<< COB0000001 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
	ELOUISE PEPION COBELL et al	)
		)
	Plaintiffs,	)
)
	v.	Case No. I:96CV01285
)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior et aL;)
		)
	Defendants.	)
DEFENDANTS' OBJECTIONS TO PLAINTIFFS'
STATEMENT OF FEES AND EXPENSES FILED APRIL 29, 2002
	Defendants state the following objections to the Plaintiffs' Statement of Fees and
Expenses Related to the Sanctionable Conduct of Defendants and Their Counsel ("Plaintiffs'
Statement") filed on April 29, 2002.
Introduction
	Plaintiffs overreach in claiming over $409,000 in fees and expenses for opposing two
short discovery motions. Plaintiffs include in their request extensive time spent on other motions
for which the Court has not allowed them recovery, they claim unreasonable amounts of time for
the work they did, and, with regard to several of the time-billers, they claim unreasonable hourly
rates.
	Because they unreasonably include a large amount of work on motions for which they
could not reasonably believe that the Court has allowed them recovery of fees and expenses, their
entire application should be denied, consistent with established D.C. Circuit case law discussed
below. Alternatively, their total claim should he substantially reduced to no more than
<< COB0000002 >>
$25,098.16— which is more than reasonable compensation for the limited matters for which the
Court has allowed recovery.
Argument
I.	Plaintiffs Are Entitled to Seek Recovery Only for Work "Arising From"
and "Incurred As a Result of" Opposing the Two Specific Motions
Covered by the Court's Orders of March 29. 2002
	This proceeding involves two orders entered on March 29, 2002, by which the Court
allowed Plaintiffs to recover fees for opposing two specific motions of Defendants. The first
Memorandum and Order provides that Defendants pay "plaintiffs' reasonable expenses, including
attorneys' fees, arising from their opposition to defendants' motion for protective order clarifying
duty to produce e-mail records," and required that plaintiffs submit "an appropriate filing
detailing the amount of reasonable expenses, including attorneys' fees, incurred as a result of
opposing defendants' motion for order clarifying duty to produce e-mail records." The Court's
order (at 1) directly and specifically identifies the particular motion as to which it awarded fees:
"defendants' motion for protective order clarifying duty to produce e-mail records [538], filed
August 2, 2000." That motion (the "EMail Motion") asked the Court to clarify and perhaps limit
the Defendants' obligation to search for and produce certain email communications.
	The second Memorandum and Order contains similar provisions, except that it requires
Defendants to pay only 75% of reasonable expenses, including attorneys' fees, arising from
Plaintiffs' opposition to "defendants' motion for a protective order filed January 21, 2000."
(March 29, 2002 order at I). Thus, that order also specifically identifies the motion on which it
allows recovery. That motion (the "Trade Secrets.Motion") sought to limit Defendants'
production of documents, based upon the Trade Secrets Act (18 U.S.C. § 1905), regulations of
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<< COB0000003 >>
the Department of the Interior, and other matters.
	The Court's two orders of March 29, 2002, thus establish the boundaries for recovery.
Each provides the standard for what is recoverable: Plaintiffs' "reasonable expenses, including
attorneys' fees, arising from their opposition" and "incurred as a result" of opposing the Email
Motion and the Trade Secrets Motion — nothing else. (Emphasis added). Neither order allows
recovery for work merely related to the subject matter of those motions.
	As noted by this Court in its prior evaluation of Plaintiffs' claim for recovery of fees and
expenses arising from the 1999 contempt finding, "a near 'but for' relationship must exist
between the Rule 37 violation and the activity for which fees and expenses are awarded." Cobell
v. Babbitt, 188 F.R.D. 122, 127 (D.D.C. 1999) (citina Westmoreland v. CBS. Inc., 770 P.2d
1168, 1179 (D.C. Cir. 1985)(requiring fees and expenses awarded to be "incurred because of' the
violation); citing Tumbull v. Wileken, 893 F.2d 256, 258 (10th Cir. 1990)).
	In connection with that prior fee application by Plaintiffs, this Court stated the exacting
standards that are to be applied in reviewing fee applications: "The D.C. Circuit has admonished
... that 'where a fee is sought from the United States, which has infinite ability to pay, the court
must scrutinize the claim with particular care."' Cobell v. Babbitt, 188 F.R.D. at 125 (quoting
~Qp~1~dv~Iarsha1l, 641 F.2d 880, 888 (D.C. Cir. 1980)).
II.	Because Plaintiffs Improperly Claim Fees and Expenses on
Work for Which They Have Not Been Awarded Recovery,
Their Entire Claim Should Be Disallowed
A.	Settled Precedent Permits Disallowance of Entire Fee Applications
	Plaintiffs' Statement presents one of the admittedly unusual instances in which a fee
application is so outlandish in its request that it should be denied entirely. In Environmental
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<< COB0000004 >>
Defense Fund v. Reilly. I F.3d 1254, 1258 (D.C. Cir. 1993), the court stated the following with
regard to fee applications:
We may deny in its entirety a request for an "outrageously unreasonable"
amount, lest claimants feel free to make "unreasonable demands, knowing
that the only unfavorable consequence of such misconduct would be
reduction of their fee to what they should have asked for in the first place."
(quoting Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980), and citing i~~n.y~e'tof
Justice, 691 F.2d 514, 518 (D.C. Cir. 1982); Trichilo v. Sec'y of Health and Human Services, 823
F.2d 702, 708 (2d Cir. 1987)). In Environmental Defense Fund v. Reilly, the court disallowed
the entire fee claimed by one of the attorneys for the applicant (but not the others), because of an
excessive amount of time claimed on certain tasks. 1 F.3d at 1258. The court also noted that, as
an alternative to disallowance of the entire fee request, a court may "impose a lesser sanction,
such as awarding a fee below what a 'reasonable' fee would have been in order to discourage fee
petitioners from submitting an excessive request." Id.
	Plaintiffs' Statement fits within the "outrageously unreasonable" standard described in
Environmental Defense Fund v. Reilly. Even putting aside the fact that the overall amount
claimed by Plaintiffs (1,292.962 hours, with fees and expenses totaling $409,038.82) is grossly
excessive in light of the matters at issue, Plaintiffs' Statement is outrageously unreasonable
because Plaintiffs have claimed substantial amounts for work on motions other than those for
which they were awarded fees. Plaintiffs had no basis to believe, and could not reasonably have
believed, that they were entitled to include that work in their present application. Their conduct
is aggravated by the fact that they have tried this before.' A substantial sanction is appropriate to
	Following the 1999 contempt proceeding, Plaintiffs submitted an application for over
$2.3 million, which the Court reduced to under $625,000, finding that Plaintiffs included in their
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<< COB0000005 >>
ensure that this does not happen again.
B.	Over 40% of the Time Included in Plaintiffst Statement
Pertains to Motions and Proceedings Other Than Those
Covered by the Court's Orders of March 29. 2002
	Based upon the dates and descriptions of work contained in the fee statements attached to
Plaintiffs' Statement, Plaintiffs seek recovery for a substantial amount of time (at least 538 hours,
which is 42% of the 1292.962 total hours for which they seek recovery) for work pertaining to
motions other than those for which the Court's March 29, 2002 orders allowed recovery.2
Plaintiffs seek recovery for motions that the Court has not even ruled upon on the merits (let
alone awarded fees) or as to which the Court or Special Master have reserved (and not yet ruled
upon) the questions of whether fees will be awarded.
	The Court ordered that Plaintiffs submit a filing detailing such expenses "incurred as a
result" of opposing the motions identified by the Court. Plaintiffs failed to heed that order.
Plaintiffs have included work so far afield from "opposing" the motions specified by the Court,
that Plaintiffs could not reasonably have believed that their claim is proper. Such efforts at
overreaching should not be countenanced. Because the Plaintiffs' Statement contains time for so
many clearly non-recoverable tasks, we respectfully request that, as a sanction, the Court
disallow Plaintiffs' request for recovery in its entirety. As recognized by the D.C. Circuit in
Environmental Defense Fund v. Reilly, 1 F.3d at 1258, that is the only effective way to deter
such wrongful conduct.
application much work on matters beyond the scope of what the Court's decision stated they
could recover at that time.	Babbitt I 88 F.R.D. at 123, 139-40.
	2 The actual quantity of inappropriately claimed time may he higher; many of Plaintiffs'
time entries are too vague to identify clearly which motions they involve.
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1.	Plaintiffs Have No Basis for Including Work on
ContemDt Motions Regarding Email or Other Matters
	At least 44% of the time (347 hours out of 789 hours claimed) that Plaintiffs claim for
"Email Matters" pertain to motions other than those for which the Court's March 29, 2002, orders
allow recovery. Plaintiffs' Statement claims over 347 hours of work that, for all that appears in
the Plaintiffs' Statement, pertains to Plaintiffs' Motion for Order to Show Cause Why Interior
Defendants and Their Counsel Should Not Be Held in Contempt for Destroying E-Mail, filed
March 20, 2002 (the "3/20/02 Contempt Motion"), or, in a few instances, other "show cause"
motions. The 3/20/02 Contempt Motion (which has not even been ruled upon, let alone fees
awarded) alleges that Defendants and others destroyed c-mail (by overwriting email backup
tapes) and/or covered that up. That motion is not the Email Motion as to which the Court's
March 29, 2002 Order awarded fees, nor can one reasonably believe that they are the same. Tn
the Email Motion, the Defendants asked the Court, on August 2, 2000, to clarify and limit their
obligations to search for and produce email. In the 3/20/02 Contempt Motion, Plaintiffs ask the
Court to find contempt for the alleged destruction of email and a coverup of that. Thus, the
3/20/02 Contempt Motion does not "arise from" Plaintiffs' opposition to the Email Motion.
	The Special Master's July 27, 2001 Report and Recommendation, adopted by this Court
on March 29, 2002, also is perfectly clearas to the matters on which it recommended the
awarded of attorneys' fees and other expenses. The Special Master stated (at 14):
The issues surrounding defendants' obligations to produce
documents responsive to the Third Request have been raised on
two other occasions — once before the Court and once before the
Special Master. In the first instance, defendant was justified in
airing its concerns over the potential burden of producing these
documents. In light of the Court's summary denial, defendant was
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<< COB0000007 >>
arguably within its rights to seek clarification of the contours of the
Court's ruling and articulate its position regarding important issues
of privilege. In this third and latest instance, there can be no
"genuine dispute" that Interior's attempt again to seek clarification
under the guise of changing conditions was inappropriate.
[Citation omitted.] Plaintiffs are entitled to be reimbursed for
those expenses they incurred in defending this latest salvo.
[Citations omitted; emphasis added.]
	Thus, the Special Master recommended an award to Plaintiffs for defending against the
Defendants' motion — the Email Motion — and nothing else. The Report and Recommendation
went on, in a new section, separately numbered V, entitled, "Failure to Preserve Backup Tapes,"~
to discuss certain offices' overwriting of email backup tapes. In their 3/20/02 Contempt Motion,
Plaintiffs rely upon such remarks. But, significantly, that Report and Recommendation says
nothing about awarding fees or expenses regarding overwriting or other alleged destruction of
email. Nor do this Court's Memoranda and Orders of March 29, 2002, offer any basis for
claiming recovery regarding such matters. Plaintiffs have no basis to include within their present
application any work pertaining to the 3/20/02 Contempt Motion or the allegations upon which it
is based, nor any other contempt motions.
	Attached hereto as Exhibit A is a tabulation of the hours within Plaintiffs' Statement that,
based upon their dates and descriptions, appear to have been spent preparing for and drafting the
3/20/02 Contempt Motion or, in a few instances, other contempt-related motions. Such work
includes Plaintiffs' efforts to develop allegations or strategies for their contempt motion, or,
eventually, to draft it.
	Exhibit A shows 347.732 hours that appear to have been spent on work pertaining to the
3/20/02 Contempt Motion, or other contempt motions. This calculation is based upon the dates
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<< COB0000008 >>
and descriptions offered by Plaintiffs. Our calculation probably understates the amount time
spent on contempt motions in Plaintiffs! Statement. Many of the time entries that we did not
include in Exhibit A contain descriptions too vague to be sure of what email!! work they reflect.3
	We offer a few examples of the time entries reflected on Exhibit A hereto, showing work
on the 3/20/02 Contempt Motion or other contempt motions, although the time entries cited on
Exhibit A speak for themselves. The putative time records of Dennis Gingold (attached to his
Affidavit) reflect at least 132.8 hours that appear to have been spent on matters surrounding the
3/20/02 Contempt Motion, beginning with time entries in May, 1999 — more than a year before
the Defendants filed the Email Motion. The descriptions within those time entries obviously
pertain to developing allegations for or preparing the 3/20/02 Contempt Motion. ~'
	As further tabulated on Exhibit A, Geoffrey Rempel's records (attached to his Affidavit)
suggest at least 193.9 hours spent on matters pertaining to the 3/20/02 Contempt Motion,
beginning in April, 2000 — months before the Email Motion was even filed. Indeed, although
	~ ~ ~gą, Babby's time entries (in Harper Affidavit Exhibit 2) for 9/30/99 ("solicitor's
office email issue"), 4/13/00 ("sol email & doi network"), 4/18/00 and 4/19/00 ("sol email
issue"); 9/11/00 ("DG re email"); 7/10/01 ("DG re-mail issues and Treasury purge issues").
	~ See for example, Gingold's "billing statements" (attached to his Affidavit) for May,
1999, referring to "retrieval of overwritten DOI Solicitor's Office e-mail," and a "hearing on e-
mail destruction"; August, 1999, referring to working on "destruction of Solicitor's e-mail";
September, 1999, referring to "DOJ and DOI representations re e-mail preservation"; November,
1999, referring to "e-mail overwrite"; December, 1999, referring to "e-mail destruction issues";
May, 2000, referring to "compare representations of counsel made at 3/7/00 TRO hearing re
protection of electronic records"; July, 2000, referring to "continuing e-mail overwriting";
August, 2000, referring to "e-mail contempt issues" (8/28/00); October, 2000, referring to "e-mail
destruction," and the "contempt option." Similar entries appear in the months following. In
August, 2001, he records many hours of"work on e-mail motion," but the E-Mail Motion for
which this Court has allowed recovery was already concluded in July by the Special Master's
Report and Recommendation issued on July 27, 2001. Thus, Gingold's work apparently was on
his future 3/20/02 Contempt Motion.
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<< COB0000009 >>
Rempel's "Schedule A" of time entries (attached to his Affidavit) is labeled "Sanctionable E-
Mail", the numerous references to work on "e-mail contempt" in virtually every month of that
schedule reveal that he was really working on the 3/20/02 Contempt Motion most of the time.
	Similar examples appear in the time claimed by attorney Mark Brown, whose time
records (attached to his Affdiavit) refer to "email destruction" (8/21/00), "destruction of
evidence/email tapes" (11/21/00), and "email destruction" (11/29/00).
	Keith Harper Affidavit Exhibit 2, shows that attorney Lorna Babby claims recovery for
time on "pWs motion re: document destruction" (Emphasis added) (1/25/01), and "motion for
show cause why defendants should not be held in criminal contempt" (7/16/01). Babby's time
also includes references to "2nd show cause motion" (10/6/99), "preparation of show cause
motion" (11/19/99), "motion for show cause" (11/30/99, 8/8/00 and 8/15/00)," and "motion for
show cause re: retaliation" (8/I 1/00)i As shown on Exhibit A, Babby's time entries that seem to
refer to work pertaining to contempt issues totals 11 hours.
	Finally, the Keith Harper Affidavit Exhibit 2 also shows that Harper claims recovery for
at least 5.2 hours he spent on "solicitor's e-mail destruction developments" (4/13/00) and "e-mail
issues and structure argument for show cause" (8/16/00).
	Because Plaintiffs included a massive quantity of time on matters so clearly outside the
scope of their allowed recovery, their request is "outrageously unreasonable" (Environmental
	~ The 8/11/00 entry, and perhaps others, might refer to allegations of retaliation against
employees such as Mona Infield, which allegations or related motions also are not the subject of
allowed recovery under the Court's March 29, 2002 orders. Even Plaintiffs acknowledge that
time spent on the matters involving Mona Infield are not compensable under the orders involved
here. See Affidavit of Mark Brown at 4, ķ 5 (acknowledging that he excluded time regarding the
Mona Infield matters from this application).
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<< COB0000010 >>
Defense Fund, 1 F.3d at 1258), and should be denied entirely.
2.	Plaintiffs Have No Basis for Including Work on Motions
to Modify or Vacate a March 29. 2000 Discovery Order
	Over 60% of the time (191261 hours out of 311.845 hours) that Plaintiffs claim for
"Trade Secrets/LMDA Matters" actually reflects work not on the Trade Secrets Motion, but on an
entirely separate series of motions as to which the Court's March 29, 2002 orders do not allow
recovery. The second Memorandum and Order entered on March 29, 2002, allowed recovery for
fees and expenses arising from Plaintiffs' opposition to the Trade Secrets Motion. The
Defendants filed the Trade Secrets Motion on January 21, 2000. It was fully briefed by February
14, 2000, and the Special Master issued his Report and Recommendation on March 2, 2000,
recommending denial of the Trade Secrets Motion. The Court accepted that Report and
Recommendation, and, accordingly, entered an order on March 29, 2000 (the "March, 2000
Discovery Order"), directing Defendants to produce certain information.
	On May 16, 2000, the Special Master issued a Report and Recommendation Concerning
Plaintiffs' Request for Sanctions Pursuant to Federal Rule of Civil Procedure 37(A)(4). This was
superseded by an amended Report and Recommendation dated June 28, 2000. In those papers,
the Special Master recommended awarding Plaintiffs 75% of their reasonable fees and expenses
"arising from their opposition to" the Trade Secrets Motion. This Court adopted that
recommendation in its March 29, 2002 Memorandum and Order.
	But Plaintiffs seek recovery for work on an entirely separate spate of motions that
followed, and sought to modify' or vacate, the March, 2000 Discovery Order. On December 22,
2000, Defendants filed "Interior's Motion for Modification of the Protective Order Entered on
March 29, 2000 and Memorandum in Support Thereof" On January 16, 2001, Plaintiffs filed an
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<< COB0000011 >>
opposition and cross-motion to vacate the March, 2000 Discovery Order, and for the award of
sanctions.6
	The resulting flurry of briefs resulted in a Report and Recommendation of the Special
Master (dated May 16, 2001; filed July 25, 2001) that recommended that part of the relief sought
by Defendants be granted (at 3), that the cross-motion of Plaintiffs be denied, and stated (at 8)
that the 'basis for plaintiffs' request for sanctions is not wholly clear from the filings." The
Special Master stated that "plaintiffs' request for sanctions is premature" and that he might revisit
that question at another time, depending upon information later shown. (at 9). Defendants filed
objections.
	On July 25, 2001, the May 16, 2001 Report and Recommendation was filed and fiated.
See Court's docket entry number 767. Thus, the motion, cross-motion, and related briefs that
followed the March, 2000 Discovery Order were entirely separate from the Trade Secrets Motion
(which preceded the March, 2000 Discovery Order), and the Special Master expressly reserved
the question of whether sanctions should be awarded on those post-March, 2000 motions.
	As far as we have been able to determine, the Special Master has not recommended, and
the Court has not ordered, recovery of fees with regard to the motions to modify or vacate the
March, 2000 Discovery Order. Certainly, neither of this Court's March 29, 2002 Memoranda and
Orders pertain to that series of motions. They make no mention of the various motions (filed in
December, 2000 and later) to modify' the March 20 Discovery Order, and no award of fees on
6 See, Interior's Motion for Modification of the Protective Order Entered on March 29,
2000 and Memorandum in Support Thereof (filed December 22, 2000); Plaintiffs' Consolidated
Opposition to Defendants' Motion to Expand the Protective Order Entered March 29, 2000 and
Plaintiffs' Cross-Motion to Vacate the March 29, 2000 Protective Order and request for Further
Sanctions" (filed January 16, 2001).
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<< COB0000012 >>
• those matters could reasonably be inferred. Thus, Plaintiffs have no basis to claim, nor to
reasonably believe that they could claim, fees and expenses pertaining to the motions to modify
the March, 2000 Discovery Order.
	Yet, Plaintiffs' Statement includes over 191 hours that, based upon the dates and
descriptions, appear to relate to disputes and motions following the March, 2000 Discovery
Order, not the Trade Secrets Motion. That is almost two-thirds of the 311 hours that Plaintiff~
claim pertaining to "Trade Secrets/IMiDA" matters. See Plaintiffs' Statement at 2-3. Exhibit B
hereto tabulates that time, which was spent in early2001 .~ Plaintiffs fail to show how work
performed about a year after the Special Master issued his Report and Recommendation on the
Trade Secrets Motion (in March, 2000) could have been "arising from" or "incurred as a result
of" their opposing that motion.
	Plaintiffs' inclusion of such a large amount of inappropriate time warrants denial of their
	~ example, the Gingold billing statements (attached to Gingold Affidavit) purportedly
for "Trade Secrets Sanctions," beginning in January, 2001, contain numerous entries for work on
matters such as "defs' motion to amend protective order" (1/9/01) or "defendants' motion to
expand protective order" (1/10/01), "defendants' motion to vacate 3/29/00 protective order"
(2/1/01), "work on Trade Secrets /TMDA issues re scope of Defs' protective order" (3/26/0 1).
	Similarly, Mark Brown's schedule of time entries (attached to his Affidavit) reveals work
in early 2001 on matters including "Revise Opposition to Motion to Expand Protective
Order/IMDA" (1/15 and 1/16/01) and "Revise Replyre Motion to Vacate Protective Order of
3/2 9100" (2/03101).
	Rempel's time entries (see Rempel's Schedule B, attached to his Affidavit) includes early
2001 entries for "response to defendants' motion to modify March 29, 2000 Protective Order"
(1/10/0 1) and other, similar entries throughout January and February, 2001.
	Harper's time entries in January, 2001 (Harper's Affidavit Exhibit 1, at 5) refer to, ~
"Def's protective order trade secrets," "motion to amend order re: protective order" (1/9/01),
"motion to amend (IMDA) and cross motion" (1/1 1/0 1).
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<< COB0000013 >>
claim in its entirety.
	III.	Alternatively, Plaintiffs? Statement Includes a Grossly Excessive Amount of
		Time for OPDOSiII~ the Two Motions, and Should Be Substantially Reduced
	Alternatively, if the Court does not disallow Plaintiffs' entire application, the amounts
allowed should be reduced substantially.
A.	Plaintiffs Claim Excessive Time and Fees Regardin2 the Email Motion
1.	Most of Plaintiffs Claimed Work Regarding the Email
Motion Did Not "Arise From" and Was Not "Incurred
As a Result" of Their ODriosition to That Motion
	The briefing and argument on the Email Motion covered only a short period and amount
of time, and a relatively discrete scope of work. The Email Motion (court docket number 538)
was filed on August 2, 2000. The Defendants' supporting memorandum contained 26 pages of
text. Plaintiffs filed their opposition on August 17, 2000, consisting of 24 pages of text.
Defendants filed a 14-page reply on September 8, 2000. Although Plaintiffs sought leave to file
a surreply on September 12, 2000, the Special Master denied them leave on October 24, 2000.
The Special Master held a short hearing on October 27, 2000. On July 27, 2001, he rendered his
Opinion that the Email Motion be denied.
Thus, the only work that seemingly was reasonably needed "as a result" of opposing the
Email Motion consisted of counsel's review of the Email Motion beginning on August 2, 2000,
preparation and filing of Plaintiffs' opposition on August 17, 2000 (and perhaps reasonable
research associated with it), review of Defendants' reply on or about September 8, 2000,
preparation for and argument at the hearing on October 27, 2000 (which only lasted about 1-1/2
hours),	and review of the Special Master's Opinion on or about July 27, 2001.
Yet, Plaintiffs' Statement (at 2) seeks recovery for 789.938 hours of work, totaling
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<< COB0000014 >>
$231,684.80, supposedly related to "E-mail Matters." The services include attorney time as early
as May, 19998 (more than a year before the Email Motion even was filed) and as late as
September 200l~ (a year after briefing was complete, and months after the Special Master issued
his Opinion on the matter). Despite counsels' conclusory statements that they believe their
claimed work was, ~ "fairly allocable"'0 to the matters covered by the Court's Orders, the facts
suggest otherwise.
	First, as discussed in part II, above, fully 44% of the time claimed for "Email Matters"
(i.e. 347 hours out of the 789 hours claimed) pertained not to the Email Motion, but to the
3/20/02 Contempt Motion or other contempt motions, and thus is not recoverable in this fee
proceeding. Second, much of the remaining claimed work" pertained to the September 12, 2000
Surreply that the Special Master denied leave to file because Defendants' reply had raised no new
material that would justify a surreply by Plaintiffs.'2 The Special Master stated that the reply had
raised no new evidence or legal theories, so "there is no need for further argument." See Report
and Recommendation dated October 18, 2000 (filed October 24, 2000) at 4. Because that
	~ See Plaintiffs' Statement, Affidavit of Dennis Gingold, Exhibit I. See Affidavit of
Geoffrey Rempel, Schedule A (including time beginning in April, 2000).
	91d.
	10 See Affidavit of Dennis Gingold at 2 (par. 4).
	"See time entries for work on briefs after the Plaintiffs filed their opposition brief on
August 17, 2000, including extensive time claimed by Dennis Gingold on "email brief' after
August 17, 2000, all of which should be presumed to have been on the surreply; time claimed by
Mark Brown on "email surreply" in September, 2000; time claimed by Geoffrey Rempel on "e-
mail surreply" after August 17, 2000; time claimed by Loma Babby regarding "surreply brief' in
September, 2000; and time claimed by Keith Harper regarding "surreply brief' in September,
2000.
	12 ~ Special Master's Opinion and Order filed October 24, 2000 at 4.
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<< COB0000015 >>
surreply was unwarranted and not allowed to be filed, Plaintiffs should not be allowed to recover
for work on it.'3 See Board of Trustees v. IPR. Inc., 136 F.3d 794, 800 (D.C. Cir. 1998)Q'[t]he
weaker the apparent need for a particular activity, the higher the evidentiary hurdle a clamant
must cross in order to demonstrate that it was in fact performed in a reasonable effort to pursue
the litigation").
2.	Only Reasonable Work to Oppose the
Email Motion Is Compensable
	This Court's March 29, 2002 Memorandum and Order (at 2 and 3) expressly limits
Plaintiffs' recovery to "reasonable" attorneys' fees and other expenses. This is consistent with
settled precedent that fee awards should include compensation only for "the number of hours
reasonably expended on the litigation." Flenslevy. Eckerhart, 461 U.S. 424, 433 (1983);
Environmental Defense Fund v. Reilly, 1 F.3d at 1258. Thus, "hours that are excessive,
redundant, or otherwise unnecessary" are not compensable time in a fee application. Board of
Trustees v. JPR, 136 F.3d at 800.
	When applicants.claim excessive amounts of time to perform their tasks, the courts
readily reduce the allowed hours. See Michigan v. Environmental Protection Aaenc~, 254 F.3d
1087, 1093 (D.C. Cir. 2001)(20 hours for reply brief was reasonable; but court reduced by 50% a
claim for 90 hours for an opening brief); In re Mullins, 84 F.3d 459, 467 (D.C. Cir. l996)(court
reduced by 50% a claim for 130 hours to prepare a reply brief on a motion to quash, finding 65
hours would have been reasonable); American Petroleum Inst. v. EPA, 72 F.3d 907, 917 (D.C.
	'~ Curiously, Rempel apparently began working on Plaintiffs' ill-fated surreply on August
21, 2000, only a few days after they filed their opposition brief, and weeks before the Defendants
filed the reply. This demonstrates, as found by the Special Master, that Plaintiffs' effort to file a
surreply was not a genuine effort to respond to new matters raised in Defendants' reply brief.
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<< COB0000016 >>
Cir. I 996)(court reduced by 50% a claim for 120 hours on a reply brief, finding 60 hours
reasonable); Masonry Masters. Inc. v. Barr, No. 86-201, 1992 WL 13208, at *4 (D.D.C. Jan. 9,
1992)(court reduced by over 70% a claim for 68.1 hours on a reply brief); see also Salazar v.
District of Columbia. 123 F. Supp. 2d 8, 16 (D.D.C. 2000)(court reduced by 50% a claim for 44
hours on a legal memorandum); Martini v. Federal Nat'l Mortgage Ass'n., 977 F. Supp. 482, 489
(D.D.C. I 997)(court reduced by 50% a claim for 58.67 hours to prepare a pretrial statement);
Donovan v. Local 6. Washington Teachers Union, 665 F. Supp. 1, 4 (D.D.C. l986)(court reduced
by 50% a claim for 44.9 hours on a fee application, finding 20 hours would be reasonable).
	These cases do not indicate that excessive hours always are to be reduced by a fixed
percentage. Rather, the courts apply their own judgment as to how much time was appropriate
for the work product that resulted. See American Petroleum Institute, 72 F.3d at 917 ("[bjased
on our review of the reply brief, we conclude that it would have been reasonable for an
experienced partner to have spent 60 hours" preparing it); Masonry Masters. Inc., 1992 WL
13208, at *4 (court relied upon its prior experience and knowledge of the legal marketplace to
determine how many hours were appropriate).
	While some of the affidavits submitted by Plaintiffs assert the conclusions that the
timekeepers removed, ~ "duplicative or redundant" time (Gingold Affidavit at 4, ķ 13) or
"duplicative or unproductive" time (Brown Affidavit at 3, ķ 3), this does not establish that the
remaining time is reasonable in amount. First, the key problem is that Plaintiffs simply claim far
too much time for the relatively simple tasks at hand, regardless of whether they already reduced
the time claimed. They should not be permitted to charge the Government for such overkill,
even if they subjectively view their claimed time as "productive." See Oklahoma Aerotronics,
-16-
<< COB0000017 >>
Inc. v. United States, 943 F.2d 1344, 1347 (D.C. Cir. 1991) ("there is a point at which thorough
and diligent litigation efforts become overkill," for which the Government should not be charged
in a fee application).
	Second, even if Plaintiffs deducted some time from their claim, this does not mean that
the resulting figures are appropriate, and Plaintiffs' self-serving representations in that regard are
not determinative. See Orson. Inc. v. Miramax Film. Corp.. 14 F. Supp. 2d 721, 724, n.j and
725, 11.3 (E.D. Penn. 1 998)(court reduced the time claimed, beyond any voluntary reductions by
claimant). Third, not all of Plaintiffs' timekeepers (j~ą, Rempel) even purport to have removed
non-productive and wasteful time. Fourth, Plaintiffs fail to specify how much time they
supposedly deducted, leaving the Court unable to assess the judgments they made in excluding
time entries. See Cobell v. Babbitt, 188 F.R.D. at 130.
3.	No More Than 60 Hours Should Be Allowed as a
Reasonable Amount of Time for Onvosing the Email Motion
	Even after deducting all of the time for the tasks that clearly should have been excluded
from Plaintiffs'. Statement, as discussed above, the remaining quantity of time in Plaintiffs'
Statement is not reasonable for the relatively straightforward task of opposing the Email Motion.
In order to comply with the Court's dictates that the allowable expenses are those "arising from"
or "as a result of' Plaintiffs' opposition to the Email Motion, the only allowable expenses should
be those for preparing the 25-page opposition brief, including reasonable research (time between
August 2 and 17, 2000, inclusive), and ancillary work such as reviewing the 26-page Email
Motion (time on or about its filing date, August 2, 2000), reviewing Defendants' 14-page reply
brief (time on or about its filing date, September 8, 2000), preparing for and participating in
argument on the motion (the time on or just before 1-1/2 hours hearing on October 27, 2000),
- 17-
<< COB0000018 >>
and reviewing the ultimate 19-page decision on it (time on or about July 27, 2001). Even then,
oniy the reasonable fees for such efforts should be recoverable. We can conceive of no
reasonable scenario or set of circumstances under which the 789 hours, with fees totaling over
$231,000, claimed by Plaintiffs would have been a reasonable amount of time to spend U~ a
result" of or "arising from" such work to oppose the Email Motion.
	As a first step in attempting to cull out potentially recoverable expenses, Defendants have
attempted to segregate the time claimed by Plaintiffs' attorneys that at least fits within the time
parameters described in the preceding paragraph. Exhibit C reveals that Plaintiffs' counsel claim
250.175 hours of time fitting within the time parameters described above, excluding time entries
that clearly fall outside the proper scope of opposing the Email Motion.'4 Using the adjusted
maximum hourly rates discussed in part VI, below ~ $230 per hour for Dennis Gingold), this
leads to corresponding fees totaling $61,035.25."' Certainly, Plaintiffs cannot recover more than
that, but even that amount is grossly excessive and must be substantially reduced.
	The facts and circumstances surrounding the Email Motion show no basis for a large
quantity of work to oppose it. First, the factual and legal issues involved in the Email Motion
were not excessively complicated, as revealed by the fact that each side's opening brief was far
	"For example, Rempel's time entries in August, 2000 that refer to "email contempt" are
not included, nor are time entries referring to work on the "surreply" that Plaintiffs were not
allowed to file.
	"Alternatively, as sho~vn on Exhibit C, if Gingold were allowed a rate of $350 per hour
(see part VI, below), the fees would be $64,299.25, which also is a grossly excessive amount that.
needs to be significantly reduced. Also, although we use $350 per hour for Mark Brown, as
shown in part VI, below, he fails to establish that he is entitled to that rate. Thus, this figure may
have to be adjusted, depending on whether the Court allows him to recover at $350 per hour or
some other figure.
- 18-
<< COB0000019 >>
below the court's 45-page limit, and the Special Master's Opinion deciding the issue was only 19
pages long.
	Second, the principal piece of work involved in opposing the Email Motion was
Plaintiffs' 24-page (of text) opposition brief, which they put together in about two weeks. Yet
their claimed time during that period (from August 2 through 17, 2000) includes over 213
hours." That is an unreasonable amount of time for the end product of 24 pages of text. Perhaps
it results from inefficient use of time, or from having too many personnel ~ Dennis Gingold,
Mark Brown, Geoffrey Rempel, Loma Babby and Keith Harper), or excessive duplication of
efforts. Five workers (four attorneys, one non-attorney) are more than reasonably needed to
handle a relatively short discovery motion. See Davis County Solid Waste Mgt. and Energy
Recovery Special Service District v. Environmental Protection Agency 169 F.3d 755, 761 (D.C.
Cir. 1999)(claimed hours in fee application were excessive because, for example, multiple
attorneys performed the same tasks, such as drafting, reviewing and editing briefs). Plaintiffs'
Statement reveals, for example, that multiple personnel worked on drafting, legal research, and
reviewing briefs.'7 Further, Plaintiffs' counsel's time conferring with each other was excessive,
considering the nature of the motion involved.'8
	Third, opposition to the Email Motion did not require substantial new work, but involved
	16 See Exhibit C, time listed between August 2 and 17, 2000.
	'~ See time entries for reviewing on 8/3/00 by Mark Brown (5.416 hours), Loma Babby
(9.1 hours) and Geoffrey Rempel (1.5 hours); legal research on 8/10/00 by Mark Brown and
Loma Babby and research on 8/14/00 by Mark Brown and Loma Babby.
	~ time entries for Babby and Harper, reflecting numerous conferences and
phone calls among counsel — some lasting hours.
-19-
<< COB0000020 >>
mostly revisiting prior argumentsl The key reason why the Special Master recommended
awarding fees for opposing the Email Motion was that, in his determination, the issues involved
in the Email Motion had been raised and decided twice before, in prior motions before the Court
and the Special Master. $~ page 14 of Report and Recommendation dated July 27, 2001 and
filed July 30, 2001 (quoted in part 11.B.1, above). No fees have been awarded for work regarding
those prior motions, but Plaintiffs should have been able to use their work product from those
prior, non-compensable motions in order to prepare their opposition to the final Email Motion.
For the reasons stated, little work should have been needed to oppose the Email Motion.
	Based upon the limited work reasonably necessary to oppose the Email Motion, 60 hours
seems a reasonable allowance of time for drafting the opposition brief and all of the other
ancillary work described above. Therefore, Plaintiffs should be allowed no more than 60 hours
worth of time for opposing the Email Motion. One method of determining the appropriate
recovery would be to calculate the ratio of 60 (reasonable hours) to 250.175 hours shown on
Exhibit C hereto, for a ratio of.24. Applying that ratio to the $61,035.25 in fees shown on
Exhibit C results in a figure of$ 14,648.46.'~ That is the maximum amount of fees that should be
awarded for opposing the Email Motion.20 That figure assumes a reasonable amount of time (60
	assumes a $230 per hour rate for Dennis Gingold (see below). If the Court were
to allow a $350 per hour rate for late 2000 - 2001 work (also shown on Exhibit C), the
calculation of a reasonable fee would be as follows: Applying the .24 ratio to the $64,299.25 in
fees shown on Exhibit C results in a figure of $15,431.82, as the maximum recovery for
opposing the Email Motion.
	20 if one determined the ratio of 60 (reasonable hours) to the 789.938 hours claimed
in Plaintiffs' Statement regarding the Email Motion, it would yield a ratio of .075955. If one
applied that to Plaintiffs' claimed fees of $231,684.80 regarding "E-mail Matters," the result is
$ 17,597.63. That figure, while more in line with reason than the figure claimed by Plaintiffs, is
still too high because it assumes the excessive hourly rates charged by Dennis Gingold and
-20-
<< COB0000021 >>
I —	-,
hours) and effectively uses the maximum appropriate hourly rates that we discuss in part VI,
below.2'
B.	Plaintiffs Claim Excessive Time and Fees
Re~ardin2 the Trade Secrets Motion
1.	Much of Plaintiffs' Claimed Work Regarding the Trade
Secrets Motion Did Not "Arise From" and Was Not
"Incurred as a Result" of Their Opposition to that Motion
	Much of the work claimed with regard to the Trade Secrets Motion also cannot fairly be
said to be "arising from" or "incurred as a result" of Plaintiffs' opposition. Defendants filed the
13-page Trade Secrets Motion on January 21, 2000. Plaintiffs filed their opposition (17 pages of
text) on February 7, 2000, and Defendants filed their nine-page reply on February 14, 2000. The
Special Master conducted a 2-1/2 hour hearing on February 29, 2000, with regard to the Trade
Secrets Motion and other matters. The Special Master issued his Report and Recommendation
that the motion be denied on March 2, 2000. On May 16, 2000, the Special Master issued a
Report and Recommendation that Plaintiffs be awarded 75% of reasonable fees and expenses
arising from their opposition to the Trade Secrets Motion. The Special Master issued an
Amended Report and Recommendation on June 28, 2000, which only amended certain findings
not pertinent here. For opposing the Trade Secrets Motion, Plaintiffs claim 311.845 hours, for
fees totaling $86,763.08. See Plaintiffs' Statement at 2-3.
	Plaintiffs' Statement includes substantial work beyond opposing the Trade Secrets
Geoffrey Rempel (see below).
	21 However, as discussed in part VI, below, and as noted throughout this brief, although
we use $350 per hour for Mark Brown, he fails to establish that he is entitled to it. If the Court
reduces his hourly rate, the figures stated herein would have to be adjusted.
-21-
<< COB0000022 >>
Motion. First, as discussed in part II, above, over 60% of the time claimed by Plaintiffs actually
pertained to other motions involving the March, 2000 Discovery Order, for which no
compensation has been ordered. Second, Plaintiffs incorrectly include various other items of
work not part of their Opposition to the Trade Secrets Motiqn. For example, Loma Babby's time
includes clearly non-recoverable items such as work on matters pertaining to the "appeal" (Keith
Harper Affidavit Exhibit 1, Babby time entry for 12/23/99), "treasury report on measures taken"
(id., entry for 1/27/00), "supplemental responses to discovery requests" (j~), "case strategy and
scheduling" (Id. entry for 2/25/00), "waiver from tribes pursuant to Indian Mineral Development
Act (4, entry for 4/18/00), and "motion for show cause" (4, entry for 5/18/00).
2.	No More Than 60 Hours Should Be
Allowed as a Reasonable Amount of Time
for O~posin~ the Trade Secrets Motion
	The Court's order of March 29, 2002 regarding the Trade Secrets Motion allowed only
reasonable" attorneys' fees and other expenses. Even after deducting the tasks described above
that did not genuinely arise from their opposition to the Trade Secrets Motion, the remaining
time claimed by Plaintiffs is unreasonable in amount and, therefore, should be significantly
reduced. The only work reasonably "arising from their opposition" to the Trade Secrets Motion
would be reasonable time spent to review the Trade Secrets Motion (in approximately December,
199922 and January, 2000), preparation of the opposition brief (filed February 7, 2000), including
reasonable research time, review of Defendants' reply (February 14, 2000), preparation for and
argument at the hearing before the Special Master on February 29, 2000, review of the Special
	22 Although the Trade Secrets Motion was filed in January, 2000, the parties apparently
began discussing it beforehand, in late December, 1999.
- 22 -
<< COB0000023 >>
Master's Report and Recommendation (around March 2, 2000), and review of the Reports and
Recommendations regarding sanctions (around May 16 and June 28, 2000).
	Defendants have attempted to segregate the portion of the time claimed by Plaintiffs'
attorneys that — at least based upon the dates of counsel's time entries — appears within the time
parameters described in the preceding paragraph. Exhibit D hereto shows that time fitting that
description totals 204.20 hours (75% of which is 153.15 hours), although even that appears to
include time spent on non-recoverable matters.23 Using the adjusted maximum rates discussed in
part VI, below ~ $230 per hour for Dennis Gingold), this leads to corresponding fees totaling
$27,699.24 Plaintiffs cannot recover more than that, but even that amount is grossly excessive
and must be substantially reduced.
	Nothing about the Trade Secrets Motion justifies a large amount of time to oppose it.
The Trade Secrets Motion was not unduly complicated. Plaintiffs' opposition brief contains less
than 17 pages of text. About half of their brief consists of reciting the background of the dispute,
but nothing in that discussion appears to have needed an inordinate amount of time to prepare.
Fewer than ten pages contain legal analysis. Defendants' briefs were fairly short (the opening
brief was about 13 pages, the reply brief was nine pages). The oral argument (February 29, 2000)
appears to have lasted only two-and-one-half hours (including argument on at least one other
	23 For example, Babby's time entry on 12/23/99 includes discussing "appeal" of the
Court's 12/21/99 opinion; her time entry on 2/25/00 reflects a meeting to discuss "case strategy
and scheduling," and her time entry on 5/18/00 includes "motion to show cause."
	24Alternatively, if Gingold were allowed the higher hourly rates of $340 per hour in early
2000 (pursuant to the Laffey matrix attached as Exhibit 3 to the Mark Brown Affidavit, and
discussed in part VI, below), then, as shown in Exhibit D attached hereto, the 204.2 hours of
counsel's time fitting within appropriate dates would yield fees of $30,825.75.
-23-
<< COB0000024 >>
issue).
	Yet, between the time that the parties apparently started discussing the Trade Secrets
Motion in December, 1999, and the time that briefing and argument were finished at the end of
February, 2000, Exhibit D hereto shows that Plaintiffs claim over 187 hours.25 That is far too
much time, considering that the principal product of their work was a 17-page (of text)
opposition brief.
	Sixty hours is a reasonable amount of time for opposing this motion. The briefs on the
Trade Secrets Motion were shorter than on the Email Motion, although the Email Motion
involved issues covered in previous motions. Thus, 60 hours seems more than enough time for
this matter.
	Accordingly, one way of calculating a reasonable recovery would be to determine the
ratio of 60 hours to the 204.20 hours shown on Exhibit Th hereto, for a ratio of .30. Applying that
ratio to the fees of $27,699 shown on Exhibit D yields $8,309.70.26 That is the maximum
amount that would be reasonable to recover for opposing the Trade Secrets Motion.27
	25 See Exhibit D hereto, adding time from December, 1999 through February, 2000, for
Dennis Gingold, Geoffrey Rempel, Lorna Babby and Keith Harper.
	26 Even if one determined the ratio of 60 (reasonable hours) to the 311.845 hours claimed
in Plaintiffs' Statement regarding the Trade Secrets Motion, it would yield a ratio of .19240. If
one applied that to Plaintiffs' claimed fees of $86,763.08, the result is $16,693.22. That figure,
while more in line with reason than the amount claimed by Plaintiffs, is still too high because it
assumes the excessive hourly rates charged by, ~ Dennis Gingold and Geoffrey Rempel (see
below).
	27Mtematively if the Court were to allow Gingold the higher hourly rates of $340 per
hour (in early 2000) (see note 23, above), then one would apply the ratio of.30 to the $30,825.75
shown on Exhibit D, for a result of $9,247.73. Further, as discussed in part VI, below, the rate of
$350 claimed by Mark Brown is not sufficiently supported, so the figures stated herein would
have to be adjusted if the Court reduces Brown's hourly rate.
- 24 -
<< COB0000025 >>
IV.	Plaintiffs Claim Excessive Fees for Preparation of Plaintiffs? Statement
	Plaintiffs claim 191.179 hours, for fees totaling $56,890.15, simply to prepare their
statement of time and charges for which they seek recovery. See Plaintiffs' Statement at 3. This
is an unreasonable amount of time and fees.
	First, part of the reason for Plaintiffs' excess appears to be that, as counsel Dennis
Gingold states in his Affidavit (at 2, ķ 4), "[hike my co-counsel and our experts, I have not
maintained separate records for the matters" at issue. Attorney Mark Brown also admits, "[ijt
took considerable time and effort to prepare the attached schedules because, like my co-counsel
and our experts, I have not maintained segregated records for the matters dealt with.. .
Affidavit of Mark Brown at 2 (ķ 3).
	To the extent that counsel failed to keep separate time records contemporaneously, and
thus may have had to recreate, reclassify, or re-package records of their time, that is their own
fault.28 Plaintiffs' oppositions to the Email Motion and the Trade Secrets Motion asked for
imposition of sanctions. Thus, Plaintiffs knew or should have known then — while they were
performing their work opposing the motions — that they should have been keeping
contemporaneous, separate tallies of the time spent specifically opposing the motions that would
have been sufficient to support their fee application. To the extent that they failed to do so, they
unjustifiably created the need for extra work to calculate now how much time they spent on these
tasks. That extra work was not incurred "as a result of' their opposition to the motions; it was
incurred because of Plaintiffs' lack of contemporaneous attention to their request for sanctions.
	28 To quote Plaintiffs, "This burden is wholly self-inflicted. Had [they] kept adequate
records, there would have been no need for the allegedly expensive restoration process."
Plaintiffs' Opposition to the Email Motion, filed August 17, 2000.
- 25 -
<< COB0000026 >>
Had Plaintiffs kept separate, contemporaneous allocations of their time to the subject tasks, a
lower-paid administrative assistant could quickly have prepared the necessary tabulations and
tables. Thus, the appropriate amount of time for compensation would be de minimus.
	Second, much of the time spent preparing the statement pertained to calculating the non-
compensable time spent on the other motions described in part LI, above See ~..g., Keith Harper
Affidavit Exhibit 3, which contains numerous entries for preparing the fees and expenses
statement for "email destruction." Work on the motions described in part II, above, is non-
compensable in this proceeding, so preparation of a fee statement about it is non-compensable
too.
	Third, the overall amount of time and fees claimed for preparing their claim for fees and
expenses is unreasonably high on its face, and Plaintiffs offer no justification for it. The more
than 191 hours claimed by Plaintiffs amounts to the equivalent of one person working full time
(40 hours) for over four-and-three-quarters weeks. As discussed above, the opposition to the
subject motions needed only limited work that was spread out over a short period of time. Even
if Plaintiffs had been justified in not keeping careful contemporaneous records at the time of their
opposition work, only a small amount of time would have been reasonable and justifiable to
gather and formulate information about the hours spent during those brief time periods.
	Nor do the drafting of Plaintiffs' Statement and its supporting affidavits justify 191 hours
of time spent. The Statement itself is less than four pages, and the only legal discussion consists
of two short footnotes. All four of the supporting affidavits are less than five pages each. They
contain only fairly simple descriptions of record-keeping and billing practices. Preparation of
such materials cannot reasonably justify significant time; allowing for two hours for each of
- 26 -
<< COB0000027 >>
those documents (the Statement and four declarations), for a total often hours, appears to be the
outside limit of a reasonable sum.
	Using the maximum hourly rates we suggest in part VI, below, the following is the
maximum amount that should be allowed for preparation of Plaintiffs' Statement (assuming that
Dennis Gingold prepared the text of the statement, and each of the affiants prepared his own
Affidavit):
Preparation of text of statement
	by Dennis Gingold:	2 hours @ 230/hr	=	$	460.00
	Affidavit by Gingold:	2 hours ~ 230/hr	=		460.00
	Affidavit by Brown:	2 hours @ 350/hi9	=		700.00
	Affidavit by Rempel:	2 hours @ 90/hr			180.00
	Affidavit by Harper:	2 hours ~ 170/hr	=		340.00
			total	$2,140.00
V.	Piaintiffs Claim an Unreasonable Amount for Expenses
	PlaintifTh claim $33,690.79 in expenses. That figure apparently was determined by simply
computing 15% of the hourly fees of Dennis Gingold and the NARF attomeys See Plaintiffs'
Statement at 3. That figure is excessive and the method insupportable.
	The 15% add-on for "overhead" or "expenses" is unsupported by the present record.
Plaintiffs suggest that, in connectionwith this Court's order regarding the 1999 contempt
proceedings,30 the Court "accepted" a formula by which they may simply tack on an extra 15% to
counsel's fees, supposedly to cover "overhead." Gingold Affidavit at 2. But Plaintiffs misread
the Court's decision. This Court observed that the rates that attorneys Gingold and Holt actually
	29Although we use $350 per hour for Mark Brown, we show in part VI, below, that he
fails to establish that he is entitled to that rate. Thus, this figure may have to be adjusted,
depending on whether the Court allows him to recover at $350 per hour or some other figure.
	30 See Cobell v. Babbitt 188 F.R.D. at 126.
- 27 -
<< COB0000028 >>
charged to their clients included that 15% amount.3' Thus, the Court stated, the overall hourly
rates were either objectionable as a whole or they were not. 188 F.R.D. at 126. Because the
Court found that the Defendants had not contested the overall rates (188 F.R.D. at 125), they
could not pick apart aspects of those rates. 188 F.R.D. at 126. Thus, the Court allowed the
claimed rates to stand.
	Plaintiffs' Statement does not support the same outcome. Gingold's Affidavit (at 2) states
that prior to January 1, 2000, his. "billing rate had been $325.00 an hour, plus 15% for overhead."
But he then states that, "on January 1, 2000, 1 changed my billing rate to. . . $425.00 per hour
generally, and $475 for trial, hearing or deposition time." Id. Significantly, that statement does
not say that his post-January 1, 2000 rates add another 15% on top of the $425 or $475 per hour,
which would bring his hourly rates to a very high figure of $488.75 or $546.25 per hour. In a
different part of his Affidavit (ķ 8), he refers cryptically to "the 15% factor denominated
'overhead' in my fee arrangement," but, again, he does not say that his agreement with his clients
in 2000 and 2001 provided for adding that amount on top of his alleged $425 or $475 per hour.
Instead, his affidavit seems to indicate that his total hourly rate is $425 or $475. Yet, Plaintiffs'
Statement simply tacks on another 15% to those rates, supposedly to cover overhead expenses.
See Plaintiffs' Statement at 3.
	Alternatively, if Gingold's position were that his hourly rates in 2000 and 2001 included
another 15% (for a total of $488.75 or $546.25), Defendants object to them as being
unreasonable and unsupported. Gingold offers no basis for concluding that he could command
	~' Thus, Gingold's hourly rates were $373.75 per hour (pre-6/5/98) and $230 per hour
(post-6/5/98). 188 F.R.D. at 126.
-28-
<< COB0000029 >>
such extraordinary rates in the marketplace. Such rates greatly exceed those shown on the Laffey
matrix (Exhibit 3 to the Mark Brown Affidavit).
	Similarly, the NARF attorney fees add 15% for "expenses," or $8,359.54. See Plaintiffs'
Statement at 3. Keith Harper's Affidavit (at 2, ķ 7) states, "in lieu of detailed and separate
expenses' other than attorneys fees, I am including 15% (of the attorneys fees) as an 'overhead'
charge." Harper does not state that this is a normal part of his firm's hourly rates (which he
claims are $170 per hour). Indeed, in the 1999 fee proceedings, NARF separately claimed
expenses, rather than adding on a fixed percentage to their $170 per hour rates. ~ the April 2,
1999 statement of fees and expenses. But in the present Plaintiffs' Statement, NARF, like
Gingo Id, simply tacks on an additional 15% to the normal hourly rates.
	We do not read the Court's 1999 order to endorse the automatic addition of 15% for
overhead, over and above the rates otherwise charged to counsel's clients. Plaintiffs fail to offer
authority or justification for automatically adding a percentage of fees to cover expenses, rather
than providing a detailed item-by-item listing of reasonable and necessary expenses.
	Moreover, the facts do not warrant the use of an automatic percentage add-on here.
Gingold's Affidavit (at 3, ķ 8) and Harper's Affidavit (at 2,ķ 7) indicate that such "overhead"
includes items such as "travel," "lodging," and "food." Plaintiffs make no showing that
expenditures for such items were necessary or appropriate for opposing the two discovery
motions.
	Further, given the limited effort that, as discussed above, was reasonably necessary for
opposing the two motions, the amount of expenses claimed — totaling $33,690.79 — appears
grossly excessive. Plaintiffs have the burden of establishing their reasonable expenses, and they
-29-
<< COB0000030 >>
have failed to do so. Therefore, no expenses should be allowed.
VI.	Plaintiffs Claim Unreasonable and Insufficiently Sunnorted Hourly Rates
	The hourly rates claimed by Dennis Gingold, Mark Brown and Geoffrey Rempel are
unreasonably high and insufficiently supported.32
	A.	Dennis Gingold's Rates Should Be Limited to $230 Per Hour
	Dennis Gingold's hourly rates of $425 and $475 (for trials, hearings and depositions) are
excessive. Plaintiffs have endorsed the use of the so-called Laffey matrix, as evidenced by the
fact that Plaintiffs' counsel Mark Brown cites and relies upon it in his Affidavit (at 5), and
attaches it as Exhibit 3 to his Affidavit. That Laffey matrix indicates that the market rate for
attorneys with 20 or more years of the requisite experience was from $340 to $350 per hour in
2000. Gingold claims to have 20 or more years of experience. Although his evidence falls short
of showing that he has the appropriate type of experience,33 $340 to $350 would be the outside
limit for his hourly rates.
	Gingold offers insufficient proof that his $425-$475 rates are fair market rates for his
work. Gingold's self-serving Affidavit falls short. First, as this Court has indicated, "the court
generally prefers stronger evidence [than the claimant's own affidavit] of a particular rate,
including personal affidavits, past billing agreements, and records of previous fees." Cobell v.
	188 F.R.D. at 126, n.2; see also Nat'l Assoc. of Concerned Veterans v. Sec'y of Defense,
675 F.2d 1319, 1326 (D.C. Cir. 1982).
	32 For purposes of this fee proceeding only, Defendants do not contest the $170 per hour
rates suggested for the NARF attorneys, Lorna Babby and Keith Harper.
	" As proof of his expertise, Gingold relies upon a 20-year old rating by the National Law
Journal.
-30-
<< COB0000031 >>
	Second, Gingold's Affidavit suffers from several problems, not the least of which is that it
contradicts his own prior affidavit in connection with the 1999 award of fees. His April 2, 1999
Affidavit states (at 3, ķ 7):
Through June 5, 1998, my billing rate was $325.00 an hour, plus
15% for overhead. This is the same rate I have billed since 1989..
One hundred and twenty-five dollars of that amount was
deferred, so that on a current basis I billed at $200 per hour plus
15% overhead. After June 5. 1998. my fee arrangement was for
$200 per hour plus 15% overhead, with no deferred fee and
instead, as the Court was advised last summer, a fee to be applied
to an appropriate time under the 'common fund' doctrine.
(Emphasis added.) Thus, in the prior fee proceedings, Gingold was allowed recovery at a rate of
$230 per hour for services after June 5, 1998. Cobell v. Babbitt, 188 F.R.D. at 126.
	Yet, Gingold's current Affidavit34 (at 2, ķ 6) states, "[t]hrough December 31, 1999, my
billing rate had been $325.00 an hour, plus 15% for overhead (a formula accepted by this Court
in its decision on fees and expenses in the First Contempt Opinion). This is the same rate that I
had billed for my time since 1989." Gingold inexplicably — and misleadingly — leaves out his
prior sworn representation that, since June 5, 1998, his actual fee arrangement with Plaintiffs
allegedly was for "$200 per hour plus 15% overhead" (see above), with a further amount that he
might seek under the so-called common fund doctrine?5
	In light of the contradictory affidavits submitted by Gingold, he should be limited to the
	~ Gingold's Affidavit within Plaintiffs' Statement recites that it was executed on "April
29, 2001." Presumably that is a typographical error, and it actually was executed on April 29,
2002.
	35Notwithstanding whatever Gingold and his clients might agree to among themselves,
the Government does not concede that recovery under the so-called "common fimd" doctrine is
appropriate in this case.
-31 -
<< COB0000032 >>
lower of the rates ($230) that he has sworn were in place. Because of the misleading nature of
his explanation of his rates, he should be limited to $230 per hour at all times.
	The remaining support cited by Gingold for his $425 - $475 per hour rates is
unpersuasive. He claims that Plaintiffs agreed to his rates, but that should carry little weight,
particularly because they no doubt expect to recover fees from the Government at the end of the
case,36 so their agreement hardly reflects what he could receive in the open marketplace.
	Gingold admits (Affidavit at 3,ķ 6) that he has "few other clients" besides Plaintiffs, and
that he provides "limited professional services" to them, so their agreement to pay a particular
rate is of little significance regarding what Gingold's rate in the open marketplace might be.
	Moreover, Gingold now alleges that, through 1999, his hourly rate was $325, plus 15%.
Even if that were so, he offers insufficient justification for the abrupt increase to $425 or $475 on
January 1, 2000. In the absence of stronger proof to support the high rates of $425 to $475 per
hour, and because those rates far exceed the rates indicated by the Laffe'v matrix, they should be
rejected. See Blackman v. District of Columbia, 59 F. Supp. 2d 37, 43 (D.D.C. 1999)(rates from
the Laffev matrix were the maximum allowable rates in a § 1983 case).
	Therefore, even if the Court decided to allow Gingold more than the $230 per hour
described above, the maximum hourly rate allowed to Gingold should be $340 (in early 2000) to
$350 (in later 2000), as per the Laffcv matrix.
B.	Mark Brown Fails to Show That He Oualified for the Rate He Claims
	Mark Brown claims an hourly rate of $350. Sec Brown Affidavit at 4 (ķ 7). He also
	36 See Transcript of Status Conference, August 18, 1998, at 3. Regardless of what
Plaintiffs might anticipate, however, Defendants do not concede that Plaintiffs would be entitled
to such recovery.
-32-
<< COB0000033 >>
admits to having "few other clients." Id. at 5. Thus, he fails to offer convincing proof that he is
able to command such a rate in the open marketplace. Although he claims a rate supported by
the Laffev matrix for a lawyer with 20 or more years of the requisite experience, he fails to show
that he qualifies for that rate. His Affidavit claims that he has been "specializing in litigation" for
the last 22 years, but fails to specify what type of litigation, and whether it involved complex
federal cases. Brown thus fails to show he qualifies for the top rates in the Laffey matrix. See
Griffin v. Washington Convention Center, 172 F. Supp. 193, 199 (D.D.C. 2001)("there is nothing
automatic about the application of 'Laffe~ rates"; counsel was denied recovery at those rates
where he failed to show that he had experience in particular cases that qualify as "complicated,
federal litigation").
	C.	Geoffrey Renipel. a Non-Lawyer, Is Not Entitled to $225 Per Hour
Geoffrey Rempel apparently is not a lawyer, yet he claims an hourly rate of $225. He
attempts to justify this by pointing to an expert witness agreement between his former firm
(PricewaterhouseCoopers ("PwC")) and Plaintiffs, but that fails to prove he is entitled to any
such amount. First, the PwC agreement applies to expert witness work. But most of the work
performed by Rempel in connection with oPposing the two motions at issue now appears to have
been more in the nature of clerical work, much as a paralegal might perform?7 Plaintiffs fail to
	"For example, Rempel's time entries include reviewing correspondence files and
recording specific representations that were made (4/18/00), photocopying pleadings (4/19/00),
highlighting passages in pleadings (4/19/00), "attempting" to pull court's orders off internet
(6/6/00), delivering an "email opposition" (8/17/00), drafting statements of facts (8/21/00,
8/22/00, 8/23/00, 8/24/00, 8/28/00, 8/30/00, 5/22/01, 5/23/01, 5/24/01, 5/25/01, 5/26/01, 5/28/01,
5/29/01,7/31/01, 8/1/01, 8/11/01, 8/13/01, 8/14/01, 8/15/01,8/16/01, 8/17/01, 8/19/01, 9/23/01),
reviewing transcripts (9/4/00, 9/5/00, 9/6/00, 9/7/00), reviewing, editing and preparing exhibits
(9/11/00, 9112/00), "citation check" (9/12/00), filing papers at the courthouse and faxing them to
DOJ (9/12/00), research and reviewing pleadings at the clerk's office (12/14/00), "go[ing] to
- 33 -
<< COB0000034 >>
show that any expert work was needed (or that Rempel performed any) t6 oppose the two
discovery motions at issue.
	Merely because PwC might have charged $225 per hour for legitimate expert work does
not prove that every task performed by one of its former employees is compensable at that rate.
Plaintiffs do not show any justification for using that rate for Rempel to, ~gą, file papers at the
courthouse, or for him to fax and email copies to counsel. Even the PwC agreement (in
paragraph 4) states a fee of $75 per hour for actual paraprofessional or other ~ non-expert)
work. The Laffev matrix states a $90 per hour fee for "paralegal/law clerk." That is the
maximum appropriate figure for the actual tasks performed by Rempel in connection with the
two motions at issue (and, in fact, is too generous a rate for many of the purely clerical tasks he
performed). See Browning v. Peyton, 123 F.R.D. 75, 79 (S.D.N.Y. 1988)(rates should be based
upon "the litigation task performed," not the position of the person performing it; thus, ~g,
"delivery work may ony be valued at delivery service rates" no matter who performed it).
	Second, the PwC agreement does not prove that a solo worker — without the resources of
PwC behind him — could command the same rate as an international accounting or consulting
firm. Rempel offers no proof of what he could obtain in the open marketplace.
Conclusion
	Because Plaintiffs have submitted an "outrageously unreasonable" (Environmental
Defense Fund v. Reilly, 1 F.3d at 1258) request for fees by including substantial amounts for
work on matters as to which the Court clearly has not ordered recovery, the entire request should
courthouse to retrieve Bakaly Grand Jury Investigation material" (115/01), and distributing papers
via fax and email (5/16/00).
-34-
<< COB0000035 >>
be denied. That may be the only way to deter such conductin the future. Alternatively, the
award to Plaintiffs should be reduced to the following amounts:
	Opposing the Email Motion:	$ 14,648.46
	Opposing the Trade Secrets Motion:	$ 8,309.70
	Preparation of statement of fees:	$ 2j.4Q00
	Total	$	25,098.16
Respectfully submitted,
ROBERT D. McCALLUM
Assistant Attorney General
STUART E. SCHIFFER
Deputy Assistant Attorney General
J. CHRISTOPHER KOHN
Director
SANDRA P.
Deputy Director
JOHN T. STEMPLEWICZ
Senior Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
OF COUNSEL:
Sabrina A. McCarthy
Department of the Interior
Office of the Solicitor
- 35 -
<< COB0000036 >>
CERTWICATE OF SERVICE
	I declare under penalty of perjury that, on May 13, 2002 I served the Foregoing
Defendants' Objections to Plaint ~ffs' Statement of Fees and Expenses Filed April29, 2002, by
facsimile in accordance with their written request of October 31, 2001 upon:
Keith Harper, Esq.	- Dennis M Gingold, Esq.
Native American Rights Fund	Mark Brown, iEsq.
1712 N Street, NW	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20036-2976	Ninth Floor
202-822-0068	Washington, D.C. 20004
	202-318-2372
By Hand Delivery on May 14, 2002:
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Ave., N.W.
12th Floor
Washington, D.C. 20006
(202) 986-8477
By U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street,. Suite 2800
Atlanta, GA 30309-4530
Courtesy Copy by U.S Mail:
Joseph S. Kieffer, m
Court Monitor
420 - 7~" Street, N.W.
Apartment 705
Washington, D.C. 20004