The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6 EUREKA DIVISION
7
8 FBC MORTGAGE, LLC, Case No. 23-cv-00143-CRB (RMI)
9 Plaintiff,
ORDER
10 v.
Re: Dkt. Nos. 112, 121, 122
11 BRIAN SKARG, et al.,
12 Defendants.
13
14 Now pending before the court are three motions filed by Plaintiff: two motions for
15 attorneys’ fees, and a motion to compel (see dkts. 112, 121, 122). The motions have been fully
16 briefed (dkts. 114, 117, 124, 125, 126, 127), and the matters came on to be heard at oral argument
17 (dkt. 130). For the reasons stated below, Plaintiff’s First Motion for Attorneys’ fees (dkt. 112) is
18 granted, and Plaintiff’s Second Motion to Compel and its Second Motion for Attorneys’ Fees
19 (dkts. 121, 122) are denied.
20 As to Plaintiff’s first Motion for Attorneys’ Fees – Plaintiff has adequately narrated the
21 background (see Pl.’s Mot. (dkt. 112) at 7-10), and the court will only repeat those details here in
22 summary fashion. On February 16, 2024, the Parties filed their first letter brief setting forth their
23 discovery dispute through which Plaintiff sought a court order compelling Defendants to
24 supplement their initial disclosures and to produce responsive documents as to a number of
25 requests for productions (“RFP”). See Ltr. Br. (dkt. 88) at 2-4. The court heard the Parties’
26 arguments on February 20, 2024, and granted Plaintiff’s requests to compel Defendants to produce
27 documents responsive to a number of RFPs (Nos. 1-2) and to supplement their responses to other
1 initial disclosures on or before March 5, 2024. See Order of February 21, 2024 (dkt. 91). The
2 Parties then filed another letter brief on March 14, 2024, wherein Plaintiff complained that
3 Defendants’ continued refusal to provide the previously-ordered discovery has forced it to seek the
4 information through third-party subpoenas. See Ltr. Br. (dkt. 92) at 2-3. Following a hearing on
5 March 19, 2024 (see dkt. 95), the court entered an order quashing Plaintiff’s subpoenas (without
6 prejudice) and directed Plaintiff to instead file another motion to compel. See Order (dkt. 94); see
7 also Pl.’s Mot. (dkt. 112) at 10. Plaintiff then filed a motion to compel that also sought sanctions
8 (dkt. 97), Defendants responded (dkt. 101), and Plaintiff filed a reply (dkt. 103). Following
9 another hearing (dkt. 107) – on June 11, 2024, the court granted Plaintiff’s motion to compel (but
10 denied the requests for sanctions) as follows:
11 As to RFPs 1-2, 26-30, and 32-34, Plaintiff’s request to compel is
GRANTED. Defendants shall produce the materials in question (i.e.,
12 all of the actual underlying loan documents and communications,
rather than just a summary spreadsheet) responsive to these requests
13 within 14 days. As to RFPs 3-4 and 23, Plaintiff’s request to compel
is GRANTED. Within 14 days, Defendants shall produce all
14 communications exchanged between or among the individual
Defendants from September 1, 2022 to the present, in response to RFP
15 4; and (2) Defendants shall produce all communications exchanged
between NAF and any Individual Defendants from September 1, 2022
16 to the present, in response to RFP 3 and 23, or alternatively,
Defendants shall certify that they have produced all such
17 communications in response to RFP 3 and 23. Furthermore, as to
RFPs 3-4 and 23, as well as RFPs 24-25, the Parties are ORDERED
18 to promptly meet and confer in order to work out a manner in which
all text message discovery will be produced in its native format, such
19 that those native format text message files will be produced without
further delay. As to RFP 12, Plaintiff’s request is GRANTED such
20 that Defendants will produce unredacted copies to the extent they
have not already been produced. Defendants shall have until close of
21 business on Friday, June 14, 2024, to either identify their previous
production of unredacted copies of this information, or to actually
22 produce unredacted copies. As to RFP 13, Plaintiff’s request is
GRANTED, and Defendants shall have until close of business on
23 Friday, June 14, 2024, to produce this material or to certify to Plaintiff
that they have produced all responsive materials in Defendants’
24 possession, custody, or control. Plaintiff's request for sanctions is
DENIED; however, Defendants should be forewarned that further
25 delays and obstruction of discovery may result in sanctions. Plaintiff’s
request for an adverse jury instruction regarding missing text
26 messages and other missing evidence is DENIED without prejudice.
In the event that Plaintiff is able to articulate some prejudice
27 stemming from this missing information at a later time, the court will
compel the discovery described herein is GRANTED.
1
2 See Order of June 11, 2024 (dkt. 106). In essence, this was the second time that the court had
3 ordered Defendants to produce this information; following which, Plaintiff filed the first of its two
4 pending motions for attorneys’ fees (Dkt. 112).
5 Rule 37(a) provides that where a motion to compel is granted, attorneys’ fees and expenses
6 must be awarded to the prevailing party unless there was no good faith effort to resolve the
7 motion, the non-disclosure was substantially justified, or other circumstances make an award of
8 expenses otherwise unjust. See Fed. R. Civ. P. 37(a)(5). The court finds that none of these
9 exceptions apply here. Further, as to disobeying a court order to produce discovery, Rule 37(b)
10 similarly provides that “the court must order the disobedient party, the attorney advising that
11 party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure,
12 unless the failure was substantially justified or other circumstances make an award of expenses
13 unjust.” Fed. R. Civ. P. 37(b)(2)(C). Additionally, Under the Civil Local Rules for United States
14 District Court for the Northern District of California, a motion for attorneys’ fees and costs must
15 include (1) the number of hours spent on the litigation by each biller, (2) detailed billing records
16 showing how much time was spent on each task, and (3) each biller’s billable rate and justification
17 for such rate. Civ. L. R. 54-5(b).
18 A prevailing party is, however, only entitled to reasonable attorneys’ fees; and, the
19 “starting point to determining the amount of a reasonable fee is the number of hours reasonably
20 expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S.
21 424, 433 (1983) (“This calculation provides an objective basis on which to make an initial
22 estimate of the value of a lawyer's services”). The party seeking the award must submit evidence
23 supporting the hours worked and rates claimed, and where the party fails to submit adequate
24 evidence, the amount awarded may be reduced. Id. The court must then adjust this lodestar amount
25 by the degree of success obtained. Id. at 440. In awarding reasonable attorneys’ fees, the court
26 “must strike a balance between granting sufficient fees to attract qualified counsel . . . and
27 avoiding a windfall to counsel.” Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir.
1 difference between the fee request and the court’s award is relatively small, a somewhat cursory
2 explanation will suffice.” Id. In determining the reasonableness of rates, the court may compare
3 the requested rate with the prevailing rate in the community for similar work performed by
4 attorneys of comparable skill, experience, and reputation. Id. Furthermore, “[t]he quality of
5 counsel and novelty and complexity of the case[]should ordinarily be reflected in the lodestar
6 rate.” San Francisco Baykeeper v. W. Bay Sanitary Dist., 2011 U.S. Dist. LEXIS 138093, *20
7 (N.D. Cal., Dec. 1, 2011) (internal quotation marks and citation omitted).
8 As to compliance with Civ. L. R. 54-5(b), the court is satisfied that Plaintiff has
9 sufficiently specified the number of hours spent on the litigation by each biller, sufficiently
10 detailed how much time was spent on each task, and provided a sufficient a justification for each
11 biller’s hourly rate (see Ridley Decl. (dkt. 112-1 at 2-4, 7-18); see also Soldon Decl. (dkt. 112-2)
12 at 2-5, 7-58). In this regard, Plaintiff contends that Defendants’ intransigence has caused it to
13 utilize 102.7 hours in connection with the effort to compel the discovery responses in question.
14 See Ridley Decl. (dkt. 112-1) at 15. Specifically, Plaintiff provides the following breakdown:
15 analyzing Defendants’ discovery responses and productions (13.0 hours); meeting and conferring
16 with Defendants via letter, email, and phone, including researching and analyzing applicable case
17 law to support meet and confer letters (18.3 hours); drafting and revising two joint statements on
18 the discovery disputes (8.8 hours); drafting and revising the Motion to Compel, including
19 researching and analyzing applicable case law to support the Motion to Compel (37.1 hours);
20 analyzing Defendants’ Opposition to the Motion to Compel (1.8 hours); Drafting and revising the
21 Reply in support of the Motion to Compel (16.8 hours); drafting and revising two administrative
22 motions to seal (3.6 hours); appearing at hearings before the undersigned (2.4 hours); and
23 analyzing the Court’s orders (0.9 hours). See id. at 15.
24 Plaintiff’s counsel – who work at Foley & Lardner, LLP, a large full-service law firm with
25 a national footprint employing 1,100 attorneys across 25 offices – have billed Plaintiff at rates
26 ranging from as little as $405 per hour for associates, to as much $975 per hour for partners. Id. at
27 16. Further, as noted above, Plaintiff’s counsel have filed the required declarations (see dkts. 112-
1 attorneys of a similar caliber and experience; and, based on this evidence and the case citations
2 provided (see Pl.’s Mot. (dkt. 112) at 16-17), the court is satisfied that the hourly rates charged are
3 consistent with the prevailing market rates for this type of work in the San Francisco metropolitan
4 area. All that needs to be determined is whether the number of hours expended is reasonable.
5 Given that Plaintiff’s attorneys on this matter consist of one partner and two associates – the
6 instant fee request is comprised of only 9.2 hours billed at the partner hourly rate (which increased
7 from $875 in 2023, to $975 in 2024), with the balance being comprised of hours billed at the
8 associate hourly rates (which ranged from $405 to $535). See Ridley Decl. (dkt. 112-1) at 4.
9 By way of response, Defendants’ submit (1) that Plaintiff failed to meet and confer enough
10 before moving to compel; (2) that Defendants’ responses and non-production were substantially
11 justified because the documents requests in question reportedly failed to specify the form in which
12 the electronically stored information (“ESI”) should be produced; and, (3) that the fee amount
13 sought by Plaintiff is excessive in that it “seeks to recover its attorneys’ fees for all the time spent
14 on discovery,” as opposed to fees related to compelling Defendants’ production of the missing
15 documents. See Defs.’ Opp. (dkt. 114) at 6. Defendants then recite a factual background that the
16 court sees largely as deflection – essentially, Defendants contend that Plaintiff’s (repeated)
17 requests to compel were premature, and that Plaintiff should have met and conferred with
18 Defendants more (without describing, how much more, or why). See id. at 7-10. It is clear to the
19 undersigned – both from Defendants’ responsive brief (dkt. 114) and from the positions taken by
20 Defendants at the two discovery hearings and the hearing on this motion – that Defendants were
21 simply stonewalling in order to delay or avoid their discovery obligations.
22 As to Defendants’ argument that Plaintiff’s fee request should be apportioned because the
23 motion to compel was only granted in part – Defendants’ argument is unpersuasive because the
24 requests to compel were all granted, all that was denied (as premature) was Plaintiff’s requests for
25 sanctions, which included a request for adverse inference instructions. Compare Order (dkt. 106)
26 with Defs.’ Mot. (dkt 114) at 11-12. Further, Defendants’ suggestion (see id. at 12-15) that
27 Plaintiff failed to meet and confer sufficiently before requesting court interventions is meritless.
1 Defendants’ ad infinitum before seeking court intervention is unreasonable. Plaintiff’s extensive
2 meet-and-confer efforts are well documented. See Soldon Decl. (dkt. 112-2 at 1-58). The Parties
3 corresponded about how to produce certain text messages in detail in March of 2024 (see id. at
4 42). On March 22, 2024, when Defendants were clearly informed that certain text messages were
5 not produced in native format (rather than via screenshot), Defendants’ counsel responded that
6 “[w]e can provide these documents to you in its native format and will supplement as such.” Id. at
7 43. However, on April 4, 2024, Defendants’ counsel had sent another email stating that they were
8 not aware of any method of producing text messages in a native format. Id. at 42. This caused
9 Plaintiff’s counsel to respond the following day, April 5, 2024, to the effect that “[m]any
10 documents, including text messages, are still not produced in native format. Parties routinely
11 produce text messages in native format. As stated below, the screenshots prevent us from seeing
12 the phone numbers and other data associated with the text messages.” Id. at 41. Thus, when
13 Plaintiff sought court intervention several weeks later, in May of 2024, doing so was not
14 premature. See Order of June 11, 2024 (dkt. 106); see also generally Doti Decl. (dkt. 117-1) at 2-
15 22.
16 As to Defendants’ suggestion that their responses and non-production were substantially
17 justified (see Defs.’ Opp. (dkt. 114) at 15-19) – the undersigned finds those suggestions to be
18 unpersuasive because, as Plaintiff points out, “Defendants offer no explanation as to how their
19 responses and objections were substantially justified as to the withholding of any of the relevant
20 documents responsive to RFPs 1–4, 12–13, and 23–34 [and] Defendants’ failure (over the course
21 of eight months) to produce all non-privileged documents in their possession, custody, or control
22 in response to RFPs 1–4, 12–13, and 23–34 was far from substantially justified and indeed was a
23 violation of the Court’s prior February 21 Order.” Pl.’s Reply (dkt. 117) at 9. Further, Defendants
24 cannot avoid an attorneys’ fee award by pointing out the fact that they did in fact make some
25 document productions after the undersigned had granted multiple requests to compel that
26 production. See Defs. Opp. (dkt. 114) at 10. Additionally, Defendants’ suggestions that the
27 discovery in question was produced in a reasonably usable format (see id. at 15-16) ignores the
1 all communications’ and ordered Defendants to produce ‘all text message discovery . . . in its
2 native format, such that those native format text message files will be produced without further
3 delay.’” See Pl.’s Reply (dkt. 117) at 10 (quoting Order of June 11, 2024 (dkt. 106). Plaintiff
4 added that (as of July 9, 2024), “[t]o date, Defendants have not produced a single text message in
5 native format and Defendants have informed [Plaintiff] that they will not be doing so unless FBC
6 bears the cost of production associated with the text messages.” Id. Of course, the cost associated
7 with this production became the subject of yet another discovery dispute (dkt. 115), and on July
8 23, 2024, the court ordered the Parties to split the cost associated with the native format
9 production of the text messages in question. See Order (dkt. 118). But for the obstructionism of
10 Defendants, the cost-splitting issue could have been resolved by the undersigned months earlier.
11 In any event, as to the reasonableness of the fee amount (both in terms of the hourly rates
12 involved, and the number of hours spent), the court finds that both are reasonable under the
13 circumstances, and the court rejects Defendants’ argument that the fee request is related to the
14 entirety of Plaintiff’s discovery practice rather than its efforts to compel Defendants’ compliance
15 with their discovery obligations. As stated above, Plaintiff has established by competent evidence
16 that Defendants’ obstructionism caused Plaintiff to utilize 102.7 hours in connection with multiple
17 efforts to compel the discovery responses in question. See Ridley Decl. (dkt. 112-1) at 15 (giving
18 the following itemization: analyzing Defendants’ discovery responses and productions such as to
19 ferret out missing discovery (13.0 hours); meeting and conferring with Defendants regarding
20 missing discovery via letter, email, and phone, including researching and analyzing applicable
21 case law to support meet and confer letters (18.3 hours); drafting and revising two joint statements
22 on the discovery disputes (8.8 hours); drafting and revising the First Motion to Compel, including
23 researching and analyzing applicable case law to support the Motion to Compel (37.1 hours);
24 analyzing Defendants’ Opposition to the Motion to Compel (1.8 hours); Drafting and revising the
25 Reply in support of the Motion to Compel (16.8 hours); drafting and revising two administrative
26 motions to seal (3.6 hours); appearing at hearings before undersigned (2.4 hours); and analyzing
27 the Court’s orders (0.9 hours)). Thus, the number of hours underlying the fee request are clearly
1 stated above, the hourly rates involved, and the number of hours expended, have been adequately
2 || justified and are reasonable. The hourly rates themselves are reasonable in light of the rates
3 || charged by attorneys of a similar caliber and experience in the San Francisco metropolitan area.
4 || Accordingly, Plaintiffs First Motion for Attorneys’ Fees (dkt. 114) is GRANTED. Within 14
5 || days from the date of this Order, Defendants are ORDERED to tender payment to Plaintiff in the
6 || amount of $54,930.00.
7 As to Plaintiff's Second Motion to Compel (dkt. 121), it was noted at the hearing on
8 September 24, 2024, that the only matter outstanding related to that motion was Plaintiffs request
9 to compel Defendants to produce certain email correspondence that Defendants reported having
10 || certified to the fact that no such emails exist. At the hearing, Plaintiff noted that it is impossible to
11 believe that the emails it seeks do not exist — that is, that Defendants conducted the business
12 affairs at the heart of this case without discussing those matters via email. While the court is not
5 13 || unsympathetic to Plaintiff's concern — as the court informed Plaintiff during the hearing, Plaintiff
14 || is bound by Defendants’ certification that the discovery sought by Plaintiff in this regard does not
3 15 exist. If, however, Plaintiff can present a concrete, non-speculative basis that might support a
16 || conclusion that the information it seeks does in fact exist and has been wrongfully withheld, or
3 17 that it did exist and has been destroyed, Plaintiff can then present, as appropriate, a spoliation
18 motion or a motion for sanctions on that basis. However, in the meantime, Plaintiff's Second
19 Motion to Compel (dkt. 121) certain discovery, which Defendant has certified does not exist, is
20 || DENIED. Further, because the Second Motion to Compel (dkt. 121) has been denied, □□□□□□□□□□□
21 Second Motion for Attorneys’ Fees (dkt. 122), filed in connection therewith, is similarly
22 || DENIED.
23 IT IS SO ORDERED.
24 Dated: October 9, 2024
25 Mt Z 7
26
7 ROBERT M. ILLMAN
United States Magistrate Judge
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