US Right to Know v. DOD, No. 23-02956, 2025 WL 860503 (N.D. Cal. Mar. 19, 2025) (Hixson, Mag. J.)

US Right to Know v. DOD, No. 23-02956, 2025 WL 860503 (N.D. Cal. Mar. 19, 2025) (Hixson, Mag. J.)

Re: Request for records concerning COVID-19 from two doctors at Uniformed Services University of the Health Sciences (“USU”) and their communications with variety of individuals and specified email domain addresses

Disposition:  Granting in part and denying in part plaintiff’s motion for attorney fees and costs; awarding plaintiff $74,312.88 in attorneys’ fees and $688.96 in costs

• Attorney Fees, Eligibility:  The court relates that “Defendant does not contest that Plaintiff is eligible to receive an award of fees and costs.”      “As such, the Court focuses its analysis on Plaintiff’s entitlement to an award.”
   
• Attorney Fees, Entitlement:  “[T]he Court finds Plaintiff has established its entitlement to an award.”  First, “the Court finds the public interest factor weighs in favor of an award of fees.”  “Plaintiff is a nonprofit investigative public health research organization that works to ‘uncover, report on, and publish documents obtained through public records laws and whistleblowers that expose corporate wrongdoing or government failures that threaten our health, environment, and food system.’”      “Plaintiff is presently engaged in ‘an investigation into high-risk virological research and the origins of COVID-19.’”  “As to the records produced in this case, Plaintiff posted USU’s production on its public COVID-19 website, which had been accessed more than 2,000 times in the three months prior to Plaintiff filing the present motion.”      “Plaintiff also directed its staff researchers to review and investigate the final records and provided them to congressional staff investigating matters related to COVID-19’s origins.”  “As other courts have held, ‘[s]urely the public has an interest in documents that cast doubt on the accuracy of government officials’ representations regarding the possible politicization of agency decisionmaking.’”
  
  Next, “the Court finds the second and third factors also support a fees and costs award.”  “Plaintiff is a non-profit organization.”  “It ‘has no commercial interest in the records that are responsive to this Request, because [it] intended to use them in conjunction with its COVID-19 investigation, research, and journalism.’”  “Plaintiff’s advocacy in this matter contributes ‘significantly to public understanding of the operations or activities of the government,’ especially as it relates to COVID-19 and public health emergencies.”
  
  Finally, regarding the reasonableness of the withholding, the court finds that “the agency in this case initially withheld and redacted virtually all responsive records and then reversed its position after Plaintiff’s pushback.”  The court first notes that “USU admits it failed to comply with FOIA’s 20-day determination deadline, failed to provide an estimated completion date, failed to render a decision on Plaintiff’s request for a waiver of search and production fees, and failed to communicate with Plaintiff for over two years until after suit was commenced.”  “This failure to respond was not reasonable.”  Next, “[a]s to the agency’s invocation of FOIA’s disclosure exemptions, ‘[v]irtually every record produced by USU [in its first production] was redacted, including every attachment being fully withheld under the Deliberative Process privilege, b(5), and under alleged personal privacy interests, b(6) . . . 99% of attachments to emails were fully withheld.’”  “After receiving Plaintiff’s ‘challenge list’ pursuant to the Court’s case management order, . . . the agency agreed to re-review its exemptions and made a second subsequent production that reversed some of the contested withholdings, but not all.”  “Following a second round of conferral, the agency again agreed to re-review the production and ultimately made a third production in which ‘it became apparent that USU had changed its position and abandoned all of its withholdings,’ . . . except for some unchallenged redactions under Exemption 6.”  “In these circumstances, the agency’s redactions were not reasonable.”
   
• Attorney Fees, Calculations:  The court relates that “Plaintiff requests the Court award $77,698.30 in fees and $6,583.96 in costs, for a total of $84,282.26.”  First, regarding defendant’s objections to some of plaintiff’s declarations, the court finds that “[i]t is true that the Court could potentially strike [one] declaration as untimely.”  “However, Plaintiff filed its motion on Friday, December 20, and filed [the declaration at issue] one business day later, on December 23, after counsel realized it inadvertently failed to file it.”  “Further, the parties subsequently filed two stipulations to extend the deadline for Defendant’s opposition, which the Court granted, giving Defendant nearly two months (until February 18, 2025) to file its response.”  “In these circumstances, the Court declines to strike [the] declaration.”
  
  Next, “Defendant argues Plaintiff should not be awarded any attorneys’ fees for its local counsel, . . . for three reasons.” “First, it argues [its local counsel’s] billing records ‘fail to include quintessential information such as the identity of the person billing and their hourly rate.’”  “However, Plaintiff subsequently filed an errata which included the omitted information.”  The court finds that “[i]t would be unjust to deny local counsel fees due to a formatting error that was timely identified and corrected.”  “Second, Defendant argues [plaintiff’s local counsel’s] billing records do not show its attorneys were substantively engaged in the merits of the underlying FOIA claim.”  “It argues ‘[t]here are no billing records indicating anyone from [the local counsel] reviewed the documents at issue, conducted any legal research, participated in the meet and confers, or negotiations related to the withholdings.’” “In fact, billing records show that [the local counsel] did not become substantively involved until after fees discussions broke down.’”  “Defendant cites no authority in support of its argument that Plaintiff’s request should be denied based on the amount of substantive work in which its local counsel engaged.”  “Finally, Defendant argues [plaintiff’s local counsel’s] request should be denied because they have not demonstrated it was ‘reasonably necessary’ to retain both local and out of town counsel ‘for this modest FOIA case.’”  “However, Plaintiff has submitted testimony about how ‘few public interest lawyers’ are willing to do FOIA work on a contingency fee basis, and that it ‘had difficulty in locating attorneys who would litigate our FOIA requests on a contingency basis.’”  “Defendant offers no evidence contradicting this testimony.”  “The Court finds no reason to deny Plaintiff’s fees request on this basis.”
  
  Regarding the fee ask, the court relates that “Plaintiff seeks $878 per hour for its lead counsel” who “has 15 years of experience, with a focus on environmental law and the public’s access to governmental records.” “Plaintiff also seeks $878 per hour for [an attorney who] has 20 years of experience and founded [plaintiff’s local counsel] in 2011.”  “Plaintiff seeks $777 for [an attorney who] has 16 years of experience . . . .” “Plaintiff seeks $239 per hour for [two] paralegals . . . and for [one] Legal Assistant . . . .”  The court finds that “[t]hese are in line with rates approved in other recent FOIA cases in this District.”  “Further, Plaintiff has provided evidence that the rates ‘are well within the range of, if not below, prevailing market rates for attorneys with comparable expertise and skill in the San Francisco Bay Area’ and that the ‘rates for counsel who billed time in this matter are consistent with, or substantially lower than, rates for attorneys with similar skill and experience for comparable litigation in the Northern District of California.’”
  
  “Defendant . . . argues Plaintiff justifies its rates by relying on the Laffey matrix, but it has not made a ‘substantial showing’ that the Laffey matrix rates are in line with the prevailing rates for FOIA litigation in this District.”  “However, [plaintiff’s declarant] states that the rates he identifies as reasonable are based on his own expertise, of which the Laffey matrix is but one data point.”  “As Plaintiff met its initial burden to produce satisfactory evidence that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation, it was Defendant’s obligation to put forth rebuttal evidence showing Plaintiff’s evidence is incorrect, which it has not done.”  “Defendant argues ‘no court has awarded anything close to [plaintiff’s local counsel’s $878] rate for a straightforward FOIA litigation.’”  The court finds that “the requested rates are in line with rates approved in other recent FOIA cases in this District.”  “Defendant also argues Plaintiff must prove non-local counsel was ‘necessary’ to prosecute this matter.”  “However, as discussed above, Plaintiff is not required to prove local counsel was necessary and, regardless, [plaintiff explained why that] was necessary at the time the case was filed.”
  
  “The next issue is whether Plaintiff’s hours were ‘reasonably expended in pursuit of the ultimate result achieved in the same manner that an attorney traditionally is compensated by a fee-paying client for all time reasonably expended on a matter.’”  Responding to defendant’s objections, “the Court finds [certain] fees should be eliminated” because they are duplicative.  However, regarding other administrative work, “the Court finds no deduction is warranted.”  “‘Courts in this district have concluded that tasks such as filing documents on ECF, revising and preparing documents referred to in time records as “filings,” email exchanges between attorneys, and organizing certain files in anticipation of preparing a motion are not clerical tasks.’”  Regarding certain clerical communications “the Court finds a deduction is warranted.”  “Specifically, while ‘communications regarding the service of the complaint’ are compensable, . . . billing ‘for purely clerical tasks such as filing documents and preparing and serving summons’ is not.”  “Likewise, calendaring, scheduling, and docketing are not compensable as attorney fees.”  Regarding certain “internal communications or review of communications,” the court finds that “[w]here [plaintiff’s local counsel] does bill for communications between attorneys, it appropriately includes the discussion topic.” “As to [plaintiff’s local counsel’s] billing records, the Court finds [certain entries should be eliminated because [plaintiff’s local counsel] doesn’t provide any information about the discussion topic or otherwise give context.”  Responding to defendant’s objection based on alleged block billing, “[t]he Court finds these entries, all of which are 0.70 hours or less, provide an appropriate break down of how time was spent on each task or are so closely related that the Court can readily discern the reasonableness of the time expended.” “Accordingly, no deduction is warranted.”  Responding to defendant’s contention regarding “overstaffing, excessive billing, and duplicative work,” “[t]he court finds that a deduction is not warranted in this case.”  “Defendant challenges Plaintiff’s conduct in spending 4.2 hours ‘strategizing,’ . . . but a private party would reasonably pay their attorneys to think about their case’s strengths and weaknesses.”  “As to excessive billing, Plaintiff presented [a] declaration to compare hours incurred in this case to other similarly situated FOIA matters.”  “[T]he Court finds no reduction is warranted.”
  
  “Finally, Defendant argues the Court should impose an additional overall percentage cut on the fees request.”  “Defendant argues a reduction is appropriate because the fees Plaintiff seeks for time spent on fees negotiations and the fee motion are well over the amount billed for time spent litigating the merits of the FOIA complaint.”  “However, courts regularly award fees for work on fee motions that are large in comparison to the fees awarded on the merits.”  “The Court further notes that where, as here, a case settles early in the litigation, the proportion of time spent on recovering attorneys’ fees relative to the time spent on the merits is likely to be larger than it would be if the parties engaged in lengthy litigation.”  “In that context, the Court finds that such a comparison is not necessarily a good measure of reasonableness.”  “Nor does it make sense to take an approach that essentially penalizes a plaintiff for obtaining an early settlement.”  “Accordingly, the Court finds a ‘haircut’ is unwarranted.”
  
  The court notes that “Plaintiff requested a fee multiplier of 1.5.”  “However, Defendant opposed Plaintiff’s request, arguing it failed to offer any support an award of a multiplier in this case.”  “In its reply, Plaintiff withdrew the request.”  “As such, the Court declines to award a multiplier.”
  
  “Defendant also argues Plaintiff is not entitled to an award of ‘fees on fees’ because it made an offer of settlement for $23,500 on November 5, 2024 under Rule 68 to resolve the issue of attorneys’ fees.”  “[I]t is true that a plaintiff is not entitled to ‘fees on fees’ work performed after acceptance of a Rule 68 offer where the offer limited plaintiff to hours expended ‘prior to the date of’ offer.” “However, Plaintiff did not accept Defendant’s offer, and Rule 68 only requires an offeree to obtain a judgment that is ‘more favorable than the unaccepted offer,’ not that it obtain a fee higher than what is offered for the specific time period in which the offer was made.”  “[T]he Court finds the time Plaintiff seeks for its fees on fees work is reasonable, and no deduction is warranted.”
  
  “Plaintiff also seeks $6,583.96 in costs for the filing fee ($402), pro hac vice admission fee ($317), postage related to the service of the complaint ($33.12), legal research costs ($251.54), Pacer charges ($2.30), [one] expert witness cost[] . . . ($760.00) and [another] expert witness cost[] . . . ($4,818.00).”  “The Court finds Plaintiff’s request reasonable as to the filing fee and service costs.”  “However, pro hac vice fees are not recoverable as costs.”  “As to Plaintiff’s request for costs related to expert declarations, while FOIA allows for recovery of ‘reasonable attorney fees and other litigation costs,’ it does not contain language that explicitly allows for the recovery of expenses associated with expert witnesses and consultants.”  “Accordingly, the Court awards $688.96 in costs.”