United States District Court, District of Columbia
ELOUISE PEPION COBELL, by and through TURK R. COBELL, as the personal representative of her estate, et al. Plaintiffs,
SALLY JEWELL, Secretary of the Interior et al. Defendants.
MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE
the Court will close what may be the final major dispute in
two decades of hard-fought litigation. Plaintiffs, Native
Americans whose lands were held in trust by the Department of
the Interior, sought to remedy a century of wasteful trust
mismanagement. They obtained a stunning victory which brought
about trust reform and a significant recovery for the
plaintiff class. Helping them in their quest was a team of
attorneys whose dedication and tenacity deserve high
commendation. One of those attorneys was Mark Brown. After
this case settled in 2009, Plaintiffs' counsel moved for
an award of attorney's fees and costs. Brown was omitted
from the motion, as were the hours he spent litigating this
matter. He now petitions this Court for his share of the fee
matter was initially referred to the undersigned for a Report
and Recommendation on Brown's petition for attorney's
fees [Dkt. 3699]. The parties later consented to the
undersigned's making a final determination of Brown's
petition [Dkt. 4201]. After reviewing the parties' many
filings and holding a five-day evidentiary hearing on the
matter,  the Court will grant in part and deny in
part Brown's petition.
AND PROCEDURAL HISTORY
abbreviated timeline of this case and the present fee
petition will help place the rest of the decision in context.
In the late nineteenth and early twentieth centuries, the
United States had a policy of dividing Native American lands
into smaller parcels, to be held in trust by the Department
of the Interior for the benefit of individual Native
Americans. See Plaintiffs' Amended Complaint
[Dkt. 3671] ¶ 17. These parcels of land generated
income, which was placed into what are commonly referred to
as “Individual Indian Money” accounts.
Id. ¶ 2. Plaintiffs filed this class action in
1996 against the Secretary of the Interior, alleging that the
Department had mismanaged these accounts and the land it held
in trust. Id. ¶ 3-4. Plaintiffs sought an
accounting from the government and an order compelling the
government to reform its trust practices. Id. ¶
bench trial in 1999, Judge Lamberth found that the government
had violated several of its trust duties. See Cobell v.
Babbitt, 91 F.Supp.2d 1, 6 (D.D.C. 1999). The Court of
Appeals affirmed this finding in 2001. See Cobell v.
Norton, 240 F.3d 1081, 1086 (D.C. Cir. 2001). The rest
of this case's life has been spent overseeing the
Department's accounting and the reform of its trust
many years of hard fought litigation, the case ultimately
settled in 2009. Because of its enormous size - in the
billions of dollars - the settlement required congressional
approval, which did not come until late 2010. See
Plaintiffs' Motion for Preliminary Approval of the
Settlement [Dkt. 3660] at 1. After Congress signed off on the
settlement, the matter came back to this Court for final
approval. Within the settlement agreement was a separate
agreement on payment of class counsel's fees.
Id. That agreement provided that Plaintiffs'
counsel could apply for fees by motion and, most importantly,
that neither party would appeal a fee award that fell within
the range of $50-99.9 million. Id. at 15-16. Judge
Hogan, who had inherited the case earlier in 2010, held a
fairness hearing in June 2011 and approved the parties'
settlement. See Final Order Approving Settlement
[Dkt. 3850] at 4. Judge Hogan also awarded Plaintiffs'
counsel $99 million in attorney's fees. Id. at
9-10. The Court of Appeals affirmed Judge Hogan's
approval of the settlement in 2012. See Cobell v.
Salazar, 679 F.3d 909, 913 (D.C. Cir. 2012).
according to Brown, something was missing from
Plaintiffs' fee application: his hours spent litigating
the case. When Plaintiffs' counsel submitted their motion
for an award of fees in January 2011, they did not name Brown
among class counsel and did not seek compensation for the
time he expended in the case. See Plaintiffs'
Motion for Attorney's Fees and Expenses of Class Counsel
[Dkt. 3678]. He intervened in the case a month later and
asserted that he ought to be paid out of class counsel's
fee award. See Petitioner's Response to
Plaintiffs' Motion for Attorney's Fees [Dkt. 3699].
In his original petition, Brown sought compensation for
approximately 11, 500 hours of time, totaling about $5.5
million. See Id. Judge Hogan tabled the dispute by
placing in escrow the amount Brown claimed and awarding
Plaintiffs' counsel the balance of the $99 million fee
award. Final Order Approving Settlement [Dkt. 3850] at
series of unsuccessful mediations, Judge Hogan referred the
matter to the undersigned for resolution of Brown's fee
petition. May 12, 2015 Referral Order [Dkt. 4124]. The
undersigned held a hearing, heard testimony from several
witnesses, accepted hundreds of exhibits, and heard legal
argument from Plaintiffs and Brown. On this robust record,
the Court is now prepared to issue its decision.
following findings of fact are based on the record adduced
during the Court's five-day evidentiary hearing. Two
introductory notes are in order. First, Brown filed
objections to several affidavits Plaintiffs offered during
the hearing. He also filed two motions in
limine prior to the hearing - one regarding the
affidavit of the late Elouise Cobell, lead class
representative, and one regarding the testimony of Bill
Dorris, a Kilpatrick Townsend & Stockton
(“Kilpatrick Stockton”) attorney who entered the
case in 2004 and continues to represent Plaintiffs
today. The Court sees little value in addressing
each of the voluminous objections in detail here. Instead, it
will overrule the objections except as stated otherwise in
this decision. Most pertain to the weight, rather than the
admissibility, of the evidence. And even to the extent some
piece of evidence was partially or potentially objectionable
- such as an item of evidence whose relevance was informed by
context, or some statement that would be hearsay if offered
for one purpose but not if offered for another - the Court
accepted the evidence for what it was worth, disregarding
objectionable portions. See Harris v. Rivera, 454
U.S. 339, 346 (1981) (“In bench trials, judges
routinely hear inadmissible evidence that they are presumed
to ignore when making decisions.”); United States
v. Microsoft Corp., 253 F.3d 34, 101 (D.C. Cir. 2001)
(upholding use of summary witnesses in bench trial despite
danger of hearsay because the judge is presumed to ignore
inadmissible evidence); Flanagan v. Islamic Republic of
Iran, Civil Action No.: 10-1643 (RC), 2016 WL 3149560,
at *22 n.22 (D.D.C. June 3, 2016) (noting that even if
certain record evidence at a bench trial contained hearsay,
there was no danger of the Court's being improperly
influenced by it).
almost every witness in this case had the potential to give
biased testimony. Brown, who was his own primary witness, of
course stands to win a large sum if he convinces the Court he
is entitled to a fee award. But the Court also appreciates
that, as was made clear at the hearing, every dollar not
awarded to Brown will go from the escrow account to
Kilpatrick Stockton, the firm that provides sole
representation for Plaintiffs today. As such, several of
Plaintiffs' witnesses, including Kilpatrick Stockton
partners David Smith and Bill Dorris, have a direct financial
interest in the outcome here. See 4/22 Tr.
139:12-22, 143:5-144:1, 199:11-25, 234:13- 19; 5/25 Tr.
127:14-128:2. To be sure, some witnesses on each side do not
have such an interest, like Dennis Gingold, who served as
lead class counsel from the inception of the Cobell
case until 2012, whose interest in this case Kilpatrick
Stockton bought out when it took over as lead counsel.
See 4/21 Tr. 261:5-20. Nevertheless, the Court took
the testimony of each of the potentially biased witnesses for
what that testimony was worth, considering the danger of
possible bias, the witness's prior consistent or
inconsistent statements, corroborating evidence, and the
witness's demeanor during the hearing. See,
e.g., Cruise Connections Charter Mgmt. 1, LP v.
Attorney General of Canada, 55 F.Supp.3d 156, 177
(D.D.C. 2014) (recognizing that one witness was interested in
the outcome but that his testimony should be credited because
it was “cogent and unequivocal”); Faison v.
Dist. of Columbia, 893 F.Supp.2d 143, 149 n.5 (D.D.C.
2012) (concluding that the plaintiff was an interested
witness and only partially credible because of her
“tendency to exaggerate when it might help her
case”). The Court's findings of fact based on that
testimony and the entire record follow.
Brown has been an attorney since 1979. 4/20 A.M. Tr.
20:12-18. Prior to working on the instant case, he was
employed as a partner in a respected Los Angeles law firm.
Id. He met Dennis Gingold, lead class counsel, in
the early nineties. Id. 20:23-21:11. After
Plaintiffs won the first trial before Judge Lamberth in 1999,
Gingold recommended to the lead class representative, Elouise
Cobell, that she engage Brown to work on the case. See
Id. 22:11-21; 4/21 Tr. 227:15-18; Brown Ex. 1 at 1;
Affidavit of Keith Harper [Dkt. 4204-1] ¶ 2. She agreed
to do so. Brown Ex. 1 at 1. Brown accepted her offer to join
the Cobell team in January 2000, resigned his
position in California, and moved to Washington, D.C. to work
on the Cobell matter full-time. 4/20 A.M. Tr.
21:12-16, 25:3-11, 28:17-29:13.
agreement - which is at the heart of the parties' dispute
- is memorialized in letters of engagement from several of
the class representatives to Brown. Id. 29:14-30:6;
see Brown Ex. 1 (containing four engagement
letters). The evidence showed that Brown signed two of the
letters - from Cobell herself and from her charitable
foundation, the Blackfeet Reservation Development Fund
(“BRDF”) - on March 3, 2000. Brown Ex. 1 at 6, 8.
The letters provided that Brown would be compensated on a
contingency basis. See Id. at 1. Specifically, Brown
was to receive, subject to approval from this Court, two
percent of “the total upward adjustment in the
aggregate trust funds standing to the credit of the trust
beneficiaries as a result of the litigation or its
settlement.” Id. The letters also stated that
Brown's customary billing rate was $350 per hour.
Id. Brown testified that his billing rate was
included in the letters for future fee applications. 4/20
A.M. Tr. 36:6-10. The letters further provided that Brown
would be reimbursed for monthly trips back to California.
Brown Ex. 1 at 2; 4/20 A.M. Tr. 26:5-17. In his testimony,
Gingold noted that he gave Brown some information to include
in the letters, but that Brown drafted the letters himself.
4/21 Tr. 209:7-14.
March 3, 2000 engagement letters that Brown signed also
incorporated the terms of Plaintiffs' engagement letters
with Gingold, Thaddeus Holt, and Elliott Levitas, other
founding members of the litigation team. Brown Ex. 1 at 1;
4/20 A.M. Tr. 30:16-31:7. Those letters, dated April 14,
1999, provided a contingent fee arrangement for Gingold,
Holt, and Levitas and authorized the attorneys to seek
interim fee awards under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412 (2016). Brown Ex.
2 at 2. Any interim award under the EAJA would reduce the
amount payable to counsel from any later contingent fee
April 1999 engagement letters also contained a provision
regarding the death, withdrawal, or disability of any
Cobell attorney. That provision, which has become
the focal point of the present dispute, reads in full:
If any of the counsel dies, withdraws, or becomes disabled
prior to the completion of his work under this agreement, he
shall be entitled to a portion of the fee (and all expenses
to date of the disability, death, or withdrawal) to which he
would otherwise have been entitled, also taking into account
the services rendered by his sub-retained counsel. The
payment will be made at the same time as other counsel are
paid and shall represent the value of his services to the
death, disability or withdrawal, taking into account the
total fees payable to legal counsel.
Brown's Early Work on Cobell
Brown was only to be paid on contingency and as interim EAJA
awards might permit, he lived simply after moving to
Washington. He resided in Gingold's basement and the two
drove together to and from work each day. 4/20 A.M. Tr.
28:10-20. As might be expected in a case of this magnitude,
workdays were long and tiring. See Id. 42:13-22,
63:16-64:14 (observing that the team worked “seven days
a week” during the 2000-2003 period). The team had no
secretaries or paralegals and worked in tight office space.
Id. 44:16-25, 45:24-46:6, 65:1-12.
as lead counsel, was generally in charge of assigning work
and coordinating litigation strategy. Id.
42:23-43:16; 4/21 Tr. 226:11-24; 4/22 Tr. 41:2-8. Brown
undertook significant work at Gingold's behest. This
included many tasks typically expected of trial counsel,
including drafting and revising filings, researching legal
issues, participating in attorney conferences, and taking and
defending depositions. See, e.g., 4/20 A.M. Tr.
69:7-24 (motions practice); id. 73:4-12 (took Donna
Erwin deposition); 4/20 P.M. Tr. 208:17-21 (prepared and
defended Elouise Cobell's deposition); id.
211:13-212:15 (discussing time spent in attorney conferences
with Elouise Cobell). Brown also took the lead early-on in
negotiating a fee dispute with Price-WaterhouseCoopers, an
accounting firm to which Plaintiffs owed a great deal of
money. 4/20 A.M. Tr. 45:1-20. Brown was able to successfully
negotiate a payment arrangement that averted the need for a
huge one-time outlay to settle the PWC bill. Id.
remand from the Court of Appeals in 2001, affirming Judge
Lamberth's ruling that the government had breached its
trust duties, this Court maintained jurisdiction to oversee
the government's efforts to bring itself into compliance
with its trust obligations. During this time, several
collateral matters arose and were litigated. In the
proceedings that culminated in what is known as the
“Contempt II” trial, the Court held the Secretary
and Deputy Secretary of the Interior in civil contempt.
Cobell v. Norton, 226 F.Supp.2d 1, 1 (D.D.C. 2002);
4/20 A.M. Tr. 46:17- 47:8. During the two-month Contempt II
trial, Brown sat at counsel's table and assisted Gingold
and the other class counsel, including Levitas and Keith
Harper. 4/20 A.M. Tr. 47:9-22. Although he helped prepare
some witnesses for the trial, he did not actually examine any
witnesses at trial. Id. The Contempt II ruling was
ultimately reversed on appeal. Id. 48:22-49:11;
Cobell v. Norton, 334 F.3d 1128, 1150 (D.C. Cir.
conclusion of the Contempt II trial, the Court scheduled
another trial, later termed the “Phase 1.5”
trial, to decide what further injunctive relief should be
awarded to ensure that the government was moving
expeditiously to reform its trust practices. Id.
51:16-25. The four-month Phase 1.5 trial occurred in
mid-2003. Id. 52:5-6. Brown participated, along with
Gingold, Levitas, and Harper. Id. 53:22-54:4. In
preparation for that trial, Brown aided in relevant discovery
practice and defended two of the named class representatives
in deposition. Id. Unlike the previous trial, Brown
examined witnesses. Id. 52:9-53:12. He also assisted
the team in preparing proposed findings of fact and
conclusions of law. Id. 54:8-13.
result of the trial, Judge Lamberth issued a structural
injunction against the Department of the Interior mandating
several specific actions to bring the Department into
compliance with its trust duties. Cobell v. Norton,
283 F.Supp.2d 66, 287-95 (D.D.C. 2003). The Court of Appeals
reversed the entry of the structural injunction in 2004 based
on limiting language in a congressional appropriations act
enacted in November 2003, known as the “Midnight
Rider.” Co-bell v. Norton, 392 F.3d 461, 478
(D.C. Cir. 2004). When the Midnight Rider expired by its own
terms in late 2004, Judge Lamberth reissued his structural
injunction without modification or further hearing.
Cobell v. Norton, 357 F.Supp.2d 298, 302-07 (D.D.C.
2005). The Court of Appeals again vacated the injunction in
late 2005 and began to limit the scope of the accounting the
government was required to provide. Cobell v.
Norton, 428 F.3d 1070, 1078-79 (D.C. Cir. 2005).
Alleged Problems with Brown and His Work
allege that, during the period following the Court of
Appeals' 2001 ruling, Brown's performance
“began to create problems.” Cobell F&C at 8
¶ 24. Brown disagrees, alleging that he adequately
performed all duties assigned to him. The parties presented
voluminous testimony and evidence on these alleged problems.
Brown's Work with the Special Master
1999, with the government's consent, Judge Lamberth
appointed a special master to oversee the accounting and
trust reform process. 4/21 Tr. 147:14-24. Judge
Lamberth's appointee, Alan Balaran, was given
considerable authority and responsibility to manage this
process. Id. 147:25-148:15. Initially, Gingold
assigned Brown to represent Plaintiffs before the Special
Master. Id. 148:16-149:8. He did so because of
Brown's proficiency in litigating discovery and
evidentiary matters, many of which arose during proceedings
before the Special Master. See 4/21 Tr. 233:17-21,
258:4-6 (noting that Brown was “very good on
between Brown and the Special Master eventually soured. The
Special Master reported to Gingold that, during a meeting
with the Department of Justice at the Special Master's
office, Brown asked whether the Special Master had
“early onset Alzheimer's.” 4/21 Tr. 151:23-
152:24. The Special Master reached out to Gingold
to express his displeasure with the remark and intimated that
Plaintiffs should not expect favorable results if Brown
continued to participate in proceedings before him.
Id. 152:25-153:3. The Special Master did not order
Brown not to appear before him, but Gingold testified that
the Special Master's tone and phrasing stopped just short
of such an order. Id. 235:2-23; 4/22 Tr. 82:5-83:3.
Gingold determined that Brown could no longer work with the
Special Master and resumed those duties himself. 4/21 Tr.
another instance, Brown assisted in drafting a brief in
support of a motion for attorney's fees made to the
Special Master. In one of the brief's footnotes, Brown
included a picture of a crying fish. 4/21 Tr. 57:24-58:6.
This image was intended to lampoon the government for its
complaints that class counsel's fees were excessive.
See Id. 59:1-60:1. Gingold told Brown to remove the
picture before filing the brief, but Brown insisted that it
be included. Id. 153:11-154:9. Brown counters that
Gingold “specifically asked it to be left in.”
Id. 58:7-8. The image was left in. See
Cobell Ex. 20 at 37. Gingold testified that the Special
Master became quite upset upon seeing the image. 4/21 Tr.
153:11-154:9. In his decision on the motion for fees, the
Special Master noted the presence of a “fish shedding a
tear” in Plaintiffs' brief. Cobell Ex. 20 at 37. He
ultimately deducted 75% of all the time spent preparing the
Findings and Conclusions for the Phase 1.5 Trial
testified that Brown's work on the Phase 1.5 trial did
not pass muster. 4/21 Tr. 163:16-165:5. During the trial,
Judge Lamberth informed the parties that he would request
findings and fact and conclusions of law to aid him in
drafting his decision. Gingold, Brown, and the rest of the
team split up the hard task of combing through the evidence
presented at trial to formulate the proposed findings. 4/20
A.M. Tr. 121:19-122:13. Gingold asserted that he found
Brown's work on the findings to be subpar. 4/21 Tr.
163:16-165:5. First, Brown decided to use his own formatting
style which did not blend easily with that used by the rest
of the attorneys. Id. Specifically, Brown cited
evidence for each finding of fact in footnotes, rather than
in endnotes as the rest of the team had done. 4/20 A.M. Tr.
122:3-123:3. Second, Gingold felt that Brown did not
consistently cite the best support for each proposed finding.
4/21 Tr. 164:10-165:5. Gingold perceived it as Brown's
lack of judgment as to which evidence best supported the
proposed findings and conclusions. Id. In his
frustration, Gingold sent out what Brown characterized as an
“apoplectic” memo criticizing Brown's work.
4/20 A.M. Tr. 123:2-12. Brown defended his formatting
decisions, arguing that the team's decision to cite
evidence in endnotes rather than footnotes made the task of
revising draft versions of the document too difficult.
Brown's Relationships within the Litigation Team
also testified as to Brown's inability to get along with
other members of the litigation team. He claimed that, while
“some people were extremely cooperative and easy to
work with, others weren't.” 4/21 Tr. 141:13-20. He
called Brown “the extreme outlier” on the
uncooperative end of the spectrum and stated that
“Mark's conduct was beyond the norm.”
Id. 142:2- 5. Gingold testified that he became
frustrated when Brown would fight with him over even minute
changes Gingold requested in Brown's work. Id.
139:23-140:1. To Gingold, working with Brown was onerous
because everything became a debate. Id. 142:6-14.
While he admitted that Brown was not always wrong in these
situations, Gingold maintained that, whatever the merits of
Brown's position, Gingold simply did not have time to
argue with Brown about every issue. Id. 164:23-
165:5. Instead, it appears that Gingold simply wanted Brown
to comply with his orders as lead class counsel. Gingold
added to this entire discussion the caveat that he did not
believe it was appropriate to single out Brown's
behavior, given the high-stress environment in which all
class counsel toiled for many years on end. Id.
defended himself in cross-examination regarding working with
Gingold, claiming that, although Gingold was a
“creative” lawyer, he had significant weaknesses.
Not the least of these, in Brown's view, was his overly
aggressive language in briefing and obsessive focus on
obtaining sanctions against the government lawyers.
See 4/20 P.M. Tr. 222:18-225:5. Smith, a Kilpatrick
Stockton attorney who entered the case in late 2004 and still
represents Plaintiffs today, admitted that Gingold was
“a true workaholic” who demanded the same
dedication from his fellow lawyers and would not hesitate to
point out if he believed that co-counsel was “lapsing
in [his] attention to the case.” 4/22 Tr. 126:11-22.
Smith further testified that Gingold “could be
difficult to work with” at times. Id.
171:5-11. Dorris, another Kilpatrick Stockton lawyer who
joined the team at the same time as Smith, stated that
Gingold was “brilliant” and “the
hardest-working person I've ever worked with.” 5/25
Tr. 32:16-33:10. Dorris also conceded, like Smith, that he
was confident that he had heard a Kilpatrick Stockton lawyer
complain about working with Gingold at times, although he
could recall no specific instances of such a complaint.
Brown's relationship with Gingold was strained, his
relationship with Geoffrey Rempel was toxic. 4/20 P.M. Tr.
226:2-16 (Brown describing Rempel's behavior toward him
as “hostile and odd”). Rempel, an accountant,
worked as a sort of manager on the team. See 4/20
A.M. Tr. 62:19-63:5. Among other duties, Rempel coordinated
all the teams of expert witnesses who assisted
Plaintiffs' counsel and helped calculate settlement
distributions. Smith testified that Rempel could be direct
and “intense” in his manner. 4/22 Tr.
126:23-127:14; see also 5/25 Tr. 162:12-22 (Dorris
testifying that Kilpatrick Stockton attorneys and staff had
at times complained about working with Rempel). Nevertheless,
Smith stated that Rempel was brilliant in his work. 4/22 Tr.
126:23-127:14. Gingold, in his testimony, claimed that he
received no complaints from Kilpatrick Stockton attorneys
about Rempel. Id. 47:2-24. Brown stated only that he
had “issues” with Rempel, 4/20 A.M. Tr. 59:5-11,
but Gingold testified that the two were usually “at
war, ” 4/21 Tr. 140:1-3. Gingold stated that Rempel
claimed that Brown treated him as a mere clerk, asking him to
do menial tasks like mailing Brown's letters. 4/21 Tr.
140:9-20. Brown complained that Rempel would not give him his
faxes. 4/20 A.M. Tr. 59:5-60:2. Gingold instructed the two to
put aside their disagreements and work together for the good
of their clients, but it is fairly clear from the record that
they never worked well together. 4/21 Tr. 140:1-8.
produced Ruth Hargrow, a legal secretary at NARF during the
time in question, and Neill Freeman, an expert retained by
the Cobell team, to testify on his behalf about the
interpersonal difficulties on the team. Hargrow testified
that NARF attorneys found Gingold difficult to work with and
called him a “snake.” 4/21 Tr. 104:13-17. She
also stated that Rempel was “condescending, rude, and
disrespectful, ” and that he would often yell at Brown
and NARF attorneys. Id. 101:3-102:6. Brown, by
contrast, was, in Hargrow's opinion, respectful,
pleasant, and professional. Id. 99:3-100:9. As an
expert, Freeman worked principally with Rempel. Id.
115:6-116:6. Freeman testified that Rempel was very difficult
to work with because he was “arrogant, ”
“demanding, ” “combative, ” and
“insulting.” Id. 117:23-119:7. Freeman
described Brown as “respectful” based on their
limited interactions. Id. 116:4-7, 119:17-18.
Harper, an attorney for NARF and one of the primary members
of Plaintiffs' litigation team, submitted an affidavit in
opposition to Brown's 2011 petition. In it, Harper
averred that he generally enjoyed a cordial and professional
working relationship with Brown. Affidavit of Keith Harper
[Dkt. 4204-1] ¶ 3. Harper noted, however, that
“Brown would not always comply with the decision made
by the litigation team after long deliberations. At times, he
would continue an approach inconsistent with the agreed one
and the interest of the plaintiff class.” Id.
Harper maintained that, despite these professional
differences, he and Brown worked “cooperatively for
several years.” Id.
around 2003, when the Brown-Rempel conflict became
unmanageable, Gingold asked Harper to work principally with
Brown. 4/21 Tr. 154:10-22. Harper agreed to take on that
role. Harper averred that “over time, that role became
untenable because Mr. Brown and I had differences of opinion
and he would too often not follow direction. It became easier
for me to just assume tasks he was performing rather than
constantly monitoring his work product.” Affidavit of
Keith Harper [Dkt. 4204-1] ¶ 4. Brown testified that
Gingold remained “fickle” even after this
reassignment, however, sometimes giving Brown projects when
deadlines loomed. 4/20 P.M. Tr. 268:18-25. Brown viewed it as
a circular exercise in which he was trying to ameliorate
interpersonal difficulties while Gingold would ignore the
problem until he forgot about it entirely. See id.
own testimony, Brown highlighted his good relations with the
Kilpatrick Stockton lawyers on the team. He described Mark
Levy, a Kilpatrick Stockton appellate lawyer, as
“brilliant” and stated that the two had “a
very good working relationship.” 4/20 A.M. Tr.
94:23-95:2. Similarly, he testified that he liked the other
Kilpatrick Stockton attorneys, that he “had no problems
with any of them, ” and that he “[thought] they
were gentlemen [and they] viewed [him] the same way.”
Id. 95:3-15; id. 230:23-231:2. Dorris
corroborated Brown's statements, testifying that while
Brown had a “fractured” relationship with others
on the team, he and Brown “always had a very pleasant
relationship.” 5/25 Tr. 34:10-15.
Brown pointed to several distinct instances in which a member
of the team complimented his work. For instance, in 2005 Levy
called one of Brown's research memoranda
“excellent.” 4/20 A.M. Tr. 91:19-93:3. Another
Kilpatrick Stockton partner, David Zachs, deemed one of
Brown's draft motions “good work.”
Brown's Workload Decrease and 2005 Partial
of the deteriorating relationships between Brown and other
members of the Cobell team, he began to receive
fewer and fewer assignments. This is reflected in his
timesheets, which show a precipitous drop in the hours Brown
expended on the case in 2003 and 2004. See Brown Ex.
3 at 307-452; 4/21 Tr. 25:24-26:11. According to his
timesheet tables, Brown logged 1318.929 hours in 2004,
878.023 hours in the first half of 2005, and 122.393 hours in
the second half of 2005. Brown Ex. 3 at 400-80. See
also 4/21 Tr. 26:12-27:12; Brown Ex. 4 (Brown's
subtotals by year, listing 1320.75 as the 2004 total, and 590
as the total for all of 2005).
2003, Gingold's displeasure with Brown became more
apparent. On October 6, 2003, Gingold sent an email to the
entire team except Brown, instructing that Brown's name
be omitted from all signature blocks on all filings unless he
“drafted or otherwise contributed to [the filing]
materially.” Brown Ex. 7. Around the same time, Brown
claimed, Gingold began to assign him more “back
room” type work. This included drafting research
memoranda, motions to compel discovery, and other discovery
motions that could be completed without much interaction with
other team members. 4/21 Tr. 27:5-12. Gingold perceived Brown
to be less involved in the case during this period,
testifying that he saw Brown less and less at the office from
November 2004 until the start of the IT Security trial in May
2005. Id. 155:16-157:11, 245:9-17 (referring to
Brown's “prolonged absence” from November
2004 until May 2005). Gingold denied any aware- ness of work
performed by Brown during this period. Id. 246:4-17.
Harper echoed this observation. Affidavit of Keith Harper
[Dkt. 4204-1] ¶ 5 (“Brown began to disengage from
the case more and more, especially in 2005 . . . [and] I saw
very little of him in the office or court
found these denials specious, since it was Gingold who
“cut [him] out of the projects.” 4/21 Tr.
29:9-20. Brown maintained that he continued to work a few
feet away from Gingold in their office space. 4/21 Tr.
29:9-20. Brown believed he continued to perform meaningful
work during the 2003-2005 period - all at Gingold's or
Harper's behest - pointing to various assignments he
completed, including the statutory retroactivity research
memorandum, the Erwin fee petition, a motion related to the
Contempt II trial, a motion requesting the remedy of
disgorgement against the government, a draft amended
complaint, and other motions and research projects. 4/20 A.M.
Tr. 66:12-106:8; 4/21 Tr. 250:2-258:6; 4/22 Tr. 15:20-36:22.
Despite souring relations on the team and a decreasing
workload, Brown was still working on projects in the
Cobell case, including preparation for the IT
Security trial, described below. See 4/20 A.M. Tr.
the end of 2004, at Elouise Cobell's request, the
Kilpatrick Stockton firm ramped up its involvement in the
case. See 4/20 A.M. Tr. 100:19-102:6; 4/22 Tr.
20:1-11. Kilpatrick Stockton had previously been involved
primarily with appellate matters. 4/20 A.M. Tr. 100:19-
102:6. In late 2004, it added two partners, Smith and Dorris,
to work on the trial team in anticipation of an increasing
workload. Id.; 4/22 Tr. 104:24-105:8; id.
200:1-11. Kilpatrick Stockton also assigned paralegals and
associates to the team. 4/22 Tr. 153:5-14. Finally,
Kilpatrick Stockton moved the entire Cobell team to
its Washington office. 4/20 A.M. Tr. 65:16-18.
defining point during this period was the “IT
Security” trial. On April 25, 2005, after the Court of
Appeals vacated the structural injunction, Judge Lamberth
ordered that a trial would be held on the security of the
Department of the Interior's computer systems and the
state of their recordkeeping. See Apr. 25, 2005
Order [Dkt. 2946]; 4/22 Tr. 106:2-21. Judge Lamberth ordered
that the trial would begin approximately two weeks later, on
May 2, 2005. Id.
testified that, although Brown attended the early days of the
IT Security trial and sat at counsel's table, he made no
meaningful contribution to the trial effort and did not
examine any witnesses. 4/22 Tr. 112:4-113:1. Brown himself
admitted that he played a “supporting role” for
the trial, drafting pocket briefs and doing other needed
research. 4/20 A.M. Tr. 106:13-107:3. In Smith's view,
Brown was unable to participate because he had not reviewed
the records needed to examine the witnesses. 4/22 Tr.
112:18-22. Brown attended debriefing sessions after each day
in trial, but Smith attested that Brown made no substantive
contribution. Id. 111:20-112:12. Dorris testified
that Brown appeared “disengaged” from the trial
and “did not have his heart” in the task.
beginning of the end for Brown's work on Cobell
took place during the middle of the trial. On May 25, 2005,
the government informed Judge Lamberth that it would take
months to produce its emails and electronic records, which
were held by a third-party vendor, Zantaz. 4/20 A.M. Tr.
110:5-112:1. Plaintiffs responded that they needed those
documents immediately to examine witnesses during the trial.
Id.; 4/21 Tr. 163:5-15; 4/22 Tr. 113:6-18. Gingold
testified that the production was “critical”
because it would shed light on the government's
destruction of records related to the case. 4/21 Tr.
Lamberth instructed Smith to confer with John Siemietowski
from the Department of the Interior and representatives from
Zantaz to reach a resolution. 4/20 A.M. Tr. 111:23- 112:14;
4/22 Tr. 115:1-15. Brown asked to participate in the meeting
and Smith initially seemed happy to have his help and the
knowledge he had gleaned from his work with the Special
Master. 4/20 A.M. Tr. 112:7-14; 4/22 Tr. 116:6-17. They left
the courthouse and met at Kilpatrick Stockton's office.
4/20 A.M. Tr. 112:21-113:12; 4/22 Tr. 115:22-116:17.
to Smith, Brown's participation in the meet-and-confer
with the government derailed efforts to resolve the
production problem. 4/22 Tr. 116:18-117:14. Smith observed
that Brown focused too much on berating the government for
not producing the records sooner, while Smith believed that
it was more appropriate to move past that issue and focus on
how they could be produced most quickly. Id. Smith
testified that Brown was “caustic” in his manner
and that his behavior was inappropriate, particularly in
light of Judge Lamberth's order that Smith lead the
meeting on Plaintiffs' side. Id. Smith noted
that Brown had not been participating in the prior weeks of
negotiations and that Smith did not, as a result, expect
Brown to take an active role in the discussion. Id.
118:3-12. Smith maintained this view on cross-examination,
testifying that, although he agreed with Brown's
conclusion that the emails should have been produced earlier,
he did not think his criticism of Brown's approach
constituted “Monday morning quarterbacking.”
Id. 161:9-19. Rather, Brown's approach
“was inappropriate in that context at that time when
you had a judge asking me to handle something.”
Id. 161:9-19. Brown himself testified that the
meet-and-confer was “perfectly cordial” and
resulted in “some progress” being made. 4/20 A.M.
Smith, Brown, and the others returned to the courtroom to
report their failure to resolve fully their disputes. 4/22
Tr. 119:7-120:12. Judge Lamberth then ordered Smith and
Siemietowski to again confer with Zantaz to resolve the
problem. 4/20 A.M. Tr. 113:9-13. But Smith was on deck to
examine the next witness at the trial, so Judge Lamberth
allowed Harper to handle the second meeting. Id.;
4/22 Tr. 120:5-12. As Harper headed for the door, Brown
pulled him aside to ask if he should attend. 4/20 A.M. Tr.
113:19-21. Harper doubted that Brown would be of value, but
Brown prevailed upon him. Id. 113:19-114:1. As
Harper, Brown, and Rempel (also present at the second
session, at Harper's request) were walking to the
conference room, Rempel told Brown that Gingold did not want
Brown to participate in the meeting. Id. 114:2-9. It
does not appear that Brown ever heard this from Gingold
directly. See Id. Brown asked why, and Rempel
replied, “because you did such a crappy job on the
Zantaz hearing, ” which had occurred nearly two years
prior. Id. 114:10-12. Brown termed this
characterization “ridiculous” and ignored
Rempel's instruction. Id. Brown testified that
Harper, who overheard this exchange, did no more than shake
his head at “another example . . . about how
dysfunctional this team is.” Id. 125:1-9.
Harper did not second Rempel's request that Brown not
attend the meeting. Id. 125:1-17.
did aver later that Brown's participation stymied efforts
to reach a resolution because he “was not sufficiently
familiar with the record.” Affidavit of Keith Harper
[Dkt. 4204-1] ¶ 6. At some point, Harper asked Brown not
to participate further in the second meeting. Id.
Brown claimed he said “not a word” at the second
meeting. 4/20 A.M. Tr. 125:10-21.
testified that, approximately twenty-five minutes from the
time the lawyers left to confer about the Zantaz issue,
Harper returned the courtroom to tell Gingold,
“You've got to get Mark out of the room.”
4/21 Tr. 137:11-138:11. Harper elaborated, “Mark is
ruining the negotiation. He doesn't know what he's
talking about. He hasn't been around. And you got to get
him out or we're going to have a disaster on our
hands.” Id. 138:12-16. Gingold instructed
Brown, standing nearby, not to return to the conference room.
Id. 138:17-20. Brown insisted that he would return.
Id. 138:21-139:1. Incensed, Gingold directed Brown
to leave the courtroom, which he did. Id.
138:25-139:2. Later that afternoon, the parties successfully
resolved most of the Zantaz issues. See 4/22 Tr.
testified that it was unusual for Harper, who had a
“very easygoing personality, ” to say such things
about co-counsel. 4/21 Tr. 139:2-11. Harper had been willing
to work with Brown in the past. Id. After the trial
concluded for the day, Harper approached Gingold at the
office and told him, “I will not work with Mark Brown
anymore, period.” Id. 139:12-15; Affidavit of
Keith Harper [Dkt. 4204-1] ¶ 6 (“As a result of
this incident and the cumulative effect of working with Mr.
Brown over time, I expressed disinterest in continuing to
monitor his work for this case.”).
leaving court on May 25, 2005, and presumably after the above
conversation with Harper, Gingold sent the following email to
Once again you have decided to ignore my direct instructions.
This is the last time. If you do so again, I will request
that Elouise terminate your engagement. Specifically, without
my express prior approval, henceforth, you shall not
participate in any negotiations or discussions with
defendants, their counsel, or their contractors. Your
performance this afternoon is inexcusable. Moreover, with
respect to the ongoing IT evidentiary hearing, you are not
expected to cross-examine witnesses or make oral arguments.
Further based upon the concerns that I previously had raised
with you concerning your performance in the preparation of
the trial 1.5 proposed findings and conclusions, you will not
be relied on in that regard in this evidentiary hearing. To
the extent you are requested to prepare briefs or memoranda,
such work will be done only at the request of Keith - and
only if he chooses to do so. Otherwise, your participation in
this litigation is suspended. If you have questions or
disagree with anything in this regard, you may take them up
with Elouise directly. Following the conclusion of this
hearing, we will reevaluate the nature and scope of your
continued participation, if any, in this litigation.
I expect you to follow these instructions.
Ex. 14 at 1-2. The Court questioned Brown as to what Gingold
might have meant by his “[o]nce again”
admonition, but Brown testified that he did not know of any
instance in which he had previously ignored Gingold's
instructions. 4/20 A.M. Tr. 120:17-121:8. He claimed that
“[t]he only blowup we previously had was over the
formatting of the findings of fact in Trial 1.5.”
email itself indicates and as Gingold confirmed at the
hearing, Gingold did not speak with Cobell prior to sending
this “suspension” email. 4/22 Tr. 39:17-40:21.
Instead, he stated that he talked the matter over with Harper
and Rempel and decided to suspend Brown pursuant to his
authority as lead class counsel. Id. In fact,
Gingold testified that he “had not raised with [Cobell]
any issues [he] was having with Mr. Brown” prior to May
25, 2005. Id. 41:22-42:14.
responded to Gingold's email that evening, stating
As you may recall, at the lunch break I mentioned to you that
I had reviewed the August 2002 Zantaz transcript and prepared
a line of questioning for the Zantaz witness - to which you
responded “Good.” Your response gave me no
suggestion that you did not want me to participate in the
Zantaz matter, so I accompanied David Smith to Kilpatrick
Stockton for that conference call over the lunch hour.
To the best of my knowledge, in participating in the
conference with Siemietowski and Keith, I believed I was
following your instructions to take direction from Keith. As
Keith got up from counsel table to go and confer, I asked him
if he wanted me to attend. He asked if I had been a party to
the telephone conference earlier in the day with the Zantaz
California personnel, and I said I had. He then asked me to
As, Keith, Geoffrey and I walked to the conference room,
Geoffrey in his usual insulting manner suggested that I stay
behind because in his mind I had supposedly done a
“crappy” job asking questions at the Zantaz
briefing more than two years ago. Naturally, this was the
first I had heard of any complaint about my performance with
respect to such briefing. Indeed, they did not even recall
that I had attended [sic] Keith heard the entire exchange
and, despite the three of us caucusing for a few minutes
before Siemietowski and Carol Wolf came in, I had no
indication from Keith that he did not want me present. As I
have indicated in the past, I will be happy to work with
Keith. Kilpatrick Stockton asked me several days ago to work
on the appellate brief. Are you prohibiting me form do [sic]
that - or should I discuss it with Keith?
Ex. 14 at 1. Brown clarified at the hearing that when he
wrote, “[a]s I have indicated in the past, I will be
happy to work with Keith, ” he was referring to
“frictions” between himself and Rempel in
mid-2004 that led Gingold to reassign oversight of Brown to
Harper. 4/20 P.M. Tr. 265:23-267:8. Gingold replied:
My letter stands. If KS wants your assistance on appellate
matters, its entirely between you and KS. I take no position
in that regard. Nor did I take any position on, or discuss
your involvement in, appellate issues in my email to
you of this date. My email is solely related to trial court
matters [sic] If you wish to discuss the scope of your
continuing engagement in this litigation, you should have
them with Keith, KS, and/or Elouise. I'm sure that you
have a better working relationship with them because it is
clear that ours is no longer tenable. I have not raised this
matter with Elouise. You are certainly free to do so if you
wish and you and she are free to work out whatever you both
think is appropriate.
Ex. 14 at 3.
that evening, after the email exchange with Gingold, Brown
sent an email to Harper in which he recounted a voicemail
message Siemietowski had left for him that evening regarding
the next steps to take in retrieving the Zantaz records.
Brown Ex. 60. Brown proffers the email as evidence that he
did not derail the Zantaz meet-and-confer efforts, suggesting
that the government lawyer chose to call Brown, rather than
Rempel or Harper, to tie up loose ends related to Zantaz.
4/20 P.M. Tr. 131:1-133:15.
Brown's Post-Suspension Work and Return to
the heated exchange on May 25, 2005, Brown nevertheless
continued to work on the case, largely independently of the
rest of the Cobell team. See 4/20 P.M. Tr.
133:21-134:9. Nevertheless, Brown testified that it
“became harder for [him] to find work” after the
May 2005 row with Gingold. 4/20 A.M. Tr. 120:13-16. Though
Gingold instructed him not to, Brown spent - and seeks
compensation for - substantial time reviewing transcripts of
the IT Security trial and preparing proposed findings and
conclusions for the trial before and after May 25, 2005.
See Brown Ex. 3; 4/21 Tr. 9:5-11:9, 165:22-166:25
(Gingold testifying Brown's conduct was contrary to what
he instructed). He never told anybody that he was preparing
the findings and conclusions. 4/20 A.M Tr. 109:10-110:5; 4/21
Tr. 13:23-14:3. His work was made unnecessary when Judge
Lamberth informed the parties toward the end of the trial
that no proposed findings and conclusions would be required.
4/21 Tr. 14:16-20. When Brown later sent his draft findings
and conclusions to Austin, Austin expressed surprise in light
of Judge Lamberth's directive. Id. 14:4-15;
Affidavit of Bill Austin [Dkt. 4202-2] ¶ 9. Brown did
not know about Judge Lamberth's announcement, since he
was not at the trial. 4/21 Tr. 14:4-15; 4/22 Tr.
claims he was only doing his job of keeping abreast of the
case. 4/20 A.M. Tr. 109:10-110:9; 4/21 Tr. 11:1-9. He further
asserted that he provided value to the team by uploading the
daily transcripts to make them easily accessible to
co-counsel. 4/20 A.M. Tr. 109:10- 110:9; 4/21 Tr. 15:10-16:2.
But Brown only uploaded the transcripts into his own
database, housed on his computer, generally inaccessible to
his co-counsel. 4/21 Tr. 16:3-17:8, 21:12-17; 4/22 Tr.
19:14-20. He claimed he would provide information from his
database to Gingold, counsel for NARF, and others at their
request, but provided no evidence of any such request -
instead, he stated that his co-counsel had done so in the
past and that he assumed they would do so again. See
4/21 Tr. 16:3-17:8, 21:12-17. Dorris testified that
Kilpatrick Stockton had its own database for transcripts and
never knew about or used Brown's database. 4/22 Tr.
19:21-20:18. Indeed, Brown's computer returned with him
permanently to California in January 2006, removing any
possibility of its access by other team members. 4/21 Tr.
wake of the trial, Brown's participation in the
litigation diminished further. The parties disagreed sharply
as to the cause and extent of diminution. At the hearing,
Brown's counsel tried to elicit testimony from Gingold
that his May 25, 2005 emails were calculated to prevent Brown
from being able to work on the case. For instance, Gingold
conceded that he directed Brown to seek work from Harper
despite knowing that Harper had that day told Gingold that he
would not work with Brown any longer. 4/22 Tr. 58:21-59:17.
Nevertheless, Gingold claimed that he expected Brown to be
able to get work from Kilpatrick Stockton given the huge
appellate workload facing the team at that time. Id.
64:1-65:3. Gingold maintained that the suspension was not
intended to “deep six” Brown from the
Cobell team entirely, but to “minimize
whatever the personality conflicts were occurring in the
trial court.” Id. 65:1-3.
testified that he gave Brown no more work after May 2005.
See 4/22 Tr. 65:4- 66:1. Austin averred that he
learned from Gingold about the interpersonal clashes during
the IT Security trial and he agreed to work with Brown.
Affidavit of Bill Austin [Dkt. 4202-1] ¶¶ 6-8.
Gingold told Austin that he had instructed Brown to contact
Austin to request assignments. Id. ¶ 8. Gingold
testified that he heard from Austin that he had work to give
but that “Mark never called him.” 4/22 Tr.
66:9-25. Similarly, Dorris testified that Austin contacted
him to get his go-ahead to give Brown some appellate work.
Id. 211:6-19. Smith testified that he never saw
Brown at the office after May 2005, save one appearance
around the time of a September 2005 oral argument in the
Court of Appeals. Id. 173:15-24; see also
Id. 205:3-21 (Dorris testifying that he did not see
Brown again after his May 2005 partial suspension until the
mid-September 2005 oral argument, while admitting that he
split that period of time between Washington and Atlanta).
Smith admitted, with noticeable reservation, that Brown's
suspension might have lead Brown not to come in to the
office. Id. 173:25-174:14.
hearing, Brown presented evidence showing that he performed
some work following the IT Security trial and his partial
suspension. For instance, on August 25, 2005, he provided
comments on an appellate brief drafted by Austin. 4/20 P.M.
Tr. 135:2-24; Brown Ex. 16. He did not draft the brief, nor
was he specifically consulted for his commentary.
See 4/20 P.M. Tr. 135:9-24. Instead, he offered his
comments sua sponte in conformity with the normal
practice on the team, which was to circulate drafts to all
attorneys for comment and edits. Id. Brown admitted
that this type of commentary typified most of his work at the
time and that he “wasn't receiving actual
projects.” Id. 135:18-21, 141:24-142:8 (Brown
testifying that he did not receive assignments from anyone
during this period save “an assignment or two from Mr.
Levy”); see also Brown Ex. 17 (August 30, 2005
email containing comments on draft brief produced by Austin);
Brown Ex. 19 (October 11, 2005 email containing comments on
draft letter written by Austin); 4/20 P.M. Tr. 257:25-258:9
(Brown testifying that his comments on Austin's work were
not “projects” but mere responses to
“invitations to all members of the team” to edit
and comment); 4/21 Tr. 29:21-30:11 (same). Nevertheless, at
this time, Brown maintained his Washington residence and his
office in Kilpatrick Stockton's Washington offices. 4/20
P.M. Tr. 136:8-17.
mid-September 2005, Brown offered to help Austin prepare for
an oral argument before the Court of Appeals. 4/20 P.M. Tr.
137:18-138:10; Brown Ex. 18. Austin never took him up on the
offer, and Austin performed so poorly at the argument that,
according to Brown, Gingold “put [him] out to
pasture.” 4/20 P.M. Tr. 138:11-141:1; but see
4/22 Tr. 207:4-208:1 (Dorris testifying that it
“wasn't Bill Austin's finest argument”
but that “he did admirably under the
circumstances”). Brown entreated Austin for work in
August 2005, asking him to “keep him in mind” for
any substantive projects that might arise. 4/20 P.M. Tr.
142:9-143:7. But again, no work came, except some small
projects from Mark Levy, a Kilpatrick Stockton appellate
lawyer. Id. Brown never followed up with additional
requests for work. 4/21 Tr. 30:18-31:10. Brown stated at the
hearing that he didn't receive projects from Austin
because, following Austin's argument before the Court of
Appeals, Gingold “sent [Austin] to Siberia.”
Id. 31:6-14; but see 4/22 Tr. 208:2-209:1
(Dorris testifying that Austin was not “exiled to
Siberia” but continued to work on the case for years).
Brown considered that following up with Austin on his request
for work would be construed as “nagging.” 4/20
P.M. Tr. 31:25-32:10.
testified that, after November 2005, Plaintiffs faced a
“dark” period. That month, the Court of Appeals
vacated the structural injunction for the second time and
limited the scope of the accounting the government had to
perform. 4/22 Tr. 209:17-25; Cobell v. Norton, 428
F.3d 1070, 1077-78 (D.C. Cir. 2005); see also 4/21
Tr. 76:4-18 (Brown testifying that the Court of Appeals'
November 2005 order “had some positive aspects to it,
it had some negative aspects to it”). Also at this
time, the Court of Appeals vacated the disconnect order
issued following the IT Security trial. 4/22 Tr.
210:21-211:3; Cobell v. Kempthorne, 455 F.3d 301,
317 (D.C. Cir. 2006).
the November 2005 decision from the D.C. Circuit, Brown
sought no more assignments from Kilpatrick Stockton, save one
assignment he completed for Levy during that month. 4/21 Tr.
32:11-34:19. According to Dorris, although Kilpatrick
Stockton lawyers made no effort in late 2005 or in 2006 to
contact Brown or give him appellate work, “[their]
perspective was that if Mark wanted work, he would come to us
and seek that work out.” 4/22 211:20-212:2. However,
Dorris admitted that he was not the “point
person” for assigning work to Brown and knew only that
no colleagues had reported to him that Brown had sought out
work. Id. 212:1-15. Dorris testified that he gave
Brown no work nor instructed any other lawyer at Kilpatrick
Stockton to do so. 5/25 Tr. 160:19-161:6. Brown's
position is that he turned down no work assigned to him and
that, contrary to the view of Plaintiff, it was the other
members of the team who refused to give him work. According
to Brown, he was “frozen out” by the other
members of the Cobell team after his May 2005
next key juncture in Brown's engagement in
Cobell came in mid-January 2006. At that time, he
moved back to California. 4/20 P.M. Tr. 9-18. He did not tell
anyone he was leaving. 4/21 Tr. 35:20-39:19, 74:21-75:10;
4/22 Tr. 212:17-213:6 (Dorris testifying that no Kilpatrick
Stockton lawyer knew where Brown had gone, only that
“he seemed to have just left”); Affidavit of Bill
Austin [Dkt. 4202-2] ¶ 10. Brown stated that the last
time he spoke with Gingold was probably the
“funereal” lunch following Austin's argument
before the D.C. Circuit in September 2005. 4/20 P.M. Tr.
144:2-145:3. Brown admitted that he had no final conversation
with Gingold before he departed. Id. 145:14-23.
explained his departure as being consistent with his usual
practice and suggested that he could be reached for work in
California. Id. Further, in 2001, Gingold had
mentioned to Brown that he should move back to California and
work from there. Id. At the time Brown left, the
Cobell class was still represented by Gingold,
Harper, NARF attorneys, and dozens of lawyers from Kilpatrick
his departure, Brown performed almost no additional work on
the Cobell case, although he repeatedly claimed in
his testimony that he remained ready and willing to accept
new assignments. See 4/20 P.M. Tr. 150:20-151:1;
4/21 Tr. 35:20-23. Brown felt he remained “on
call” after his return to California. Id. He
stated that, although he was given no new work, he kept
up-to-date on the case from California by monitoring the
Court's docket. 4/20 P.M. Tr. 145:5-9. However, he spent
no time on the case in 2006, and in 2007 he only expended
eighteen hours reviewing an attorney's fee petition that
included some of his time. See Brown Ex. 3 at 481.
continued to pay rent to Kilpatrick Stockton for his
subleased space in its Washington office until sometime in
2007, when Dorris called him to ask if the firm could use the
space. 4/20 P.M. Tr. 185:14-186:3; 4/22 Tr. 213:7-214:12.
During that conversation, Brown asked Dor-ris whether he
would receive any more assignments, and Dorris stated that it
was unlikely. Id. Brown agreed to give up the space.
4/20 P.M. Tr. 185:14-186:3. At the hearing, he testified
that, since his return to California, he had reentered
private practice part time. Id. 199:10-20, 234:9-
testified that he heard nothing from Brown for over fifteen
months after his January 2006 departure. 4/21 Tr. 170:16-20;
see also Brown Ex. 20. Brown broke the silence late
in April 2007. See 4/21 Tr. 75:11-18. After the
Court of Appeals vacated the injunction resulting from the IT
Security trial and reversed a class communication order, the
case was reassigned to Judge Robertson. Cobell v.
Kempthorne, 455 F.3d 301, 317 (D.C. Cir. 2006);
Cobell v. Kempthorne, 455 F.3d 317, 335-36 (D.C.
Cir. 2006). In April 2007, Judge Robertson granted a petition
from Plaintiffs for payment of attorney's fees related to
the “GAO” and “Erwin” sanctions. Apr.
20, 2007 Order [Dkt. 3312]. Judge Robertson then scheduled a
trial for October 2007 to determine whether the government
continued to be in breach of its accounting obligation. 4/20
P.M. Tr. 147:7-12; Apr. 20, 2007 Order [Dkt. 3312].
emailed Gingold on April 24, 2007:
Congratulations on obtaining the April 20th order from
Robertson. I am prepared to participate in the October trial
and its preparations. Let me know how I can help.
Ex. 20. Brown testified that he sent this offer of assistance
because Gingold was “somewhat fickle” and, given
the passage of time since the May 2005 quarrel, Gingold might
be ready to accept him back into the team. 4/20 P.M. Tr.