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8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11

12 SCOTT JOHNSON, Case No. 17-CV-06762-LHK

13 Plaintiff, ORDER GRANTING IN PART DEFENDANTS' MOTION FOR 14 v. ADMINISTRATIVE RELIEF

15 MAPLE TREE INVESTORS, et al., Re: Dkt. No. 41 16 Defendants. 17 18 On October 8, 2019, Defendants filed a motion for administrative relief, requesting that the 19 Court order Plaintiff to provide an unredacted line-item fee invoice in compliance with General 20 Order 56. ECF No. 41 (“Mot.”). Plaintiff filed an opposition. ECF No. 44 (“Opp’n”).1 21 Defendants filed a court-ordered reply, requesting in the alternative that the Court order Plaintiff 22 to provide a full and unredacted version to the Mediator and a redacted version to Defendants. 23 ECF No. 46 (“Reply”). The Court GRANTS in part Defendants’ request, as explained below. 24 General Order 56 provides that, “[i]f the parties reach a tentative agreement on injunctive 25 relief, plaintiff shall forthwith provide defendant with a statement of costs and attorney’s fees 26

27 1 Because every page in Plaintiff’s refiled Opposition is numbered “1,” the Court’s citations to this document are to the ECF pagination. 1 incurred to date.” General Order 56 further provides that, if requested, a plaintiff “should provide 2 documentation and support for its attorney’s fees similar to what an attorney would provide in a 3 billing statement to a client.” 4 The information Plaintiff has provided to Defendants is a billing summary that identified 5 twelve billers as attorneys, and the total number of hours and amounts billed by each biller. ECF 6 No. 41-1 at 6. There is no description of what, when, and for how long the billers performed any 7 tasks in this case. 8 Despite Defendants’ request for more information, Plaintiff refuses to provide anything 9 further and argues that General Order 56 does not require Plaintiff to provide any more 10 information, citing the word “should” in the General Order. Opp’n at 3. The Court disagrees with 11 Plaintiff’s interpretation of the word “should,” which would render the provision without meaning. 12 Opp’n at 3–4. Because Plaintiff has not identified any reason that merits an exception, General 13 Order 56 requires that Plaintiff provide “documentation and support for its attorney’s fees” to 14 Defendants. 15 Plaintiff also refuses to provide more information on the basis that such information is 16 protected by attorney-client privilege. Opp’n at 1–2. The Court finds that California law does not 17 squarely address the privilege in this context. The California Supreme Court has held that, 18 “[w]hen a legal matter remains pending and active, the privilege encompasses everything in an 19 invoice, including the amount of aggregate fees.” Los Angeles Cty. Bd. of Supervisors v. Superior 20 Court,

(2016). However, the same opinion also contemplated an exception 21 where “this very same information no longer communicates anything privileged, because it no 22 longer provides any insight into litigation strategy or legal consultation,” such as for “legal matters 23 that concluded long ago.”

. 24 Here, the request for billing invoices comes after the parties’ agreement on statutory 25 damages and remedial measures. Reply at 2. Defendants note that the “scope of injunctive relief 26 has been agreed for months.”

Plaintiff even acknowledges that Defendants have already 27 “voluntarily removed the barriers at issue in this case.” Opp’n at 2. The parties are planning to 1 engage in mediation to resolve the amount and reasonableness of attorney’s fees. Reply at 2. 2 Plaintiff further argues that “no level of redaction can protect the privilege.” Opp’n at 5. 3 However, Plaintiff previously publicly disclosed information of this nature, such as the description 4 of Plaintiff’s attorney Mary Melton’s work when she was “tasked with rescheduling the site 5 inspection.” ECF No. 20 at 2. Mary Melton is listed as one of the attorney timekeepers in 6 Plaintiff’s billing summary, ECF No. 41-1 at 6, and Plaintiff does not explain why such 7 descriptions would be unworkable. Moreover, Plaintiff represented in a declaration to the Court 8 that he has already provided “an unredacted copy of the billing statement in this matter to the 9 mediator,” ECF No. 44-1 at 2. The Court finds that fee information may be disclosed without 10 “provid[ing] any insight into litigation strategy or legal consultation.” See Los Angeles Cty. Bd. of 11 Supervisors,

. 12 Importantly, the Court agrees with Defendants’ concerns that a contrary interpretation of 13 General Order 56 would allow plaintiffs’ attorneys to improperly inflate attorney’s fees. This risk 14 would not only contravene the spirit of General Order 56 but could incentivize plaintiffs’ attorneys 15 to forgo meaningful relief for their clients over attorney’s fee disputes. These concerns are 16 particularly prevalent here, where the record reveals unusual behavior from Plaintiff’s attorneys. 17 These deviations include “two failed attempts to conduct a joint site inspection,” during which 18 Plaintiff failed to appear but Defendants showed up as scheduled, incurring “substantial attorneys’ 19 fees and costs.” Mot’n at 2. These failed attempts without prior notice to Defendants resulted in 20 multiple administrative motions for Plaintiff to comply with General Order 56, see ECF Nos. 18, 21 25, 26. 22 In fact, the Court issued an Order to Show Cause to Plaintiff and instructed Plaintiff to file 23 a written response to explain why the case should not be dismissed for failure to prosecute. ECF 24 No. 19. The Court described how, following Plaintiff’s failure to appear at the first scheduled site 25 inspection, Defendants’ counsel received no response to “multiple emails to Plaintiff’s counsel 26 seeking reimbursement for fees and expenses incurred as a result of the incomplete inspection, and 27 requesting an alternative date for the inspection.”

The Court further noted that this inactivity 1 mirrored the docket in the case, where the only activity since the initially scheduled site inspection 2 was “two notices of appearances and one notice of withdrawal.”

(citing ECF Nos. 15, 16, 17). 3 Plaintiff then failed to respond to Defendants’ motion for leave to file a motion for sanctions.

4 “Simply put then,” as of the Court’s July 27, 2018 Order to Show Cause, “Plaintiff [had] not 5 substantively engaged with this case since March 1, 2018.”

The Court only vacated the 6 hearing on the Order to Show Cause when Plaintiff finally submitted a written response, alleging 7 that “[p]rior counsel for Plaintiff, Mary Melton, had been tasked with rescheduling the site 8 inspection on a date that was workable for Mr. Johnson. This did not occur and Ms. Melton has 9 since left the firm.” ECF No. 20 at 2. 10 Given Plaintiff’s track record in this case, the Court agrees that the billing information 11 requested by Defendant is necessary to understand what work was performed by whom to enable 12 Defendants to effectively challenge any fees that may have been improperly charged. For 13 example, Defendants noted that Plaintiff initially provided billing information that incorrectly 14 charged for multiple site inspections by Plaintiff, even though Plaintiff did not appear at two of the 15 attempted inspections. Mot. at 2. After Defendants noted the discrepancy, Plaintiff purportedly 16 provided a different billing summary with “substantially increased” attorney’s fees, attempting to 17 “‘transfer’ money around to get to the same result.” Reply at 2. As stated above, Plaintiff’s latest 18 billing summary claims that twelve different attorneys worked on this case. ECF No. 41-1 at 6. 19 This list is surprising given Plaintiff’s limited activity on the matter. See ECF No. 19. Although 20 the Court need not wade into the thicket surrounding these discrepancies, the Court finds that 21 providing more detailed billing information is amply justified in light of this record. 22 Based on the foregoing, the Court views that a compromise solution best effectuates 23 General Order 56 in light of the attorney-client privilege concerns raised by Plaintiff in this case. 24 The Court hereby ORDERS that Plaintiff provide a line-item fee invoice that identifies the date, 25 the biller, the hourly rate, justification for the hourly rate, the task, and the amount of time billed 26 per task. Plaintiff shall provide this information to Defendants and to the Mediator by October 31, 27 2019. Plaintiff may describe each task to avoid revealing “the type of research,” ECF No. 44-1 at 1 2-3, or other matters directly relevant to “litigation strategy or legal consultation,” see Los Angeles 2 Cty. Bd. of Supervisors,

. For example, Plaintiff may frame the task descriptions 3 at a high level (e.g., “legal research,” “drafting complaint,” etc.), which will mitigate any risk of 4 || revealing privileged information. 5 Finally, the Court DENIES Plaintiff request for certification of this order for interlocutory 6 || review. This Order does not meet the standards set forth in

(b), requiring a 7 “controlling question of law” that “may materially advance the ultimate termination of the 8 || litigation.” 9 || ITISSO ORDERED. 10 Dated: October 28, 2019 11 K LUCY ‘HI. KOH 12 United States District Judge

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