We Survey the Decisions; They Leave Plenty Room for Advocacy On Each Side of the Debate.
One of the most frequent challenges to fee petitions is reasonableness—the fees being sought were too large, involved attorneys assessing unduly high hourly rates, or were riddled by excessive and duplicative charges. Although we believe it is clear that discovery is allowable in fee motion proceedings, see Code Civ. Proc., sec. 2017.010 [“…any party may obtain discovery regarding any matter, not privileged, that is relevant to … the determination of any motion made in that action ….”], the question arises whether the moving party can obtain discovery of the fees and costs expended by an opponent in order to rebut any reasonableness challenge. As we show below, a conflict exists among federal authorities, although the few state decisions on the topic seems to support this type of discovery. This allows litigants substantial opportunity to argue the issue either way—and also allows counsel to “blow hot or old” depending on the position of his/her client.
On the state level, the published appellate decisions have recognized the relevance of this type of inquiry, which by force of logic suggests that discovery would be allowable. See, e.g., Maughan v. Google Technology, 143 Cal.App.4th 1242, 1250-1251 2006) [appellate court observed that trial court consideration of an opponent’s fees in opposing anti-SLAPP motion was probative in deciding to reduce the successful moving party’s fee request]; Deane Gardenhomes Assn. v. Denktas, 13 Cal.App.4th 1394, 1399 (1993) [defendant homeowner prevailing in homeowner association action awarded fees based on the amount the association spent through trial]; West Coast Dev. v. Reed, 2 Cal.App.4th 693, 707 (1992) [noting the utility of comparing claimant and respondent fees when awarding fees]. Despite these authorities supporting discovery into what an opponent spent in fees, Mike Hensley has more frequently seen that trial judges grant protective orders against this sort of discovery, even when the claimant has agreed that privileged entries can be redacted or otherwise protected. Usually, the stated rationale is that the amount of fees spent by the defense involves different tasks and is not germane to the fee amounts that the plaintiff may need to spend. However, we also are aware of unpublished decisions where trial judges do grant substantial fee awards after observing that the other side must have spent at least what is being sought by the fee proponent.
There is a split in opinion at the federal level, although more cases seem to support discovery in this area.
Here are some of the “pro” federal cases: Chicago Professional Sports v. National Basketball Assoc., 1996 U.S. Dist. LEXIS 1525, 1526 (N.D. Ill. 1996); Blowers v. Lawyers Cooperative Publ’g, Inc., 526 F. Supp. 1324, 1327 (W.D.N.Y. 1981); Stastny v. Southern Bell Tel. & Tel. Co., 777 F.R.D. 662, 663 (W.D.N.C. 1978); Mitroff v. XOMOX Corp., 631 F. Supp. 25, 38 (S.D. Ohio 1985); Ruiz v. Estelle, 553 F. Supp. 567, 589 (S.D. Tex. 1982); Murray v. Stucky’s Inc., 153 F.R.D. 151, 152-153 (N.D. Iowa 1993); Coalition to Save Our Children v. State Bd. of Educ. of the State of Del., 143 F.R.D. 61, 64-66 (D. Del. 1992); Cohen v. Brown Univ., 1999 WL 695235 at *1, *6 (D.R.I. 1999); Grumman Corp. v. LTV Corp., 533 F. Supp. 1385, 1391 (E.D.N.Y. 1982).
Here are some “anti” federal cases: Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1151 (9th Cir. 2001); Shaw v. AAA Engineering & Drafting, Inc., 213 F.3d 538, 543 (10th Cir. 2000); Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1292, 1305 n. 3 (11th Cir. 1988); Johnson v. Univ. Col. of Univ. of Ala. in Birmingham, 706 F.2d 1205, 1208 (11th Cir. 1983). [STATE COURT NOTE—A Second District panel in Maughan, supra, 143 Cal.App.4th at 1250 n. 7, noted these cases but refused to follow them, as state appellate courts are entitled to do.]
Given the diverse authority on both sides of the issue, there is plenty leeway for advocacy on each side of the proverbial coin as it relates to obtaining discovery of opponent work in order to rebut fee reasonableness objections.