                                                                                           February 23 2010


                                         DA 09-0456

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2010 MT 39



DELORES TACKE,

              Plaintiff and Appellee,

         v.

ENERGY WEST, INC.,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Eighth Judicial District,
                      In and For the County of Cascade, Cause No. BDV 05-1064
                      Honorable Julie Macek, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Mark F. Higgins; Ugrin, Alexander, Zadick & Higgins, P.C.;
                      Great Falls, Montana

                      Richard N. Selby, II; Dworken & Bernstein Co., L.P.A.; Painesville, Ohio

               For Appellee:

                      Elizabeth Best; Best Law Offices, P.C.; Great Falls, Montana

                      Howard F. Strause; Attorney at Law; Great Falls, Montana



                                                   Submitted on Briefs: January 13, 2010

                                                              Decided: February 23, 2010


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1    Energy West, Inc. appeals from a jury verdict and subsequent District Court orders

entering a judgment in favor of its employee, Delores Tacke, for overtime wages,

liquidated damages, costs, and attorneys’ fees under the Fair Labor Standards Act

(FLSA). We affirm.

¶2    Energy West presents five issues on appeal, which we restate as follows:

¶3    1. Did the District Court err in denying Energy West’s motions for summary

judgment and directed verdict regarding Tacke’s status as an exempt employee for

purposes of overtime compensation under the FLSA?

¶4    2. Did the District Court err in awarding liquidated damages to Tacke?

¶5    3.   Did t he District Court err in awarding attorneys’ fees to Tacke without

requiring Tacke’s counsel to provide contemporaneous time records?

¶6    4. Did the District Court err in awarding costs pursuant to FLSA instead of the

Montana costs statute?

¶7    5. Did the District Court err in admitting Tacke’s exhibits 2, 3, 4, and 13 over

Energy West’s objections?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶8    Tacke began work for Energy West in 1970 and held various positions within the

company during her more than thirty-year career. Tacke filed suit against Energy West

to recover overtime wages she claimed she had earned between September 15, 2002, and

July 15, 2005.

                                        2
¶9     During those years, Tacke worked as the Supervisor of the Credit and Collection

Department, a position for which she received a salary and was classified by Energy

West as an exempt employee. Tacke’s exempt classification meant she was not entitled

to receive overtime wages in addition to her salary.

¶10    In 2004, Tacke and other Energy West employees attended a wage and hour

seminar in Billings. The seminar spurred several management employees to question

Tacke’s classification as an exempt employee.          Energy West’s Human Resources

Department advised Kurt Baltrusch, Director of Operations and Tacke’s direct

supervisor, of the potential error, and Baltrusch investigated the matter further.

¶11    Baltrusch testified that he sought advice from John Allen, who was both corporate

counsel and the Human Resources Officer for Energy West. Allen instructed Baltrusch

to ask Tacke to prepare a written list of her duties. Allen also provided Baltrusch a

checklist to aid in determining whether Tacke should be classified as an exempt or non-

exempt employee. Tacke provided a listing of her duties and the percentage of her time

expended on each duty. After reviewing the list, Baltrusch testified that he again spoke

with Allen and, although testimony was unclear about whether the two relied upon either

the “executive” or “administrative” exemption set forth in law, both agreed that Energy

West should reclassify Tacke as a non-exempt employee entitled to receive overtime

compensation. Baltrusch testified he also spoke with others about the issue, including

Energy West CEO David Cerotzke. Cerotzke initially disputed Baltrusch’s conclusion

but eventually allowed Baltrusch to reclassify Tacke as non-exempt.

                                          3
¶12    On June 30, 2005, Baltrusch wrote a letter to Tacke informing her that Energy

West was reclassifying her as non-exempt. The letter provided, in relevant part: “For

some time there has been a question on your employment status, that is whether you are

exempt or non-exempt for overtime.        From my standpoint, you are a non-exempt

employee and must be paid when you work extra hours, that is, over 40 hours each

week.” Tacke testified that she discussed the details of the letter with Baltrusch and

Allen, but that the issue of past uncompensated overtime was not resolved.

¶13    Tacke filed suit against Energy West in September 2005 in the Eighth Judicial

District Court to recover claimed overtime compensation. After Tacke filed suit, Energy

West reversed its decision to classify her as non-exempt, returning her to exempt status.

¶14    The District Court denied cross-motions for summary judgment, and the case

proceeded to a jury trial. On November 14, 2008, the jury returned a special verdict in

favor of Tacke for $35,220.00 in uncompensated overtime wages. The jury did not,

however, find that Tacke proved by a preponderance of the evidence that Energy West’s

failure to pay overtime was willful.

¶15    The District Court entered a judgment on January 15, 2009, awarding Tacke

$35,220.00 for uncompensated overtime wages, an additional $35,220.00 in liquidated

damages, and $4,958.73 in costs. On July 21, 2009, the District Court awarded Tacke an

additional $4,372.10 in expert witness fees, $1,147.10 for travel expenses for Attorney

Howard Strause, and attorneys’ fees of $95,737.50 for Strause and $90,675.00 for




                                         4
Elizabeth Best.    Tacke obtained a total final judgment against Energy West for

$267,330.43. Energy West appeals.

                               STANDARD OF REVIEW

¶16    We review the District Court’s denial of motions for summary judgment and

directed verdict de novo. Trucker v. Farmers Ins. Exch., 2009 MT 247, ¶ 23, 351 Mont.

448, 215 P.3d 1 (citation omitted); McKay v. Wilderness Dev., LLC, 2009 MT 410, ¶ 26,

353 Mont. 471, 221 P.3d 1184 (citation omitted).          When considering a summary

judgment motion, a court may not “make findings of fact, weigh the evidence, choose

one disputed fact over another, or assess the credibility of witnesses.” Anderson v.

Schenk, 2009 MT 399, ¶ 2, 353 Mont. 424, 220 P.3d 657.               The court may only

“examine[] the pleadings, depositions, answers to interrogatories, admissions on file, and

affidavits to determine whether there is a genuine issue as to any material fact relating to

the legal issues raised and, if there is not, whether the moving party is entitled to

judgment as a matter of law on the undisputed facts.” Anderson, ¶ 2 (citing M. R. Civ. P.

56(c); Corporate Air v. Edwards Jet Ctr., 2008 MT 283, ¶ 28, 345 Mont. 336, 190 P.3d

1111). Similarly, a motion for a directed verdict is “proper only when there is a complete

absence of any evidence to warrant submission to a jury.” Ryan v. City of Bozeman, 279

Mont. 507, 510, 928 P.2d 228, 229-30 (1996) (citation omitted).

¶17    We review the District Court’s award of attorneys’ fees, costs, and evidentiary

rulings for an abuse of discretion. In re Marriage of Cameron, 2009 MT 302, ¶ 17, 352

Mont. 375, 217 P.3d 78 (citation omitted); Ritchie v. Town of Ennis, 2004 MT 43, ¶ 8,

                                         5
320 Mont. 94, 86 P.3d 11 (citation omitted); Malcolm v. Evenflo Co., 2009 MT 285, ¶ 29,

352 Mont. 325, 217 P.3d 514 (citation omitted).

                                     DISCUSSION

¶18 1. Did the District Court err in denying Energy West’s motions for summary
judgment and directed verdict regarding Tacke’s status as an exempt employee for
purposes of overtime compensation under the FLSA?

¶19    Energy West argues Tacke provided no facts establishing that she fell outside the

administrative exemption to the FLSA and the District Court therefore erred in denying

its motions for summary judgment and directed verdict. Tacke counters that she indeed

presented evidence that her work did not qualify for the administrative exemption and

that Energy West failed to show, as a matter of law, that she fit within the administrative

exemption.

¶20    In 1938, Congress passed the FLSA “to prevent the use of unfair trade practices in

interstate commerce leading to ‘labor conditions detrimental to the maintenance of the

minimum standard of living necessary for health, efficiency, and general well-being of

workers . . . .’” Stewart v. Region II Child and Family Servs., 242 Mont. 88, 94, 788 P.2d

913, 917 (1990) (citation omitted). The FLSA requires employers to pay employees

overtime compensation for hours worked in excess of forty hours per week. 29 U.S.C.

§ 207(a)(1). The FLSA provides exemptions for certain executive and administrative

employees, but employers bear the burden of proving that the employee fits “plainly and

unmistakably within the exemption’s terms.” Mont. Public Employee’s Assoc. v. Mont.

Dept. of Transp., 1998 MT 17, ¶ 11, 287 Mont. 229, 954 P.2d 21 (citing Spradling v. City

                                         6
of Tulsa, 95 F.3d 1492, 1495 (10th Cir. 1996); Aaron v. City of Wichita, 54 F.3d 652, 657

(10th Cir. 1995); Reich v. Wyo., 993 F.2d 739, 741 (10th Cir. 1993)).

¶21    The administrative exemption relied upon by Energy West applies if three

elements exist.1 First, the employee must be “[c]ompensated on a salary or fee basis at a

rate not less than $455.00 per week . . . exclusive of board, lodging, or other facilities.”

29 C.F.R. § 541.200(a)(1). Second, the employee’s “primary duty” must be “the

performance of office or non-manual work directly related to the management or general

business operations of the employer or the employer’s customers.”                      29 C.F.R.

§ 541.200(a)(2). “To meet this requirement, an employee must perform work directly

related to assisting with the running or servicing of the business . . . .” 29 C.F.R.

§ 541.201(a).    Third, the employee’s “primary duty” must include “the exercise of

discretion and independent judgment with respect to matters of significance.” 29 C.F.R.

§ 541.200(a)(3). Such discretion or independent judgment must be “more than the use of

skill in applying well-established techniques, procedures or specific standards described

in manuals or other sources.” 29 C.F.R. § 541.202(e). To aid in applying these three

elements, the regulations provide examples of positions that qualify for the administrative

exemption. 29 C.F.R. § 541.203; see also 29 C.F.R. § 541.703(b).

¶22    Applying these regulations to the evidence in the record leads us to conclude that

the District Court did not err in denying summary judgment and a directed verdict to


1
  In 2004 the U.S. Department of Labor reorganized and clarified the regulations addressing the
administrative exemption, but, for purposes of the analysis in this case, the substantive content of
the regulations remained the same.
                                            7
Energy West. We need look no further than Tacke’s own testimony about her typical

work day. At 6:00 a.m., Tacke began by printing notices for Energy West customers

whose accounts were delinquent. The computer generated the list of notices, and the

printing generally took Tacke two hours to complete. Around 8:00 a.m., Tacke would

help cashiers open the mail and post payments to ensure Energy West did not shut off gas

to a customer who had just paid a delinquent account. From 9:00 a.m. to 10:00 a.m.,

Tacke returned to printing notices for delinquent accounts until completed. For the rest

of the morning, Tacke took “phone calls and payments from customers” and also called

customers to arrange for Energy West to access inside meters. During the lunch hour and

other break periods, Tacke filled in for the switchboard operator. For the rest of the

afternoon, Tacke took additional phone calls from customers who wanted to pay on their

past due accounts, entered customer payments on the computer system, and ensured

Energy West had access to inside meters. According to Tacke, she addressed customer

issues with the Public Service Commission less than once a month.            She operated

exclusively within Energy West’s policies and manuals, and, similar to other employees,

was authorized to “write off balances that people owe on their bills” of up to only $50.

¶23    This testimony, taken as true, establishes that Tacke did not meet the requisite

elements, set forth above, for an administratively exempt employee. Although contested

by Energy West, this evidence was nonetheless sufficient to raise genuine issues of

material fact about whether Tacke qualified for the administrative exemption.          See

Anderson, ¶ 2 (A court has no authority to “make findings of fact, weigh the evidence,

                                         8
choose one disputed fact over another, or assess the credibility of witnesses” at the

summary judgment stage.) Neither was there “a complete absence of any evidence to

warrant submission to a jury” necessitating a directed verdict. Ryan, 279 Mont. at 510,

928 P.2d at 229-30 (citation omitted). We affirm the District Court’s denial of Energy

West’s motions for summary judgment and directed verdict.

¶24    2. Did the District Court err in awarding liquidated damages to Tacke?

¶25    We review an award of liquidated damages under the FLSA utilizing multiple

standards of review, although we have not previously stated them comprehensively.

First, concerning the determination that an employer has or has not acted in good faith

and on reasonable grounds, a district court’s factual findings are reviewed for clear error

and legal conclusions are reviewed de novo for correctness. Tefft v. Mont., 271 Mont. 82,

91-92, 894 P.2d 317, 323 (1995); see also Rodriguez v. Farm Stores Grocery, Inc., 518

F.3d 1259, 1272 (11th Cir. 2008) (citing 29 U.S.C. § 260). Then, if an employer has

established good faith and reasonable grounds, we review the ultimate decision

concerning an award of liquidated damages for an abuse of discretion. Tefft, 271 Mont.

at 93, 894 P.2d at 324; Rodriguez, 518 F.3d at 1272.

¶26    Energy West first argues that because the jury found it did not act willfully in

withholding overtime compensation from Tacke, the District Court was prohibited from

awarding liquidated damages. Tacke responds that, while she did not satisfy her burden

of proving Energy West acted willfully, Energy West likewise failed to meet its burden




                                         9
of proving it acted in good faith and on reasonable grounds—an entirely different

question.

¶27    The FLSA provides that if an employer withholds overtime compensation in

violation of 29 U.S.C. § 207(a)(1), the employer “shall be liable to the employee or

employees affected in the amount of . . . their unpaid overtime compensation . . . and in

an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b) (emphasis

added). However they may be perceived, liquidated damages are not for the purpose of

punishing the employer, but for compensating the employee “for any losses caused by

delayed receipt of overtime wages they are due.” Martin v. Cooper Elec. Supply Co., 940

F.2d 896, 910 (3d Cir. 1991) (citation omitted).        To avoid liquidated damages, an

employer must first demonstrate that his actions were “in good faith and that he had

reasonable grounds for believing that his act or omission was not a violation of the

[FLSA] . . . .” 29 U.S.C. § 260; see also 29 C.F.R. § 790.22.

¶28    The employer bears a “substantial burden” in demonstrating good faith and

reasonable grounds. Renfro v. City of Emporia, 948 F.2d 1529, 1540 (10th Cir. 1991)

(citation omitted); Marshall v. Brunner, 668 F.2d 748, 753 (3d Cir. 1982). “Good faith”

exists when the employer has “an honest intention to ascertain and follow the dictates of

the Act.” Renfro, 948 F.2d at 1540 (citation omitted). “Reasonable grounds” is an

objective standard by which to evaluate the employer’s behavior. Renfro, 948 F.2d at

1540 (citation omitted). Prior to a showing of good faith and reasonable grounds, “the

district court has no discretion to mitigate an employer’s statutory liability for liquidated

                                         10
damages.” Marshall, 668 F.2d at 753 (emphasis added, citation omitted). Only after the

employer carries its burden may a district court, “in its sound discretion, award no

liquidated damages or award any amount thereof not to exceed the amount specified in

section 216 of this title.” 29 U.S.C. § 260.

¶29    We thus reject Energy West’s suggestion that, because it did not act willfully, ipso

facto it acted in good faith and on reasonable grounds. The question of willfulness

determines the length of the statute of limitations. In “a cause of action arising out of a

willful violation,” instead of a two-year statute of limitations, the employee is entitled to

a three-year statute of limitations. 29 U.S.C. § 255(a). To gain the additional year, the

burden is on the employee to show the employer’s actions were willful, meaning

“deliberate,” “intentional,” or that “the employer either knew or showed reckless

disregard for the matter of whether its conduct was prohibited.” McLaughlin v. Richland

Shoe Co., 486 U.S. 128, 133, 135, 108 S. Ct. 1677, 1681, 1682 (1988). Here, the jury

determined this standard had not been met, and Tacke was therefore entitled to the two-

year statutory period. This determination, however, is an entirely different question than

whether the employer acted in good faith and upon reasonable grounds. See Rodriguez,

518 F.3d at 1274. The employer bears the burden of demonstrating the good faith and

reasonable grounds necessary to avoid an award of liquidated damages, and it is

noteworthy that, in addition to being described as a “substantial burden,” courts have

stated that an employer’s ability to escape liquidated damages is the exception, not the




                                         11
rule.   Walton v. United Consumers Club, Inc., 786 F.2d 303, 310 (7th Cir. 1986)

(recognizing “[d]ouble damages are the norm, single damages the exception”).2

¶30     Even if the employer carries this burden, the district court “may still award

liquidated damages at its discretion in any amount up to that allowed by 29 U.S.C.

§ 216(b).” Mireles v. Frio Foods, Inc., 899 F.2d 1407, 1416 n. 8 (5th Cir. 1990) (citing

McClanahan v. Mathews, 440 F.2d 320, 323 (6th Cir. 1971); Martinez v. Food City, Inc.,

658 F.2d 369, 376 (5th Cir. Unit A 1981)). “[I]f the employer shows to the satisfaction

of the court that the act or omission giving rise to such action was in good faith and that

he had reasonable grounds . . . , the court may, in its sound discretion, award no

liquidated damages or award any amount thereof not to exceed the amount specified in

section 216 of this title.” 29 U.S.C. § 260 (emphasis added). Because Congress used the

permissive word “may” instead of “shall,” the District Court had no affirmative

obligation to strike or reduce the liquidated damages award against Energy West. In light

of the facts in this record, we conclude that the District Court was well within its

discretion to decline to do so.

¶31 3. Did the District Court err in awarding attorneys’ fees to Tacke without
requiring Tacke’s counsel to provide contemporaneous time records?3

¶32     FLSA provides that “[t]he court in such action shall . . . allow a reasonable

attorney’s fee to be paid by the [employer] . . . .” 29 U.S.C. § 216(b). To determine the

2
  The parties here agreed that whether Energy West acted in good faith and on reasonable
grounds was a determination to be made by the court, not the jury.
3
 Energy West does not challenge the District Court’s conclusion that a fee rate of $225 per hour
was reasonable or its calculation of the lodestar amount.
                                             12
attorneys’ fees, courts use the “lodestar” method, which consists of “[m]ultiplying the

number of hours reasonably spent on the case by an appropriate hourly rate in the

community for such work.” Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 799 (5th

Cir. 2006) (per curiam) (citation omitted); see also Laudert v. Richland Co. Sheriff’s

Dept., 2001 MT 287, ¶ 14, 307 Mont. 403, 38 P.3d 790. The lodestar method “is

presumed to be the reasonable fee to which counsel is entitled.” Penn. v. Del. Valley

Citizens’ Council for Clean Air, 478 U.S. 546, 564, 106 S. Ct. 3088, 3098 (1986)

(quoting Blum v. Stenson, 465 U.S. 886, 897, 104 S. Ct. 1541, 1548 (1984)) (emphasis in

original, quotations omitted); Laudert, ¶ 17 (citation omitted). The party seeking the fees

bears the burden of showing the “reasonableness of the hours billed.” Saizan, 448 F.3d at

799. Reasonable fees do not include fees that were “unproductive, excessive, or

redundant,” and the fee claimant must establish reasonableness by the presentation of

evidence. Saizan, 448 F.3d at 799 (citation omitted).

¶33    Energy West argues the District Court erred in awarding attorneys’ fees because

Tacke failed to submit contemporaneous time records detailing her counsel’s work on the

matter. Tacke rebuts Energy West’s argument, first, by arguing Energy West neither

requested the production of billing documentation nor produced its own number of hours

worked on the case. However, it was not Energy West which was seeking a fee award. It

was Tacke’s burden, not Energy West’s, to provide evidence demonstrating that her

claimed attorneys’ fees were reasonable. To hold otherwise would shift Tacke’s burden

to Energy West.

                                        13
¶34   Tacke then argues, as she did in the District Court, that she was not required to

provide contemporaneous billing records and that her evidence was sufficient to carry her

burden. The evidence Tacke submitted to the District Court consisted of two affidavits

containing a total of seven sentences, expert deposition testimony, and testimony from

Tacke’s counsel. This evidence was long on opinion, but short on detail about the

purpose of the hours claimed by the lawyers. The District Court concluded that the

evidence, when coupled with its personal knowledge of the case, validated “the hours that

have been submitted here are in fact reasonable.”

¶35   However, unlike a district court, an appellate court lacks personal observation and

involvement in a case that can be called upon when considering an attorneys’ fees award.

Without detailed evidence about the hours spent, we are left to assessing counsel’s

conclusory statements about lack of duplication or reasonableness on their face, or

comparing contrary expert opinion. Appropriate appellate review is thereby hindered,

and for this reason appellate courts nationally have required production of

contemporaneous billing records, speaking with much frustration about the issue. The

Second Circuit admonished plaintiffs’ counsel in a similar, fee-shifting circumstance:

      In light of the difficulties that can be traced to the failure of plaintiffs’
      attorneys to keep contemporaneous time records, we are tempted to accept
      the State’s proposal that plaintiffs be denied all attorney’s fees.
                                          . . .
      [T]he difficulties raised by the lack of contemporaneous records in this case
      convince us of the need to announce for the future that contemporaneous
      time records are a prerequisite for attorney’s fees in this Circuit.




                                        14
N.Y. State Assoc. for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147 (2d Cir.

1983) (analyzing award of reasonable attorneys’ fees under 42 U.S.C. § 1988). We are

similarly “tempted” in this case. Other courts have likewise expressed these concerns.

See e.g. Natl. Assoc. of Concerned Vets. v. Sec. of Def., 675 F.2d 1319, 1327 (D.C. Cir.

1982); Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir. 1984); In re Hudson &

Manhattan R.R., 339 F.2d 114, 115 (2d Cir. 1964); Sussman v. Patterson, 108 F.3d 1206,

1212 (10th Cir. 1997); Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939

(1983) (“Where the documentation of hours is inadequate, the district court may reduce

the award accordingly.”); Erickson v. City of Topeka, 239 F. Supp. 2d 1202, 1206 (D.

Kan. 2002) (“To satisfy the burden of proving a reasonable fee, counsel must keep

contemporaneous and detailed records of time . . . .”) (citation omitted); Bergeson v.

Dilworth, 875 F. Supp. 733, 737 (D. Kan. 1995) (production of time records required

when attorneys work on a contingent fee basis).

¶36   Tacke further argues that even if she wanted to produce the billing records, both

the attorney-client privilege and work-product doctrine preclude her from doing so. In

asserting the attorney client privilege, Tacke cites to Clarke v. American Commerce Natl.

Bank, 974 F.2d 127 (9th Cir. 1992). However, assuming Clarke applies, it does not

support a blanket prohibition on providing billing records.       There, the American

Commerce National Bank (ACNB) allegedly paid the personal legal expenses for its

chairman. Clarke, 974 F.2d at 128. The Office of the Comptroller of the Currency

investigated the matter further, and eventually issued an administrative subpoena to

                                       15
ACNB for the production of billing statements from outside legal counsel. Clarke, 974

F.2d at 128.    ACNB asserted the attorney-client privilege, and after reviewing the

records, the Ninth Circuit concluded:

       [The billing statements] do not contain privileged communications between
       attorney and client. The statements contain information on the identity of
       the client, the case name for which payment was made, the amount of the
       fee, and the general nature of the services performed.

Clarke, 974 F.2d at 130. While Clarke protects records “which also reveal the motive of

the client in seeking representation, litigation strategy, or the specific nature of the

services provided,” it does not support a blanket prohibition on the use of billing

statements.    Clarke, 974 F.2d at 129.         In-camera review by the district courts,

accompanied with the use of redaction when necessary, will accommodate the need for

such records in order to demonstrate the reasonableness of fee awards in fee-shifting

cases while also protecting the attorney-client privilege. See e.g. Huether v. Dist. Ct. of

the Sixteenth Jud. Dist., 2000 MT 158, ¶ 22, 300 Mont. 212, 4 P.3d 1193.

¶37    Equally unpersuasive is Tacke’s argument that the work-product doctrine also

prohibits the use of billing statements to support an attorneys’ fees claim. The work-

product doctrine, as delineated in M. R. Civ. P. 26(b)(3), “is broader in application than

the attorney-client privilege, but it is not an absolute privilege.” Kuiper v. Dist. Ct. of the

Eighth Jud. Dist., 193 Mont. 452, 462, 632 P.2d 694, 700 (1981). To interpret the

doctrine as imposing a blanket prohibition on the use of administrative records, such as

time and billing documents, stretches the privilege too far. As generally noted, “the work

product rule cannot be invoked by an attorney in connection with an affirmative claim for
                                          16
recovery of attorney’s fees to avoid a discovery inquiry concerning possible

apportionment of fees among compensable and noncompensable claims.” 23 Am. Jur. 2d

Depositions and Discovery § 45 (2002) (citing Martin v. Paunovich, 632 So. 2d 611 (Fla.

5th Dist. App. 1993)); see also First Union Natl. Bank of S.C. v. Soden, 511 S.E.2d 372,

380 (S.C. App. 1998) (analyzing billing statement as not falling within work product).

To the extent billing records may contain “ordinary work product” or “opinion work

product,” the records are, again, subject to redaction of such information. See e.g.

Palmer by Diacon v. Farmers Ins. Exch., 261 Mont. 91, 115, 118, 861 P.2d 895, 910, 912

(1993).

¶38    The District Court conducted a careful review of the fee issue and we conclude

that it exercised conscientious judgment and did not clearly err in evaluating the evidence

or abuse its discretion in approving the fee award. However, while we do not adopt a per

se rule as some courts have done, we strongly urge counsel to keep and provide

contemporaneous time records in support of attorneys’ fees requests in fee-shifting cases,

and we encourage district courts to look askance at requests not so supported.

¶39 4. Did the District Court err in awarding costs pursuant to FLSA instead of the
Montana costs statute?

¶40    Energy West argues the District Court erred by awarding costs beyond those

allowed under § 25-10-201, MCA, which it argues is controlling. Tacke responds that

costs in this case should be awarded pursuant to 29 U.S.C. § 216(b), not § 25-10-201,

MCA.


                                        17
¶41    Tacke brought this case under FLSA, which provides that “[t]he court in such

action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a

reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C.

§ 216(b). Montana’s cost statute allows the following costs:

       (1) the legal fees of witnesses, including mileage, or referees and other
       officers;
       (2) the expenses of taking depositions;
       (3) the legal fees for publication when publication is directed;
       (4) the legal fees paid for filing and recording papers and certified copies of
       papers necessarily used in the action or on the trial;
       (5) the legal fees paid stenographers for per diem or for copies;
       (6) the reasonable expenses of printing papers for a hearing when required
       by a rule of court;
       (7) the reasonable expenses of making transcript for the supreme court;
       (8) the reasonable expenses for making a map or maps if required and
       necessary to be used on trial or hearing; and
       (9) other reasonable and necessary expenses that are taxable according to
       the course and practice of the court or by express provision of law.

Section 25-10-201, MCA. Energy West challenges the District Court’s award of costs

for mediation fees, legal research, copies, postage, and the construction and

synchronization of a deposition, arguing they exceed the costs allowed by § 25-10-201,

MCA.

¶42    When determining which statute to apply, we are to use the particular over the

general. Section 1-3-225, MCA. Our decision in Kuhr v. City of Billings, 2007 MT 201,

338 Mont. 402, 168 P.3d 615, provides helpful guidance.           In Kuhr, the employees

pursued a wage claim under the state statutory scheme. Kuhr, ¶ 8. The parties argued

whether costs should be awarded under the general costs statute or pursuant to § 39-3-

214, MCA, of the wage claim statutes. Kuhr, ¶ 35. We reasoned that “a more specialized
                                         18
statute” may require its application instead of the general costs statute. Kuhr, ¶ 37. We

concluded that “[t]his is a wage claim case specifically covered by a more specialized

statute,” and applied § 39-3-214, MCA, the statute awarding costs in wage claims,

instead of the general costs statute, § 25-10-201, MCA. Kuhr, ¶ 37.

¶43    Similar to Kuhr, FLSA’s cost provision is more specific and should control over

Montana’s general costs statute. To effectuate FLSA’s policies, “Congress has permitted

individual employees to sue for back wages and liquidated damages and to receive

reasonable attorney’s fees and costs.” Barrentine v. Arkansas-Best Freight System, Inc.,

450 U.S. 728, 740 n. 16, 101 S. Ct. 1437, 1444 n. 16 (citing 29 U.S.C. § 216(b)). In

keeping with the purpose of FLSA and our logic in Kuhr, 29 U.S.C. § 216(b) should

govern instead of § 25-10-201, MCA.4

¶44 5. Did the District Court err in admitting Tacke’s exhibits 2, 3, 4, and 13 over
Energy West’s objections?

¶45    Energy West argues that Tacke’s exhibits of 2, 3, 4, and 13 were irrelevant,

confusing, and should have been excluded. Tacke responds that these exhibits were

relevant because they allowed the jury to compare her classification and duties when

classified as non-exempt with her duties when classified as exempt. Tacke further argues

that Energy West did not raise the proper objection for exhibits 2 and 4.
4
  Our holding is limited by Energy West’s narrow argument that the District Court erred in
awarding costs beyond those allowed under § 25-10-201, MCA. While we reject application of
§ 25-10-201, MCA, to the case sub judice, no argument is made that the costs awarded here were
not allowable under 29 U.S.C. § 216(b). There is authority on that issue, but we leave the issue
for another day. See e.g. Cho v. Koan Med. Servs. P.C., 524 F. Supp. 2d 202, 212 (E.D.N.Y.
2007) (denying legal research costs); Williams v. R.W. Cannon, Inc., 657 F. Supp. 2d 1302, 1316
(S.D. Fla. 2009) (denying mediation expenses); Calderon v. Witvoet, 112 F.3d 275, 276 (7th Cir.
1997) (per curiam) (referring to 28 U.S.C. § 1920 to determine costs).
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¶46    Relevant evidence includes “evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” M. R. Evid. 401. The exhibits at issue

are three job descriptions which were not generated during the 2002 to 2005 time period

at issue, and a letter dated October 29, 1990, informing Tacke that she was classified as

non-exempt and must report her overtime.

¶47    After reviewing the record, we believe Energy West properly raised a relevance

objection, but conclude the District Court did not abuse its discretion in admitting the

exhibits. While we see Energy West’s concern about relevance, the admitted exhibits,

though covering a different time period when Tacke was paid as an hourly employee,

provided the jury with additional information about Energy West’s classification and

reclassification of Tacke’s position and whether Energy West had acted willfully.

¶48    Even if relevant, evidence may be excluded if it has the propensity to confuse the

issue or mislead the jury. M. R. Evid. 403. Here, the District Court required Tacke to lay

additional foundation about the exhibits and Energy West had the opportunity through

cross-examination, case-in-chief, and closing arguments to clarify any potential

confusion that the exhibits caused.

¶49    Affirmed.


                                                       /S/ JIM RICE




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We concur:

/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON




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