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Cobell v. Babbitt

June 7, 1999


The opinion of the court was delivered by: Royce C. Lamberth United States District Judge


This case comes before the court pursuant to the court's February 22, 1999 Order holding then Secretary of the Interior, Bruce Babbitt, the Secretary of the Treasury, Robert Rubin, and the Assistant Secretary of the Interior, Kevin Gover, in contempt of court. In accordance with that decision, the court awarded plaintiffs "all expenses and reasonable attorneys' fees caused by the defendants' failure to obey the court's orders of November 27, 1996, and May 4, 1998." See Cobell v. Babbitt, 37 F. Supp. 2d 6, 37 (D.D.C. 1999). On April 6, 1999, plaintiffs submitted a Statement of Fees and Expenses claiming a total of $2,366,684.00 for the seven attorneys and experts involved in the trial. See Pls.' Statement of Fees and Expenses at 2. One month later, defendants responded to plaintiffs' claim. While conceding to the sanction award and accepting the rates demanded, defendants challenged the plaintiffs' claimed hours, alleging duplication, inadequate documentation, and inclusion of hours not "caused by" the acts of contempt. See Defs.' Resp. to Pls.' Statement of Fees and Expenses at 9-10. Defendants, eliminating "non-compensable" or undocumented time and applying monthly percent reductions to questionable remaining hours, suggested a $476,729.46 total award. See id. at 10. Plaintiffs replied on May 19, 1999, again asserting that defendants' contemptuous conduct "caused" them to incur all the included hours and proposing the award of the "uncontested" $476,729.46 before completion of the court's deliberation on the full request. See Pls.' Reply to Defs.' Opp'n to Pls.' Statement of Fees and Expenses Related to Defs.' Contemptuous Conduct [Pls.' Reply] at 3. Defendants moved for leave to file a surreply, arguing therein that they offered the $476,729.46 only in full resolution of the fee dispute. See United States' Surreply in Resp. to Pls.' Statement of Fees and Expenses [Defs.' Surreply] at 2 n.1. In the alternative, defendants argued again for exclusion of "unrelated" charges and application of monthly percent reductions. See id. at 2-3.

In light of the parties' continuing disagreement over the appropriateness of plaintiffs' fee requests, the court independently reviewed plaintiffs' submitted hours. After "painstaking review of each time entry," see Jones v. Clinton, No. 94-290, slip op. at 12 n.8 (E.D. Ark. 1999), the court awards expenses and attorneys' fees of $624,643.50.

I. Background

In 1996, this court certified a class of Native Americans, represented by the five named plaintiffs (FNP), to bring a claim against the federal government for mismanagement of trust funds. *fn1 See Cobell, 37 F. Supp. 2d at 11. Plaintiffs seek both a "retrospective" accounting of the government's Individual Indian Money (IIM) trust account system and a "prospective" court order requiring the government to align its management of the account system with statutory and common law requirements of trust management. See id. The case was bifurcated to address each of these issues separately. As the case inched toward trial, plaintiffs encountered a plethora of discovery obstacles. Significant among these obstructions was defendants' failure to comply with the court's November 27, 1996 Production Order and May 4, 1998 Scheduling Order regarding production of documents for the FNP and their predecessors in interest.

A. The Contempt Trial

On February 22, 1999, after determining that defendants had failed, as of the June 30, 1998 court-ordered deadline, see May 4, 1998 Scheduling Order ¶ 3(b), to comply with paragraph 19 of the court's First Order for the Production of Information ordering the release of "all documents, records, and tangible things which embody, refer to, or relate to IIM accounts of the five named plaintiffs or their predecessors in interest," see First Order for the Produc. of Information, ¶19, the court held the Secretary of the Treasury, the Secretary of the Interior, and the Assistant Secretary of the Interior in contempt of court. See Cobell, 37 F. Supp. 2d at 39.

In accordance with this contempt finding, and Federal Rule of Civil Procedure 37(b)(2)(E), the court awarded plaintiffs "all expenses and reasonable attorneys' fees caused by defendants' failure to obey the court's orders of November 27, 1996 and May 4, 1998." See id. at 37. Defendants readily conceded that they owed such fees. See id.

This case determines the amount of the attorneys' fees and expenses from that contempt holding. See id. The following discussion does not detail the merits or claims central to the underlying litigation, but tracks instead the progress, and frustration, of discovery, providing a background to the court's analysis of acceptable fee and expense awards.

B. Discovery

At the outset of the underlying litigation, plaintiffs and defendants agreed to jointly pursue a statistical sampling as an alternative to the complete accounting which, it appeared, the government would be unable to provide. See Defs.' Resp. to Pls.' Statement of Fees and Expenses (Defs.' Resp.) at 14. Consulting firms retained by each party, Arthur Anderson (AA) for defendants and Price Waterhouse Cooper (PwC) for plaintiffs, suggested sampling a certain number of records which, once fully assembled, could provide a guide for future analysis of other, perhaps less complete, files. By September or October 1997, however, the relationship between the co-samplers had begun to disintegrate. See Defs.' Resp. at 14; Defs.' Resp. at Ex. 3 (letter from Dennis Gingold dissolving the cooperative effort). Differences of opinion as to the number of records needed for a representative sample and the correct analytical method with which to study the selected files culminated in a dispute over PwC's selection, without defendants' representatives present, of 300 records for the study. See id. at Ex. 3, Ex. 4 (transcript, June 16, 1998 Status Call, 3:18-21). Plaintiffs, however, decided to move ahead with an independent sample using the selected 300 records. See id. at 14.

In January 1998, plaintiffs filed a Motion to Compel the production of documents related to the 300 record sample that they had detailed in their First Formal Request for Production of Documents. This request sought the release, "without any temporal limitations," of all documents, including any documents related to predecessors in interest or account beneficiaries, for the selected 300 IIM accounts. See Pls.' First Formal Req. for Produc. of Docs., at 1-2. Although the court ultimately denied plaintiffs' motion in April 1998, plaintiffs expended a great deal of time, energy, and resources on the sampling effort, including traveling to Phoenix and Portland in pursuit of necessary records. See Pls.' Reply at 14. By January 1999, as defendants admitted to the court that they "could not or would not" produce the FNP and predecessor in interest documents, a frustrated PwC stopped its sampling efforts, concluding that because necessary source documentation seemed permanently elusive, continuing the sample attempt was merely "wasting substantial time and money." See Pls.' Reply, Ex. 9, at 3 (Pollner Aff.).

Discovery conflicts between plaintiffs and defendants were not, however, limited to the sampling efforts. Conflicts also arose surrounding plaintiffs' efforts to retrieve documents for one of the named plaintiffs from the Bureau of Indian Affairs' (BIA's) Winnebago, Nebraska agency. On April 8, 1998, defendants informed plaintiffs that the desired documents were under a TRO issued by the Winnebago Tribe's Tribal Court. See Cobell, 37 F. Supp. 2d at 33. Thus, according to defendants, plaintiffs could not remove the documents pertaining to named plaintiff LaRose from the BIA offices. See id. The TRO in question was dissolved on April 30, 1998. See id. Rather than informing plaintiffs of the new document availability, however, defendants hid behind another excuse, this time the potential contamination of files and file storage areas with the deadly hantavirus, apparently transmitted through rat infestation. See id. While this risk might have prevented discovery between July and December, plaintiffs should have had access to the LaRose records between the TRO's dissolution and discovery of "infection" in July. See id. Although the documents were released in December 1998, their production was seriously and unnecessarily delayed, frustrating plaintiffs' efforts to collect FNP documents under paragraph 19 of the November 1996 Production Order, and even warranting a trip to the Winnebago site by plaintiffs' counsel. See Harper Aff., Ex. 6 (expense report showing November 25-29, 1998 trip to Winnebago by Native American Rights Fund (NARF) attorney Robert Peregoy).

Discovery fared no better closer to home. When plaintiffs attempted, during the spring of 1998, to depose important members of government agencies in pursuit of information regarding the general status of record maintenance within the IIM system, defendants filed Motions to Quash the depositions, as well a Protective Order against the deposing of high-level individuals. See Cobell, 37 F. Supp. 2d at 34. While the court denied defendants' Motions to Quash the depositions of key figures like former Special Trustee for American Indians at the Department of the Interior, Paul Homan, defendants' "tactics" caused much unnecessary delay. Although the resulting depositions did not, in most cases, shed light on the particular FNP documents contemplated by the court's violated Production and Scheduling orders, plaintiffs had spent considerable time not just deposing, but arguing their right to depose, the individuals in question.

The preceding account of discovery frustrations is far from complete, but it provides the necessary backdrop for the court's consideration of plaintiffs' fee and expense claims.

II. Attorneys' Fees

Attorneys' fees are generally computed according to the lodestar figure, reasonable rate times reasonable number of hours. See Hensley v. Eckerhart, 461 U.S. 424 (1983). The same figure is used when fees are awarded in conjunction with a Rule 37 contempt finding. See Weisberg v. Federal Bureau of Investigation, 749 F.2d 864, 872-73 (D.C. Cir. 1984) (determining a fee for a Rule 37 sanction by applying National Ass'n of Concerned Veterans v.

Secretary of Defense, [NACV], 675 F.2d 1319 (D.C. Cir. 1982), a case demonstrating and advocating use of lodestar figures). The D.C. Circuit has admonished, however, 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." See Copeland v. Marshall, 641 F.2d 880, 888 (D.C. Cir. 1980). In this case, the government possesses not only an "infinite ability to pay" attorneys' fees awards, but also an equally infinite "guilt" for the creation of many of those charges. See Cobell, 37 F. Supp. 2d at 36. Granting a fee award, especially in a "guilty government" scenario like this one, could be seen as providing a windfall to plaintiffs or an unprecedented burden on defendants. The court must, therefore, pay the utmost attention to confining properly the award within the appropriate, contempt-based grounds.

A. Reasonable Hourly Rate

On page four of the government's Response to Plaintiffs' Fee Applications, the government expressly states that it does not contest the rates asked by each of the seven involved attorneys. See Defs.' Resp. at 4. In accordance with the law of this district, the court will thus award the rates as requested, even though plaintiffs' counsel have not met the general standards for rate documentation. *fn2 See Covington v. District of Columbia, 57 F.3d 1101, 1106 (D.C. Cir. 1995) (not addressing hours based on defendant's concession to the reasonableness thereof); Shepherd v. American Broad. Cos., 863 F.Supp. 505, 510 (D.D.C. 1994) (awarding, without discussion, requested fees for one attorney because "[defendant] does not contest her rate nor the reasonableness of the ... hours she worked"). Rates will be awarded according to plaintiffs' own schedules:

Dennis Gingold: $373.75/hr, pre-6/5/98

$230.00/hr, post 6/5/98

Thaddeus Holt: $345.00/hr, pre 6/5/98

$230.00/hr, post 6/5/98

Native American Rights Fund (NARF):

Keith Harper $170/hr

Ronald Peregoy $170/hr

Lorna Babby $170/hr

John Echohawk $170/hr

James Kawahara $170/hr

The government attempts to condition its acceptance of Gingold's and Holt's fees to exclude a 15% expense charge incorporated in the provided rates, claiming that the inclusion represents "overhead" costs and inappropriate "out-of pocket" expenses. See Def.'s Resp. at 11, 12, 13. The court, however, does not find that an attorney's fee is divisible at will. The rate provided by plaintiffs is the rate plaintiffs claim to charge. Defendants may either accept or contest the provided figure, but they may not "pick and choose" aspects of the fee to criticize on a whim. The court will not, therefore, reduce Gingold's or Holt's presented rates.

B. Reasonable Hours

The second aspect of the attorneys' fees decision, reasonable hours, brings defendants and plaintiffs into great conflict. Defendants criticize several substantive areas of plaintiffs' selected charges. See Def.'s Resp. at 2-3. To offer a more "legitimate" assessment of the hours billed, the government moves through the submitted time sheets in a month-by-month analysis, suggesting, for each month, a percent reduction to exclude "inappropriate" charges and confine the award to contempt related submissions. See id. at 21-49. The government relies on a series of cases in which the fee recipient expended time on unrelated issues or unsuccessful claims. See id. at 7. While several of these cases featured cuts of up to 75% or 91% of the original hours, this was usually to reflect success of a single issue in a multiple issue case, see Andrade v. Jamestown Housing Auth., 82 F.3d 1179, 1191-92 (1st Cir. 1996) (prevailing on 1 of 5 claims); Zook v. Brown, 865 F.2d 887, 895-96 (7th Cir. 1989) (failing to prove several claimed issues), or to compensate for inclusion of excessive expenses, see Orson v. Miramax Film Corp., 14 F. Supp. 2d 721, 728 n. 7 (E.D.Pa. 1998) (reducing award by 75% for overcharging on copying and secretarial work). In the present case, plaintiffs prevailed on the discovery issue. What defendants actually challenge by questioning hours expended towards non-FNP issues are not failed claims, but claims that have not yet been evaluated. Furthermore, the defense uses percent cuts in the context of a monthly analysis rather than adhering to a pattern better established in this circuit of making across the board percent reductions for entire fee awards. See Shepherd v. American Broad. Cos., 862 F. Supp. 505, 510 (D.D.C. 1994) (declaring that a 10% reduction would clearly be within the court's power); In re North, 12 F.3d 252, 257 (D.C. Cir. 1994) (discounting final award by 30% on suspicion of inflated billing hours); Environmental Defense Fund, Inc. v. Reilly, 1 F.3d 1254, 1258-59 (D.C. Cir. 1993) (excluding one lawyer's fee for "grossly unreasonable" hour inflation); Kennecott Corp. v. Environmental Protection Agency, 804 F.2d 763, 768 (D.C. Cir. 1986) (remanding with an order for a 15% reduction for "bad documentation" of hours or a 1/3rd reduction for failure to prove all claims). While the government legitimately protests some included charges, neither its manipulation of percent reductions nor a more standard application can provide a truly fair accounting of plaintiffs' reasonable hours. *fn3

The February 22, 1999 contempt order provided that defendants should pay plaintiffs' "reasonable expenses, including attorneys' fees, caused by defendants' failure to obey [the two orders]." See Cobell, 37 F. Supp. 2d, at 39. This causal connection is not to be taken lightly. A near "but for" relationship must exist between the Rule 37 violation and the activity for which fees and expenses are awarded. See Westmoreland v. CBS, Inc., 770 F.2d 1168, 1179 (D.C. Cir. 1985) (requiring fees and expenses awarded to be "incurred because of" the sanctioned violation); Turnbull v. Wilken, 893 F.2d 256, 258 (10 th Cir. 1990) (remanding after finding the causal connection between the Rule 37(b)(2) violation and the fees assessed less than entirely clear). The court, recognizing the special care demanded when the "infinitely funded" government will foot the bill, see Copeland, 641 F.2d at 888, and acknowledging the need for clear connections between fee reductions and inappropriate activities, cannot allow broad, percent-based cuts to replace particularized examination. While the Supreme Court has recognized that the court cannot, and should not, have to evaluate each reported hour after the fact in most fee litigations, see Hensley, 461 U.S. at 433, this circuit has reminded that it "may on occasion, be necessary for the District Court to examine the original time logs." See Copeland, 641 F.2d at 905. This is one of those occasions. The court will evaluate first-hand both the substance of the disputed entries, and the particular recorded hours for each reported month. The court first examines the merits of the disputed types of included hours.

1. Substantive Issues

a. Travel Time

Both parties agree that attorneys may not bill for travel time, especially for a non-local attorney. See Defs.' Resp. at 9; Pls.' Reply at 9. Plaintiffs insist, however, that the "travel" charges they include, particularly Mr. Holt's December 6, 1996, "To/from Washington," relate to work done while in transit, not to the travel itself. See Pls.' Reply at 9; May 15, 1999 Holt Aff., at 2. The court agrees that the inclusion of travel time is inappropriate, especially when plaintiffs do not attempt to establish that a specific trip was "caused by defendants' failure to obey" the previous orders. Thus, the court eliminates all recorded travel hours.

b. General Discovery

Armed with a "but for" interpretation of the contempt holding, the government removes a large percent of hours billed for "general discovery." The government assumes that these "discovery" hours inevitably refer to "discovery not related to paragraph 19." See id. at 9-10. Problematically, the government's assessment of reductions depends in a large part on its reading of plaintiffs' short-hand descriptions of completed work. For instance, in their June 1997 analysis, the government decides that work under the headings "document production," "document problems," or "document issues" is not compensable since it does not specifically reference the FNP documents in question. See id. at 33. While defendants readily criticize these entries, they fail to suggest other document production, problems, or issues to which the entries might refer. Without such suggestions, and in view of the vast number of FNP problems and issues which the plaintiffs encountered, the court finds these labels adequate to indicate action on FNP documents. Although more descriptive labels would be preferable, the court will not eliminate time under broad or general labels.

c. Math Errors

Defendants assert that mathematical and clerical errors have resulted in an extra $39,753 for Gingold. See Defs.' Surreply at 3; Ex. 1 at 2 (noting mathematical errors of $36,000 for Gingold). Arthur Anderson both assessed these deficiencies and declared itself unable to resolve the flaws due to missing information. See Preber Decl., at 4. The court too has noticed discrepancies between Gingold's month-end hourly totals and the government's addition of the same listed terms. See Pls.' Reply, Ex. 7, at 4-5 ; Defs.' Surreply at 3, Ex.1, at 2.When parties' totals conflict or monthly totals appear unusually high, the court has provided its own summation of the billed hours. While plaintiffs are not directly penalized for their addition errors, where errors occur the court has used its own total, rather than the total proposed, from which to make any necessary reductions.

d. Depositions

The government seeks to remove all charges related to the Homan, Christie, Virden, Erwin, and Arthur Anderson personnel Preber and Lasater depositions, as well as plaintiffs' unsuccessful attempts to depose Shields, Cohen, and Perlmutter, insisting that these depositions did not provide information on the FNP or predecessor in interest documents. See Defs.' Resp. at 19. Plaintiffs claim, on the other hand, that each of these depositions sought information about document production, including production of documents for the FNP or their predecessors in interest. See Pls.' Resp. at 10. Having examined each of the successful depositions independently, the court allows the inclusion of time for the Christie and Virden depositions only. Although in a few of the other cases, the witness was asked for information regarding the production or status of documents relating to the FNP, see Erwin Dep., at 203:15-204:15, only Christie and Virden provided substantive information regarding the potential locations of, or sources for, those documents. See May 13, 1998, Christie Dep., at 216:4-19 (explaining that examining documents for the FNP took as long as for a 450 record sample, see May 12, 1998, Christie Dep., at 121:2-140:2, thus connecting his earlier testimony on the time needed to examine documents box by box to the FNP discovery); June 10, 1998, Virden Dep., at 105:19- 109:4, 111:9- 114:13, 120:12-121:12. Where other deponents described interactions among the various agencies involved in trust management, see May 27, 1998, Erwin Dep. at 98:7- 104:4, or provided detailed descriptions of the government's new accounting systems, see id. at 214:6- 219:11, Christie and Virden provided concrete information on where and how documents were kept; information vital to uncovering the requested FNP documents. Had defendants produced the FNP documents as requested, plaintiffs would still have needed general information on the accounting and managerial programs in place at BIA. They would not, however, have needed descriptions of how to locate the FNP documents they would have already possessed.

The court also allows time spent in pursuit of Perlmutter's deposition. As plaintiffs stated in their Opposition to Defendants' Consolidated Motion for Protective Order and to Quash Subpoenas Directed to Willa Perlmutter, Edward Cohen, and Anne Shields at 19, plaintiffs had testimony from Christie indicating that Perlmutter was directly responsible for stopping document production efforts. Had the government produced the FNP documents and avoided contempt of court, plaintiffs would not have needed to question Perlmutter, the person behind the failure to produce. While plaintiffs would include Cohen and Shields by association, the court finds no direct link between either of these individuals and the FNP documents which would warrant awarding time for plaintiffs' pursuit of their depositions. Although plaintiffs have made little effort to distinguish their work on the Perlmutter, Cohen, and Shields deposition motions from the motions surrounding the Homan deposition, the court has considered any work on a "Motion to Quash" or "Motion to Compel" during June 1998, the month in which the relevant motions were entered, as related to Perlmutter's, Cohen's, and Shields's depositions. *fn4

e. Price Waterhouse Cooper

Plaintiffs request a total of $1,232,276 in fees and expenses for PwC, claiming that these charges directly relate to defendants' failure to produce the paragraph 19 evidence. See April 26, 1999 Pollner Aff. at 1, 4. The majority of these fees come from payments to PwC involving the 300 record sample from which plaintiffs hoped to create an alternative to a complete accounting. See Pls.' Reply at 11-12. According to plaintiffs, "but for defendants' misconduct... plaintiffs would never have spent hundreds of thousands of dollars... pursuing futilely a useless statistical equivalent of an accounting." See id. The court, however, questions the directness of the connection between this "futile" sampling attempt and defendants' failure to produce FNP documents. Defendants remind that the sampling was originally proposed as a joint effort which disintegrated when plaintiffs refused to redraw the 300 record sample in front of government witnesses. See Defs.' Resp. at 14. Defendants further allege that PwC's original plan did not even require the unproduced records for the FNP and their predecessors in interest to generate a successful sample. See Defs.' Surreply at 5. Although plaintiffs argue that the failure to produce the FNP documents drove PwC to conclude that production of documents for the selected 300 sample members would not be forthcoming, and thus to abandon the sample effort, see Pls.' Reply at 13-14, the court finds this line of causation tenuous at best. While PwC's frustrations have proven entirely rational, the fact that defendants' failure to produce documents unrelated to the search in question motivated PwC's independent decision to abandon the sample method does not mean that the abandonment of the survey was caused by the defendants' failure to comply with the November 1996 and May 1998 orders. While it is true that the documents for plaintiffs' sample were not produced in a timely fashion, those specific documents are not included in paragraph 19 of the November 27, 1996 Production Order and are specifically excluded from paragraph 3(b) of the May 4, 1998 Scheduling Order. Plaintiffs cannot, therefore, in connection with this contempt proceeding, collect fees or expenses for any of their sampling activities. The court does not, of course, mean to indicate that these fees and expenses are not recoverable if plaintiffs ultimately prevail in this litigation.

Plaintiffs include trips to Phoenix and Portland for record inspection in the costs of producing the failed sample, claiming again that had they known about defendants' intention to default on the court production order sooner, they would have abandoned the sample effort sooner, preventing the creation of these travel costs. See Pls.' Reply at 14. As in the underlying PwC assessment, the links in plaintiffs' chain of causation seem rather weak. While plaintiffs might have convincingly argued that the sample was only one purpose of the trips, and that at least a portion of the costs should be recovered, see Defs.' Resp. at 17 (quoting September 15, 1997 letter from PwC to Gingold), they have only weakly and without any clear support raised that claim. See April 2, 1999 Pollner Aff. at 14 (claiming, without alleging any apparent factual basis, that had PwC known of the FNP document failure, only 312 hours would have been expended). The court will deny all awards related to the Phoenix and Portland trips.

Defendants finally challenge plaintiffs' pursuit of a spring 1997 meeting with representatives of both the BIA and the Bureau of Land Management (BLM) as related to plaintiffs' 300 record sample, rather than the unsubmitted FNP documents. See Defs.' Resp. at 17, Ex. 8 (Pollner letter to Perlmutter requesting discussion of general aspects of "systems and processes currently in place" at BIA and BLM). Plaintiffs do not attempt to address this claim. The court will, therefore, remove time billed in preparation for and attendance at the BLM/BIA meeting.

f. Evidentiary Issues

Since the February ruling, plaintiffs and defendants have engaged in a constant tug-of-war over plaintiffs' submissions of fee documents. Claiming that the records submitted constituted "summaries" and thus violated the NACV standards for "sufficiently detailed information" on claimed hours, see Defs.' Resp. at 5 (citing NACV, 675 F.2d at 1327), defendants asked plaintiffs for the original time records from which the submitted summaries were prepared. See id. at Ex. 2. Plaintiffs say they faxed the records. See Pls.' Reply at Ex. 5; May 17, 1999 Gingold Aff. at 1-2. Defendants claim they did not get the complete records, see Defs.' Surreply at 9, but cite extensively to one such record as evidence of the "faults" in the original submissions, see id., at Ex. 2-3. Although at trial Gingold and Holt asserted that the court and the defendants have the only billing statements that exist currently, see Transcript, Day 20, 3631:13-15, the court cannot assess from the records provided which and what kind of hours the plaintiffs themselves removed. Without such evidence, plaintiffs fail to demonstrate that their cuts sufficiently respond to the government's challenges. As Holt, for instance, fails entirely to provide descriptions of previously deleted hours, the court can offer no "leeway" for his attempts to respect the government's claims. Additionally, Gingold's method of reporting his post-edit hours presents clarity problems. He does not provide an item-by-item breakdown of his fees before his April 1997 Weekly Sanctions Billing Statement #2. Thus, for the period before April 6, 1997, Gingold offers no insight into the amount of time appropriate to remove should the court find part of an entry unrelated to the FNP documents. The court must "approximate" a reduction for these hours. While the court accepts plaintiffs' claims that they have submitted to both the defendants and the court "the only [records] that have been created," see Transcript, Day 20, 3631:15, it recognizes the questions that these records do not and cannot resolve. In undertaking its own monthly analysis, the court has, therefore, relied when necessary on a proportional method of delegating time to individual items within a list of charges.

2. Itemized Analysis

a. Method

As Copeland, 641 F.2d at 905, reminds, a court must occasionally examine each hour submitted in pursuit of attorneys' fees. Following this principle the court has chosen to complete its own analysis of billed hours, applying a mathematical proportion to determine the specific time for each element within a list of items when so required. The court has analyzed every charge for each of the seven participating attorneys, examining the charges separately, and where possible, eliminating only the recorded portions of an entry directly related to a nonconforming charge. Where vague recording or complex entries prevent the court from tying exact recorded hours to specific charged items, the court has approximated time for those elements in proportion to their percent of the complete charge. *fn5 The total of these particularized reductions are then subtracted from each month's claimed hours to provide a new monthly total. *fn6 The court hopes, through the application of these steps, to have as accurately as possible reduced only the charges not directly relating to justified FNP issues in accordance with its substantive assessments. While the court will articulate the reasons for the majority of each month's reductions, it has attached the complete analysis to the back of this opinion. See Appendix A.

b. The Monthly Analysis

1. November 1996

a. Gingold

Only Mr. Gingold enters charges for November 1996. The 5.5 hours claimed all involve work on class certification issues, issues not directly tied to the FNP document production. The court denies all of these hours.

2. December 1996

a. Gingold

Gingold claims 55.3 hours for December 1996. Most of that time was spent attempting to secure copies of computer files under paragraph 1 of the November 27, 1996 Production Order, selecting documents for PwC's analysis, preparing a case "progress report," and pursuing other non-paragraph 19 documents. The court reduces his hours to 34.51.

b. Holt

Holt's most disputed December 1996 charge is for 7 hours of travel "to/from Washington." See Holt Aff., Ex. 1, at 1. The court rejects the claimed traveling time and an additional quarter of an hour for work on paragraph 2 issues. Holt's time is reduced from 10 hours to 2.75.


Harper's hours will be reduced from 5.5 to 5 for time spent debating "ethical conflicts," case scheduling, and mineral issues. See Harper Aff., Ex. 2, at 14. Kawahara, the only other NARF attorney seeking December 1996 hours, will receive the 4.6 hours claimed.

3. January 97

a. Gingold

Gingold spends most of his January 1997 time pursuing submission of the paragraph 1 computer cartridges. Again, this belongs to a class of discovery necessary whether or not the government produced the FNP documents on time. A few additional hours were spent on PwC's sample plan and the Mineral Management Service (MMS). The court reduces Gingold's hours from 26.3 to 11.64.


Mr. Harper's time is reduced from 3.35 hours to 2.69 hours to compensate for time spent assessing case status and handling the media. *fn7 Mr. Peregoy's billing requires similar reductions, from 6.4 hours to 2.1 hours, for his assistance on case status preparation as well as his work on class certification, ethical questions, the PwC plan, and ensuring NARF's place on the government's "service list." See Harper Aff., Ex. 3, at 1/22/97. Kawahara's hours decrease from 4 to 2.9 in light of his contribution to the case status efforts.

4. February 1997

a. Gingold

In February 1997, Gingold spent over 7 hours preparing for the BLM/BIA meeting and working with PwC on its 300 record sample. His hours are reduced from 23.5 to 16.23 to compensate for this non-paragraph 19 time.


Harper spent several of his February hours working on case status information, plaintiffs' request for interim relief, sovereignty issues, and the PwC sample. The court reduces his hours from 4.45 to 1.7. Peregoy's hours decrease from 3.75 to 2.2 for his work towards the February status conference. The court also rejects one hour of Kawahara's claimed 3.5 for his work on case status and government expert witnesses.

5. March 1997

a. Gingold

Gingold receives 16.6 of his 28.3 claimed hours for March 1997 primarily because of work for the BLM/BIA meeting and attention to the PwC sample.


Harper included a variety of inappropriate charges in his March 1997 claim. Hours representing work on case status, interim relief, PwC correspondence, and "special master research" have been removed to generate a new monthly total of 1.1 hours from his claimed 8.25. Peregoy continued his status conference work, requiring rejection of 0.8 hours of his 4.4 hour claim. Echohawk spent all of his 1.3 hours on non-compensable sample work.

6. April 1997

a. Gingold

Gingold spent significant portions of April 1997 working towards the BIA mtg and organizing the upcoming field trips for sample data collection. His hours are reduced from 23.6 to 4.08.


Harper records April 1997 time for continuing work with PwC's sample plan and special master issues, as well as for planning the BIA meeting and the Phoenix field trip. He will receive 4.35 of the claimed 18.05 hours.

Peregoy receives only 0.2 hours of the 1.5 claimed hours because of his work on case status reports, while Kawahara receives 0.6 of 7.1 hours billed because of his efforts towards the PwC sample and the request for interim relief.

7. May 1997

a. Gingold

Gingold's May 1997 hours are consumed by his efforts towards the Phoenix and Salt River trips. He receives 4.24 of the 43.4 claimed hours.

b. Holt

Holt seeks 1.3 hours for work during May 1997. A portion of his time, however, relates to both the site visits and the PwC sample. His hours are therefore reduced to 0.9.


All of the NARF attorneys spent significant amounts of time in May 1997 not only preparing for, but also traveling to Phoenix for the site inspections. Unfortunately, this time, required by the PwC sample, does not directly relate to paragraph 19 production of FNP documents. Harper receives 5.05 of the 43.15 hours claimed; Peregoy can validate only 1.5 of his desired 49.1 hours; and Kawahara obtains 1.3 hours from a 35 hour bill.

8. June ...

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