Nixon v. Bevini, S.R.L.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

AT NASHVILLE

JAMES NIXON, III )

) Case No. 3:20-cv-01103

v. ) Judge Trauger

) Magistrate Judge Holmes

SACMI IMOLA S.C. )

MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiff James Nixon III’s motion for attorney’s fees (Docket

No. 107), to which Defendant SACMI IMOLA, S.C. responded in opposition (Docket No. 115)

and Plaintiff replied in support (Docket No. 117). For the reasons that follow, Plaintiff’s motion

(Docket No. 107) is GRANTED IN PART AND DENIED IN PART as discussed below.1

I. BACKGROUND

Familiarity with this case is presumed and only those facts and procedural background

necessary to explain or provide context to the Court’s ruling are recited.2

On October 13, 2023, Plaintiff filed a motion to compel pursuant to Rules 16 and 37 of the

Federal Rules of Civil Procedure.3 (Docket No. 96.) In that motion, Plaintiff alleged that he did

not learn about two alleged modifications to the product at issue in this litigation – the Hopper, a

machine that breaks clay down into smaller pieces – until nearly the close of discovery and that

Defendant failed to search for or produce responsive documents. (Docket No. 97 at 1–2.) Plaintiff

1 As discussed in more detail below, the Court previously held in an order dated November

17, 2023 that Plaintiff is entitled to reasonable expenses, including attorney’s fees, in connection

with resolution of Plaintiff’s motion to compel. (Docket No. 104 at 27.) The District Judge

affirmed that order on December 27, 2023. (Docket No. 119 at 18.)

2 A more expansive recitation of the facts and procedural background of this litigation is

found in the order dated November 17, 2023. (Docket No. 104 at 1–6.)

3 Unless otherwise noted, all references to rules are to the Federal Rules of Civil Procedure.

asked the Court to compel Defendant to (1) produce documents in response to two Requests for

Production; (2) supplement its document production; (3) identify documents withheld on the basis

of privilege or any other ground; (4) bear the cost of translating approximately 10,000 pages of

documents produced in Italian; (5) provide a Rule 30(b)(6) witness to testify on certain Rule

30(b)(6) deposition topics; and (6) pay Plaintiff’s reasonable expenses incurred in connection with

the discovery dispute. (Docket No. 96 at 1–2.) Defendant opposed Plaintiff’s motion. (Docket No.

99.)

After considering the parties’ filings and holding an in-person hearing on November 6,

2023, the Court granted Plaintiff’s motion. (Docket No. 104.) The Court ruled on the five issues

presented in the motion to compel as follows:

First, the Court ordered Defendant to produce documents in response to two of Plaintiff’s

Requests for Production, though the Court narrowed the scope of those requests. The Court found

that the requests were relevant but overly broad; that the discovery requested was proportional to

the needs of the case; and that Defendant had possession, custody, or control of the requested

information despite Defendant’s arguments that Italian data privacy law limited its authority and

control over its employees’ email accounts and prohibited any systematic scanning or copying of

those documents. (Id. at 8–23). Second, the Court ordered Defendant to make a corporate

representative available pursuant to Rule 30(b)(6) to testify on certain topics, and the Court

permitted Plaintiff to take additional fact witness depositions. (Id. at 23–24.) Third, the Court

ordered Defendant to supplement or revise its responses to certain Requests for Production to

clarify that it had not withheld any documents on the basis of privilege and so that each request

was answered under oath. (Id. at 24–25.) Fourth, the Court held that Defendant had no obligation

under Rule 34 to bear the costs of translating certain documents that it produced in Italian. (Id. at

25–27.) Fifth and finally, the Court ordered the parties to submit further briefing on whether

Defendant must pay Plaintiff’s reasonable expenses under Rule 37. (Id. at 27.) In particular, the

Court ordered Plaintiff to “file a motion for award of attorney’s fees that it incurred with respect

to the Motion to Compel (Docket No. 96), including any pre-filing attempts at resolution.” (Id. at

28–29.) The Court also stated that it was inclined to find that Defendant’s failure to produce

documents in response to certain Requests for Production was not substantially justified, but it did

not make an affirmative ruling on that question. (Id. at 27.) That issue is now before the Court.

In the interim, Defendant filed a motion for review of the order granting Plaintiff’s motion

to compel (Docket No. 113), as it is entitled to do. Defendant sought the District Judge’s review

of the undersigned’s determination that “that the requested documents are within [Defendant’s]

possession, custody or control, despite [Defendant’s] citations to Italian data privacy laws that

prohibit Italian employers, such as [Defendant], from collecting and searching its employees email

communications without their consent.” (Id. at 1.) After considering Defendant’s motion and

related filings, and conducting a de novo review of the issues raised by Defendant, Judge Trauger

denied Defendant’s motion for review and affirmed the order granting the motion to compel.

(Docket No. 119.) Judge Trauger then referred the instant motion for award of attorney fees to the

undersigned. (Docket No. 120.)

II. LAW AND ANALYSIS

As a preliminary matter, the Court will address its authority to rule on the instant motion

by order rather than report and recommendation. Magistrate judges generally have authority to

enter orders regarding non-dispositive pre-trial motions but must submit report and

recommendations for dispositive motions. See 28 U.S.C. § 636; Fed. R. Civ. P. 72. There is little

debate as to whether a magistrate judge can enter an order imposing monetary sanctions on a party

under Rule 37. See Builders Insulation of Tenn., LLC v. S. Energy Sols., No. 17-CV-2668- TLP-

TMP, 2020 WL 265297, at *3-4 (W.D. Tenn. Jan. 17, 2020) (collection of cases adopting principle

that an award of attorneys’ fees under Rule 37 is a non-dispositive matter that may be finally

decided by a magistrate judge).4

If a motion to compel discovery is granted or the discovery is provided after a motion to

compel is filed, Rule 37(a)(5)(A) requires the court to award reasonable expenses, including

attorney’s fees, to the moving party.5 Defendant argues that Rule 37(a)(5)(A) does not apply

because Plaintiff’s motion to compel was not “granted.” Defendant asserts that Rule 37(A)(5)(C)

applies instead because Plaintiff’s motion was “granted in part and denied in part.”6

There is some appeal to Defendant’s argument. The Court did not provide Plaintiff with all

the relief requested – for example, the Court did not order Defendant to pay costs to translate

documents produced in Italian. The Court nevertheless granted Plaintiff’s motion with respect to

his request to compel Defendant to produce documents in response to certain of his Requests for

Production. (Docket No. 104 at 8–23.) Similarly, while the Court narrowed the scope of the

4 It is worth noting that motions for sanctions under Rule 37 differ from motions for

sanctions under Rule 11, which the Sixth Circuit consider to be dispositive. See Bennett v. General

Caster Serv. of N. Gordon Co., 976 F.2d 995, 997 (6th Cir. 1992).

5 Rule 37(a)(5)(A) provides, in pertinent part: “If the motion is granted—or if the disclosure

or requested discovery is provided after the motion was filed—the court must, after giving an

opportunity to be heard, require the party . . . whose conduct necessitated the motion . . . to pay

the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.” Fed.

R. Civ. P. 37(a)(5)(A).

6 Rule 37(a)(5)(C) applies if a motion to compel is granted in part and denied in part. Under

that provision of the rule, “the court may issue any protective order authorized under Rule

26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the

motion.” Fed. R. Civ. P. 37(a)(5)(C).

Requests for Production, the Court nonetheless ordered Defendant to produce responsive

documents. For these reasons, the Court finds that Rule 37(a)(5)(A) applies.7

There are three exceptions to the mandatory award of attorney’s fees under Rule

37(a)(5)(A): (1) the movant filed the motion before conferring in good faith; (2) the opposing

party’s nondisclosure, response, or objection was “substantially justified”; and (3) other

circumstances make an award “unjust.” Fed. R. Civ. P. 37(a)(5)(A)(i–iii). Accordingly, the Court

must first determine if Defendant’s nondisclosure, response, or objection to Plaintiff’s discovery

requests was “substantially justified” or if other circumstances make an award of expenses “unjust”

under Rule 37(a)(5)(A). If the answer is no, the Court must then determine whether the fees

requested by Plaintiff are reasonable.

A. Defendant’s Response to Plaintiff’s Requests for Production Was Not “Substantially

Justified”

“Substantially justified” means “justified to a degree that could satisfy a reasonable

person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). The Sixth Circuit has held that a party

meets the “substantially justified” standard if “there is a genuine dispute, or if reasonable people

could differ as to the appropriateness of the contested action.” Doe v. Lexington–Fayette Urban

Co. Gov't, 407 F.3d 755, 765 (6th Cir. 2005) (quoting Pierce, 487 U.S. at 552)). As noted by the

Supreme Court, “the one [connotation] most naturally conveyed by the phrase before us here is

7 Nevertheless, even if Rule 37(a)(5)(C) did apply, the Court “may, after giving an

opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P.

37(A)(5)(C). In fact, Rule 37(A)(5)(C) gives the Court “greater discretion in deciding whether to

award fees and costs” than does Rule 37(A)(5)(A). Fed. Machinery & Equip. Co. v. Tousey, No.

1:21-CV-01422-CEF, 2024 WL 838680, at *2 (N.D. Ohio Feb. 9, 2024) (citing Galinis v. Branch

Cnty., No. 1:14-cv-00460, 2015 WL 2201696, at *2–3 (W.D. Mich. May 11, 2015)). As noted

below, if this were a Rule 37(a)(5)(C) case, the Court would be inclined to disallow fees altogether.

Nevertheless, for the reasons detailed below, and in its discretion generally under Rule 37 to award

reasonable expenses, the Court apportions the attorney’s fees as set forth in greater detail below.

not ‘justified to a high degree,’ but rather ‘justified in substance or in the main’—that is, justified

to a degree that could satisfy a reasonable person.” Pierce, 487 at 565.

In response to Plaintiff’s motion for an award of attorney’s fees, Defendant argues that its

nondisclosure, response, or objection to Plaintiff’s discovery requests was “substantially justified”

under Rule 37 because a conflict existed between Defendant’s duties under Rules 26 and 24 and

its duties under Italian data privacy laws. (Docket No. 115 at 5.) In short, Defendant argues that

its failure to gather documents from its employees and produce those documents to Plaintiff was

“substantially justified” because “reasonable people” could differ about whether its position was

correct.

Specifically, Defendant argues that “Italian law does not permit Defendant – or any other

employer – to independently search the electronic devices or emails of its employees” and that the

interpretation and application of the referenced Italian data privacy laws is an “unsettled issue.”

(Id. at 6.) Accordingly, Defendant asserts that “reasonable people can differ as to the

appropriateness of the contested action” and its decision to not produce documents was

“substantially justified.” (Id. (quoting Pierce, 487 U.S. at 565).)

To support this argument, Defendant points to a declaration of Italian attorney Alessandro

P. Giorgetti (Docket No. 113-1), which was submitted in support of Defendant’s motion for review

of the Court’s order granting Plaintiff’s motion to compel (Docket No. 113) that Judge Trauger

ultimately denied (Docket No. 119). The Giorgetti declaration purports to resolve the Court’s

questions concerning “whether Italian data privacy law recognizes a legal distinction in its data

privacy restrictions between personal and business emails or accounts, and whether additional

context or information would have enabled the Court to ‘confidently interpret’ the relevant Italian

data privacy laws at issue.” (Docket No. 115 at 6.)

In her order denying Defendant’s motion for review, Judge Trauger thoroughly analyzed

the Giorgetti declaration. (Docket No. 119 at 10–14.) Although Judge Trauger found the arguments

within the declaration to be persuasive, she concluded that, with respect to the purportedly

“unsettled issue” of Italian data privacy law, Defendant “failed to establish that accessing and

searching its employees’ work emails in order to comply with the Order granting the Motion to

Compel would violate Italian law.” (Id. at 16.) Specifically, Judge Trauger stated, in pertinent part:

The court is persuaded by Giorgetti’s arguments and its own review of the Italian

authority presented by the defendant that Italian law provides for the nearly

inviolate protection of the privacy and confidentiality of individuals’ written and

electronic correspondence, regardless of whether it is created in a professional

context and contained in an employer’s email servers, as [Defendant] argues. That

said, however, the little guidance the court has been able to locate about how Italian

privacy laws pertain to employers’ ability to search and produce employees’ emails

in response to discovery requests originating from a foreign lawsuit indicates that

the issue is more complex than suggested by [Defendant’s] bald assertion that

accessing employee emails is always illegal (and Giorgetti’s assertion that Italian

law does not recognize a legal distinction between personal and professional email

correspondence).

In short, while it is clear that employees’ personal emails are always inaccessible,

the issue of an employer’s ability to access “non-personal emails that only relate to

the job carried out at the workplace” may depend on the policies and practices the

employer has implemented and the adequacy of the employer’s notices about these

practices to its workforce.

* * *

[Defendant], in short, has failed to establish that accessing and searching its

employees’ work emails in order to comply with the Order granting the Motion to

Compel would violate Italian law, even if the court accepts as true the general

proposition that all individuals, including employees, have a well recognized and

vigorously guarded right to privacy and confidentiality in their correspondence

under Italian law.

* * *

Finally, even if the court were to presume that [Defendant] has not adopted any

procedures or practices making it clear to employees that work-related email

communications are not private, meaning that it likely would be illegal for it to

“unilaterally search[] and access[] its employees[’] email communications without

their consent,” [Defendant] has not established that such unilateral action would be

the only way for it to comply with the Magistrate Judge’s Order. More to the point,

it has not presented evidence—aside from the production of the general and clearly

inadequate notice posted at its workplace—of its efforts to procure employees’

consent to [Defendant’s] search of their emails for content related to the matters at

issue in this lawsuit or, alternatively, to persuade its employees to conduct their

own thorough searches and voluntarily produce such responsive documents,

redacting, if necessary, any personal or private information. It would only be after

trying and failing to obtain emails through alternative methods that [Defendant]

would even potentially be placed in the untenable position of either disregarding an

order issued by this court or complying with that order but violating Italian law.

(Docket No. 119 at 14–17.) Consistent with Judge Trauger’s reasoning, the Court is not

able to find that Defendant’s nondisclosure, response, or objection was “substantially justified”

under Rule 37(a)(5) because this position was not “justified in substance or in the main.” Pierce,

487 at 565. For these reasons, the Court will impose an award of reasonable attorney’s fees to

Plaintiff under Rule 37, as discussed below.8

B. Only a Fraction of the Fees Requested by Plaintiff Are Reasonable

If the moving party is entitled to fees, that party “bears the burden of documenting his

entitlement to the award.” Reed v. Rhodes, 179 F.3d 453, 472 (6th Cir. 1999). The moving party

has two main obligations: (1) to provide the court with “evidence supporting the hours worked and

rates claimed” and (2) to demonstrate that the requested fee award is “reasonable.” Perry v.

AutoZone Stores, Inc., 624 F. App’x 370, 372 (6th Cir. 2015); Lance Coal Corp. v. Caudill, 655

F. App’x 261, 262 (6th Cir. 2016).

When reviewing requests for fees, trial courts “may take into account their overall sense of

a suit, and may use estimates in calculating and allocating an attorney’s time.” Fox v. Vice, 563

8 Candidly, if the Court could find that the awarding of fees is entirely discretionary under

the circumstances here, it would be inclined to deny the requested fees altogether as outrageously

excessive. See Thomas v. Bannum Place of Saginaw, 421 F.Supp.3d 494, 495-99 (E.D. Mich.

2019) (extensive discussion and collection of cases);) Fed. Machinery & Equip. Co. v. Tousey,

2024 WL 838680, at *3-6 (same).

U.S. 826, 838 (2011) (citation omitted). The “most useful starting point for determining the amount

of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a

reasonable hourly rate,” which provides the lodestar figure. Webb. v. Bd. of Educ. of Dyer Co.,

Tennessee, 471 U.S. 234, 242 (1985) (citations omitted). In determining whether a requested

hourly rate is reasonable, the court looks to the “prevailing market rate in the relevant community”

and considers the skill, experience, and reputation of the attorneys involved in the litigation.

Adcock–Ladd v. Sec’y of Treasury, 227 F.3d 343, 350 (6th Cir. 2000).

After determining the lodestar amount, the court may adjust the fees upward or downward

“to reflect relevant considerations peculiar to the subject litigation.” Adcock-Ladd v. Sec'y of

Treasury, 227 F.3d 343, 349 (6th Cir. 2000) (citing Reed v. Rhodes, 179 F.3d 453, 471–72 (6th

Cir. 1999)).9 The court should also exclude from this initial fee calculation hours that were not

“reasonably expended.” S. Rep. No. 94-1011, at 6 (1976). “Counsel for the prevailing party should

make a good faith effort to exclude from a fee request hours that are excessive, redundant, or

otherwise unnecessary.” Myers v. SSC Westland Operating Co., LLC, No. 13-14459, 2015 WL

3915797, at *4 (E.D. Mich. June 25, 2015) (citing Hensley v. Eckerhard, 461 U.S. 424 (1983)).

9 Courts have identified a number of issues – the “Johnson factors” – that a court should

look to when considering whether to depart from a lodestar calculation. Those include:

(1) the time and labor required by a given case; (2) the novelty and difficulty of the

questions presented; (3) the skill needed to perform the legal service properly; (4)

the preclusion of 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 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.

Reed, 179 F.3d at 471 n.3 (citation omitted). These factors are naturally blended into the

reasonableness analysis. Paschal v. Flagstar Bank, 297 F.3d 431, 435 (6th Cir. 2002).

When considering the number of hours reasonably expended on a matter, the court must

likewise pay attention to whether cases are overstaffed, that is, whether the hours expended were

excessive, redundant, or unnecessary. To assure the reasonableness of the hours expended,

attorneys must give the reviewing court sufficient detail to evaluate the fee award. See Trustees of

the Painters Union Deposit Fund v. Interior/Exterior Specialist Co., No. 05–70110, 2011 WL

204750 at *4 (E.D. Mich. Jan. 21, 2011) (“If the documentation of hours is inadequate, the district

court may reduce the award accordingly.”).

Plaintiff requests fees in the following amounts:

Biller Title Hourly Rate Hours Fee

Daniel Hull Member $500 Phase 1: 29.5 $43,750.00

Phase 2: 54.9

Phase 3: 3.1

Joe Leniski, Jr. Member $500 2.5 $1,250.00

Trina Scott Paralegal $100 6.0 $600.0010

Total 96.6 $45,600.0011

(Docket No. 107-1 at ¶ 6.) Plaintiff submitted a declaration of attorney Daniel Hull explaining the

process of compiling the relevant billing information. (Docket No. 107-1.) The declaration

10 In his declaration, attorney Daniel Hull calculates the total amount of fees billed by

paralegal Trina Scott as $3,000.00, which would equate to a rate of $500.00 per hour. The Court

assumes this amount was an error and has revised it to $600.00 total, which would equate to a rate

of $100.00 per hour.

11 Hull calculates the total amount of fees billed as $48,000.00, which appears to be

inaccurate based on the miscalculation of paralegal Trina Scott’s hourly rate as detailed supra n.6.

The Court has revised the total amount sought from $48,000.00 to $45,600.00.

includes information regarding the three “phases” of Hull’s legal work for which Plaintiff seeks

compensation:

Phase Hours Billed Time Period Description of Work

1 29.5 Sept. 11, 2023 to • Defining discovery issue

Oct. 5, 2023 • Attempting to resolve dispute without

Court intervention

• Working on joint statement of discovery

dispute

• Drafting and filing Plaintiff’s Motion to

Amend the Scheduling Order

2 54.9 Oct. 6, 2023 to • Briefing Motion to Compel

Nov. 6, 2023 • Preparing for oral argument

• Participating in oral argument

3 3.112 Nov. 7, 2023 to • Attempting to resolve dispute

Nov. 17, 2023

(Id. at ¶ 9.) The declaration also states that attorney Joe Leniski, Jr. billed 2.5 hours for “preparation

for, and attendance at, oral argument on November 6, 2023” and that paralegal Trina Scott billed

6.0 hours for “tasks customarily undertaken by a paralegal in Nashville, Tennessee.” (Id. at ¶¶ 10–

11.)

Plaintiff did not provide a detailed log of time entries, but instead provided in Hull’s

declaration the narrative descriptions for blocks of billing time set forth above. In the motion,

Plaintiff states that he provided these summaries rather than complete billing details “to avoid

waiver of a privilege, or any other procedural or substantive right,” but is “ready to provide

complete billing details, for in camera inspection” if requested. (Docket No. 107 at 2 n.1.)

12 Hull states that he billed 24.4 hours during Phase 3 (Docket No. 107-1 at ¶ 8), but he

later details only 3.1 hours of work (id. at ¶ 9(c)). The Court assumes that he billed only 3.1 hours

during Phase 3 because such an assumption results in a total of 87.5 hours (rather than 108.8 hours).

Hull’s declaration maintains that the amount of fees sought is “fair and reasonable,”

“consistent with rates customarily charged by attorneys with similar experience undertaking

similar work,” and “consistent with amounts previously approved by this Court in comparable

litigation.” (Docket No. 107-1 at ¶ 14.) The Hull declaration is accompanied by a resume for his

law firm. (Docket No. 107-2.)

In its response, Defendant argues that the fees requested by Plaintiff are unreasonable for

several reasons. (Docket No. 115 at 9–10.) First, Defendant argues that many of the requested

hours are for “unrelated tasks,” including a separate motion to amend the scheduling order and

separate discovery dispute statement. (Id. at 9.) Next, Defendant asserts that Plaintiff seeks

compensation for more hours than his attorneys should have reasonably spent on the motion to

compel, including “26.1 hours to draft a 2-page motion and a 13-page memorandum of law” and

“21.9 hours briefing a 5-page reply.” (Id.) Finally, Defendant contends that Plaintiff provided

insufficient information regarding its time entries and failed to meet its burden to support its

request for fees with adequate details. (Id. at 10.)

Based on the information provided, the Court finds that the hours billed are clearly

excessive and patently unreasonable.13 In Phase 1, Hull declares that he spent 1.9 hours defining

13 As the moving party, Plaintiff bears the burden of supporting the requested attorney’s

fees and demonstrating that the amount requested is reasonable. The Court acknowledges that

submission of attorneys’ time by summary of tasks with hours spent might technically comply

with Local Rule 54.01(c), which refers to “detail [of] the number of hours spent on each aspect of

the case.” The Court will not expend additional judicial resources with an in camera inspection of

billing records, which could have – and routinely are – submitted in support of the attorney’s fee

request. Plaintiff could certainly have filed redacted time records had he thought such records were

necessary or appropriate to support his requested attorney’s fees. Plaintiff – through his counsel –

elected instead to rely on the general, broad narratives of services and blocks of time described in

the motion and accompanying filings. Accordingly, that is what the Court will rely on in

considering Plaintiff’s entitlement to fees. That said, the Court cannot conceive of any more details

that Plaintiff’s counsel might provide that would justify the amount of time spent by Hull on the

matters described, which simply bolsters the Court’s determination not to permit after-the-fact

the scope of the discovery issue and motion to compel; 2.1 hours researching appropriate actions;

2.1 hours meeting and conferring with Defendant’s counsel; 11.1 hours preparing the joint

statement of discovery dispute14; 10.6 hours preparing a motion to amend the scheduling order;

and 1.7 hours attending a telephonic conference with Judge Trauger. The Court finds that only

some of this billed time was incurred with respect to the motion to compel. The time spent on a

motion to amend the scheduling order and at least some of the time spent on researching

appropriate actions, which included a reference to the motion to amend the scheduling order, are

not compensable under Rule 37(a)(5)(A). Further, the Court finds that Plaintiff has failed to

demonstrate that the time spent preparing the statement of discovery dispute is reasonable.

In Phase 2, Hull spent 26.1 hours preparing the motion to compel; 21.9 hours preparing a

reply to the motion to compel; and 6.9 hours preparing for and attending the hearing on the motion

to compel. Although the issues in the motion to compel were more complex than a run-of-the-mill

discovery dispute, the amount of time spent drafting a 2-page motion, 13-page memorandum of

law, and 5-page reply is far beyond the range of reasonableness. Even recognizing that the dispute

involved a unique issue of Italian law, the Court nevertheless finds that, as a whole, the exorbitant

submission of actual billing records. Further, for some of the time spent, such as Leniski’s time

and that of paralegal Scott, the Court questions how the billing records could possibly implicate

privilege or some other vaguely referenced “procedural or substantive right,” which is the

ostensible basis upon which the billing records were not provided.

14 Plaintiff contends that the time spent was due to a disagreement on what information

Plaintiff should, or was entitled to, include in his portion of the joint discovery dispute statement,

which necessitated “as least four drafts of the joint statement.” (Docket No. 107-1 at 5.) The

Court finds little merit in this purported explanation. A joint discovery dispute statement is not

joint because the parties agree on each other’s content. It is joint simply because each party states

their respective position. For the parties to have spent hours and hours – not to mention multiple

drafts of the statement – in a disagreement over how the other side would state its position is

unwarranted, but, unfortunately, perhaps indicative of the parties’ unwillingness or inability to

cooperate in discharging their respective discovery obligations in this case.

amount of time purportedly spent on these tasks is patently unreasonable, particularly given the

prior research into the issues, the time previously spent on a joint discovery dispute statement, and

when considered with Hull’s experience and the higher hourly rate he charges.15

In Phase 3, Hull spent 1.1 hours conferring with Defendant’s counsel regarding its

discovery obligations and 2 hours meeting in person with Defendant’s counsel. These time entries

came after the hearing but before the Court issued its order resolving the motion. Accordingly,

none of these time entries were “incurred with respect to the Motion to Compel (Docket No. 96),

including any pre-filing attempts at resolution.” (Docket No. 104 at 28–29.) The Court appreciates

Plaintiff’s attempts to resolve the discovery dispute even after the hearing, but it will not impose

payment of those fees on Defendant.

Additionally, the Court finds that the 2.5 hours billed by attorney Leniski to prepare for

and attend the discovery hearing, although, perhaps, not unreasonable standing alone, are

unreasonably duplicative. Given the considerable amount of time spent by Hull in preparation for

the hearing, the Court finds that the additional time spent by Leniski was of little additional value

and is therefore non-compensable as a discovery sanction.

Further, in the absence of any description of the 6.0 hours billed by paralegal Scott, the

Court will not reallocate payment to Defendant. The description of “tasks customarily undertaken

by a paralegal” is plainly insufficient. The Court could surmise the kind of tasks that are

15 Because more experienced attorneys charge higher rates for their services, they are

expected to perform legal work in an efficient manner. See, e.g., Segovia v. Montgomery Cnty.,

Tenn., 593 F. App’x 488, 492 (6th Cir. 2014) (fee award properly reduced for excessive time billed

by experienced attorney); Knop v. Johnson, 712 F.Supp. 571, 578 (W.D. Mich. 1989) (because

more experienced attorneys charge higher rates for their services, they are expected to perform

legal work in an expedited manner) (internal citations omitted); Kinder v. Northwestern Bank, No.

1:10–cv–405, 2012 WL 2886688, at *5 (W.D. Mich. June 5, 2012) (“One reason that experienced

attorneys can command high hourly billing rate is the attorney’s presumed efficiency in handling

familiar legal issues.”)

“customarily undertaken by a paralegal,” but speculation is inappropriate when imposing payment

of one party’s fees to another. Further, the Court is well aware that different law firms utilize

paralegals differently, including sometimes to do work that would more properly be characterized

as clerical or other non-compensable work when reallocating fees. For instance, if the entire 6

hours was spent on ECF filings or preparing hearing notebooks, that would be time that could be

non-compensable for a variety of reasons. Accordingly, the Court finds that Plaintiff failed to

demonstrate the reasonableness of the paralegal time and will disallow the amount sought for Scott

altogether.

Overall, Plaintiff’s request of $45,60016 in attorney’s fees for a single discovery dispute

shocks the conscience of the Court. Plaintiff seeks in excess of 80 hours or more than two standard

work weeks’ worth of time for pursuing a discovery motion. As a sister court noted, in

consideration of a similarly exorbitant request for attorney’s fees under Rule 37(a)(5)(A), Plato

warned: “The excessive increase of anything causes a reaction in the opposite direction.” Martin

v. Linco Eatery, Inc., Case No. 2:17-cv-11634, 2018 WL 4658996, at *2 (E.D. Mich. Sept. 28,

2018). The Court finds that 20 hours is a reasonable, compensable amount of time spent preparing

for and attending the various discovery conferences and hearings. See Auto Alliance Int'l, Inc. v.

United States Customs Serv., 155 F. App'x 226, 228 (6th Cir. 2005) (recognizing “the propriety of

an across the board reduction based on excessive or duplicative hours”).

Finally, the Court finds the attorney rates charged to be approaching the high end of rates

typically approved in this Court. See, e.g., Pineda Transportation, LLC v. FleetOne Factoring,

LLC, Case No. 3:18-cv-00089, 2020 WL 529231, at *5 (M.D. Tenn. Feb. 3, 2020) (finding blended

16 As noted above, Plaintiff’s request, as filed, is for $48,000 (Docket No. 107-1 at 3)

because of miscalculation of paralegal time. That Plaintiff would request nearly $50,000 in

attorney’s fees is even more audacious.

rate of $463.50 for shareholder with 38 years of experience at the time at high end of approved

rates). Here, the Court finds that a reasonable hourly rate is $400.

The purpose of imposing sanctions 1s to “assure both future compliance with the discovery

rules and to punish past discovery failures, as well as to compensate a party for expenses incurred

due to another party's failure to properly allow discovery.” Jackson v. Nissan Motor Corp., No.

88-6132, 1989 WL 128639, at *3 (6th Cir. Oct. 30, 1989) (quotations and citation omitted). Based

on an hourly rate of $400 and compensable time of 20 hours, the Court finds that a reasonable

attorney’s fee amount in connection with the motion to compel in this case is $8,000.00.

Imposition of attorney’s fees in this amount against Defendant is a more than fair and proportional

sanction for the conduct that resulted in Plaintiff's successful motion to compel.

I. CONCLUSION

For the foregoing reasons, Plaintiff's motion for award of attorney fees in connection with

the motion to compel (Docket No. 107) is GRANTED IN PART AND DENIED IN PART.

Plaintiff is awarded $8,000.00 in attorney’s fees and costs as discovery sanctions, payable by

Defendant within 28 days of the date of entry of this Order.

It is SO ORDERED.

United States Magistrate Judge

16