92 L. Ed. 2d 439, 106 S. Ct. 3088 (1986)), and a party asking the court to depart from the lodestar amount bears the burden of proving that the departure is necessary for the calculation of reasonable fees. Grant v. Martinez, 973 F.2d 96, 101 (2d Cir. 1992), cert. denied sub nom. Bethlehem Steel Corp. v. Grant, 506 U.S. 1053, 122 L. Ed. 2d 132, 113 S. Ct. 978 (1993); United States Football League v. National Football League, 887 F.2d 408, 413 (2d Cir. 1989), cert. denied, 493 U.S. 1071, 107 L. Ed. 2d 1022, 110 S. Ct. 1116 (1990).
To establish the hours expended by its attorneys, plaintiff has submitted an affidavit containing a typed listing based on contemporaneous time records of the dates that work was performed, the hours worked and a description of the work. Affidavit of Robert A. Longman, Esq. dated August 26, 1997, P 3. I find the documentation provided by plaintiff to be adequate. See Cruz v. Local Union No. 3 of Int'l Bhd. of Elec. Workers, 34 F.3d at 1160; S.J. Berwin & Co. v. Evergreen Entertainment Group, Inc., 1994 U.S. Dist. LEXIS 12897, 1994 WL 501753 at *2; David v. Sullivan, 777 F. Supp. at 223.
Defendant has not presented any proof to overcome the presumption that the lodestar is reasonable. Defendant's affidavit and letter briefs, like its blunderbuss objections to plaintiff's document request that began this entire two-year fiasco, contains many general conclusory objections to plaintiff's submission but few specifics to support its argument. For example, its assertion that the application "clearly is not based on contemporaneous time records" is simply not the case. Defendant bears the burden here of showing modification of the lodestar amount is required, and its essentially "kitchen-sink" approach is not useful. Even the few specific challenges it makes are for the most part belied by the facts and/or logic. For example, it claims that the presence of two attorneys for plaintiff was not necessary at a discovery hearing before me, pointing out that only one did most of the talking. But current counsel was not involved at that time, and I remember that major hearing quite well. I know that both attorneys had been involved in the review of documents and the discovery applications to that point, and that while one may not have spoken on the record, his presence was needed. Defendant similarly faults plaintiff's fee request as unreasonable because "partners were performing extremely unchallenging work such as taking notes on redactions and reviewing documents. This work is generally performed by mid-level and junior associates." Letter of Barry M. Hartman, Esq. to the court, dated September 15, 1997, p. 6. In the context of this case, however, where it was found that plaintiff's past redactions of purportedly irrelevant material had been, to the contrary, of critically relevant material, one can hardly fault plaintiff's attorneys for having the work performed by those most familiar with the somewhat complex facts of the case and the document discovery to date. Moreover, it seems hardly defendant's role to dictate who should be assigned to perform required legal work, especially when that work was made necessary and more complicated by defendant's improper conduct.
On the subject of redactions, defendant is mistaken in several ways. First, with respect to the September 1996 redactions in 6,500 documents, no ruling was ever made that the redactions were proper or that sanctions were or were not appropriate in connection therewith. I found that defendant had failed to set forth information by which it could be determined if the objections were valid and, after I ordered defendant to specify the nature of its redactions with a view toward possible in camera examination, defendant decided to produce the documents unredacted.
Second, contrary to defendant's contention, the documents were produced late. If the objection had been valid, it is one that should have been made over a year earlier (although the existence of the documents, like that of most of defendant's other documents, was purportedly unknown to defendant at that time). Third, although defendant is quick to claim that redacted information eventually was contained in only 3-6% of the documents defendant produced, it ignores the history as to how unredacted information came to be disclosed, perhaps because current counsel was not involved at the time of the earlier events. After resisting any production for close to a year, defendant, contrary to my earlier directives as to what types of information could be redacted and what types were to be produced, provided documents in which it had redacted what it said was "a minimal amount of information which is extremely commercially-sensitive and is not relevant to this action." As I pointed out in my opinion of July 16, 1996, however:
In reality [defendant] has redacted precisely the very information that is at the heart of this action and that plaintiff would need to prove the claims herein (and that defendant would need to rebut them). Thus, defendant has taken out of the contracts, as well as the documents showing negotiations with customers, all of the dates, quantities, costs, fees and credits and terms of duration of the contracts, proposed contracts and communications relating to them. In this Sherman Act case alleging defendant's attempt to monopolize the market by coercing customers into signing long-term exclusive requirements contracts and imposing higher fees on those which refuse, such conduct is inexplicable.
1996 U.S. Dist. LEXIS 9924, 1996 WL 399823 at *3. It was only as a result of plaintiff's persistence and the court's assistance that the redactions were eventually reduced to a small amount of information subsequent to defendant's having withheld and then redacted essentially all information that would have been relevant to this case. Thus, I also reject defendant's finding fault now with plaintiff's counsel for having spent time trying to sort out the later redacted information and applying to the court concerning it. Plaintiff could hardly be expected at that point simply to accept defendant at its word that it had redacted only irrelevant material.
I have thoroughly reviewed plaintiff's counsel's billing documentation and my own records of proceedings in this case. I find the hourly rates charged for the various persons at the firm who worked on the matter within the customary range I know attorneys charge in this city. Plaintiff has not, however, provided the court with any information concerning the experience of those persons or, indeed, any information about them at all beyond their hourly rates, and some are persons whom I have never directly seen in connection with any written work or appearance before me. It is thus difficult to assess whether the time spent vis-a-vis results achieved was justified. I am, of course, cognizant of the fact that the work reviewing documents herein, many of which are quite technical, and determining where documents might fit on the continuum of past production had to be a time-consuming task. At the same time, however, I believe completing that work efficiently can depend to a great extent on the experience of those doing it, their technical knowledge and familiarity with the document production issues, as well as their experience in the relevant field (antitrust) and familiarity with the issues in this particular case. On occasions when a fee applicant has failed to submit evidence concerning her experience or the reasonableness of the claimed rate, this court has reduced the hourly rate by 15%, which I find appropriate to do herein. See, e.g., Fund Comm'n Svc., II, Inc. v. Westpac Banking Co., 1996 WL 469660 at *7; N.S.N. Int'l Industries, N.V. v. E.I. Du Pont De Nemours & Co., 1996 U.S. Dist. LEXIS 4050, No. 89 Civ. 1692 (KTD)(AJP), 1996 WL 154182 at *3 (S.D.N.Y. April 3, 1996). Thus reduced, the hourly rates range from $ 323 for the most senior partner to $ 106 for the person who appears to be the most junior associate, which I know are quite reasonable based on my own knowledge of hourly rates charged by law firms in our area and are within the range which courts in this district have held to be reasonable in awarding fees under Rule 37. See, e.g., Chatin v. New York, 1997 U.S. Dist. LEXIS 7928, No. 96 Civ. 420 (DLC), 1997 WL 304848 (S.D.N.Y. June 6, 1997) (finding hourly rates of $ 270, $ 235 and $ 200 to be reasonable for third-, second- and first-year associates, respectively); Fund Comm'n Svc., II, Inc. v. Westpac Banking Co., 1996 WL 469660 at *7 (finding hourly rates of $ 323 and $ 119 to be reasonable for attorneys who, the court assumed, were a partner and an associate, respectively).
With respect to the number of hours spent by plaintiff's attorneys, I agree with defendants that the charges relating to plaintiff's review of Hazardous Waste Manifests appear not only somewhat excessive but also unrelated to the sanctions issue and have deleted $ 8,039 from the award herein, but I cannot agree that the time spent on certain other matters with which defendant finds fault, such as two letters to Mr. Sponseller, were necessarily excessive, since they apparently would have required work, in addition to that indicated, with the documents to which they related preparatory to the writing of them.
I am, however, concerned in general about the amount of time claimed to have been spent by plaintiff's attorneys. I have reviewed the time records quite carefully.
I am loathe to question many items such as, for example, whether the initial work in bringing the motion to compel in 1995 should have taken 100 hours or 80 hours, given the unknown quantity of necessary background work and footwork that I, as a former practicing attorney, know goes into what finally becomes the papers filed in the court, and I believe counsel should be given latitude to do the amount of research counsel feels needed to be comfortable enough to produce her final product to the court or client. Yet, I see in the time listings submitted enough indications of what I do find to be excessive time that I cannot simply accept the entire record of time wholesale. Based on a comparison of my own records of certain conferences, hearings and written submissions of counsel with the time records submitted by plaintiff, I find that a reasonable number of hours to have been expended for the work would have been no more than 75% of that requested. Accordingly, I have reduced the total number of hours by 25%. See Luciano v. Olsten Corp., 109 F.3d at 117; In re Agent Orange Product Liability Litig., 818 F.2d 226, 237 (2d Cir. 1987); New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d at 1146 and cases cited therein (endorsing across-the-board percentage cuts as "practical means of trimming fat" from fee applications).
This reduction will also serve to discount adequately for time spent on matters unrelated to the conduct of defendant for which the sanctions were imposed, some of which I know to be necessarily intertwined with the work that was related thereto.
Upon a 15% reduction in hourly rates for each attorney for the reasons indicated earlier and upon a 25% reduction in the number of hours listed on plaintiff's counsel's records to arrive at a reasonable sum, the total which plaintiff is awarded from defendant is $ 84,950.70.
Dated: New York, New York
January 5, 1998
SHARON E. GRUBIN
United States Magistrate Judge