis Vuitton Speedy 25 N41532
Louis Vuitton Speedy M40358
burberry scarf
burberry scarves
burberry scarf
news
burberry scarf blog
Burberry Brown Icon Check Cashmere Scarf
Burberry Brown Icon Check Cashmere Scarf
Burberry Camel Icon Check Cashmere Scarf
Burberry Camel Icon Check Cashmere Scarf
[Reply to this comment]
ugg boots ugg boots
ugg boots uk ugg boots uk
ugg boots sale ugg boots sale
discount ugg boots discount ugg boots
ugg outlet ugg outlet
ugg zipper boots discount ugg boots outlet
ugg boots under under 50 dollars discount ugg boots sale
ugg boots under under 100 dollars discounted ugg boots
ugg boots uk sale online discount ugg boots online
ugg boots uk sale discounted ugg boots cheap
ugg boots uk outlet discount ugg boots sale onle
ugg boots uk online with free shipping discount ugg boots outlet online
ugg boots uk online discount ugg boots outlet sale online
ugg boots outlet stores discount ugg boots free shipping
discounted ugg boots cheap ugg boots uk outlet
discounted ugg boots ugg boots uk sale
discount ugg boots uk sale discount ugg boots uk outlet
discount ugg boots uk outlet discount ugg boots uk sale
discount ugg boots sale onle ugg boots uk online
discount ugg boots sale ugg boots uk sale online
discount ugg boots outlet sale online ugg boots uk online with free shipping
discount ugg boots outlet sale ugg boots under under 50 dollars
discount ugg boots outlet online ugg boots under under 100 dollars
discount ugg boots outlet ugg zipper boots
discount ugg boots online ugg boots outlet stores
discount ugg boots free shipping discount ugg boots outlet sale
[Reply to this comment]
If we only to mbt shoes on sale this day
Stand two each MBT Women Kaya Shoes tree. Select
We can only in the MBT Women Kisumu Sandals darkness of the underground
Will extend to MBT Women Lami Shoes other roots desperately
This extension of MBT Women M.Walk Shoes pain and even allow lenovo to death
And by the MBT Women Sports Shoes association will MBT Women VOI Shoes develop
But I don’t look mbt shoes after my death of the cheap supra shoes hindquarters
For some supra shoes beams
I only wish is supra footwear for sale a ChaiDao of fame
Fame like a drop supra shoes online of my past
Finally I cut a piece of small Supra Newest and humble chopsticks
Then I meet silently waiting for Supra Skytop in solitude
Wait for your Supra Skytop NS dead body was cut another cheap supra shoes chopsticks
Then Supra Society we will match Supra
Style II together
[Reply to this comment]
Leather gucci shoes tends to shrink discount gucci shoes and buy gucci shoes for men get hard if it gucci outlet gets wet, so do buy louis vuitton shoes online your best to keep louis vuitton shoes them gucci mens boots dry. If your leather gucci mens loafers shoes do gucci mens shoes high get wet, let cheap gucci shoes low them dry naturally unless gucci slippers you louis vuitton mens shoes have done it deliberately louis vuitton loafers to cheap D&G shoes shape them to your gucci womens shoes foot. Louis Vuitton shoes for women Your leather gucci flats shoes will be louis vuitton flats louis vuitton jeans much more comfortable gucci t shirt if you keep louis vuitton t shirt them soft as they gucci jeans are intended to womens gucci t shirt be. If your shoes true religion womens jeans do become hard mens gucci belts you will louis vuitton belt for men need to use some gucci scarf wax or louis vuitton scarf polish to make them gucci sunglasses louis vuitton sunglasses soft again. Use clear shoe wax or even furniture wax and rub in lightly. If you buy expensive leather dress shoes, inquire at the store you buy them as to any special care they may need to keep them in perfect shape.
[Reply to this comment]