Magistrate Also Rules that Post-Trial Expert Fee Declarations Are Not Subject to Pre-Trial Expert Report Disclosure Requirements.
This next post discusses a topic that we have seen very few decisions on: the scope of federal discovery in post-trial fee proceedings, which are usually based on affidavits or declarations submitted by the attorneys requesting fees or experts opining on the reasonable hourly rate or reasonableness of fees being requested in a certain case.
U.S. Magistrate Judge Ruben B. Brooks, who sits in the United States District Court for the Southern District of California, made these useful points in rulings (click here: Download May182009OrderbyRBB) in Gonzales v. Arrow Financial Services LLC, Civ. No. 05cv0171 JAH (RBB) (S.D. Cal. May 18, 2009) (Document 237) in a fee proceeding by which winning plaintiffs’ attorneys have sought fee recovery under the Fair Debt Collections Practices Act (federal statute and California counterpart with fee-shifting provisions):
- The court may determine that discovery under F.R.Civ. P Rules 26-37 would be useful to the parties only “on rare occasion” (F.R.Civ. P. 54 advisory committee notes on 1993 amendment to Rule 54(D)(2)(C));
- A district court does not abuse its discretion by refusing to allow the opposing party to take additional discovery and instead relying on affidavits and argument on the motion for attorney’s fees in making its decision (Williams v. Alioto, 625 F.2d 845, 849 (9th Cir. 1980));
- Limited discovery was in order for purposes of producing any contemporaneous time billing records where one attorney added some additional time from reconstructed records or recollection;
- Limited discovery also was proper to show the actual rates that attorneys had charged clients in other cases where fee petitions were brought;
- Post-trial declarations by fee experts relating to reasonableness of hourly rates or other issues do not require compliance with expert report disclosure requirements under F.R.Civ.P. 26 (Rule 26(a)(2)(A),(B) applies to trial experts; see also McCulloch v. Hartford Life & Acc. Ins. Co., 223 F.R.D. 26, 29 (D.Conn. 2004) [experts offered solely on the issue of reasonable attorney’s fees “are exempt from providing a report”]); and
- No deposition discovery of the fee experts was warranted, under the circumstances, because it would merely prolong litigation on the fee motion (Williams, supra, 625 F.2d at 849 [opposing party not entitled to discovery if plaintiff has submitted sufficiently detailed affidavits in support of the fee petition]).