Opinion
CIVIL ACTION 03-0018 c/w 03-1127, SECTION: "K" (4)
December 23, 2003
ORDER AND REASONS
Before the Court was the plaintiffs', Larry Kerner and Kelly Guidry. Motion to Compel Response to Subpoena and to Compel Responses to Questions Presented to Jack Hoyle and Neil Wiseman at their Depositions, and for Attorney's Fees, Costs and Discovery Sanctions (doc. #15). A hearing on the motion was held on July 23, 2003. The Court granted the motion to the extent that the plaintiffs sought to re-depose Neil Wiseman, and continued the motion to the extent the plaintiffs sought the file of Jack Hoyle and to re-depose Hoyle. Further, the Court continued the motion to the extent the plaintiffs sought sanctions and to recover fees and costs incurred in filing the motion.
Rec. Doc. No. 27.
On August 22, 2003, the Court granted the motion in part, denied the motion in part and continued the motion in part. The Court found that attorney's fees are warranted in this matter and ordered the plaintiffs to submit the documentation required by Local Rule 54.2 no later than August 29, 2003. The plaintiffs complied. Upon review of the information submitted, the Court found that the plaintiffs submitted insufficient information for the Court to make a determination of the "reasonable hourly rate."
Rec. Doc. No. 31.
Rec. Doc. No. 41.
Thereafter, the Court ordered the plaintiffs to submit sufficient evidence of the rates charged in similar cases by other local attorneys with similar experience, skill and reputation no later than October 27, 2003. The plaintiffs again complied, and the Court is now ready to rule on the amount of attorney's fees that should be awarded.
Rec. Doc. No. 58.
I. Background
The plaintiffs filed the instant Jones Act suit claiming that Larry Kerner was injured when the M/V ERIN ELIZABETH flipped in Lake Ponchartrain. The plaintiffs claim that the accident caused Kerner to injure his neck, back, and head, causing him to suffer with post traumatic stress disorder. They also allege that Kerner's injuries were caused by the negligence of the defendant, Jen Marine, L.L.C. ("Jen Marine").
On June 10, 2003, during the course of discovery in this matter, the plaintiff issued a subpoena to the insurer of Jen Marine, Jack Hoyle ("Hoyle") of Jack Hoyle and Associates, requesting that Hoyle produce his entire file in this matter. The plaintiffs claimed that the defendant responded to the subpoena by producing partial responses, as well as a privilege log. Hoyle objected to several of the requests claiming that the information sought was protected from disclosure by the work product doctrine and the attorney-diem privilege.
The plaintiffs subsequently filed a motion to compel, seeking to obtain the file of Hoyle. The plaintiffs claimed that documents in the possession of a third party insurance adjuster are subject to discovery. They contended that because these documents were prepared in the ordinary course of business, they are not subject to the work product privilege. The plaintiffs also requested that Hoyle and Neil Wisemann, the vessel owner, be required to respond to inquiries made during their depositions.
Jen Marine opposed the motion contending that the information compiled by Hoyle was protected from disclosure by the attorney-client and work product privileges. It contended that several of the documents requested contained communications between Hoyle and counsel for Jen Marine. It also submitted that several of the communications contained Hoyle's opinion about litigation. Jen Marine also asserted that it will provide the documents to the Court for in camera review upon request. Finally, Jen Marine argued that the inquiries made during the depositions of Hoyle and Wisemann are also protected from disclosure by the attorney client and work product privileges.
II. Analysis A. Rule 37
Motions to compel discovery responses are governed by Rule 37 of the Federal Rules of Civil Procedure. That rule provides that "[i]f a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions." FED. R. CIV. P. 37(a)(2). Rule 37(a)(4)(A), which governs sanctions under the rule, requires the award of reasonable expenses, including attorney's fees, unless the motion to compel discovery was unjustified or other circumstances make the award unjust. Lischka v. Tidewater Services, Inc., 1997 WL 27066, at *4 (E.D. La. Jan. 22, 1997). The rule provides:
If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.
The plaintiffs seek to recover $11,403.78 in fees and costs. The plaintiffs are represented by Les A. Martin. Mr. Martin contends that he expended 55.8 hours at an hourly rate of $200.00 in bringing the Motion to Compel. Martin also seeks to recover $243.78 in costs such as photocopying, travel, parking and transcript costs.
Further, in plaintiffs' Motion for Leave to Supplement Record to Provide Court with Sufficient Evidence of Rates Charged in Similar Cases by other Local Attorneys with Similar Experience, Skill, and Reputation, the plaintiffs informed the Court that they also are seeking additional costs for deposition transcripts, aside from the $243.78 previously requested.
Rec. Doc. No. 62.
Since the initial application for fees and costs, invoices for the depositions of Mr. Weismann and Mr. Hoyle were obtained, totaling S310.50 and $435.40, respectively. Therefore, the plaintiffs are seeking costs in the amount of $989.68. The fees and costs requested total $12,149.68.
This amount includes the original $243.78 added to the amount of $745.90 submitted in the supplemental memorandum.
Plaintiffs' counsel claims that these hours were incurred in filing the Motion to Compel and opposing Jen Marine's Motion to Review and Set Aside Magistrate Judge's Order.
Rec. Doc. No. 35.
Jen Marine opposes the itemization of costs submitted by the plaintiffs contending that the number of hours detailed are excessive, many tasks listed were not in conjunction with the preparation of the motion to compel, the attorney's hourly rate is excessive, and some of the costs listed are excessive. Jen Marine contends that the number of hours should be reduced by 37 hours, and an hourly rate of $150-165 is more in line with prevailing community rates. Finally, Jen Marine asserts that the $989.68 amount the plaintiffs seek in costs are not recoverable.
See Rec. Doc. No. 45, Defendants' Memorandum in Opposition to Plaintiffs Itemization of Costs and Fees, pp. 1-2.
B. Standard
The determination of a reasonable attorney's fee award involves a two-step process. See Rutherford v. Harris County, 197 F.3d 173, 192 (5th Cir. 1999). The court must first determine the "lodestar" by multiplying the reasonable number of hours expended and the reasonable hourly rate for each participating attorney. See Hensley, 461 U.S. at 433. This "lodestar" method serves as the initial estimate of a reasonable attorney's fee. Blum v. Stenson, 465 U.S. 886, 888 (1984).
The second step involves the application of twelve factors the Fifth Circuit applies in determining what amount is warranted. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974). These factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions presented; (3) the skill required to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount of money involved and the results obtained; (9) the experience. reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Once the lodestar is computed by multiplying the reasonable number of hours by a reasonable hourly rate, the court may adjust the lodestar upward or downward depending on its analysis of the twelve factors espoused in Johnson. Dodge v. Hunt Petroleum Corp., 174 F. Supp.2d 505, 508 (N.D Tex. 2001). Thus, in light of the Johnson factors, the Court may reduce the award resulting from the lodestar calculation if the documentation of hours worked is inadequate or if the calculation includes hours that were not "reasonably expended." See Hensley, 461 U.S. at 433-34.
C. The Lodestar 1. Reasonable Fee
The party seeking attorney's fees has the burden of establishing the reasonableness of the fees by "submitting evidence supporting the hours worked and the rates claimed." Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3rd Cir. 1990) (citing Hensley, 461 U.S. at 433). Thus, counsel for the plaintiff "must produce satisfactory' evidence-in addition to [their] own affidavits-that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984); Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993).
The Court must determine the reasonable number of hours expended in the litigation and the reasonable hourly rate for the participating attorneys. See Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). The lodestar is then computed by multiplying the number of hours by the reasonable hourly rate. Id. 2. Reasonable Hourly Rate
Attorneys' fees are to be calculated at the prevailing market rates in the relevant community for similar services by attorneys of reasonably comparable skills, experience, and reputation. Blum v. Stenson, 465 U.S. 886, 895 (1984). In the instant case, it is uncontested that the relevant community here is the New Orleans, Louisiana legal market.
The applicant bears the burden of producing satisfactory evidence that the requested rate is in line with prevailing market rates. See NAACP v. City of Evergreen, 812 F.2d 1332, 1338(11th Cir. 1987). Satisfactory evidence of the reasonableness of the rate, at a minimum, is more than the affidavit of the attorney performing the work. Norman v Housing Authority of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) (citing Blum, 465 U.S. at 896 n. 11)). It must also speak to rates actually billed and paid in similar lawsuits. Thus, testimony that a given fee is reasonable is not satisfactory evidence of market rates. See Hensley, 461 U.S. at 439 n. 15.
Evidence of rates may be adduced through direct or opinion evidence as to what local attorneys charge under similar circumstances. The weight to be given to the opinion evidence is affected by the detail contained in the testimony on matters such as similarity of skill, reputation, experience, similarity of case and client, and breath of the sample of which the expert has knowledge. Norman, 836 F.2d at 1299.
a. Plaintiffs' first memo in support of attorney's fees
Rec. Doc. No. 42.
Here, the plaintiffs1 counsel, Les A. Martin, contends that his hourly rate is $200.00. Initially, as proof of the reasonableness of the rate charged, the plaintiffs had only provided the affidavit of Martin, the attorney performing the work. Martin states that he has been a practicing attorney since 1993. He graduated with honors from Loyola University, serving on the Law Review Board in 1993 as a Case Note/Quantum Editor. Martin further states that during his first five years of practice with Cossich Associates, he was billed at the rate of $125.00, and that after his first five years, his hourly rate has been between $150.00 and $200.00 per hour.
Additionally, Martin offers that upon information and belief, opposing counsel is charging Navigators in excess of $150.00 per hour. Finally, Martin states that given the facts of the case, in attempting to set aside a release, he would charge a rate of $200.00 per hour due to the difficulty in setting aside a release, the vigorous defense presented by counsel for defendant, and the special knowledge of maritime law required to prosecute this case.
b. Plaintiffs' supplemental memo in support of attorney's fees
See Rec. Doc. No. 42, Memorandum in Support of Award of Attorneys' Fees and Costs in Conjunction with Plaintiffs' Motions to Compel, and to File Itemization of Costs and Fees in Accordance with Local 54.2, Affidavit of Les A. Martin.
On October 28, 2003, the plaintiffs filed a Motion for Leave to Supplement Record to Provide Court with Sufficient Evidence of Rates Charged in Similar Cases by Other Local Attorneys with Similar Experience, Skill, and Reputation. In this motion, Martin submitted an additional affidavit. Martin pointed out that Mr. Rufus Hams, counsel for Jen Marine, charges an hourly rate of $165.00. The plaintiffs aver that they would be satisfied should this Court set this fee as the base rate under the lodestar analysis.
Rec. Doc. No. 62.
See Rec. Doc. No. 62, Motion for Leave to Supplement Record to Provide Court with Sufficient Evidence of Rates Charged in Similar Cases by Other Local Attorneys with Similar Experience, Skill, and Reputation, p. 1.
Martin further attests that he has spoken with members of the firm of King, LeBlanc, and Bland, and the firm of Lugenbuhl, Burke, Wheaton, Peck and Rankin, and their hourly rates range from $175-$225 dollars. Further, without specifying, Martin states that other attorneys in the legal community charge hourly rates of $175-$225 dollars.
Martin also states that at the time Larry Kerner (plaintiff) came to him, he had signed a Receipt and Release releasing all of his rights against the defendants. In order to prevail in Mr. Kerner's claim, the Receipt and Release had to be set aside. Martin attests that on August 27, 2003, Judge Duval set aside the release, and that much of the documentation obtained in the Motion to Compel was used to support the setting aside of the Receipt and Release.
Although Martin states in his affidavit that he learned that other attorneys in the relevant legal community charge hourly rates between $175-$225, Martin does not inform the Court if those attorneys charge those rates in similar cases. Further, Martin does not inform the Court whether these attorneys are of reasonably comparable skills, experience, and reputation. See Blum 465 U.S. at 895 (1984).
Jen Marine opposes the S200 rate requested by Martin contending that the rate is excessive, and arguing that Martin has provided no evidence, other than his own affidavits, that such a rate is in line with prevailing market rates in New Orleans.
A review of cases decided in this Court reveals that Martin's requested hourly rate is excessive and unreasonable. In Cross Equipment Ltd. v. Hyundai Merchant Marine (America) Inc., the Court found that the hourly rate of $150 charged by the lead attorney who had primarily practiced maritime law for 24 years was reasonable. The Court took judicial notice of the fact that this rate is "indeed fair and reasonable and `below-market' for attorneys with comparable maritime experience practicing maritime law in New Orleans." 1999 WL 169433 at * 1 (E.D. La. 1999). see also Smith v. Berry Co., No. 96-1899, 1997 WL 736697, at *4 (E.D. La. Nov. 21, 1997) (holding that $150 per hour was reasonable in an employment discrimination action after finding that counsel had practiced employment discrimination law for eleven years and had become an authority in the field); see also United States ex rel. Garibaldi v. Orleans Parish Sch. Bd., 46 F. Supp. 2d 546, 569 (E.D. La. 1999), vacated on other grounds, 244 F.3d 486 (5th Cir. 2001) (awarding high end hourly rates of $250, $175 and $150 for partner-level attorneys in quit claim case because of the particular difficulty of the case and the lucrative and less risky business the lawyers were precluded from accepting); Police Ass'n of New Orleans v. City of New Orleans, 951 F. Supp. 622, 628 (E.D. La. 1997) (holding that $150 per hour was reasonable in a Section 1983 action based upon plaintiffs' counsel's 22 years of experience as a civil rights attorney and the Judge's own knowledge of attorney's fees in this district).
Considering the foregoing, the Court finds it appropriate to reduce the rate to $150.00 as this rate appears to be reasonable based on Martin's qualifications and experience and the prevailing market rates in this legal community at the time he performed the work.
3. Reasonable Number of Hours Expended
The party seeking attorneys' fees must present adequately documented time records to the court. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). As a general proposition, all time that is excessive, duplicative or inadequately documented should be excluded from any award of attorney's fees. Raspanti v. United States Dept. of the Army, 2001 WL 1081375, at *6. Attorneys must exercise "billing judgment" by "writing off unproductive, excessive, or redundant hours" when seeking fee awards. Id. (citing Walker v. United States Dep't of Housing Urban Dev., 99 F.3d 761, 769 (5th Cir. 1996)). The fee seeker's attorneys are "charged with the burden of showing the reasonableness of the hours they bill and, accordingly, are charged with proving that they exercised billing judgment." Walker, 99 F.3d at 770. When billing judgment is lacking, the court must exclude from the lodestar calculation the hours that were not reasonably expended. Hensley, 461 U.S. at 434.
a. Hours Not Expended on Motion to Compel
The defendant argues, and the Court agrees, that several of the time entries submitted by the plaintiffs are not in connection with the motion to compel. These entries include the time spent on tasks such as preparing interrogatories and requests for production of documents to the defendant, preparing a subpoena duces tecum to Jack Hoyle, reviewing a privilege log of the defendant in response to the subpoena, preparing for and traveling to and from the depositions of Jack Hoyle and Neil Wiseman.
These expenses would have been incurred in the discovery-process regardless of the fact that the plaintiffs later found the need to file the motion to compel. Therefore, the Court will reduce the number of hours Les Martin submitted by 13.5 hours.
The following dates correspond to the hours reduced: May 02, 2003; May 27, 2003; June 10, 2003; June 12, 2003; June 13, 2003; June 23, 2003; and June 24, 2003.
b. Excessive/Duplicative Hours
A review of the time sheets submitted by Les Martin indicates that several of the entries are excessive and duplicative. For instance, Martin claims to have expended 4.3 hours on June 25, 2003, on legal research regarding the motion to compel and 3.8 hours on June 26, 2003, on additional legal research on the motion to compel. Further on June 26, Martin claims to have spent 0.6 hours preparing the motion to compel, 0.2 hours preparing the notice of hearing, 0.4 hours preparing the order for the motion, and 2.6 hours dictating a draft of the memorandum in support of the motion.
From June 27 through July 1, 2003, Martin claims to have expended 2.8 hours continuing to dictate the draft of the memorandum in support of the motion, 3.2 hours reviewing and revising the draft, 4.3 hours continuing to review and revise the draft, and 2.5 hours preparing and filing the final draft of the motion, memorandum, notice of hearing and order.
Initially, the Court notes that from the time Martin began his legal research on the motion to compel to the time the motion was actually filed, Martin submitted a total of 24.7 hours. The plaintiffs argue that the Memorandum in Support of the Motion to Compel was in excess of i went) pages, and extensive legal research was conducted regarding the motion.
Rec. Doc. No. 15.
The Motion to Compel, including the Memorandum in support thereof, was 23 pages in length. However, the Court notes that approximately the first nine pages of the motion is a recitation of the factual and procedural history. Further, although the plaintiffs claim that extensive legal research was conducted on the motion, the Court notes that only a single case was cited in the entire 23 pages. Additionally, in the motion itself, the plaintiffs admit that the one case cited deals with many of the issues in the motion.
Id. at p. 9.
The Court finds that the 24.7 hours spent researching, preparing, dictating, reviewing and revising the Motion to Compel are excessive and duplicative, and should be reduced by 50%. Thus, the plaintiffs may recover a total of 12.35 hours for the time entries from June 25 through July 1, 2003.
c. Travel Time
The plaintiffs also seek to recover for 2.5 hours expended by counsel on July 23, 2003, for travel to/from and hearing on Motion to Compel. Specifically, Martin claims to have spent 1 hour traveling to and from the hearing, and 1.5 hours at the hearing. The Court notes, however, that Martin's office is located in Gretna, Louisiana, no more than 7 miles from New Orleans. Because Martin did not specify in his bill of costs where he was traveling from, the Court will assume he traveled from his office in Gretna. Therefore, the travel time will be reduced to 0.5 hours as opposed to 1 hour.
The plaintiffs request reimbursement at Martin's full hourly rate for the time expended by traveling to New Orleans for the hearing. However, attorney travel time should be compensated at a lower rate than legal work. Courts in this Circuit typically compensate travel time at 50% of the attorney's rate in the absence of documentation that any legal work was accomplished during travel time. Watkins v. Fordice, 7 F.3d 453, 459 (5th Cir. 1993) (in Voting Rights Act case involving legislative redistricting, compensation for attorneys travel time was awarded at one half of the hourly rate allowed for the attorneys); Jiminez v. Paw-Paw's Camper City, Inc., 2002 WL 257691, at *23 (E.D. La. Feb. 22, 2002) (awarding attorney fees for travel time at one-half of normal hourly rate in employment discrimination case); Paul v. CMC Manufacturing, Inc., 1998 WL 527102, at *2 (N.D. Miss. Aug. 6, 1998) (travel time should be billed atone-half the hourly rate of the lawyer involved); Jackson v. Capital Bank Trust Co., 1994 WL 118332, at *26-27 (E.D. La. March 30, 1994).
The plaintiffs provided no documentation that any legal work was accomplished during travel time in this case. Therefore, Martin's rate for the time entries that reflect travel time will be reduced by 50%. The plaintiffs may recover for 0.5 hours at a rate of $75.00. Accordingly, for the July 23, 2003 time entry, the plaintiffs are entitled to attorney's fees in the amount of $262.50.
The 0.5 hours represents the approximate amount of time it should have taken Martin to travel to and from Gretna, Louisiana, no more than 7 miles away.
In summary, the 55.8 hours requested by the plaintiffs should be reduced to 29.45 hours. Therefore, the lodestar amount of reasonable hours multiplied by the reasonable rates set forth above is generally reasonable in this case.
4. The Johnson Factors
The plaintiffs, however, argue that in applying the Johnson factors, the lodestar amount should be adjusted upwards based on the complexity of the matter, the fact that the case was taken on a contingency fee basis, and the success obtained in the matter.
"The lodestar . . . is presumptively reasonable", and should be enhanced or reduced only in exceptional cases. Watkins v. Fordice, 7 F.3d 453, 459 (5th Cir. 1993) (citing City of Burlington v. Dague, 505 U.S. 557, 567 (1992)). Further, "three of the Johnson factors, complexity of the issues, results obtained and preclusion of other employment, are fully reflected and subsumed in the lodestar amount." Jimenez, 2002 WL 257691 at *18 (citing Heidtman v. County of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999)). Therefore, the complexity of the matters in this case and the results obtained have been considered in the initial amount.
With regard to the fact that Martin undertook the case on a contingency fee basis, this is no reason to adjust the lodestar upwards. The Supreme Court barred the use of this factor after the Johnson case was decided. Walker v. United States Dep't of Housing Urban Dev., 99 F.3d 761. 772 (5th Cir. 1996) (citing City of Burlington, 505 U.S. at 567; Shipes v. Trinity, 987 f.2d 31 I, 323 (5th Cir. 1993)). Considering the Johnson factors, the Court is of the opinion that the lodestar should not be modified. D. Expenses/Costs
Lastly, the plaintiffs seek to recover expenses and costs in the amount of $989.68 This amount includes the following: $187 for photocopying; $35.20 for mileage, travel, parking and toll for the depositions of Jack Hoyle and Neil Wiseman; $20.78 for mileage/travel and parking for the Motion to Compel; and $745.90 for the deposition transcripts of Neil Wiseman and Jack Hoyle. The defendant objects to the plaintiffs' request to recover for the costs and expenses incurred, contending that copying expenses, travel expenses of attorneys, mileage, and parking costs are not recoverable.
See Rec. Doc. No. 45, p. 7.
1. Mileage/Travel Expenses
Federal Rule of Civil Procedure 54(d) states that "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Taxation of costs under Rule 54 is within the district court's discretion. Breaux v. City of Garland, 205 F.3d 150, 164 (5th Cir.), cert. denied, 531 U.S. 816 (2000). Under 28 U.S.C. § 1920, a court may not tax costs for travel expenses because these are overhead costs not litigation costs. Embotelladora agral Regiomontana v. Sharp Capital, Inc., 952 F. Supp. 415, 418 (N.D. Tex. 1997); see also Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993); Jiminez v. Paw-Paw's Camper City, Inc., 2002 WL 257691 at **27-28 (E.D. La. 2002).
The Court notes at the outset that the $35.20 the plaintiffs seek for the travel, parking and toll for the depositions of Jack Hoyle and Neil Wiseman, would have been incurred regardless of the need to later file a motion to compel. This amount is therefore, not recoverable.
The plaintiffs also request $20.78 for travel to and parking for the Motion to Compel. However, because this amount is an overhead cost, the plaintiffs cannot recover.
2. Photocopying Expense
The plaintiffs seek to recover $187.80 in photocopying expenses. However, the plaintiffs may not recover copy expenses. In his billing statement Martin refers 10 this expense simply as "Photocopying Expense." He indicates that 939 pages were copied at .20 cents per page. However, he has failed to state exactly what he copied or the reason the copies were made. Thus, Martin has failed to substantiate these expenses. See Fogelman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991) (discussing award of costs under § 1920(4) and holding that "[w]hile we certainly do not expect a prevailing party to identify every xerox copy . . . we do require some demonstration that reproduction costs necessarily result from that litigation"). In light of the plaintiffs' failure to support their allegation that copy expenses were reasonably incurred, the request for reimbursement of such expenses will be denied.
3. Transcript Costs
The plaintiffs seek to recover $745.90 for the deposition transcripts of Jack Hoyle and Neil Wiseman, both taken prior to the Motion to Compel. For similar reasons stated above, these costs would have been incurred by the plaintiffs in the normal course of discovery if they chose to have copies of these transcripts. These costs, therefore, are not recoverable.
Accordingly,
IT IS ORDERED that the Motion to Compel Response to Subpoena and to Compel Responses to Questions Presented to Jack Hoyle and Neil Wiseman at their Depositions, and for Attorney's Fees, Costs and Discovery Sanctions (doc. #15) is GRANTED IN PART and DENIED IN PART as follows:
1) GRANTED to the extent the plaintiff seeks to recover attorney's fees. The plaintiffs are entitled to recover for 28.95 hours at an hourly rate of $150.00, and 0.5 hours at an hourly rate of $75.00, or an amount of $4,380.00.
2) DENIED to the extent the plaintiffs seek to recover costs in the amount of $989.68.