Carrington v. Graden

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ROVIER CARRINGTON,

Plaintiff,

-v.-

18 Civ. 4609 (KPF)

BRIAN GRADEN; BRIAN GRADEN MEDIA, LLC;

VIACOM, INC., VIACOM INTERNATIONAL, OPINION AND ORDER

INC.; PARAMOUNT PICTURES CORPORATION;

BRAD GREY; BRAD GREY ESTATE; and BRAD

ALAN GREY TRUST,

Defendants.

KATHERINE POLK FAILLA, District Judge:

In an Order issued on October 11, 2019, this Court granted the

motion — jointly filed by Defendants Brian Graden, Brian Graden Media,

LLC (together, the “Graden Defendants”), Viacom Inc., Viacom International

Inc., Paramount Pictures Corporation (together, the “Viacom Defendants”),

Brad Grey, the Brad Grey Estate, and the Brad Alan Grey Trust (together,

the “Grey Defendants,” and with the Graden and Viacom Defendants,

“Defendants”) — for terminating sanctions with costs against Plaintiff Rovier

Carrington. As part of that Order, the Court offered Defendants an

opportunity to petition for attorneys’ fees and costs, and counsel for each

group of Defendants has filed a petition, seeking in the aggregate more than

$700,000 in attorneys’ fees and $47,000 in costs. For the reasons set forth

in the remainder of this Opinion, the Court grants Defendants’ motions in

part and awards $253,996.65 in attorneys’ fees and $39,815.05 in costs to

costs to the Viacom Defendants; and $128,709.55 in attorneys’ fees and

$4,123.34 in costs to the Grey Defendants.

BACKGROUND1

A. The Complaint

Plaintiff alleged sexual offenses, unfair competition, fraud,

misappropriation, federal antitrust violations, and New York State and City

labor law violations by Defendants occurring at various times over a period

of years. (Am. Compl. ¶¶ 153-275). But to summarize the pleadings

without a nod to the copious factual allegations is to divest Plaintiff’s

narrative of its thrall. Plaintiff, who discloses early on in his complaint that

he is “related to Hollywood royalty,” is a writer, actor, and producer of

television shows. (Id. at ¶ 22). In September and October 2010, Plaintiff

worked on a reality television show entitled “The Life of a Trendsetter.” (Id.

at ¶ 10).

According to Plaintiff, in 2010 and 2011, he allegedly had several

sexual encounters with Brad Grey, the late Chairman and CEO of

1 The facts regarding the underlying action are drawn from the Amended Complaint

(“Am. Compl.” (Dkt. #40)) and its attached exhibits (“Exhibits” (Dkt. #40-1)).

However, the instant motion relates primarily to Plaintiff’s conduct in this litigation.

As such, the Court draws facts regarding the procedural history from the record in

this case, including the Memorandum of Law in Support of Defendants’ Joint Motion

for Sanctions Against Plaintiff (“Def. Sanctions Mem.” (Dkt. #130)); the Declaration

of Stanton L. Stein submitted in connection with the underlying sanctions motion

(“Stein Decl.” (Dkt. #131)) and its supporting exhibits; the transcript of the

February 7, 2019 telephone conference (“Feb. 7, 2019 Tr.”); and the transcript of the

October 11, 2019 hearing (“Oct. 11, 2019 Tr.”).

For ease of reference, the Court refers to the Viacom Defendants’ memorandum in

support of attorneys’ fees and expenses as “Viacom Fee Mem.” (Dkt. #152); the

Paramount Pictures. (Am. Compl. ¶¶ 32-62). In consequence, on or about

June 9, 2011, Viacom purportedly asked Plaintiff to sign a non-disclosure

agreement and made an offer to give him “an envelope filled with cash.” (Id.

at ¶¶ 63-64). When Plaintiff refused, Viacom and Paramount terminated his

business relationship and “blacklisted” him from the entertainment industry

for the next three years. (Id. at ¶¶ 67-69).

In an effort to “move forward with his reality show, and come off

Viacom’s banned list,” Plaintiff agreed in September 2014 to engage in a

sexual relationship with Brad Graden, former President of Programming at

MTV Networks. (Am. Compl. ¶ 87). Plaintiff asserts that, during this

relationship, Mr. Graden engaged in repeated acts of sexual misconduct,

including drugging Plaintiff’s drink on at least one occasion. (Id. at ¶¶ 85-

129). Plaintiff further alleges that Mr. Graden deceived and sexually

exploited him with false promises of producing Plaintiff’s show, and then

misappropriated Plaintiff’s concept of a “reality dating show.” (Id. at ¶¶ 169-

72; see also id. at ¶¶ 130-33, 137-38).

B. Procedural History

The procedural history of this case is, if possible, more interesting

than the substance of Plaintiff’s allegations. As such, and even though the

instant motions are unopposed by Plaintiff, the Court provides a detailed

procedural history herein.

1. Initial Concerns Regarding the Authenticity of Evidence

On May 2, 2018, Plaintiff commenced this action by filing a counseled

advised Plaintiff’s then-counsel, the Landau Group, that certain documents

referenced in the Complaint appeared “highly questionable and inaccurate.”

(See Stein Decl. ¶ 2). Defendants then sent notices for preservation of

documents and electronically stored information to Plaintiff in care of his

counsel on May 21, 2018, May 22, 2018, June 20, 2018, and June 21,

2018. (Stein Decl., Ex. A and B).

The case was removed to this Court by the Viacom Defendants on

May 24, 2018. (Dkt. #1, 8). On June 14, 2018, Defendants filed three pre-

motion letters (one per defense group) regarding anticipated motions to

dismiss. (Dkt. #28, 31, 34). In these letters, Defendants reiterated their

concerns about the accuracy of Plaintiff’s allegations and the authenticity of

his evidence, citing specific concerns about an email — dated October 24,

2017 — supposedly between Plaintiff and non-party Darren Stein. (See, e.g.,

Dkt. #31).

Plaintiff responded by filing an Amended Complaint on June 20, 2018,

that attached 11 exhibits. (See generally Am. Compl.). The Exhibits

comprised approximately 40 emails, allegedly exchanged with Brian Graden,

Darren Stein, and non-party Reno Logan. Of specific relevance to the

instant motions are the communications attached as: (i) Exhibits 2 through

6, which are purported communications with Reno Logan through Plaintiff’s

trendsetterrovheir@gmail.com email account (the “Trendsetter Account”);

(ii) Exhibits 8 and 9, which are purported communications with Brian

Graden through Plaintiff’s roviercarrington@gmail.com email account (the

rovier@thecarringtondiaries.com email account (the “Carrington Diaries

Account”).2 All of the communications were attached to the Amended

Complaint as forwarded emails to the Landau Group, rather than as stand-

alone, native-format email communications. (Def. Sanctions Mem. 4).

While Defendants sought to obtain as much information as possible

concerning the provenance of Plaintiff’s exhibits, Plaintiff (with or without

his counsel’s knowledge) was taking proactive steps to destroy this same

information. To that end, on June 21, 2018, one day after filing the

Amended Complaint and one month after receiving the first preservation

notice, Plaintiff deactivated the Trendsetter Account. (Def. Sanctions

Mem. 4; Stein Decl., Ex. A and B). In the same month, Plaintiff discarded

his iPhone 7, which he later represented to the Court to be the only device

he used to transmit the emails contained as Exhibits 2 through 11 of the

Amended Complaint. (Feb. 7, 2019 Tr. 11:11-16; see also Def. Sanctions

Mem. 4).

2. The Court Orders Limited Discovery Concerning the

Authenticity of Communications

As part of their pre-motion submissions to the Court on July 2, 2018,

Defendants attached evidence indicating that certain of the Exhibits had

been fabricated. (Dkt. # 48, 49, 50; see also Dkt. #46, 57). Additionally, on

July 23, 2018, counsel for the Graden Defendants submitted declarations

from Darren Stein and Reno Logan, in which the declarants asserted that

the communications purportedly sent to or by them had been falsified. (See

On July 24, 2018, the Court issued an Order finding that “Defendants

[had] presented sufficient evidence to warrant immediate discovery limited to

the authenticity of various emails attached as exhibits to the Amended

Complaint,” and directed Defendants to file a proposed order providing for

such discovery. (Dkt. #58). In accordance with the Court’s Order,

Defendants filed a proposed order on July 31, 2018, which if granted would

have permitted limited discovery into the authenticity of the disputed

exhibits. (Dkt. #59). Plaintiff requested that the Court issue an alternative

version of the proposed order. (Dkt. #60-62). Defendants opposed Plaintiff’s

alternative version, principally because the changes Plaintiff suggested

would allow for the production of communications in their forwarded format

rather than in their native format, thereby undermining Defendants’

investigation into the origins of these documents. (Dkt. #63). On August 7,

2018, the Court issued an Order for limited discovery concerning the

authenticity of communications, using the form Defendants had submitted,

without prejudice to or limiting any existing duty to preserve relevant

materials that had arisen in connection with this action. (Dkt. #64).

Plaintiff and Defendants were both ordered immediately to preserve the

originals and copies of each and every document constituting or containing

any portion of the communications attached as: (i) Exhibits 2 through 11 to

the Amended Complaint; (ii) Exhibit A to the Declaration of Darren Stein

(Dkt. #56-2); and (iii) Exhibits 1 through 4 to the Declaration of James

Kelshaw (Dkt. #56-3) (collectively, the “At-Issue Communications”).

Plaintiff’s relevant email accounts in order to locate and produce native-

format versions of the At-Issue Communications. (Dkt. #64, 70; see also

Stein Decl., Ex. L). Despite being provided access to Plaintiff’s Carrington

Diaries and Gmail Accounts on or about August 24, 2018, FTI found no

native versions of any of the 40 At-Issue Communications in those accounts,

other than an October 9, 2017 exchange between Plaintiff and Darren Stein,

the validity of which was not contested by Defendants. (Stein Decl., Ex. I;

see also Def. Sanctions Mem. 6 (noting that the October 9, 2017 exchange

“is the only one of the At-Issue Communications as to which authenticity is

not in dispute. None of the other 39 At-Issue Communications were found

to exist in Plaintiff’s email accounts in native form.”)).3 Notably, although

the FTI investigation found none of the disputed emails in its native format,

it did find the forwarded versions of the emails that Plaintiff had sent to the

Landau Group between February and May 2018 for inclusion in Plaintiff’s

pleadings. (Def. Sanctions Mem. 11).4

On September 17, 2018, Plaintiff claimed that the Gmail Account and

Carrington Diaries Account had been subject to a “hack” on May 24, 2018.

(Dkt. #76). As Defendants noted in their Joint Motion for Sanctions, neither

Plaintiff nor his counsel raised the specter of this highly localized hack at

any time before FTI engaged in its search for native-format versions of the

3 FTI was not able to access Plaintiff’s Trendsetter Account. (Dkt #131, Ex. L). The

Landau Group advised FTI that the Trendsetter Account had been “deactivated for

years.” (Id., Ex. H).

4 Months later, Plaintiff responded to the FTI investigation by providing an affidavit

At-Issue Communications. (Def. Sanctions Mem. 7). Moreover, Defendants

observed that an alleged hack could not explain why one valid email from

Darren Stein still existed in its original form, or why forwarded emails to the

Landau Group remained intact. (Id.).

On September 24, 2018, the Landau Group moved to withdraw as

counsel for Plaintiff. (Dkt. #78). In response, Defendants submitted a letter

on September 26, 2018, voicing their concerns that the withdrawal of

Plaintiff’s counsel might affect Plaintiff’s compliance with the Court’s

discovery directives. (Dkt. #80). The Court shared Defendants’ suspicions

and accordingly permitted Defendants to participate in an initial portion of

the telephone conference scheduled for October 5, 2018, with the Landau

Group and Plaintiff. (Id.). Pursuant to discussions at the telephonic

conference, the Court granted the Landau Group’s motion to withdraw as

counsel. (Dkt. #82). Thereafter, Plaintiff requested to proceed pro se, and

the Court granted his request on October 16, 2018. (Dkt. #83).

3. Defendants’ Motion for Additional Court-Ordered Discovery

On October 2, 2018, during the pendency of the Landau Group’s

motion for withdrawal, Defendants jointly sent Plaintiff a letter providing

notice of their intent to move for sanctions against Plaintiff and the Landau

Group, pursuant to Rule 11 of the Federal Rules of Civil Procedure, unless

the Amended Complaint was withdrawn within 21 days. (Stein Decl.,

Ex. M). Defendants’ authenticity issues were then put on hold between

October 2018 and January 2019 for several reasons, including: (i) the

which motion was later withdrawn (Dkt. #85, 93); (iii) Plaintiff’s refusal to

accept service at his home address (Dkt. #89); and (iv) Plaintiff’s efforts to

secure extensions of time to file a reply submission in which he could

expand upon his arguments for transfer (Dkt. #91).

Once those issues were resolved, Plaintiff requested to dismiss the

case without prejudice on January 18, 2019. (Dkt. #95). The Court

addressed Plaintiff’s request, as well as Defendants’ outstanding discovery

requests regarding the authenticity of the At-Issue Communications, during

a telephonic conference held on February 7, 2019. (Dkt. #99 (scheduling

endorsement), 110 (transcript)). During the conference, and in light of FTI’s

documented inability to locate the At-Issue Communications, the Court

permitted Defendants to serve subpoenas on the Internet Service Providers

(“ISPs”) for Plaintiff’s email accounts — Google LLC (“Google”), Microsoft

Corporation (“Microsoft”), and GoDaddy.com, LLC (“GoDaddy”) — to obtain

subscriber and non-subscriber information. (Dkt. #102). Additionally, the

Court ordered Plaintiff to turn over his iPhone X to FTI for mirror-imaging,

in order to locate evidence pertaining to the At-Issue Communications.

(Id.).5

The ISP subpoena returns revealed that Plaintiff had fabricated,

destroyed, and misrepresented evidence. To begin, Google’s subpoena

response revealed that Plaintiff’s Trendsetter Account had in fact been

deactivated on June 19, 2018, during the pendency of this litigation. (Stein

Decl., Ex. P; see also Def. Sanctions Mem. 9). Thus, Plaintiff’s repeated

representations that the Trendsetter Account had been deactivated “for

years” were false. (Stein Decl., Ex. H; Sep. 18, 2018 Tr. 38:11-14). As

Defendants note (Def. Sanctions Mem. 9), the timing is critical because the

Trendsetter Account was deactivated one day after Plaintiff filed an Amended

Complaint that attached emails allegedly sent from that Account. By

consequence then, if not by design, Plaintiff’s false statements regarding the

date of deactivation foreclosed the recovery of confirmatory information from

the Trendsetter Account. (Id.).

The GoDaddy subpoena returns were even more troubling. They

indicated that the Carrington Diaries Account had been closed and deleted

by Plaintiff on or about September 8, 2018, one month after the Court’s

order to preserve evidence. (Oct. 11, 2019 Tr. 38:12-17).6 Additionally, the

GoDaddy production revealed that Plaintiff had specifically reached out to

GoDaddy support personnel in order to confirm that a subpoena to that ISP

would not return information about emails within a deleted account. (Id. at

38:18-20). Further, throughout 2018, the password of the Carrington

Diaries Account was changed repeatedly, undermining Plaintiff’s claims of

hacking by or on behalf of any of the Defendants. (Id. at 38:20-24).

As for the Gmail Account, FTI’s search process “did not identify any

original instances of the At-Issue Communications.” (Stein Decl., Ex. Q).

Reasoning from this discovery, Defendants concluded that “Plaintiff’s lone

active and relevant email account has no native versions of the At-Issue

Communications,” and hypothesized that “Plaintiff deleted the entire

contents of the two other accounts from which these Communications

purportedly came.” (Def. Sanctions Mem. 11).

FTI was able to conduct a forensic analysis of Plaintiff’s iPhone X.

(Stein Decl., Ex. O). The iPhone X had previously been understood by Court

and defense counsel as the means by which Plaintiff transmitted the At-

Issue Communications to counsel. (See Dkt. #76). However, at the

February 7, 2019 conference, Plaintiff announced that “it appears [Plaintiff’s

former counsel, Kevin Landau] misrepresented to the Court and to the

defendants what iPhone [Plaintiff] used for forwarding the At-Issue

Communications.” (Stein Decl., Ex. N at 4). Instead, Plaintiff claimed that

he had sent the At-Issue Communications from an iPhone 7, long since

discarded, and that he did not have any of his previous email accounts

linked to his current iPhone X. (Feb. 7, 2019 Tr. 11:11-16; id. at 13:1-7).7

4. Defendants’ Motion for Terminating Sanctions and Fees

On May 13, 2019, Defendants moved for terminating sanctions,

attorneys’ fees, and costs against Plaintiff pursuant to Federal Rules of Civil

Procedure 11(c) and 37(b)(2)(A) and the Court’s inherent powers, as well as

referral of the action to the United States Attorney’s Office for the Southern

7 This clarification was not supported by the record. As Defendants pointed out to the

Court, Apple did not release the iPhone 7 until 2016, which postdates many of the

At-Issue Communications. (Def. Sanctions Mem. 12-13). Further, contrary to

Plaintiff’s representations while proceeding pro se, FTI found that “Mr. Carrington’s

District of New York for criminal prosecution. (Dkt. #123).8 In support of

this serious request, Defendants asserted that Plaintiff had (i) committed

fraud on the Court in fabricating the “At-Issue Communications”;

(ii) deliberately destroyed and compromised evidence; (iii) violated the

Court’s August 7, 2018 Order directing that all parties preserve the At-Issue

Communications; and (iv) improperly and in bad faith filed this lawsuit and

engaged in misconduct and false statements throughout the pendency of the

litigation. (See generally Def. Sanctions Mem.).

Plaintiff responded on May 20, 2019, by asserting a number of claims

against Defendants and their attorneys, including violations of Court orders,

professional misconduct, and criminal behavior. (Dkt. #127).9 Plaintiff

further requested several forms of relief, from an order disbarring

Defendants’ attorneys to the revocation of the Court’s Order setting a

briefing schedule on Defendants’ motion for sanctions and ordering Plaintiff

to appear for a hearing on this motion. (Id.; see also Dkt. #116). On

May 21, 2019, the Court issued an order denying Plaintiff’s requests for

relief, explaining in relevant part that “[h]aving reviewed the letter and the

docket, the Court does not see any evidence of misconduct by Defendants’

8 Defendants additionally allege that the Landau Group may have helped, assisted, or

perpetuated misconduct by Plaintiff, although they did not initially seek sanctions

against the Landau Group. (See Def. Sanctions Mem. 8). The Court makes no

findings on this issue. It notes, however, that the Landau Group asserted that the

Trendsetter account had been deactivated years before the filing of this action on

August 24, 2018 (id.; see also Stein Decl., Ex. H); raised a series of unavailing

challenges to the neutral forensic examiner (see Dkt. #69); and, ultimately, failed to

attorneys.” (Dkt. #126 at 2). In the same order, the Court reminded

Plaintiff that he had until June 27, 2019, to provide further opposition to

Defendants’ motion for sanctions. (Id.). Plaintiff did not file a separate

document before that date; the Court thereby accepted Plaintiff’s May 22,

2019 letter as his only opposition brief. (Id.).

On July 23, 2019, the Court received an email communication from

Plaintiff, copied to Defendants’ attorneys. (See Dkt. #139). Plaintiff

submitted this email two days before a hearing scheduled for July 25, 2019,

at which he had been ordered to appear personally; of note, the Court had

scheduled the hearing on April 12, 2019. (Id.; see Dkt. #116). While the

Court is generally disinclined to review submissions made via email, it noted

that Plaintiff was claiming that medical issues prevented him from flying to

the hearing. (Dkt. #139). Because the Court had scheduled the July 23,

2019 hearing for the express purpose of affording the defense and the Court

an opportunity to question Plaintiff, the latter’s personal appearance was

required. (Id.). Accordingly, the July 25, 2019 hearing was adjourned sine

die. (Id.).10

On August 26, 2019, the Court received notification from Plaintiff that

(i) he was medically cleared to fly and (ii) an attorney would be entering a

notice of appearance on his behalf presently. (Dkt. #143). In response, the

Court scheduled a hearing sufficiently far off that Plaintiff could resolve his

representation issues and prepare for the hearing. (Dkt. #144). Specifically,

it ordered Plaintiff to appear for an in-person hearing on Defendants’ motion

for sanctions on October 11, 2019. The Court additionally informed Plaintiff

that he would “be required to appear in person for this hearing whether or

not counsel has appeared before that time. The Court will not consider

further requests from Plaintiff for extensions or adjournment of this date.”

(Id.).

The day before the hearing, on October 10, 2019, the Court received a

letter from Greg Loomis, indicating that he had been retained to represent

Plaintiff and seeking an adjournment. (Dkt. #146).11 Cognizant of Plaintiff’s

previous efforts at delay, the Court denied Mr. Loomis’ application to

adjourn the hearing within 10 minutes of its receipt; it permitted Mr. Loomis

to appear pro hac vice at the hearing; and it required Plaintiff to appear in

person. (Id.; Oct. 11, 2019 Tr. 3:1-7). Despite the Court’s prior orders,

neither Plaintiff nor any individual purporting to represent him appeared

before the Court at the sanctions hearing held on October 11, 2019. (Dkt.

#147; Oct. 11, 2019 Tr. 3:11-18).12

Although the Court had warned Plaintiff that his failure to appear

could result in the Court deciding Defendants’ motion unopposed, the Court

in fact reviewed and considered all the submissions that Plaintiff had

provided in opposition to Defendants’ sanctions motion. (Dkt. #147; see

Dkt. #127, 136, 137). The Court found that even if, as Plaintiff alleged,

some portion of his claims could survive if the At-Issue Communications

were to be excluded, the fact and complexity of his fabrication efforts

necessitated dismissal. (Oct. 11, 2019 Tr. 45:1-3; see Stein Decl., Ex. N at

4). It then detailed, at long length, the tortuous investigation in which it

and defense counsel had been involved for nearly 16 months. (Oct. 11,

2019 Tr. 34:17-41:13).

The Court next considered the legal issues inhering in Defendants’

motion for sanctions. (Oct. 11, 2019 Tr. 41:14-44:7). Ultimately, and with a

measure of regret, the Court concluded that the only proper sanction was

termination of Plaintiff’s complaint with prejudice:

Mr. Carrington has never provided an explanation for

how the forwards exist in the accounts for emails

that were sent — let me say that more precisely. The

explanation he has not provided is an explanation of

how the forwards exist in the Carrington Diaries

account for emails that were sent by the Trendsetter

account when there is no evidence of the emails

being sent from the Trendsetter account to the

Carrington Diaries account. It makes no sense to me.

I also do not understand what possessed Mr.

Carrington to turn over his iPhone in the middle of

this litigation, in the middle of this dispute about the

authenticity of these emails. All that I can conclude

is that in every instance where the plaintiff appears,

again, to use the vernacular, to be caught, he

attempts to argue something new, that these issues

are the result of someone else’s doing, that they are

the result of the hacking by one of the defendants or

by defense counsel, and it’s all just one large

conspiracy. I have difficulty, and indeed I cannot,

credit that. I have enough sworn statements and

enough exploration of what I do have to suggest that

this is not the case.

Instead, there is an explanation from plaintiff, but I

just don’t credit it. It’s another coverup involving Mr.

Graden and Mr. Stein. Every time the defense has

produced compelling evidence of spoliation, of

fabrication, of obstruction of the litigation in this

case, the plaintiff has provided an explanation. And

I believe that going forward, every time it happens,

he will provide yet another explanation. They are of

increasingly tenuous credibility, and they can’t

explain what I have in the record.

For these reasons, I can find, even under a clear and

convincing evidence standard, that Mr. Carrington

has sentiently set in motion some unconscionable

scheme, calculated to interfere with the judicial

system’s ability impartially to adjudicate the action,

referring to the Scholastic decision I cited earlier to

the parties.

(Id. at 47:18-49:5).13 The Court dismissed Plaintiff’s claims with prejudice

against all Defendants. (Dkt. #147). It declined, however, to issue a

criminal referral to the United States Attorney’s Office for the Southern

District of New York. (Id.).

13 See also Oct. 11, 2019 Tr. 45:16-46:12:

But this is not merely, to use Mr. LaVigne’s expression,

doubling down, it’s trebling down or quadrupling down, and we

could just go on for a while, because at each junction, I’m being

told something else. I don’t think I’m being told the truth, and

I’m getting further and further away from a resolution of what

happened to these emails and what happened to the other

emails in these accounts. So we got to the point where counsel

withdrew, and somehow it was counsel’s fault. There was more

than one extremely localized hack that only seemed to affect the

emails that I care about, and it was not lost on me, and perhaps

it was of surprise to Mr. Carrington, that GoDaddy kept a chron

file of their communications in which there were discussions

that made clear that Mr. Carrington’s concern was that there

be no trace of these emails.

Given that, there’s really not much — whether I had this as a

preponderance or a clear and convincing, I have to find, I do

find, that these emails were fabricated, and that was bad

The Court permitted Defendants’ counsel to submit applications for

fees and costs that were fairly traceable to the issue of authenticating At-

Issue Communications. (Dkt. #147). On December 2 and 3, 2019, the

Court received Defendants’ individual motions for fees. (Dkt. #151, 155,

156).14 Upon receipt of Defendants’ motions, the Court provided Plaintiff

with an opportunity to respond in opposition by January 6, 2020. (Dkt.

#164).

On January 6, 2020, the Court received an ex parte communication,

sent as an email from Plaintiff to the Court’s Chambers inbox, in part to

request an extension to the deadline set. (Dkt. #172). However, Plaintiff

also made several significant accusations about Defendants and their

counsel in his email, and further requested that the email be considered as

privileged by the Court. (Id.). The Court refused to consider Plaintiff’s

request on an ex parte basis, but offered Plaintiff the opportunity re-file his

request on the docket and under seal. (Id.). Plaintiff, however, chose not to

accept the Court’s invitation. (Dkt. #173). Accordingly, the Court ordered

that the briefing on Defendants’ motion for fees was closed, and the Court

now considers the motions unopposed. (Id.).

DISCUSSION

Defendants seek a total of $751,651.19, comprising: (i) $704,986.30

in fees for attorneys and support staff (reflecting $236,653.80 for the work of

Shearman & Sterling LLP; $295,317.50 for Russ August & Kabat; and

$173,015.00 for Loeb & Loeb LLP); and (ii) $46,644.55 in costs (reflecting

$2,726.50 for Shearman & Sterling LLP; $39,815.05 for Russ August &

Kabat; and $4,123.34 for Loeb & Loeb LLP). (See generally LaVigne Fee

Decl.; Hwang Fee Decl.; Stein Fee Decl.; Stein Supp. Ltr. 1-2). For certain

Defendants, these figures include the fees incurred in litigating their fee

application. (Id.).

A. Applicable Law

Federal Rule of Civil Procedure 37 provides that when “a party ... fails

to obey an order to provide or permit discovery ... the court where the action

is pending may issue further just orders.” Fed. R. Civ. P. 37(b)(2)(A). Such

just orders may include “striking pleadings in whole or in part; ... dismissing

the action or proceeding in whole or in part; [or] rendering a default

judgment against the disobedient party.” Id. Further, “the court must order

the disobedient party, the attorney advising that party, or both to pay the

reasonable expenses, including attorney’s fees, caused by the failure, unless

the failure was substantially justified or other circumstances make an

award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C) (emphasis added).

A court may also impose sanctions on a party for misconduct in

discovery under its inherent power to manage its own affairs. Hawley v.

Mphasis Corp., 302 F.R.D. 37, 46 (S.D.N.Y. 2014) (explaining that in order to

impose sanctions under its inherent power, a court must find that a plaintiff

has acted in “bad faith, vexatiously, wantonly, or for oppressive reasons”);

2017). In contrast with Rule 37, a court’s inherent power to impose

sanctions includes the power to impose “attorney’s fees representing the

entire cost of litigation.” Shanchun Yu v. Diguojiaoyu, Inc., No. 18 Civ. 7303

(JMF), 2019 WL 6174204, at *5 (S.D.N.Y. Nov. 20, 2019) (emphasis added)

(citing Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991)).

In the instant case, the Court imposed sanctions on Plaintiff pursuant

to both Rule 37 and under its inherent powers. (Dkt. #147; see also Dkt.

#170). Absent a showing of substantial justification or injustice, this Court

must order Plaintiff to pay the reasonable expenses caused by his

sanctionable conduct. See Novak v. Wolpoff & Abramson LLP, 536 F.3d 175,

178 (2d Cir. 2008) (per curiam) (declining to hold that “Rule 37(b)(2)

expenses are mandatory,” but finding that “[t]he use of the word ‘shall’

certainly suggests that an award of expenses is mandatory unless one of the

two exceptions—substantial justification or other circumstances—

applies”). In this application, Defendants “bear[ ] the burden of

demonstrating that [their] requested fees are reasonable.” Figueroa v. W.M.

Barr & Co., Inc., No. 18 Civ. 11187 (JGK) (KHP), 2020 WL 2319129, at *2

(S.D.N.Y. May 11, 2020) (quoting TufAmerica Inc. v. Diamond, No. 12 Civ.

3529 (AJN), 2016 WL 1029553, at *3 (S.D.N.Y. Mar. 9, 2016)),

reconsideration granted in part, 2016 WL 3866578 (S.D.N.Y. July 12, 2016),

and 2018 WL 401510 (S.D.N.Y. Jan. 12, 2018)).

Attorneys’ fees are awarded by determining the “‘presumptively

reasonable fee,’” often referred to as the “lodestar.” Millea v. Metro-North

2008)); see also Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552-53

(2010). This fee is calculated by multiplying the “reasonable hourly rate and

the reasonable number of hours required by the case.” Millea, 658 F.3d at

166. Courts may, only after the initial calculation of the presumptively

reasonable fee, adjust the total when it “does not adequately take into

account a factor that may properly be considered in determining a

reasonable fee.” Lilly v. City of New York, 934 F.3d 222, 230 (2d Cir. 2019)

(citing Millea, 658 F.3d at 167). More fundamentally, the Second Circuit

has recognized that a district court exercises considerable discretion in

awarding attorneys’ fees. See Millea, 658 F.3d at 166; see also Arbor Hill,

522 F.3d at 190.

When evaluating reasonable hourly rates, courts look at “the rate a

paying client would be willing to pay,” and take into account “all case-

specific variables.” Arbor Hill, 522 F.3d at 189-90. It is well-settled that “a

reasonable, paying client wishes to spend the minimum necessary to litigate

the case effectively,” and that “such an individual might be able to negotiate

with his or her attorneys, using their desire to obtain the reputational

benefits that might accrue from being associated with the case.” Id. The

Second Circuit’s “forum rule” also requires courts to “generally use ‘the

hourly rates employed in the district in which the reviewing court sits’ in

calculating the presumptively reasonable fee.” Simmons v. N.Y.C. Transit

Auth., 575 F.3d 170, 174 (2d Cir. 2009) (quoting Arbor Hill, 493 F.3d at

119); see also Miroglio S.P.A. v. Conway Stores, Inc., 629 F. Supp. 2d 307,

evidence of” a reasonable hourly rate. In re Stock Exchs. Options Trading

Antitrust Litig., No. 99 Civ. 962 (RCC), 2006 WL 3498590, at *9 (S.D.N.Y.

Dec. 4, 2006).

When evaluating the number of hours, a court must make “a

conscientious and detailed inquiry into the validity of the representations

that a certain number of hours were usefully and reasonably

expended.” Haley v. Pataki, 106 F.3d 478, 484 (2d Cir. 1997) (internal

quotation marks and citation omitted). In addition, a court should examine

the hours expended by counsel with a view to the value of the work product

to the client’s case. See Lunday v. City of Albany, 42 F.3d 131, 133 (2d Cir.

1994) (per curiam). The Court is to exclude “excessive, redundant[,] or

otherwise unnecessary hours, as well as hours dedicated to severable

unsuccessful claims.” Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d

Cir. 1999).

In determining whether hours are excessive, “the critical inquiry is

‘whether, at the time the work was performed, a reasonable attorney would

have engaged in similar time expenditures.’” Samms v. Abrams, 198 F.

Supp. 3d 311, 322 (S.D.N.Y. 2016) (quoting Grant v. Martinez, 973 F.2d 96,

99 (2d Cir. 1992)). And where “the billing records are voluminous, it is less

important that judges attain exactitude, than that they use their experience

with the case, as well as their experience with the practice of law, to assess

the reasonableness of the hours spent.” Yea Kim v. 167 Nail Plaza, Inc., No.

05 Civ. 8560 (GBD) (GWG), 2009 WL 77876, at *4 (S.D.N.Y. Jan. 12, 2009)

unreasonable hours, colloquially referred to as “trimming the fat.” See In re

Agent Orange Prod. Liab. Litig., 818 F.2d 226, 237 (2d Cir. 1987); E.S. v.

Katonah-Lewisboro Sch. Dist., 796 F. Supp. 2d 421, 431 (S.D.N.Y.

2011), aff’d sub nom. E.S. ex rel. B.S. v. Katonah-Lewisboro Sch. Dist., 487 F.

App’x 619 (2d Cir. 2012) (summary order).

A court also looks at the nature of the legal matter and context of the

fee award in considering what is a reasonable rate and reasonable time

spent on a matter. Figueroa, 2020 WL 2319129, at *3. The Second Circuit

has suggested that courts should consider factors including “the experience,

reputation, and ability of the attorneys,” “awards in similar cases,” and more

broadly,

the purpose of the award; that is, a different

presumptively reasonable fee may be warranted if the

fee is being awarded as a sanction for misconduct than

if the fee is being awarded in connection with a

successful outcome in a statutory fee-shifting case in

order to make its determination.

Arbor Hill, 522 F.3d at 190 (citing 12 factors enumerated in Johnson v.

Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974),

abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 109

(1989)); see also Figueroa, 2020 WL 2319129, at *3.15

15 The twelve factors enumerated in Johnson are (i) the time and labor required; (ii) the

novelty and difficulty of the questions; (iii) the level of skill required to perform the

legal service properly; (iv) the preclusion of employment by the attorney due to

acceptance of the case; (v) the attorney’s customary hourly rate; (vi) whether the fee

is fixed or contingent; (vii) the time limitations imposed by the client or the

circumstances; (viii) the amount involved in the case and results obtained; (ix) the

experience, reputation, and ability of the attorneys; (x) the “undesirability” of the

Finally, each of the defense teams has sought, or requested an

opportunity to seek, attorneys’ fees and costs incurred in drafting and

submitting the instant fee petitions. Counsel for the Grey and Graden

Defendants have submitted substantiation for those fees and costs in their

submissions, while counsel for the Viacom Defendants have requested an

opportunity to make supplemental submissions. Courts in this Circuit have

not been uniform in their allowance of “fees on fees,” see, e.g., Makinen v.

City of New York, No. 11 Civ. 7535 (ALC) (GWG), 2019 WL 970945, at *2

(S.D.N.Y. Feb. 28, 2019) (discussing different approaches), but this Court

will permit such recovery here, to the extent it is reasonable. After all, the

Court’s sanction included imposition on Plaintiff of “the costs related to, the

costs that are fairly traceable to, the conduct that has brought us here

today, which is the use of what I believe to be fabricated emails.” (Oct. 11,

2019 Tr. 34:4-7). Reasonable fees and costs incurred in preparing the fee

petitions are “fairly traceable” to Plaintiff’s sanctionable conduct. See

generally Weyant v. Okst, 198 F.3d 311, 316 (2d Cir. 1999) (“a reasonable

This Court has previously noted that after Arbor Hill was decided, the Supreme

Court cast doubt on the usefulness of the Johnson factors as a methodology for

calculating attorneys’ fees, stating that the method “gave very little actual guidance

to district courts.” Echevarria v. Insight Med., P.C., 102 F. Supp. 3d 511, 515 n.2

(S.D.N.Y. 2015) (quoting Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010)

(internal quotation marks omitted)). However, as the Court also noted, the Perdue

court focused on enhancements to an attorneys’ fees award applied by the district

court; while the Arbor Hill decision, at its core, simply instructs district courts to

take the Johnson factors (and other factors) into account when determining the

reasonable hourly rate, and then to use that reasonable hourly rate to calculate the

presumptively reasonable fee. Id.

Furthermore, Arbor Hill has yet to be overruled by the Second Circuit. In fact, the

Second Circuit recently confirmed the validity of Arbor Hill and the use of the

fee should be awarded for time reasonably spent in preparing and defending

an application for ... fees”).

B. Calculating Reasonable Attorneys’ Fees

1. Determining the Reasonable Hourly Rate

The Court first addresses the reasonableness of the hourly rates

charged by counsel and paid by Defendants; it addresses in the following

section the reasonableness of the hours billed. It begins with several

observations regarding the case, and regarding the factors that it has

considered in setting reasonable rates here.

Plaintiff’s allegations were exceptionally serious. As the Court noted

in its October 11, 2019 decision, it is an unfortunate consequence of

Plaintiff’s perfidy that the Court will never know the degree to which those

allegations were true. (See Oct. 11, 2019 Tr. 49:6-50:4). The fact remains,

however, that Plaintiff’s claims had enormous personal, professional, and

reputational consequences for each Defendant, and needed to be

investigated and addressed fully.

That is why the conduct for which Plaintiff was sanctioned was so

insidious. Plaintiff levied egregious allegations of misconduct by

Defendants, and then purported to substantiate part or all of that conduct

with fabricated evidence. Worse yet, as Defendants and the Court toiled for

months to determine the bona fides of his evidence, Plaintiff proffered ever-

changing explanations, each of which consumed substantial resources to

disprove. (See Graden Fee Mem. 2 (noting that proving Plaintiff’s fabrication

while, Plaintiff remained one step ahead, willfully foreclosing opportunities

to obtain evidence — not merely evidence that might put the lie to Plaintiff’s

indelicate allegations, but more basic evidence Defendants needed to meet

Plaintiff’s claims. And when the truth finally emerged, Plaintiff repeatedly

delayed his day of reckoning — by motion to transfer, by notice of dismissal,

and by adjournment request — before ultimately electing not to appear at

all.

Given this backdrop, it was important that each Defendant have

appropriate counsel. Certain of the attorneys here have specific experience

in the entertainment industry, including experience addressing false claims

made against entertainers; others have substantial prosecutorial and/or

white-collar defense experience; and still others have specific experience

with litigation involving spoliated evidence. The point to be made is that the

issues in this case were hardly run of the mill, but rather required

substantial expertise by counsel. This expertise was apparent from the

quality of counsel’s submissions to the Court and the tenacity with which

counsel investigated Plaintiff’s claims. The Court is also cognizant of the

fact that, through hard work at a high level of skill, counsel was able to

achieve a favorable result for their clients, in the form of dismissal of the

case with prejudice. The hourly rates charged by counsel reflected their

expertise.

The Court has written and reviewed many complex commercial

litigation fee decisions over the years, and it recognizes that there has not

WL 2635956, at *4 (S.D.N.Y. June 27, 2019) (“Courts in this District have

determined that hourly rates ranging from $250 to $1,260 per hour, for

attorneys’ work on a commercial litigation matter, were reasonable.”). Here,

the Court has focused on certain factors. As suggested by the introduction

to this section, the Court has put a premium on the expertise of each

counsel, both in terms of years in the profession and relevant experience.

The Court has also considered, albeit to a lesser extent, the substantial

overhead costs that are built into the rates of attorneys at larger law firms.

The Court also notes that the hourly rates each counsel seeks were

billed to, and paid by, their respective clients. Payment of fees by clients

has been recognized by courts as “solid evidence” of their reasonableness in

the market, Bleecker Charles Co. v. 350 Bleecker St. Apt. Corp., 212 F. Supp.

2d 226, 230-31 (S.D.N.Y. 2002), although the Court must still exercise its

discretion and look to the prevailing rates within this District. See

A.V.E.L.A., Inc. v. Estate of Monroe, No. 12 Civ. 4828 (KPF) (JCF), 2014 WL

3610902, at *2 (S.D.N.Y. July 18, 2014) (“[T]he actual billing arrangement is

a significant, though not necessarily controlling, factor in determining what

fee is ‘reasonable.’” (alteration in original) (internal quotation marks omitted)

(quoting Crescent Publ’g Grp., Inc. v. Playboy Enters., Inc., 246 F.3d 142, 151

(2d Cir. 2001))).

Further, it is significant to the Court that Defendants’ fee petitions

arise in the context of a sanctions proceeding. From Defendants’

perspective, the Court’s order limiting sanctions to fees and costs that are

never should have had to expend any legal fees in defending against it.

Given the state of the record, the Court is not in a position to disagree with

their argument. If nothing else, the Court recognizes that, even were it to

allow Defendants’ fee petitions in full, each of them is still out substantial

sums of money.

Keeping in mind all of these factors, the Court considers the parties’

requests, beginning with Shearman & Sterling, counsel to the Viacom

Defendants. Counsel seeks hourly rates of $995 and $1,196 for partner

Stephen Fishbein; $900 and $1,036 for partner Christopher LaVigne; and

$317 and $572 for associate Austin Zachary Deaton. (See Viacom Fee

Mem. 6; LaVigne Fee Decl. ¶ 6).16 Like all Defendants’ counsel, these

attorneys have tailored their fee petition materials to include only those legal

fees and costs incurred in work specifically related to the issue of

authentication and to exclude those associated with broader work. (Viacom

Fee Mem. 2).17

Focusing on recent decisions from this District, the Court concludes

that rates of $900 for Mr. Fishbein and $850 for Mr. LaVigne are

reasonable on the specific facts of this case. See Tiffany & Co. v. Costco

Wholesale Corp., No. 13 Civ. 1041 (LTS) (DCF), 2019 WL 120765, at *10

(S.D.N.Y. Jan. 7, 2019) (finding hourly rates between $625 and $845 for a

16 The Court pauses to note here that while it recognizes the reality of periodic

increases in attorney billing rates, it has for administrative convenience determined

partner “are reasonable considering the prevailing rates for firms engaging

in complex litigation in this district”); In re AOL Time Warner S’holder

Derivative Litig., No. 02 Civ. 6302 (CM), 2010 WL 363113, at *10 (S.D.N.Y.

Feb. 1, 2010) (finding, in 2010, hourly rates of $850 for partners and $550

for associates reasonable where “the complexity of this case demanded

exceptionally able counsel”); cf. Themis Capital v. Democratic Republic of

Congo, No. 09 Civ. 1652 (PAE), 2014 WL 4379100, at *7 (S.D.N.Y. Sept. 4,

2014) (“[P]artner billing rates in excess of $1,000 an hour[ ] are by now not

uncommon in the context of complex commercial litigation.”); MSC

Mediterranean Shipping Co. Holding S.A. v. Forsyth Kownacki LLC, No. 16

Civ. 8103 (LGS), 2017 WL 1194372, at *3 (S.D.N.Y. Mar. 30, 2017) (finding

reasonable the rate of $1,048.47 charged by partners at Gibson Dunn);

Rubenstein v. Advanced Equities, Inc., No. 13 Civ. 1502 (PGG), 2015 WL

585561, at *7 (S.D.N.Y. Feb. 10, 2015) (estimating that “more than 25

percent of partners at large New York firms charge $1,000 per hour or more

for contracts and commercial work”). To paraphrase a sister court in this

District, while “it is notorious that no ordinary American could afford such

fees, businesses [like Viacom and Paramount] can and, indeed, regularly pay

as much.” Vista Outdoor Inc. v. Reeves Family Tr., No. 16 Civ. 5766 (JSR),

2018 WL 3104631, at *6 (S.D.N.Y. May 24, 2018).

Similar adjustments are appropriate for the Shearman associate

involved in this case, Austin Zachary Deaton. Recent decisions from this

District have awarded junior associates at large firms an hourly rate of

Shearman & Sterling associates an hourly rate between $275 and $300,

varying on years of experience); Errant Gene Therapeutic, LLC v. Sloan-

Kettering Inst. for Cancer Research, 286 F. Supp. 3d 585, 588-89 (S.D.N.Y.

2018) (approving, in commercial litigation, hourly rates for partners of $765

and for associates of up to $450); TufAmerica, 2016 WL 1029553, at *6

(reasonable rate for junior associates ranged from $375 to $425 per hour);

Tiffany, 2019 WL 120765, at *10 (reasonable rate for associates ranged from

$315 and $585 per hour, depending on experience). Accordingly, the Court

finds an hourly rate of $375 to be reasonable for Mr. Deaton.18

Next, the Court turns to Russ August & Kabat, counsel for the Graden

Defendants, which seeks hourly rates of $950 for partner Stanton L. Stein;

$425 for senior associate Diana A. Sanders; $375 for associate Mary Keller;

$55 for assistant Cheryl Zive; and $55 and $195 for assistant and paralegal

Kieanna Jolaei. (See Stein Fee Decl. ¶¶ 4-8, 16; Stein Supp. Ltr. 1-2).19

Like the Viacom Defendants, the Graden Defendants have represented that

these rates were actually charged to Defendant. (Id. at ¶ 3).

In light of the cases previously cited, the Court finds that a reasonable

hourly rate for Mr. Stein is $900. Cf. Phoenix Four, Inc. v. Strategic

Resources Corp., No. 05 Civ. 4837 (JB), 2006 WL 2135798, at *2 (S.D.N.Y.

Aug. 1, 2006) (finding, 14 years ago, partner rates of $600 and senior

18 In keeping with the practice outlined in footnote 15, the Court has assessed a single

reasonable rate for Mr. Deaton. The Court recognizes that the rate is slightly higher

than the $312 rate at which Mr. Deaton initially billed, but notes that the majority

of his work done on the case was billed at the higher $572 rate.

associate rates of $440 per hour reasonable for a small firm doing general

and complex commercial litigation). According to his Declaration, the

attorneys’ fees figure reflects Mr. Stein’s extensive work and experience in

entertainment litigation, including cases involving false allegations of

impropriety. (Stein Fee Decl. ¶ 4; id., Ex. 3). The Court also recalls that it

was the Graden Defendants’ counsel that first raised to it the issue of

fabrication, and that was deeply involved obtaining sworn statements

disproving the fact of certain emails.

Senior associate Sanders has seven years of experience and has been

working on the case since its inception alongside lead counsel. (Stein Fee

Decl. ¶ 5). According to Stein’s Declaration, “the legal work on this matter

has been conducted predominantly by [Stein’s] associate, Diana A.

Sanders.” (Id.). The Court acknowledges that Ms. Sanders has proven her

dedication to the case, including telephonic participation in hearings at the

tail end of her pregnancy. (See Dkt. #135). Accordingly, the Court finds

$425 per hour to be reasonable for Ms. Sanders. See H.B. Auto. Grp., Inc. v.

Kia Motors Am., Inc., No. 13 Civ. 4441 (VEC) (DF), 2018 WL 4017698, at *5

(S.D.N.Y. July 25, 2018) (finding $395 per hour is reasonable for a lead

associate at a big law Firm), report and recommendation adopted sub nom.

H.B. Auto. Grp., Inc. v. Kia Motors Am., No. 13 Civ. 4441 (VEC) (DF), 2018

WL 4007636 (S.D.N.Y. Aug. 22, 2018).

By contrast, the Court will only approve a reduced rate of $275 per

hour for associate Keller. Ms. Keller — who assisted in drafting the

minimal experience in complex commercial litigation at the time she began

working on this case. (Stein Fee Decl. ¶ 6). A lower rate is more in line with

approved rates for junior associates in this District. See Agudelo v. E & D

LLC, No. 12 Civ. 960 (HB), 2013 WL 1401887, at *2 (S.D.N.Y. Apr. 4, 2013)

($200 per hour for three years of experience); Trustees of N.Y.C. Dist. Council

of Carpenters Pension Fund v. Richie Jordan Constr. Inc., No. 15 Civ. 3811

(PAE), 2015 WL 7288654, at *5 (S.D.N.Y. Nov. 17, 2015) ($175 per hour for

one and a half years removed from law); Anthony v. Franklin First Fin., LTD.,

844 F. Supp. 2d 504, 508 (S.D.N.Y. 2012) ($175 per hour for three years of

experience).

The paralegal rates requested for Kieanna Jolaei are at the high end of

the range that courts in this District have ordinarily found reasonable. Even

for senior paralegals, with more than Ms. Jolaei’s seven years of experience,

courts have typically capped the rate at $200 per hour. See H.B. Auto. Grp.,

Inc., 2018 WL 4017698, at *5 (reducing senior paralegal with 18 years of

relevant experience from approximately $215 to $200 per hour). Consistent

with recent precedent, the Court reduces her hourly rate slightly, to $150.

See Tatintsian v. Vorotyntsev, No. 16 Civ. 7203 (GHW), 2020 WL 2836718, at

*5 (S.D.N.Y. June 1, 2020) (finding “$150 per hour is reasonable for a

paralegal in a complex commercial litigation matter”); TufAmerica, 2016 WL

1029553, at *6 (“[Recent cases in this district suggest that the prevailing

rate for paralegals is between $100 and $200 per hour.”). By contrast, the

legal assistant hourly rates billed by Kieanna Jolaei and Cheryl Zive of $55

(finding a rate of $90 per hour for the services of legal assistants

reasonable).

Finally, the Court addresses the fee petition of Loeb & Loeb LLP,

counsel for the Grey Defendants, who seek hourly rates of $795 and $765

for partner Wook Hwang; $770 and $725 for senior associate Sarah

Schacter; $495 for junior associate Noah Weingarten; $405 and $395 for

paralegal Shantanu Alam; $275 for paralegal Alec Wickersham; $405 for

Director of Litigation Support Josh Gorruso; $390 for managing clerk

Lawrence Mehringer; and $275 for assistant managing clerk Christian Perez.

(See Hwang Fee Decl. ¶ 25).

The Court observes, as an initial matter, that the Grey Defendants’

counsel seek fees for eight attorneys, paralegals, and support staff. Recent

decisions from this District have considered the hourly rates of Loeb & Loeb

LLP partners and associates in the analogous context (in terms of

complexity) of copyright violations. See Craig v. UMG Recordings, Inc., 380

F. Supp. 3d 324, 339 (S.D.N.Y. 2019); Rock v. Enfants Riches Deprimes, LLC,

No. 17 Civ. 2618 (ALC), 2020 WL 468904, at *5 (S.D.N.Y. Jan. 29, 2020)

(finding hourly rates of $912.01 and $740 reasonable for partners with over

20 years of experience; $575 for senior litigation associate; and $400 for a

litigation associate with over five years of experience), reconsideration denied

sub nom. Rock v. Enfants Riches Deprimes, LLC., No. 17 Civ. 2618 (ALC),

2020 WL 2793026 (S.D.N.Y. May 29, 2020). The Court concurs with the

analyses presented in these decisions, and working from them determines

associate Schacter, and $350 for junior associate Weingarten based on their

comparative levels of experience.

Turning to the Grey Defendants’ proposed rates for paralegals and

support staff, the Court finds that these rates exceed the reasonable hourly

cost for similarly situated professionals in this district. See Vista Outdoor

Inc., 2018 WL 3104631 (“[C]ourts in this District typically award rates not to

exceed $200 per hour for paralegals.”); accord Rock, 2020 WL 468904, at *6.

Courts have also chosen to reduce hourly rates for paralegals when no

information was provided as to their experience and expertise. See Sid

Bernstein Presents, LLC v. Apple Corps Ltd., No. 16 Civ. 7084 (GBD), 2018

WL 1587125, at *5 (S.D.N.Y. Mar. 29, 2018) (reducing paralegal rates from

$185 to $100 where no information was provided regarding their

experience); Yea Kim, 2009 WL 77876, at *9 (reducing paralegal rates to $90

because the Court was “given no information whatsoever as to their

experience and expertise”). According to Mr. Hwang’s Declaration, Mr. Alam

has over 25 years of experience as a litigation paralegal, but no similar

information has been provided on Mr. Wickersham’s relevant experience.

(Hwang Fee Decl. ¶ 24). The Court thus finds that $200 per hour is

reasonable for Mr. Alam; $180 per hour for Mr. Wickersham; and $150 per

hour for Mr. Perez. A sister court in this District has previously awarded

Mr. Gorruso as Director of Litigation Support and Mr. Mehringer as

managing clerk “fees in the high-end range of what is reasonable for

paralegals and thus finds a rate of $200 per hour reasonable.” Rock, 2020

2. Determining the Hours Reasonably Expended

For the Court, the more difficult issue has been determining the

number of hours these legal professionals have reasonably expended. As

presaged by its earlier discussions, the Court recognizes that the heinous

nature of Plaintiff’s allegations, coupled with his ever-changing (and at times

inconsistent) explanations for his conduct, significantly increased counsel’s

workload. (See Hwang Fee Decl. ¶ 34 (collecting Court observations of the

delays occasioned by Plaintiff’s obstructive conduct)). The Court observed

multiple occasions where defense counsel would be presented with an

explanation from Plaintiff or his counsel that necessitated investigation;

when defense counsel’s diligent inquiry called into question the bases of that

explanation, Plaintiff would simply pivot to a wholly different explanation,

and the game would begin again. The Court also recognizes the efforts

made by each team of defense attorneys to tailor the respective fee petitions

to the categories of expenses authorized by the Court, which efforts are

discussed further herein. (See Oct. 11, 2019 Tr. 52:15-53:5). And yet the

hours billed still strike the Court as unreasonably high.

In prior fee petitions, this Court has alternated between the use of an

across-the-board percentage reduction and the disallowance of certain

hours billed. Compare Gamero v. Koodo Sushi Corp., 328 F. Supp. 3d 165,

175 (S.D.N.Y. 2018) (disallowing certain time entries billed), with Marzullo v.

Karmic Release Ltd., No. 17 Civ. 7482 (KPF), 2018 WL 10741649, at *3

(S.D.N.Y. Apr. 24, 2018) (imposing across-the-board reduction of 15%).

to trim the fees sought by each firm, as explained in the remainder of this

section.

Beginning with counsel for the Viacom Defendants, the Court

recognizes, and appreciates, the efforts to extract from the bills those entries

directly related to Plaintiff’s sanctionable conduct. (See Viacom Fee Mem. 2

(“For purposes of our fee award, we have excluded fees and costs associated

with broader work on this case, including research and drafting associated

with the contemplated motion to dismiss and associated with Plaintiff’s

belated attempt to transfer venue.”); LaVigne Fee Decl. ¶ 5 (“We have

redacted from these invoices: (1) time and cost entries for which the Viacom

Defendants are not seeking reimbursement pursuant to the Court’s

October 11, 2019 Order, as well as payment-related instruction information;

and (2) portions of time entries that are protected from disclosure under the

attorney-client privilege or the attorney work-product doctrine.”)). The Court

also recognizes that counsel has not sought recovery for time billed by

paralegals and administrative staff, whom the Court is confident were

frequently employed to assist with counsel’s submissions.

That said, certain entries suggest a duplication of efforts between

attorneys Fishbein and LaVigne, or between attorneys LaVigne and Deaton.

As well, the Court noticed certain idiosyncrasies in the recording of time,

with an unusual number of entries ending in .0 or .5; the Court is

concerned that these billings may be insufficiently precise. Accordingly, the

Court has determined to reduce the fees sought by counsel for the Viacom

Timekeeper Reasonable Rate Hours Billed Amount

Fishbein $900 36.6 $32,940.00

LaVigne $850 132.8 $112,880.00

Deaton $375 140.4 $52,650.00

Interim Total $198,470.00

Less 10% $178,623.0020

Turning next to counsel for the Graden Defendants, the Court again

recognizes and appreciates counsel’s review of their own records to exclude

unrelated fees and charges. (See Stein Fee Decl. ¶ 11). The Court also

observes that the Russ firm charged for administrative support personnel,

but did not charge for the legal research work performed by summer

associate Lowe. The Court notes that a substantial number of hours were

billed by the senior member of the team, attorney Stein, but it acknowledges

that even more hours were billed by the more junior attorney Sanders, and

that the bulk of the work done preparing the fee petition was done by the

junior member of the team, attorney Keller. Here, too, the Court believes

that a 10% reduction is appropriate, given a modest amount of duplication

between attorneys Stein and Sanders, resulting in the following award of

attorneys’ fees:

Timekeeper Reasonable Rate Hours Billed Amount

Stein $900 189.70 $170,730.00

Sanders $425 226.8 $96,390.00

Keller $275 33.8 $9,295.00

Zive $55 5.3 $291.50

Jolaei (Assistant) $55 42.4 $2,332.00

Jolaei (Paralegal) $150 21.2 $3,180.00

Interim Total $282,218.50

Less 10% $253,996.6521

The Grey Defendants also took care to tailor their submissions to the

Court’s sanctions order. (See Hwang Fee Decl. ¶ 13 (noting exclusion of

“[a]ll fees and costs incurred on or before July 17, 2018,” “[a]ll fees charged

by Loeb & Loeb attorneys who did not work directly on matters pertaining to

the Authenticity Issues in this action,” and entries reflecting “work

performed [that] was not directly related to the Authenticity Issues”)). Even

here, however, there is fat to be trimmed. While the Court appreciates that

Mr. Hwang may have had more extensive or immediate experience than his

colleagues with “investigating and litigating spoliation” (id. at ¶ 21), the fact

remains that Mr. Hwang — who, as senior attorney and sole partner on the

team, had the highest hourly rate — billed nearly three times as many hours

as the two associates on the team. To account for this “top-heavy”

distribution of hours, the Court will reduce the fees awarded to counsel for

the Grey Defendants by 15%.

Timekeeper Reasonable Rate Hours Billed Amount

Hwang $725 157.5 $114,187.50

Schacter $575 57.7 $33,177.50

Weingarten $350 5.0 $1,750.00

Alam $200 6.2 $1,240.00

Wickersham $180 2.6 $468.00

Gorruso $200 0.5 $100.00

Mehringer $200 2.2 $440.00

Perez $150 0.4 $90.00

Interim Total $151,423

Less 15% $128,709.5522

C. Calculating Reasonable Costs

Finally, the Court considers the issue of costs. “[A]ttorney’s fees

awards include those reasonable out-of-pocket expenses incurred by

attorneys and ordinarily charged to their clients.” LeBlanc-Sternberg v.

Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (citation omitted); accord Fisher v.

SD Prot. Inc., 948 F.3d 593, 600 (2d Cir. 2020) (“An award of costs ‘normally

include[s] those reasonable out-of-pocket expenses incurred by the attorney

and which are normally charged fee-paying clients.’” (quoting Reichman v.

Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987)); see

generally Abraham v. Leigh, No. 17 Civ. 5429 (KPF), 2020 WL 5512718, at

*12 (S.D.N.Y. Sept. 14, 2020).

The Viacom Defendants seek $2,726.50 in costs, reflecting the fees

paid to FTI Consulting for forensic discovery. (LaVigne Fee Decl. ¶ 8 &

Ex. B). The Grey Defendants seek $4,123.34 in costs, reflecting forensic

discovery services provided by FTI, legal research, litigation support, and

mailing costs. (Hwang Fee Decl. ¶¶ 5, 26, 35 & Ex. C-D). The Graden

Defendants seek $40,567.47 in costs, but have substantiated only

$39,815.05 of that figure, and thus the Court considers only the smaller

amount. (Compare Graden Fee Mem. 4, with Stein Fee Decl. ¶ 12 & Ex. 7).

The Court understands this figure to reflect compensable travel time in

addition to forensic discovery services provided by FTI, legal research,

electronic discovery software and data hosting fees, printing and scanning

costs, and mailing fees. These requests for costs are documented and, more

importantly, are fairly traceable to Plaintiff’s conduct, and the Court awards

them, for a total costs figure of $46,664.89.

CONCLUSION

For the reasons set forth herein, it is hereby ORDERED that

Defendants are awarded attorneys’ fees and costs in the following amounts:

i. $178,623.00 in attorneys’ fees and $2,726.50 in

costs to the Viacom Defendants;

iii. $128,709.55 in attorneys’ fees and $4,123.34 in

costs to the Grey Defendants.

The Clerk of Court is directed to terminate the motions pending at docket

entries 151 and 156.

The Court understands that the Viacom Defendants would like an

opportunity to submit a supplemental petition for fees incurred in the

drafting of their fee petition. The Court will permit a brief letter submission

outlining the legal professionals involved, the time spent, and the fees and

costs incurred in this regard. The Viacom Defendants should imagine that

the reasonable rates analysis will be identical to that contained in this

Opinion, and they should strive to present a reasonable number of hours

billed in accordance with this Court’s analysis herein. Their submission is

due on or before October 23, 2020; Plaintiff may respond on or before

November 13, 2020.

The Clerk of Court is directed to mail a copy of this Opinion and Order

to Plaintiff at his address of record.

SO ORDERED.

Dated: September 28, 2020 ; ~~

New York, New York Kathe fall flr

KATHERINE POLK FAILLA

United States District Judge