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Young v. Act Fast Delivery of West Virginia, Inc.

United States District Court, S.D. West Virginia, Beckley Division

August 10, 2017

ERIC YOUNG, individually and on behalf of all others similarly situated, Plaintiff,



         The undersigned previously found that sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure were appropriate in this matter as a result of Defendants Act Fast Delivery of West Virginia, Inc. and Act Fast Delivery, Inc. (hereinafter referred collectively as “Act Fast”) conduct with regard to Plaintiff's discovery requests. (Document No. 96.) Pursuant to the undersigned's instructions, Plaintiff submitted his petition for Rule 37 sanctions (Document No. 101.), Act Fast submitted its response to same (Document No. 111.), to which Plaintiff filed his reply. (Document No. 132.) Accordingly, this issue is now full briefed and ready for determination of the appropriate sanctions.

         For the reasons stated below, the undersigned GRANTS Plaintiff's Petition for Rule 37 Sanctions. (Document No. 101.)


         In his Petition, Plaintiff attached several exhibits including the affidavits of the four attorneys and one paralegal involved detailing the amount of time each expended in the prosecution, research, document review, and drafting of pleadings concerning Plaintiff's Motion to Compel, Reply Concerning Plaintiffs' Motion to Compel, and Motion for Leave to File Supplement to Reply after having received addition production from Act Fast. (Document Nos. 70, 80, 93.) In sum, Plaintiff requests this Court to order Act Fast to pay his attorney fees in the amount of $40, 434.00 and for any additional relief as may be just and equitable.

         In response, Act Fast asserts that the fees and expenses Plaintiff has requested should be reduced, and specifically contests those sums related to the preparation of Plaintiff's Supplement to Reply Concerning Plaintiff's Motion to Compel. (Document No. 111 at 3.) First, because those fees and expenses were not preceded by the Rules requirement for a meet and confer; second, Act Fast produced the requested discovery, it was only a dispute concerning the form of those productions that arose afterwards; third, these fees and expenses involved document review, typical litigation expenses; and fourth, the fees and expenses connected to Thomas Goodwin, Esq. are redundant and unnecessary. (Id. at 3-4.) Act Fast also contends that the claimed fees and expenses need to be reduced to prevailing market rates in this district. (Id. at 4.)

         Act Fast further argues that two issues raised in Plaintiff's Supplement were not discussed by the parties: the organization of the production and the production of non-responsive family members. (Id. at 5.) There is no rule or governance in this district with respect to the format of electronically stored information (“ESI”), and therefore Act Fast demonstrated good faith and was justified in producing a “reasonably usable” TIFF format native Microsoft Excel files as agreed upon by the parties. (Id. at 7-8.)

         With respect to the reduction of attorney fees and expenses, Act Fast explains that such sums should be excluded from the meet and confer process and from normal document review, which are not allowable pursuant to Rule 37, as the only fees and expenses allowed are those associated with the failure to comply with discovery. (Id. at 9-10.) Act Fast asserts that the expenses associated with Mr. Goodwin are excessive and redundant to those expenses associated with Ms. Wittemeier and Mr. Kirby, and further, were associated with Plaintiff's Supplement, and should therefore be excluded altogether. (Id. at 11.) Finally, Act Fast proposes that the hourly billing rates claimed by Plaintiff's attorneys should be reduced in compliance with prevailing market rates, specifying that the rates for Mr. Kirby, Mr. White and Ms. Washington appear compliant, however, the rates for Ms. Wittemeier and Mr. Goodwin should be reduced to $350 per hour. (Id. at 11-13.)

         In reply, Plaintiff asserts that Act Fast's production of the electronically stored information was made after business hours on a Friday, and were wholly inadequate in response to Plaintiff's requests. (Document No. 132 at 3.) Further, Plaintiff did meet and confer prior to filing the Motion to Compel, and further, was not required to meet and confer again regarding the numerous deficiencies identified in the Supplement filed afterwards. (Id. at 5.) Plaintiff argues that Act Fast's conduct was egregious, and cites its counsel's Motion to Withdraw as further evidence of that conduct. (Document No. 100.) (Id.) The Motion to Withdraw highlights Act Fast's continued conduct in this case: it refused to abide by this Court's order to comply with discovery requests, and now is accused of refusing to pay its own counsel. (Id.)

         Contrary to Act Fast's assertion otherwise, Plaintiff disagrees that it was justified in producing the format of the ESI, because there was no discussion or agreement regarding the organization of this discovery; further, Act Fast failed to identify or alert Plaintiff that two fields were pulled from the metadata in contradiction to its representation to this Court that Act Fast would produce this material as it maintained same in the ordinary course of business. (Id. at 6.) As a result, Plaintiff expended considerable time and expense searching for attachments that were removed from Act Fast's production as “non-responsive.” (Id.) More importantly, Plaintiff argues that Act Fast's representation to this Court that those attachments were pulled because they did not respond to Plaintiff's production requests were false. (Id. at 7.)

         Plaintiff further contends that its expenses associated with the attorney fees for document review in preparation for the hearing on the Motion to Compel should be granted, because Act Fast's production deficiencies were substantial, and considerable court time was also expended by Plaintiff's counsel to demonstrate to Act Fast's counsel the specific documents existed that Act Fast failed to produce. (Id. at 7-8.) Had Act Fast timely produced the documents in response to Plaintiff's requests in the manner kept in the ordinary course of business, and without pulling such documents responsive to Plaintiff's requests, so much time did not have to be wasted by Plaintiff in order to point this out. (Id. at 8.)

         Moreover, Plaintiff states that its attorney fees and expenses associated with the meet and confer process that occurred after Plaintiff filed its Motion to Compel, and also because Act Fast failed to participate meaningfully during the informal conference on these discovery disputes with the Court. (Id. at 8-9.) All the time entries except for 1.2 hours concern fees and expenses associated with Plaintiff's Motion to Compel, and pertained to those issues subject to the Motion. (Id.)

         Mr. Goodwin's work was not duplicative, but complementary to the work necessary to prosecute the Motion to Compel; due to Act Fast's withholding of critical information, and because of the importance of the Motion to Compel, Plaintiff appropriately staffed its most experienced litigators on this issue. (Id. at 9.) Further, contrary to Act Fast's argument, Mr. Goodwin's and Ms. Wittemeier's billing rates are within the prevailing market rates in this district, and several recent cases in this district have seen hourly billing rates for experienced attorneys at $400 and $550. (Id. at 10-11.)

         In sum, Plaintiff asks that the Petition for Sanctions be granted in its entirety as the conduct demonstrated by ...

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