“Out of District” Attorney Fees Awarded After Finding Defendants Failed to Meet Previous Court Orders Regarding Production of ESI

15 May 2022

In WISHART v. WELKLEY ET. AL., No. 19-CV-6189-DGL-MJP (W.D. NY., March 11, 2022), before the Court was Plaintiff’s motion for financial and non-financial sanctions.

Plaintiff claimed that Correction Officer Welkley, Defendant, sexually harassed Plaintiff’s girlfriend when she came to visit Plaintiff in prison. The harassment allegedly involved a text messaging to Plaintiff’s girlfriend.

On October 20, 2020, Plaintiff filed a motion for sanctions arising from Defendants’ continued noncompliance with the Court’s discovery requests. Plaintiff requested an order that directed Defendants to “pay the reasonable expenses, including attorney’s fees, Plaintiff ha[d] incurred on the issue of electronic discovery since January 29, 2021, pursuant to Fed. R. Civ. P. 37(b)(2)(C)”, among two other requests.

Defendants filed a memorandum and amended memorandum in opposition to the motion. The parties then filed a series of letters to the Court, showing discovery was completed as well as the discussion of what reasonable fees should be.

ESI was a repeated issue in this case. On January 29, 2021, the Court entered a decision and order that addressed discovery disputes and granted Plaintiff’s motion for sanctions and to compel production of documents.

Defendants were ordered to pay the cost to: “(1) transmit all of the ESI data Defendants have collected, in native format, to the chosen ESI vendor; (2) pay for and provide access to the devices and accounts that have not been properly collected so that the chosen ESI vendor can complete ESI collection in a forensically sound manner; (3) pay the full cost of the work that [the discovery vendor] has already performed in conferring with Defendants’ expert and identifying the problems with Defendants’ ESI collection; and (4) pay the reasonable expenses Plaintiff has incurred in litigating the issue of e-discovery.”

More than two months following the Court’s Order, two Defendants had still not completed their discovery obligations. Defense counsel contended that the discovery vendor cancelled the appointment to collect the information and set a later appointment date.

Plaintiff countered Defendants’ reasoning for not completing discovery obligations. Plaintiff alleged the two Defendants’ counsel was aware of their client’s noncompliance – both from his access to a live Google sheet that showed which Defendants had not scheduled or cancelled appointments with the ESI vendor, and from emails Plaintiff’s counsel sent about the failure to Defendant Swiatowy to schedule a collection time – and Defendant’s counsel confirmed he had communicated with his clients about their need to comply with the Court’s order.

In addition, defense counsel’s office returned Defendant Swiatowy’s phone to Swiatowy after discovering the phone had been reset to factory settings and had no information instead of giving it to the vendor to determine when the phone had been swiped. This was directly contrary to the Court’s order that “all discovery items and materials collected this far should be sent to the vendor for proper extraction.”

Defendants’ counsel asserted that Defendant Swiatowy tried to comply with collection efforts, but that the USB port on his phone was not working and needed repair. Defense counsel also asserted that it was the discovery vendor who cancelled the appointment, not Defendant. Finally, defense counsel stated that seven custodians have completed the ESI collection, and as the date of the declaration, two were scheduled to do so.

Plaintiff responded that Defendants cannot deny that they did not comply with the time requirement the Court ordered for producing the ESI.  Plaintiff related details that concerned the scheduling issue, which involved having the ESI vendor send a collection kit to the Defendant’s address. Defendant Swiatowy failed to reply to the email and Plaintiff filed a motion for sanctions.

Sanctions under Federal Rule of Civil Procedure 37 “permits the Court to award attorney’s fees as a sanction. In opposing the award of the fee Wishart’s attorney seeks, Defendants’ counsel argues that his out-of-district hourly rate exceeds what is reasonable in this District.”

In opposing the requests for attorney’s fees, Defendants’ counsel argued that the out-of-district hourly rate of $475 sought by Plaintiff’s counsel exceeded what was reasonable in the District. Defendants stated three reasons why out of district fees should not be awarded. Defendants claimed that Plaintiff’s counsel “found out that this Court had awarded $475 to another attorney, and so, retrospectively, they determined that their services were worth significantly more than they had previously represented, and now want the Court to award that amount.”

Plaintiff’s counsel affirmed that their usual hourly rate was $475 which was “consistent with the usual market rate for attorneys of a similar skill and experience in the Southern District of New York.” The affirmations were supported by rates Plaintiff’s counsel charged clients in other cases and based on other attorneys who practice in the area. Defendants did not dispute that a $475 hourly rate is usual in the Southern District of New York where Plaintiff’s counsel primarily litigate.

Defendants argued that Plaintiff’s counsel waived out-of-district rates by asking for $300 per hour in their recent application for fees rather than asking for $475 per hour as they did in their first application of fees. The Court said it would “consider Plaintiff’s letter memo (ECF No. 95)” and “order[ed] further briefing on this issue.”

The Court found there was nothing wrong with Plaintiff’s counsel supplementing their fee petition or the Court’s request for additional briefing on the issue.

In Casaccia v. City of Rochester, No. 17-CV-6323-FPG-MJP, 2021 WL 4189707 (W.D.N.Y. Sept. 15, 2021, as in this case, the Court awarded sanctions under Rule 37 because the defendants failed to comply with the Court’s discovery orders. In the instant case, the Court considered the subject matter of the litigation and the difficulty of the litigation tasks underlying the sanctions order. In considering whether to award out-of-district rates, the Casaccia court looked to the subject matter of the litigation, a civil rights case with complex Monell claims, as well as the difficulty of the litigation tasks underlying the sanctions order.

Defendants argued that this was a mere discovery dispute in contrast to Casaccia which was a complicated e-discovery dispute that arose within an already difficult civil rights case. However, as noted by the Court, the history of Plaintiff’s attempts to obtain ESI from Defendants belied Defendants’ claim that this was a simple discovery dispute. The Court said the case would have been simple had Defendants preserved ESI in the first place.  Additionally, it was unclear to the Court if there were local attorneys that Plaintiff could have hired to fight this ESI-heavy case.

Accordingly, the Court found it appropriate to award an attorney’s fee based on the out-of-district rate of $475 per hour. The Court found, after review, the appropriate award to be $66,855.48.