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“Inhibited Ability to Participate Meaningfully in Electronic Discovery” Results in Reduction of Rate of Recoverable Attorney’s Fees

Posted in CASE SUMMARIES

Chen v. Dougherty, 2009 WL 1938961 (W.D. Wash. July 7, 2009)

Following a verdict in their favor, plaintiffs moved for attorneys’ fees as provided by law.  Finding that plaintiffs were the “prevailing parties” under the relevant fee shifting statute, the court indicated its willingness to approve the attorneys’ requested hourly rates, with one exception.  Regarding the time spent by one attorney on discovery, the court ordered the requested rate to be reduced upon finding that her “inhibited ability to participate meaningfully in electronic discovery” was indicative of “novice skills in this area” and not “experienced counsel.”

The Court determines a reasonable fee award by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.  Id. at 435.  Based on the evidence presented, the Court finds reasonable the hourly rates proposed by Plaintiffs’ attorneys from the law firm of Gendler & Mann, and by Mr. Barahimi’s attorneys Jeffrey Needle and Susan Mindenbergs, with one exception:  the Court finds it necessary to reduce the hourly rate of Mr. Barahimi’s attorney Susan Mindenbergs for certain time spent on discovery.  On October 1, 2008, this Court ruled on a motion to compel discovery brought by Mr. Barahimi.  (Dkt. Nos. 185 & 224.)  The Court determined that the parties failed to put together a proper discovery plan concerning Electronically Stored Information ("ESI"), resulting in the delivery of 50,000 pages of paper documents to Ms. Mindenbergs in response to discovery requests.  Ms. Mindenbergs contributed to the resulting discovery dispute by failing to offer search terms for the delivery of relevant ESI.  The Court determined that no fee-shifting would result from that discovery dispute, but required the parties to share the cost of the produced paper documents.  (Dkt. No. 224 at 2.)  The Court now directs that Ms. Mindenbergs’ fee award for the hours billed on this dispute and the related discovery requests should be determined at the reduced rate of $200 an hour.  [FN2]  Ms. Mindenbergs’ inhibited ability to participate meaningfully in electronic discovery tells the Court that she has novice skills in this area and cannot command the rate of experienced counsel.

Emphasis added.