United States District Court, E.D. Virginia, Norfolk Division
[Copyrighted Material Omitted]
For Hedwig Lismont, Plaintiff: Jeremy Mindlin Jay, Stephanie Marie Lawley, LEAD ATTORNEYS, Leydig Voit & Mayer, Washington, DC; Brett Alan Hesterberg, Heinz Michael Hartmann, Paul John Korniczky, PRO HAC VICE, Leydig Voit & Mayer Ltd., Chicago, IL.
For Alexander Binzel Corporation, Alexander Binzel Schweisstechnik GMBH & Co. KG, IBG Industrie-Beteiligungs-GMBH & Co. KG, Richard Sattler, Defendants: Douglas Allan Dozeman, PRO HAC VICE, Warner, Norcross & Judd, LLP, Grand Rapids, MI; Dustin Mitchell Paul, Richard Hooper Ottinger, Vandeventer Black LLP, Norfolk, VA.
MEMORANDUM OPINION AND ORDER
Lawrence R. Leonard, United States Magistrate Judge.
On March 12, 2014, the Court granted Plaintiff's Motion for a Protective Order, ECF No. 80, and then on May 1, 2014, pursuant to Federal Rule of Civil Procedure 37(a)(5)(A) (" Rule 37" ) directed Plaintiff Hedwig Lismont (" Lismont" ) to file " a motion substantiating its costs and fees pursuant to the factors enumerated in Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243-44 (4th Cir. 2009)." ECF No. 112 at 7. Now before the Court is Lismont's Motion Substantiating His Attorneys' Fees and Costs, ECF No. 118, filed on July 23, 2014. Defendants Alexander Binzel Corp., et al. (" Binzel" ) filed a timely response on August 6, 2014, ECF No. 120, and Lismont replied on August 12, 2014, ECF No. 121. Accordingly, the Motion is ripe for disposition.
I. PROCEDURAL BACKGROUND
Having previously discussed this case's extensive procedural history in the Court's Orders granting Plaintiff's Motion for Protective Order, ECF No. 80, and Plaintiff's Request for Attorneys' Fees, ECF No. 112, the Court will not repeat said details here. Rather, only a summary of the present dispute is necessary to establish the context for the present motion. The dispute originated when Lismont moved for entry of a protective order, ECF No. 68, which Binzel opposed on the grounds that " sensitive financial information that the party has maintained as confidential" should be designated as Attorneys' Eyes Only (" AEO" ), ECF No. 75, attach. 1 at 2. In response, Lismont alleged that the AEO designation was unnecessary because Lismont was previously given access to Binzel's financial information as a consultant and during previous litigation in Germany between the same parties. ECF No. 78 at 2. Upon finding, in part, that an AEO designation would be overly restrictive, the Court entered Lismont's version of the protective order. ECF No. 80 at 3-4. While the Court found it undisputed that Lismont had access to some financial documents during his role as a consultant, it noted that there was a material dispute as to whether Lismont had ever been granted access during the German litigation. Id. at 3 n.3. Specifically, Binzel alleged, through the declaration of Dr. Emil Schubert, Binzel's Managing Director, that Lismont was not provided access to any financial information during the German litigation, ECF No. 75, attach. 4 at 2, ¶ 6, and thus Binzel objected to Lismont's access to sensitive financial information under a general argument that Lismont might not be trustworthy with such information, and could disclose it or benefit from it. Binzel buttressed this position by averring that, since Lismont did not have access to sensitive financial information before, Lismont's trustworthiness was an unsettled question, which could only be remedied by an AEO designation for the disclosure of sensitive financial information. ECF No. 75 at 4-6.
Lismont, on the other hand, through his own declaration, claimed that he had been given access to financial information during the German litigation, ECF No. 69, attach. 1 at 26, ¶ 5, and therefore contended that his trustworthiness had been established.
Faced with these antithetical positions, the Court took Lismont's request for fees pursuant to Rule 37 under advisement and asked for supplemental briefing to clarify the issue of whether Lismont had previously been entrusted with financial information in the German litigation, in order to determine whether Binzel's opposition to Lismont's refusal to include the AEO designation was substantially justified. ECF No. 80 at 5.
The parties filed supplemental briefs on March 17, 2014. ECF Nos. 82, 85. The next day, Lismont filed an additional unauthorized supplemental brief without requesting leave of Court. ECF No. 86; see ECF No. 112 at 3. Binzel then filed a motion for leave to file an additional supplemental brief, ECF No. 90, which was granted by the Court, ECF No. 98, and filed by Binzel on April 15, 2014, ECF No. 103.
After considering the supplemental briefing, the Court found that Dr. Schubert's statement and Binzel's argument in response to Plaintiff's motion for entry of a protective order had not been " entirely accurate, and thus, Binzel's opposition and request for AEO designation was not substantially justified." ECF No. 112 at 4-5. Specifically, the Court noted that after making a definitive statement in response to the proposed protective order that " [d]uring the German litigation, Mr. Lismont was not provided access to any of Binzel-Germany's financial documents," ECF No. 75, attach. 4 at 2, ¶ 6 (emphasis added) (statement of Emil Schubert), Binzel attempted to " not so subtly retract from" that statement in the supplemental briefing, ECF No. 112 at 5. In their supplemental briefing, Binzel stated that Lismont " was not given access to detailed financial information in the German litigation." Id. (quoting ECF No. 82 at 2) (emphasis added). Presented with these differing statements, the Court held that Binzel was not substantially justified in insisting upon the AEO designation because Lismont had at least some access to financial information during the German litigation, and therefore had established his trustworthiness. Id. at 7. On that basis, the Court awarded attorneys' fees and directed Lismont to submit a statement of his fees and costs incurred in making the motion for the protective order. Id. Lismont then filed his Motion Substantiating His Attorney's Fees and Costs, ECF No. 118, which is now before the Court.
In support of his request for attorneys' fees, Lismont proffered, inter alia, the declaration of one of his counsel, Paul J. Korniczky. ECF No. 119, attach. 1 at 2-12. Mr. Korniczky stated that Lismont's attorneys performed five tasks for which Lismont was entitled to attorneys' fees:
1. Preparing the confidentiality order, and corresponding and negotiating with Defendants' counsel to resolve the dispute without motion practice;
2. Preparing the Motion for Entry of the Confidentiality Order, including research regarding the propriety of Plaintiff's position and frivolous nature of Defendants' position, and preparing the first declaration of Mr. Lismont;
3. Considering Defendants' opposition and preparing a reply in support of the motion;
4. In response to the Court's order, preparing two supplemental briefs and a second declaration of Mr. Lismont to address the false statements by Binzel's Managing Director (President), Emil Schubert, and preparing a reply; and
5. Preparing this motion for attorneys' fees.
Id. at 3-4, ¶ 7. Mr. Korniczky included individual billing time charts associated with each task for which fees were sought. Id. In total, Lismont alleged that his attorneys spent about 160 hours and $80,604 on the aforementioned tasks; however, Lismont voluntarily reduced the attorney time in his fees request by approximately 27% or $21,650, id. at 4, ¶ 8, resulting in an attorneys' fees request of $58,955, id. at 5, ¶ 9. Thereafter, Lismont requested an additional eight hours for time spent researching and preparing the reply to Binzel's opposition to Lismont's request for fees. ECF No. 121. at 7. Accordingly, the total amount of attorneys' fees sought by Lismont is $62,481. Id. The four attorneys to work on the five aforementioned tasks were H. Michael Hartmann, Bret A. Hesterberg, Paul J. Korniczky and Lisa L. Furby. ECF No. 119, attach. 1 at 11, ¶ 16. Mr. Hartmann, a registered patent attorney who has been practicing for thirty-eight years, billed a total of 15 hours  at a billing rate of $650/hour. Id., ¶ 17. Mr. Hesterberg, a registered patent attorney who has been practicing for thirty years, billed a total of 21.7 hours at a billing rate of $530/hour. Id. at 12, ¶ 18. Mr. Korniczky, a registered patent attorney who has been practicing for twenty-eight years, billed a total of 103.6 hours at a billing rate of $510/hour. Id., ¶ 19; ECF No. 121 at 7 (including time billed for the five tasks, 99.6 hours, and an additional 4 hours preparing the reply to Binzel's opposition to Lismont's request for attorneys' fees). Ms. Furby, who has been practicing patent law for less than a year, billed 26.5 hours at a billing rate of $270/hour. ECF No. 119, attach. 1 at 11, ¶ 19; ECF No. 121 at 7 (including time billed for the five tasks, 22.5 hours, and an additional 4 hours preparing reply to Binzel's opposition to Lismont's request for attorneys' fees). Lismont's attorneys spent $404.01 on legal research. ECF No. 119, attach. 1 at 11, ¶ 21.
Considering the voluntary reduction of the number of hours claimed for work performed by his attorneys " incurred in making the motion," Lismont argued that the total hours for which reimbursement was sought was reasonable in light of the novelty and difficulty of the questions raised. ECF No. 119 at 4. Specifically, Lismont alleged that the time was reasonable " given (i) how crucial it was to the future conduct of Plaintiff's case that Mr. Lismont be permitted to review and consider both Defendants' technical and financial information, and (ii) the need to review and analyze a number of foreign language documents." Id. at 7. Moreover, Lismont argued that " [i]f Defendants' confidentiality order--with its highly restrictive " Attorneys' Eyes Only" provision--had been entered, Mr. Lismont would have been unable to assist trial counsel in reviewing, translating, and analyzing Defendants' financial data severely handicapping, at a minimum, the proper development
of Plaintiff's damages claims." Id. at 4. Additionally, Lismont argued that he and his attorneys had to spend much time translating and reviewing Binzel's financial records, and they spent considerable time researching Binzel's arguments because ...