      In the United States Court of Federal Claims
                                      No. 11-236C

                              (Filed: September 18, 2015)

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                                    *
DEMODULATION, INC.,                 *
                                    *
                    Plaintiff,      *          Unduly Burdensome Subpoena
                                    *          Duces Tecum; Failure to Allow
v.                                  *          Reasonable Response Time; Award
                                    *          of Attorneys’ Fees and Costs as
THE UNITED STATES,                  *          Sanction Under Rule 45(d)(1).
                                    *
                    Defendant.      *
                                    *
*************************************

Keith A. McKenna, The McKenna Law Firm LLC, Montclair, New Jersey, for Plaintiff.

Gary L. Hausken, with whom were Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, John Fargo, Director, and Alice Suh Jou, Of Counsel, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice, Washington, D.C., for
Defendant.

Daniel C. Schwartz, with whom was Brenda A. Gonzalez, Bryan Cave LLP, Washington,
D.C., for Non-Party Technology Service Corporation.

                      OPINION AND ORDER AWARDING
                 NON-PARTY’S ATTORNEYS’ FEES AND COSTS

WHEELER, Judge.

       On May 8, 2015, non-party Technology Service Corporation (“TSC”) filed a motion
to quash Plaintiff Demodulation, Inc.’s subpoena duces tecum, claiming that the subpoena
imposed an undue burden on TSC and failed to allow a reasonable time for compliance.
On May 12, 2015, the Court granted TSC’s motion to quash, finding that Demodulation’s
subpoena on its face was overly broad, unreasonable, and imposed an undue burden on
TSC. As a sanction on Demodulation for serving a patently unreasonable subpoena, the
Court awarded TSC its attorneys’ fees for having to file a motion to quash. TSC filed its
claim for attorneys’ fees and costs on May 20, 2015, seeking $15,680.80 for 30.70 hours
of legal work. TSC also requested $32.80 in costs for printing.

       On June 9, 2015, Demodulation moved for reconsideration of the Court’s order
granting TSC’s motion to quash, and later objected to the amount of TSC’s attorneys’ fees.
In response to Demodulation’s motion, the Court reconsidered its May 12, 2015 order but
ultimately upheld its decision granting the motion to quash and awarding attorneys’ fees.
The Court directed TSC to file a revised statement of its attorneys’ fees for having to
respond to Demodulation’s motion for reconsideration. TSC filed its revised statement of
fees on July 27, 2015, this time seeking $45,249.50 in attorneys’ fees for 84.50 hours of
legal work plus $378.40 for Lexis and Westlaw computerized research. Demodulation did
not object to this revised statement.

       In assessing a claim for attorneys’ fees, the amount of the fees must be reasonable.
To determine whether a fee is reasonable, courts typically multiply a reasonable number of
hours for the work performed by a reasonable hourly rate. The Court finds that the hourly
rates charged by Daniel C. Schwartz and Brenda A. Gonzalez, the two Bryan Cave
attorneys who worked on this matter, are reasonable and in line with the prevailing rate
among private law firms in the District of Columbia. However, the amount of time spent
on the various pleadings is unreasonably high for lawyers of Mr. Schwartz’s and Ms.
Gonzalez’s level of experience.1 Accordingly, the Court will reduce the number of hours
by one-half for a total of 42.25 hours. Multiplying this total by the average hourly rates of
the two attorneys and Eileen M. Weiss, a Bryan Cave paralegal who worked on the
pleadings, yields an award of $22,624.88.

                                        Factual Background

       On April 24, 2015, Demodulation served TSC with a subpoena duces tecum
requesting “all documents and other information no matter how stored related to contract
number W15P7T-09-C-S011.” TSC’s Mot. to Quash at 9, Dkt. No. 116. The subpoena
afforded TSC only five business days to respond. Id. TSC retained the law firm of Bryan
Cave to assist in responding to Demodulation’s subpoena. See id. at 2-3. The primary
attorneys handling the motion to quash were Mr. Schwartz, a partner with a billing rate of
$850 per hour, and Ms. Gonzalez, an associate with a billing rate of $425 an hour. Bryan
Cave also used Ms. Weiss as a paralegal on this matter, with a billing rate of $310 per hour.
The firm discussed the subpoena with TSC’s corporate counsel, London Propst, and sought
Mr. Propst’s declaration to support the motion to quash. See Decl. of London Propst at 22-
28, Dkt. No. 116. After failed attempts to confer with Demodulation’s then counsel of
record, Benjamin D. Light, TSC filed its motion to quash arguing that Demodulation’s
1
  Human nature would suggest that lawyers might not be quite as diligent in controlling the time spent in
preparing pleadings if they know that the bill will be paid by an adversary rather than their client.

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subpoena failed to allow TSC a reasonable time to comply and would subject TSC to an
“undue and unreasonable burden.” Id. at 11.

        The Court agreed with TSC that the subpoena on its face was overly broad,
unreasonable, and would impose an undue burden on TSC. See Order Quashing Subpoena
Duces Tecum at 1, Dkt. No. 120. Additionally, Rule 45(d)(1) required the Court to award
sanctions in these circumstances, and it found that the assessment of attorneys’ fees was
appropriate here. Id. at 1-2. Accordingly, the Court directed TSC to file a statement
detailing its reasonable attorneys’ fees and costs. TSC’s statement requested $15,680.80
in attorneys’ fees, reflecting 30.70 hours of work and $32.80 for “Expenses and Other
Charges.” Dkt. No. 126 at 22.

       After the Court granted TSC’s motion to quash, Demodulation filed an objection to
TSC’s claim, arguing that the requested fees were unreasonable because they were not in
line with the prevailing rate in the community for similar services. Demodulation also
claimed that the attorneys spent an unreasonable amount of time drafting a standard motion
to quash and declaration, particularly given the level of experience the lawyers claimed to
have. Pl.’s Opp. at 7-10, Dkt. No. 140. TSC responded, arguing that the hourly rates
charged by Bryan Cave were reasonable and that the amount of time the Bryan Cave
attorneys spent in responding to Demodulation’s overly broad and unduly burdensome
subpoena was appropriate because of the unique laws, rules, and standards applicable to
this case. See TSC’s Resp. to Pl.’s Opp. at 6-12, Dkt. No. 143 (“TSC’s Resp.”).

       On June 9, 2015, Demodulation filed a motion for reconsideration of the Court’s
May 12, 2015 Order granting TSC’s motion to quash. Demodulation argued that the
Court’s order quashing the subpoena was entered before Demodulation had a chance to
respond, allegedly violating due process and constituting a manifest error of law. In
making this argument, Demodulation failed to consider that the Court had to issue a ruling
quickly because of the extremely short response time Demodulation had given TSC to
comply with the subpoena. The Court granted Demodulation’s motion for reconsideration
and reviewed Demodulation’s arguments on the merits. However, the Court found that its
ruling on the motion to quash should be upheld as the facts had not changed: the subpoena
was overly broad and created an undue burden on TSC, and Demodulation never agreed to
narrow the scope of the subpoena. The Court also found that an award of attorneys’ fees
continued to be the appropriate sanction. Accordingly, the Court directed TSC to file a
revised statement to include its fees associated with responding to Plaintiff’s motion for
reconsideration. On July 27, 2015, TSC filed its revised statement, this time seeking
$45,627.90 in attorneys’ fees reflecting 84.50 hours of work and $378.40 for Lexis and
Westlaw computerized research. TSC’s Revised Statement at 9, Dkt. No. 157. The
claimed costs of $32.80 from the original bill were deleted. Id. at 1. Demodulation did not
object to TSC’s revised statement.

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                                         Analysis

       A. The Hourly Rates Charged in Bryan Cave’s Statement are Reasonable.

        Attorneys’ fees are calculated by the Lodestar method which involves multiplying
“the number of hours reasonably expended on the litigation [. . .] by a reasonable hourly
rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The burden to show that a rate is
reasonable is on the person or party seeking the fees. However, as long as the requested
rates are in line with the prevailing market rate, they are presumptively reasonable. Blum
v. Stenson, 465 U.S. 886, 896 n.11 (1984). The prevailing market rate is the rate
“prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience and reputation.” Id. One of the ways to determine whether or not a fee is
reasonable is by looking at the most current Laffey Matrix. Bywaters v. United States, 670
F.3d 1221, 1226 (Fed. Cir. 2012) (using the Updated Laffey Matrix). Other factors helping
to determine whether attorneys’ fees are reasonable are: (1) the rates typically charged by
the attorney or firm in question during the relevant time period; (2) expert reports
comparing a particular attorney’s or firm’s rates charged to rates of similar attorneys and
firms during the same time period; and (3) evidence of market conditions at that time. SUFI
Network Servs., Inc. v. United States, 785 F.3d 585, 593 (Fed. Cir. 2015).

       Mr. Schwartz is a partner at Bryan Cave who has over 45 years of law practice in
both the government and private firms. TSC’s Resp. at 8. According to the National Law
Journal, partners in the District of Columbia charge on average $748 per hour. Id. at 29-
30. Mr. Schwartz is not an ordinary partner, however. According to his biography on the
Bryan Cave website, he has received three awards as one of “The Best Lawyers in
America.” For lawyers of comparable skill in the District of Columbia, partners charge
from $985 to $1,250. Id. at 8. Thus, his billing rate is reasonable when compared to other
lawyers with his level of skill, experience, and reputation. Mr. Schwartz’s rate is also
reasonable when compared to the Updated Laffey Matrix. This updated data reflects an
hourly billing rate for Mr. Schwartz of $789. Mr. Schwartz’s current billing rate is only
$61 higher than the Updated Laffey Matrix. This is a minimal difference considering Mr.
Schwartz’s level of experience.

        Ms. Gonzalez’s billing rate also is reasonable. Ms. Gonzalez is a fourth year
associate at Bryan Cave. Id. at 8. The District of Columbia boasts one of the highest billing
rates in the country for law firm associates. Id. at 30. The Updated Laffey Matrix lists the
rate for a fourth year associate in Washington, D.C. as $402 per hour. This rate is
comparable to Ms. Gonzalez’s actual rate of $425 per hour. Further, Ms. Weiss’s rate as a
paralegal is reasonable given that she has over 25 years of experience. See Decl. of Daniel
C. Schwartz at 9, Dkt. No. 126. Accordingly, the Court finds that the hourly rates charged
by Mr. Schwartz, Ms. Gonzalez, and Ms. Weiss are reasonable and therefore a reduction
to their hourly rates is not warranted or necessary.
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       B. Bryan Cave’s Claimed Hours Spent on TSC’s Filings are Too High.

        The claimed number of hours worked must also be reasonable in any attorney fee
award. See Hensley, 461 U.S. at 433. A “court can exclude excessive and unreasonable
hours from its fee computation by making an across-the-board reduction in the amount of
hours.” Luciano v. Olsten Corp., 109 F.3d 111, 117 (2d Cir. 1997). Courts may reduce
fees if they believe the time spent on a particular matter was unreasonable or excessive.
See, e.g., Wong v. Hunda Glass Corp., No. 09-4402, 2010 WL 3452417, at *4 (S.D.N.Y.
2010) (“upon review of Lee’s hours, the Court finds that some time expenditures were
unnecessary or excessive, and that an experienced attorney should not have required as
much time.”).

        It is undisputed that Mr. Schwartz is an experienced and skilled attorney who should
have been adept at preparing a relatively routine motion to quash and supporting
declaration showing that a subpoena is overly broad or unduly burdensome, a motion for
reconsideration based upon manifest injustice, and a statement of fees. This is surely not
the first time Bryan Cave and Mr. Schwartz have had to submit such motions to a court.
Minimal oversight of Ms. Gonzalez was necessary. In little time, Mr. Schwartz could have
easily guided Ms. Gonzalez to draft the various motions and two statements of fees that
TSC submitted to the Court. The issues in the motion to quash, the fee statements, and
TSC’s opposition to Demodulation’s motion for reconsideration were straightforward and
hardly novel or unique. See Am. Broad. Corp., Inc. v. Aereo, Inc., No. 13-59, 2013 WL
6086867, at *6 (N.D. Iowa 2013) (noting that while the underlying action was complex,
the “motion to quash a subpoena [was] not”). While the specific case and facts might have
been unfamiliar to Bryan Cave, see TSC’s Resp. at 12 (“this was a new matter with its own
set of facts”), TSC’s filings were not. Accordingly, the Court finds that a fifty percent
reduction in the number of hours across the board, from 84.50 to 42.25, is warranted to
account for the excessive hours billed. Multiplying 42.25 hours by the $535.50 average
hourly rate for Mr. Schwartz, Ms. Gonzalez and Ms. Weiss, see TSC’s Revised Statement
at 8, yields an award of $22,624.88.

                                        Conclusion

      For the foregoing reasons, the Court awards TSC $22,624.88 in attorneys’ fees plus
$378.40 in costs for Lexis and Westlaw computerized research. TSC’s September 15, 2015
Request for Entry of Judgment is dismissed as moot.

        The responsibility for satisfying this award of attorneys’ fees and costs is on the
previous attorney of record, Benjamin D. Light, and his law firm at the time, The Callagy
Law Firm. The fees and costs are not to be assessed against the Plaintiff, Demodulation,
or its present attorney of record, Keith A. McKenna.


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IT IS SO ORDERED.


                        s/Thomas C. Wheeler
                        THOMAS C. WHEELER
                        Judge




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