                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                          August 23, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
TEAM SYSTEMS INTERNATIONAL,
LLC,

      Plaintiff - Appellant,

v.                                                         No. 16-6277
                                                    (D.C. No. 5:14-CV-01018-D)
JEFF HAOZOUS, a/k/a Jeff Houser,                           (W.D. Okla.)
individually and as President of Fort Sill
Apache Industries and Chief Executive
Officer of Fort Sill Apache Industries
Board of Directors; FORT SILL APACHE
INDUSTRIES; FORT SILL APACHE
INDUSTRIES BOARD OF DIRECTORS,
as Managers of Fort Sill Apache Industries,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
                  _________________________________

      Plaintiff Team Systems International, LLC (TSI), sued Fort Sill Apache

Industries (FSAI), the FSAI Board of Directors, and its President and CEO, Jeff

Haozous (the Defendants) for breach of contract and related claims. The district

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
court dismissed its complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a

claim (the Dismissal), and we affirmed. Team Sys. Int’l, LLC v. Haozous,

656 F. App’x 907, 913 (10th Cir. 2016). The district court awarded attorney fees in

favor of the Defendants, and TSI now appeals that award.1

                                  I. BACKGROUND

      TSI sued the Defendants alleging they breached the parties’ Engagement

Agreement. Under the Agreement, FSAI promised to compensate TSI if it obtained

“financing” or a “strategic partner” for FSAI’s construction contracts with the federal

government. Id. at 909 (internal quotation marks omitted). TSI arranged for

payment and performance bonds relating to an FSAI construction project and

introduced FSAI to a company that became the primary subcontractor for the project.

When FSAI refused to compensate TSI, TSI filed this suit. The district court ruled

that TSI failed to state a breach of contract claim against FSAI or Mr. Haozous

because the performance bond did not constitute “financing” and the subcontractor

was not a “strategic partner,” and because the FSAI Board was not subject to suit. Id.

      The Defendants then moved for an attorney fees award of $32,530.25 under

Okla. Stat. tit. 12, § 936(A), which permits an award of reasonable attorney fees for

the prevailing party in a civil suit for “services rendered.” In support of their motion,


      1
        In affirming the dismissal of TSI’s complaint, we granted the defendants’
motion for attorney fees on appeal, and remanded to the district court for a
determination of the amount to award. The district court entered its award of
attorney fees for the appeal, and TSI is appealing that award in a separate pending
appeal, Team Sys. Int’l, LLC v. Haozous, No. 17-6139 (10th Cir. Appeal docketed
June 13, 2017).
                                            2
they submitted affidavits and partially-redacted billing records from the two law

firms that represented them on the Dismissal. The Defendants stated the billing

records were redacted to preserve attorney-client and work-product privilege and

offered to provide unredacted records to the court for in camera review.

      TSI conceded that the Defendants were entitled to an award under § 936. But

it argued the Defendants’ submissions were insufficient to enable the district court to

determine if the fee request was reasonable because their redacted billing statements

omitted detailed descriptions of tasks and used block-billing entries, which show only

an attorney’s total daily time rather than itemizing each task. TSI also objected that

Defendants’ offer to provide unredacted records for in camera review would deprive

it of “the opportunity to formulate a reasoned response to the un-redacted billing

records.” Aplt. App. at 126. TSI requested copies of the unredacted copies and an

opportunity to respond to the reasonableness of the request.

      The district court concluded it was unable to assess the reasonableness of the

requested award because of the redactions in the attorneys’ billing records and the

use of block-billing entries. It directed the Defendants to submit to the court for in

camera review unredacted billing statements and contemporaneous time records

showing the services rendered and the time spent on specific tasks. TSI did not

object to this order. Several months later, after this court affirmed the Dismissal, the

district court granted the Defendants’ fee award.

      The district court stated it reviewed the unredacted billing statements and

contemporaneous time records of most of the Defendants’ attorneys, though some

                                           3
attorneys did not have contemporaneous time-records other than the billing

statements. It found “that, for the most part, the amount of attorney fees requested by

the [Defendants] represents a reasonable sum for the legal services provided by their

counsel in the successful defense of [the] action.” Id. at 248. The court noted that

not all time spent on the Dismissal was billed to TSI or was included in the fee

request. It found that the time billed was reasonable and appropriate, and that the

billing statements reflected a proper exercise of billing judgment. It concluded there

were some unsupported block-billing entries and some duplication of services by

multiple attorneys. After performing a lodestar calculation, it ruled that a ten percent

reduction in the requested award would yield a reasonable fee award of $29,234.47.

      On appeal, TSI argues the district court abused its discretion by conducting the

in camera review of the unredacted records.

                                   II. DISCUSSION

       “We review the district court’s award of attorney fees for abuse of discretion.”

Chieftain Royalty Co. v. Enervest Energy Institutional Fund XIII-A, L.P., 861 F.3d

1182, 1187 (10th Cir. 2017). “A district court abuses its discretion where it commits

a legal error or relies on clearly erroneous factual findings, or where there is no

rational basis in the evidence for its ruling.” Clark v. State Farm Mut. Auto. Ins. Co.,

433 F.3d 703, 709 (10th Cir. 2005) (internal quotation marks omitted). A district

court’s decision to review certain documents in camera or ex parte is reviewed for

abuse of discretion.” Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d

840, 860 (10th Cir. 2005) (emphasis added).

                                            4
       In this diversity case, the law of the forum state, Oklahoma, controls the award

of attorney fees. Chieftain Royalty Co., 861 F.3d at 1188. Under Oklahoma law, an

award of fees under § 936 is mandatory, but “[t]he determination of reasonableness

and the amount of the fee award are generally left to the sound discretion of the

district court.” JLEE Co. v. Reneau Seed Co., 332 P.3d 297, 300 (Okla. Civ. App.

2014) (internal quotation marks omitted).

       TSI asserts three reasons why the district court abused its discretion in

conducting an in camera review of the unredacted billing records: (1) courts may

only review a document in camera for the limited purpose of determining whether a

privilege was validly asserted; (2) FSAI waived any attorney-client privilege by

virtue of requesting attorney fees—thus, there was legal no basis for Defendants to

redact any portion of their records; and (3) the in camera review violated its due

process rights. TSI did not present these arguments to the district court—neither in

response to the Defendants’ original fee request, in response to the district court’s

ruling that it would review the unredacted records in camera, nor even in a post-

judgment motion.

       TSI’s failure to raise these arguments in district court resulted in a forfeiture.

See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011) (“[I]f [a]

theory . . . wasn’t raised before the district court, we usually hold it forfeited.”).

Forfeited arguments are ordinarily reviewable under the plain-error standard. Id. But

TSI did not argue for the application of plain error on appeal in its opening brief. Its

arguments are, therefore, waived. See McKissick v. Yuen, 618 F.3d 1177, 1189

                                             5
(10th Cir. 2010) (“[E]ven if [the appellant’s] arguments were merely forfeited before

the district court, [its] failure to explain in [its] opening appellate brief why this is so

and how they survive the plain error standard waives the arguments in this court.”).2

       We are left with TSI’s broad assertion that the district court abused its

discretion in conducting an in camera review of the unredacted records because TSI

could not meaningfully challenge the reasonableness of the fee request. Because

billing records and time sheets might reveal attorney-client communications, aspects

of these records may be protected by privilege. E.g., United States v. Anderson (In re

Grand Jury Subpoenas), 906 F.2d 1485, 1492-93 (10th Cir. 1990) (holding that fee

contracts could reveal attorney-client privilege and noting that in camera review of

any of possibly privileged documents would be appropriate); Chaudhry v. Gallerizzo,

174 F.3d 394, 403 (4th Cir. 1999) (holding billing records constituted attorney-client

and work-product privileged communications because they revealed legal research,

including the identity of the federal statutes researched, which would divulge

confidential information regarding legal advice).

       In camera review enables protection of privileged material, see, e.g., Kerr v.

U.S. Dist. Court, 426 U.S. 394, 405 (1976), and courts have reviewed unredacted

billing records and time sheets in camera to protect privilege in making attorney fee


       2
        TSI argues in its reply brief that we should apply plain error review to its due
process arguments, but “[t]he general rule in this circuit is that a party waives issues
and arguments raised for the first time in a reply brief,” Reedy v. Werholtz, 660 F.3d
1270, 1274 (10th Cir. 2011) (brackets and internal quotation marks omitted), and
McKissick makes clear a party must argue for plain-error review in its opening brief,
618 F.3d at 1189.
                                             6
awards. E.g., Fry v. AOK Energy Servs., LLC, No. 14–CIV–508–RAW, 2015 WL

13388434, at *1 (E.D. Okla. Oct. 2, 2015) (denying respondent’s objection to an

award of any fees based on redacted billing entries and conducting in camera review

of the unredacted records); see also Almeida v. Amazon.com, Inc., 456 F.3d 1316,

1328 (11th Cir. 2006) (upholding fee award notwithstanding trial court’s failure to

explain how it calculated an attorney fee award because it conducted an in camera

review of the unredacted billing statements and could rely on its own knowledge to

determine a reasonable attorney fee award); Nat’l Fitness Co. v. ProCore Labs., LLC,

No. 3:11–CV–1352–L, 2013 WL 4546860, at *3 (N.D. Tex. Aug. 28, 2013) (stating

plaintiffs seeking attorney fees may submit attorney billing records ex parte to the

court for in camera review if they are concerned about “divulging privileged or

confidential matters”).

      This court has held that a court reviewing a fee request did not abuse its

discretion in denying the responding party access to the itemized time records and

conducting in camera review of those records. Garcia v. Tyson Foods, Inc. 770 F.3d

1300, 1309 (10th Cir. 2014) (ruling court acted within its discretion to conduct an ex

parte, in camera review of billing records where it allowed the responding party to

obtain summaries and depose someone familiar with the billing practices). Here, TSI

did not pursue other avenues of discovery or contend on appeal that alternative

discovery would have been inadequate. Moreover, TSI has not shown that the

district court’s reasons for its ruling were inadequate. Accordingly, we are not



                                           7
persuaded the district court abused its discretion when it conducted its in camera

review of the billing statements and time records.

      Judgment affirmed.


                                           Entered for the Court


                                           Scott M. Matheson, Jr.
                                           Circuit Judge




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