United States District Court, W.D. Missouri, Western Division
ELIZABETH O'SHAUGHNESSY, MICHAEL O'SHAUGHNESSY, and RANDALL L. HENSLEY, Plaintiffs,
CYPRESS MEDIA, L.L.C., Defendant.
ORDER DETERMINING AMOUNT OF SANCTIONS
KAYS, CHIEF JUDGE
lawsuit arose from Plaintiffs' allegations that Defendant
Cypress Media, L.L.C. (“Cypress”), unlawfully
“double-billed” them for newspaper subscriptions
to The Kansas City Star. Now pending is the
Court's August 24, 2016, Order imposing monetary
sanctions on Cypress for discovery violations, and the
parties' briefing concerning the amount of the sanction
(Docs. 164, 169, 172). For the following reasons, the Court
holds the amount should be $21, 152.98.
weeks after the close of merits discovery in this case, and
six days before filing its motion for summary judgment,
Cypress disclosed seventy-five new documents to Plaintiffs.
Cypress then used these documents to support its motion for
summary judgment. Plaintiffs subsequently moved for sanctions
Court granted the motion for sanctions in part, holding
Cypress violated Federal Rules of Civil Procedure 26(a) and
(e) by failing to disclose twenty-two of these documents-
various subscription invoice/renewal form
templates-earlier. O'Shaughnessy v. Cypress
Media, L.L.C., No. 4:13-cv-0947-DGK, 2016 WL 4487886, at
*5-6 (W.D. Mo. Aug. 24, 2016). The Court also held Cypress
violated Rule 37 because the late disclosure prejudiced
Plaintiffs by needlessly increasing their litigation costs.
Id. at *8. As a sanction, the Court ordered Cypress
to pay the reasonable expenses, including attorneys'
fees, caused by the violation. Id.
request a total of $81, 267.75 in attorneys' fees, and
they have submitted nine pages of billing records in support.
Their request seeks reimbursement for all time spent:
addressing Cypress's Rule 26 initial disclosures;
reviewing documents produced in discovery; litigating
discovery disputes; engaging in class certification
discovery; opposing Cypress's motion for summary
judgment; and litigating the motion for sanctions.
responds that the Court should award a much lower amount,
arguing an award of “$3, 000 would reasonably
approximate the additional fees Plaintiffs incurred and would
be commensurate with the nature of the violation the Court
identified.” Def.'s Suggestions in Opp'n 10
(Doc. 169). Cypress argues Plaintiffs' request is
disproportionate to “the relatively ‘mild
prejudice' the Court identified” in its order, and
that most of the amount Plaintiffs seek to recover “had
no causal connection to delayed production of the
templates.” Id. Cypress also contends
Plaintiffs have failed to provide adequate information
supporting their fee request.
The reasonable expenses caused by the discovery violations
total $21, 152.98.
begin, the Court clarifies that when it described the
prejudiced suffered by Plaintiffs as “relatively mild,
” it did not mean that Cypress's discovery
violation was trivial or merely a technical violation.
O'Shaughnessy, 2016 WL 4487886, at *1. Rather,
the Court found the violation did not justify the drastic
relief sought by Plaintiff, such as revisiting the
Court's class certification ruling or striking
Cypress's summary judgment motion. Id. at 8. The
appropriate sanction was a monetary sanction, a sanction
which would make Plaintiffs whole without risking a
miscarriage of justice by denying Cypress summary judgment on
the merits. Id.
that in mind, the Court rules as follows concerning the
amount of this sanction.
One-third of the time spent reviewing documents is
seek $20, 075 in fees for time reviewing documents before
Cypress produced the templates. Cypress argues this time should
not be compensable because Plaintiffs would have spent this
time reviewing these documents anyway, and that, “[i]n
fact, Plaintiffs spent less time reviewing documents than
they would have if the templates had been produced.”
Def.'s Suggestions in Opp'n 5.
argument overlooks the Court's previous finding:
Cypress's failure to disclose the templates earlier
prejudiced Plaintiffs because the information in the
templates was “extremely useful in understanding
exactly how and when the customer invoice/renewal form
language changed.” O'Shaughnessy, 2016 WL
4487886, at *8. By not having this information earlier,
Plaintiffs' counsel wasted time scrutinizing the
documents Cypress did produce-such as individual subscription
forms-for information that was easily learned from the
templates. Granted, having the templates would not have
eliminated entirely the need for Plaintiffs' counsel to
review the documents Cypress did produce, but it would have
enabled counsel to review them more efficiently. For example,
if Cypress had produced the templates, counsel would have
immediately learned how the subscription renewal language
changed over time. But because they did not have the
templates, they had to spend much more time reviewing
individual subscription forms in an attempt to “reverse
engineer” how the subscription renewal language changed
over time, which was not an efficient process. Hence,
Cypress's failure to produce the templates needlessly
increased Plaintiffs' litigation costs by some amount.
closely reviewing the billing statements and applying the
Court's experience in reviewing fee applications, the
Court estimates this failure resulted in Plaintiffs'
counsel expending at least one-third more time on document
review than they otherwise would have. Accordingly, the Court
finds Plaintiffs should recover one-third of the time
requested, or $6, 691.67.
Two-thirds of the time spent on the first discovery dispute
teleconference is compensable.
also request $4, 634 for time spent on the parties' first
discovery dispute teleconference,  which concerned whether
discovery should be bifurcated into a class certification
stage and a merits stage. Plaintiffs argued discovery should
not be bifurcated, Cypress argued it should. The Court ruled
discovery should be bifurcated (Doc. 26).
contends that this dispute did not directly involve the
templates or related issues, and that Plaintiffs should not
be given fees for a teleconference they initiated.
respond that Cypress caused the discovery dispute by arguing
that Plaintiffs' discovery requests, which included a
request for any templates, went to the merits of the case,
not class certification. Plaintiffs note that they tried to
establish at the class certification stage that Cypress used
standard form agreements/form templates with its subscription
customers, but Cypress vehemently denied this and withheld
the templates. Had Cypress ...