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Pall Corporation v. 3m Purification Inc

June 1, 2012

PALL CORPORATION, PLAINTIFF,
v.
3M PURIFICATION INC., DEFENDANT.



The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the Court is the defendant's motion, pursuant to Rule Federal Rule of Civil Procedure 37(b)(2)(C), to enforce the Court's Orders dated October 13, 2010 and December 7, 2010, which awarded defendant its reasonable attorney's fees and expenses as a result of the plaintiff's failure to comply with the orders of the Court with respect to the production of documents. For the following reasons, defendant's motion is granted in part and denied in part.

FACTS

The plaintiff, Pall Corporation ("Pall), commenced these actions on December 30, 1997 and January 8, 2003, respectively, seeking injunctive relief and damages for alleged patent infringement. In October 2007, the defendant, 3M Purification, Inc. ("3M"), petitioned the United States Patent and Trademark Office (the "PTO") to re-examine the validity of Pall's asserted patents in suit. On July 15, 2009, Pall filed its First Amended Complaint, reflecting the impact of the PTO's determinations. In response, 3M asserted counterclaims for inequitable conduct and certain affirmative defenses, based on Pall's alleged misrepresentations to the PTO during the reexamination proceedings. See Order of Boyle, M.J. dated Jan. 20, 2010, at 10.

Thereafter, Pall filed letters with the Court seeking to sever and to stay discovery of 3M's inequitable conduct allegations, noting that 3M already had "full access to the documentary record of the most recent reexamination." (Letter of H. Michael Hartmann dated Feb. 16, 2010, at 3.) Even though the Court adopted 3M's proposed discovery schedule, Pall sought a protective order to preclude discovery relating to 3M's inequitable conduct allegations. (Letter of H. Michael Hartmann dated Mar. 16, 2012, at 1-3.)

On April 8, 2010, the Court denied Pall's motion for a protective order. See Order of Boyle, M.J. dated Apr. 8, 2010, at 4. Pall subsequently produced public prosecution documents and a forty-four page privilege log identifying over 300 withheld documents. (Letter of Garret A. Leach dated May 3, 2010, Ex. C.) Citing Pall's refusal to comply with discovery requests, on May 3, 2010, 3M filed its first motion to compel. (Id.) On June 8, 2010, the Court granted 3M's motion to compel, ordering Pall to either waive attorney-client privilege and work product protection or be precluded from raising its good faith defense to 3M's inequitable conduct allegations. See Order of Boyle, M.J. dated June 8, 2010, at 7. Pall produced the documents listed in its privilege log and did not identify any additional documents as being withheld based on privilege or any other grounds. (Def. Mot. to Enforce the Court's Sanctions Orders 2.) However, during subsequent depositions conducted in July 2010, Pall's patent reexamination attorneys testified about undisclosed, categorically withheld documents. (Letter of Garret A. Leach dated Aug. 16, 2010, Ex. C, F.)

Based on the deposition testimony of Pall's reexamination attorneys, 3M filed its second motion to compel on August 16, 2010, asserting that Pall had still failed to comply with the Court's Orders. (Letter of Garret A. Leach dated Aug. 16, 2010, at 1.) On October 13, 2010, the Court granted 3M's second motion to compel, ordering Pall to produce the documents within ten business days. See Order of Boyle, M.J. dated Oct. 13, 2010, at 1. The Court also advised the parties that it would "assess costs" with regard to 3M's second motion to compel. (10/13/10 Hrg. Tr. 7:10-11.) On October 28, 2010, Pall produced approximately 9,000 pages of documents that were not previously produced or identified on any log of withheld documents. (Letter of Paul J. Korniczky dated Oct. 28, 2010, at 1.)

On November 24, 2010, 3M filed its third motion to compel, which included a request for sanctions in the form of "attorney's fees and costs for all activities relating to Pall's failed good-faith defense, including those relating to motions, depositions, written discovery, and the like." (Letter of Garret A. Leach dated Nov. 24, 2010, at 2.) Shortly thereafter, Pall produced another 12,000 pages of documents. (Letter of Paul J. Korniczky dated Nov. 30, 2010, at 1.)

On December 7, 2010, the Court ordered Pall to provide a "complete list of any withheld 'litigation related' documents" and extended to Pall "a five (5) business day safe haven period for the production of [any] additional documents that it continue[d] to withhold as a result of any privilege or otherwise." Order of Boyle, M.J. dated Dec. 7, 2010, at 3. The Court further awarded 3M its costs, including reasonable attorney's fees, "as it relates to any re-examination of any witness arising out of the untimely production of new documents by Pall during the post-October 13, 2010 period." Id. Thereafter, Pall produced more than 2,800 additional pages of documents. (Def. Mot. to Enforce the Court's Sanctions Orders 5.) On December 21, 2010, Pall produced sixty-eight pages of redacted "Pall v. Cuno Status Update[s]" for 2009 to 2010 and a revised log of withheld documents. (Id.) Thereafter, on January 14, 2011, Pall produced over 2,000 additional documents. (Id.)

During the week of January 17, 2011, 3M re-deposed Pall's patent reexamination attorneys. (Id.) 3M now brings the current motion to enforce the Court's sanctions orders, requesting $134,977.00 in attorney's fees and costs.

DISCUSSION

I. Legal Standard

Federal Rule of Civil Procedure 37(b)(2)(C) states, in pertinent part, that where a party fails to obey a discovery order, "the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(b)(2)(C). Similar provisions apply in favor of the prevailing party on a motion to compel disclosure material. See Fed. R. Civ. P. 37(a)(5).

"The Second Circuit has held that courts awarding attorney's fees are to award the 'presumptively reasonable fee,' which is determined by multiplying the reasonable hourly rate by the number of reasonably expended hours." Leser v. U.S. Bank N.A., No. 09-CV-2362, 2012 U.S. Dist. LEXIS 21626, at *8 (E.D.N.Y. Feb. 21, 2012) (citing Bergerson v. N.Y. State Office of Mental Health, 652 F.3d 277, 289 (2d Cir. 2011)). A presumptively reasonable fee is determined by "bear[ing] in mind all of the case-specific variables that . . . courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate." Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 190 (2d Cir. 2008) (emphasis omitted).

The party seeking attorney's fees bears the burden of establishing not only entitlement to an award, but also the amount. See Green v. City of New York, 403 Fed. Appx. 626, 630 (2d Cir. 2010) ("[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended."); Pilitz v. Inc. Vill. of Freeport, No. 07-CV-4078, 2011 U.S. Dist. LEXIS 132666, at *12 (E.D.N.Y. Nov. 17, 2011) ("The burden is on the party seeking attorney's fees to submit sufficient evidence to support the hours worked and the rates claimed."). Further, a party seeking attorney's fees must support its hours expended by submitting accurate, detailed and contemporaneous time records. See New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983) ("These records should specify, for each attorney, the date, the hours expended, and the nature of the work done."). If the documentation is inadequate, the Court may reduce the award accordingly. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) ("Where the documentation is inadequate, the district court may reduce the award accordingly.").

In determining what constitutes a "reasonable hourly rate," the court should look to the market rates "'prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.'" Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998) (quoting Blum v. Stevenson, 465 U.S. 886, 896 n.11 (1984)). The relevant legal community is generally the district in which the court is located. See Brady v. Wal-Mart Stores, Inc., No. 03-CV-3843, 2010 U.S. Dist. LEXIS 115380, at *9 (E.D.N.Y. Oct. 29, 2010) (citing Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997)) (additional citation omitted). While a court may use an out-of-district rate if it is clear that a reasonable client would pay such a rate, the presumption is that a paying client would hire counsel whose rates are consistent with those in the district in which the action is pending. See Brady, 2010 U.S. Dist. LEXIS 115380, at *10 (citing Arbor Hill, 522 F.3d at 191). The presumption may be rebutted if the party seeking to recover a ...


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