Tech Law Journal

Capitol Dome
News, records, and analysis of legislation, litigation, and regulation affecting the computer, internet, communications and information technology sectors

TLJ Links: Home | Calendar | Subscribe | Back Issues | Reference
Other: Thomas | USC | CFR | FR | FCC | USPTO | CO | NTIA | EDGAR


Loudoun Library's Opposition to Motion for Attorneys Fees of the ACLU and PFAW.
Mainstream Loudoun v. Loudoun County Library, Case No. 97-2049.

Date: February 8, 1999.
Source: Ken Bass. This document was created by Tech Law Journal by converting an MS Word version into HTML. Copyright Tech Law Journal, 1999. All rights reserved.


IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

_______________________________

MAINSTREAM LOUDOUN, et al.,

Plaintiffs,

v.

BOARD OF TRUSTEES OF THE
LOUDOUN COUNTY LIBRARY

Defendant.

_______________________________


)
)
)
)
)
)    Case No. CA-97-2049-A
)
)
)
)
)
)
)

Memorandum of Defendant Board of Trustees of the Loudoun County Public Library in Opposition to Petitions for Attorneys’ Fees

Defendant, the Loudoun County Library Board of Trustees, by counsel, submits this Opposition to the request for $488,574 in attorneys’ fees and costs submitted by counsel for the Plaintiffs and the Intervenors. The grounds for this Opposition are that, under the law of the case as established in this Court’s April 7, 1998 opinion, no attorneys fees should be assessed. In addition, consistent with this Court’s April and November 23, 1998 opinions, 230(c)(2)(A) of the Communications Decency Act protects libraries from financial liability arising from suits challenging the use of Internet filtering software. Finally, even if the Court were to re-open these issues and conclude that fees could be awarded in the Court’s discretion, any award in an amount exceeding $125,000 would be unwarranted.

When counsel first appeared before the Court on February 27, 1998, the Court had the following colloquy with counsel:

The Court: This case does have features similar to Urofsky, but there are definitely features that are different, and therefore, I am going to take a lot of time to look at it carefully. But I would urge you not to incur [time] [begin page 2] since you’re relatively early in the life of this litigation -- right? When is your pretrial date?

Mr. Corn-Revere: We missed the February batch. I guess we’re in the March scheduling order batch.

The Court: All right. You should have an opinion before then, I would hope. And so what I want you to do, obviously, is to keep any further attorney’s fees to a minimum because of the nature of the parties in the case, all right? Thank you.

1  This figure which we have calculate on the basis of the data in the petitions is consistent with the amount first stated by plaintiffs’ counsel in unsuccessful fee settlement discussions between the parties. The plaintiffs have previously discussed publicly the content of these discussions. See "Mainstream Loudoun Sought Settlement in library case", Loudoun Times-Mirror, February 3, 1999, at A9. Plaintiff Mainstream Loudoun erroneously indicated Defendant’s counsel refused to negotiate a fee settlement. That fact is that the parties were too far apart to reach agreement.
2  See Venable billing records, attached as Exhibit 1. The defense team of Ken Bass and Damon Wright occasionally sought the assistance of other Venable attorneys whose combined time is 49.1 hours.

Feb. 27, 1998, trans. at 56. All counsel who have submitted fee applications were present on that date to hear the Court’s admonishment. It appears that counsel for Plaintiffs and Intervenors did not heed that instruction and instead managed this case without regard to minimizing potential fees. Opposing counsel staffed this case with a total of at least seventeen lawyers, four summer associates, four paralegals, several interns, and other time-keepers, amassing a total "billable" attorneys’ fee amount (before the voluntary reductions in their petitions as submitted) of at least 2,779.05 hours and $747,849.1 In stark contrast, the defense team was composed almost entirely of one partner and one associate who collectively accrued a total billable amount of 722.8 hours and $133,932.2

Any determination of a lodestar amount in this case should begin with the fees incurred by the defense and should reject the accountings of the Plaintiffs and Intervenors out-of-hand. It is apparent that there were inadequate efforts made to avoid unnecessary duplication and wasted effort on the part of opposing counsel. This case represents one of the unfortunate aspects of public interest, nominally pro bono representations. Where,

[begin page 3]

3  Thus, for example, opposing counsel engaged the services of four summer associates as well as numerous other full-time lawyers. Plaintiffs’ Pet. at 14. This case obviously had appeal and recruitment potential for summer associates, but their involvement necessarily required additional time and effort by the supervising senior staff -- time and effort that only served to increase fees.

as here, there is no client who is responsible for payment of fees and expenses, lawyers are not subject to the restraining influence of their clients’ financial concerns and all-too-often neglect careful case-management and over-work their case. That risk is especially present in cases like this that involve novel, noteworthy, and intellectually-challenging issues of constitutional law.3 Practitioners recognize that the presence of additional lawyers will often lead to increased inefficiency, duplication of effort, and excessive billings. That reality is evidenced in this case.

The Defendant is a public body with no sources of revenue. Declaration of Loudoun County Administrator, Kirby M. Bowers ("Bowers Declaration") at 9 (attached as Exhibit 2); Declaration of Loudoun County Library Director Douglas A. Henderson ("Henderson Declaration") at 2 (attached as Exhibit 3). The Library Board has no taxation power, nor does the Board charge fees for books, fees for overdue books, or room rental for community activities. Henderson Declaration at 2. The Board’s only source of income is the funds appropriated to it by the Loudoun County Board of Supervisors. Bowers Declaration at 9. Under Virginia law, the Library Board is a separate legal entity and is not a sub-entity of the County. 1993 Va. Att’y Gen. Ann. Rep. 27, 31 (library boards are not units of county government but exist as separate and independent political subdivisions that "exercise a portion of the state’s sovereign power"). The County is not a party to this case and is in no way responsible for payment of any fees, expenses or awards in the case.

[begin page 4]

4  The Board receives an annual appropriation from the County. Bowers Declaration at 9. That amount is budgeted based on a certain staff level. During the year, positions may become vacant either through resignations or an inability to fill a vacancy. These "vacancy reserves" thus represent appropriated funds that are not allocated to other library functions and can be applied to unforeseen expenses without impairing the library program. Defense counsel have been reimbursed for their services to the extent of those available funds, plus an additional sum appropriated by the County Board of Supervisors to assist the Board in the defense of this litigation. Henderson Declaration at 5.

In recognition of this fact, defense counsel agreed to render services at 75% of our normal hourly rates and have additionally accepted payment only from funds available to the Board from unfilled vacancy appropriations and an emergency allocation from the Board of Supervisors.4 There are no additional funds available in the Board budget for payment of attorneys’ fees, either to pay the unpaid fees of defense counsel or to pay an award that this Court might give to plaintiffs’ counsel. Unlike the Commonwealth of Virginia which enjoys a budgetary surplus that could be used to pay the fees awarded in Urofsky v. Allen, Civil Action No. 97-701-A (May 19, 1998), Loudoun County does not have enough funds to fill all requested programmatic needs of the library, much less to pay almost $500,000 in attorneys’ fees in this litigation. Henderson Declaration at 3-7.

Each of these grounds will be detailed below. Taken singly – or certainly in combination – they warrant the Court’s conclusion that no fees should be awarded in this case. If, however, the Court does determine to award a fee, this award should not exceed $125,000 to be split among counsel as they see fit. This amount should be payable only from Library vacancy reserves as they accrue or from funds particularly appropriated to the Board by the Loudoun County Board of Supervisors for the express purpose of paying attorneys’ fees in this litigation.

[begin page 5]

I.  Under The Law Of The Case, No Fees Should Be Awarded

As the Court will recall, Defendant responded to the Complaint by filing a Motion to Dismiss based on several grounds, including the doctrine of absolute legislative immunity. This Court’s opinion on this issue constitutes the law of the case and bars the award of any attorneys’ fees or costs.

In its Memorandum Opinion of April 7, 1998, this Court recognized that underlying legislative immunity was the principle that "a private civil action, whether for an injunction or damages, creates a distraction and forces [legislators] to divert their time, energy, and attention from their legislative tasks to defend the litigation." Apr. 7, mem. op. at 4 (quoting Eastland v. United States Serviceman’s Fund, 421 U.S. 491, 503 (1975)). This Court further recognized that "the threat of civil liability robs legislators of the courage necessary to legislate for the public good." Apr. 7, mem. op. at 5 (citing Tenney v. Brandhove, 341 U.S. 367, 377 (1951) and Lake Country Estates v. Tahoe Regional Planning Auth., 440 U.S. 391, 404 (1979)). This Court then analyzed the controlling effect of Supreme Ct. of Va. v. Consumers Union, 446 U.S. 391 (1980).

As this Court explained, the decision in Consumers Union established that a legislative body like the Library Board "is entitled to absolute immunity for its legislative decisions." Apr. 7, mem. op. at 8. This Court also noted the Supreme Court’s conclusion that "an award of costs and attorneys’ fees pursuant to 42 U.S.C. 1988 was inappropriate because any such award was premised on the Virginia court’s legislative activities, for which they enjoyed absolute immunity." Id. at n. 2, (citing Consumers Union at 738-39). Recognizing the applicability of that decision, this Court held that "[a]s in Consumer Union, plaintiff’s request [in this case] for costs and attorneys’ fees [begin page 6] pursuant to 42 U.S.C. 1988 may be inappropriate if premised on the Library Board’s decision to adopt the Policy, a decision made in its legislative capacity." Id. at 9, n. 3. The Court further stated that it "need not and [did] not make such a determination at this early stage in the litigation." Id.

5 See also Hirschkop v. Snead, 646 F.2d 149 (4th Cir. 1981) (although Virginia Supreme Court disciplinary rule was unconstitutional, the Court was acting in its legislative capacity and was absolutely immune from an award of attorneys’ fees under 42 U.S.C. 1988.

We are now at the end of this litigation, and what this Court foresaw in April occurred in November. In April, this Court held that "[i]t is clear in this case that the Library Board’s decision to adopt the Policy was legislative in nature." Apr. mem. op. at 6. In November, this Court rendered its final judgment based solely on its review of the Internet Policy itself. Nov. mem. op. at 34-38, 45. By declaring the Internet Policy unconstitutional on its face, the Court expressly eschewed any judgment on the implementation of that Policy. Nov. mem. op. at 38. The present fee petitions are necessarily based entirely on the Court’s declaratory judgment that the Board’s Policy – a legislative act – is unconstitutional and on the Court’s issuance of an injunction "to prevent [the Board] from enforcing the Policy." Nov. mem. op. at 45-46. Because this Court has already held that the enactment of that Policy was a legislative act entitled to absolute immunity, any award of attorneys’ fees and costs would be just as inappropriate here as it was in Consumers Union.5

The April 7 decision established the law of the case on this issue and there is no reason to re-visit that holding. Accordingly, the plaintiffs’ fee petitions should be denied.

II.  Under 47 U.S.C. 230(c)(2)(A), No Fees Should Be Awarded

The plaintiffs’ attorneys’ fees petitions should also be denied because, if 47 U.S.C. 230(c)(2)(A) of the Communications Decency Act affords a library with [begin page 7] immunity from damages liability in a suit challenging the use of filtering software, the section necessarily protects a library from attorneys’ fees liability in a similar suit.

This Court previously recognized that 230(c)(2)(A) protects libraries from damages liability. See Nov. mem. op. at 17 ("we found that 230 provides immunity from damages; it does not, however, immunize defendant from an action for declaratory and injunctive relief"). This Court’s recognition that 230 protects libraries from damages liability is entirely consistent with the broad language of 230(c)(2)(A). However, this section supports not just protection from damages liability, but also protection from any financial liability. Indeed, 230(c)(2)(A) provides that "[n]o provider . . . of an interactive computer service shall be held liable" for any action taken in good faith to restrict access to "objectionable" material that may be "constitutionally protected." When Congress chose this broad language, it is unlikely that members intended only to limit the financial harm arising from damages suits against libraries for their use of filtering software. It is more likely that members foresaw suits like this and intended that 230(c)(2)(A) shield libraries from financial harm for any suit challenging the restriction of "objectionable" material that may indeed be "constitutionally protected." As the plaintiffs’ petitions make clear, a public library using filtering software may face serious financial harm regardless of whether it arises from damages or attorneys’ fees liability.

Congress’ express policy objectives also lead to the conclusion that 230(c)(2)(A) applies to attorneys’ fee liability. Specifically, Congress intended to protect libraries and other educational institutions from financial liability in order "to encourage the development of technologies which maximize user control over what information is [begin page 8] received by individuals, families, and schools who use the Internet" and "to remove disincentives for the development and utilization of blocking and filtering technologies . . . . " 47 U.S.C. 230(b)(4) and (5). These policy objectives support that 230(c)(2)(A) protects a library like Loudoun from any financial liability -- whether from plaintiffs’ damages or plaintiffs’ attorneys’ fees. Indeed, the plaintiffs have never contested that 230(c)(2)(A) was intended to limit the financial exposure of libraries, educational institutions, and other interactive computer service providers that face litigation for their good-faith use of filtering software.

The policy objectives and statutory language of 230(c)(2)(A) demonstrate that the provision was to apply to any situation where -- because of litigation challenging a library’s good-faith use of filtering software -- there exists a risk that a public library’s coffers may be emptied. For the same reason that this Court recognized that 230(c)(2)(A) shields libraries from damages liability, this Court should recognize that the provision shields this public library from attorneys’ fees liability. Accordingly, plaintiffs’ fee petitions should be denied.

III.  The Principles Underlying The Attorneys’ Fee Statute
Do Not Justify An Award Of Fees In This Case

The plaintiffs’ counsel recognize that a significant consideration supporting fee awards under 42 U.S.C. 1988 is the undesirability of the case within the legal community in which the suit arose. Plaintiffs’ Pet. at 16, n. 17; Intervenors’ Pet. at 1 (citing Daley v. Hill, 790 F.2d 1071 (4th Cir. 1987)). Thus, as support for their fees request, Intervenors’ counsel states:

[The attorneys’ fees statute] is designed to make it possible for lawyers to take civil rights cases. Those cases are frequently unpopular and difficult cases, with uncertain outcomes, on behalf of poor or powerless clients.

[begin page 9]

Intervenors’ Pet. at 5 (citing Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)). Although plaintiffs’ counsel raise these considerations in support of their exorbitant fee requests, these considerations actually support no fee award. By no means was this an unpopular or undesirable case for counsel, and the prevailing plaintiffs do not need an award of attorneys’ fees in order to be made whole.

Both Intervenors’ and Plaintiffs’ counsel’s own billing records demonstrate that they had little reservation about pursuing this case. Indeed, these billing records demonstrate that counsel were actually recruiting plaintiffs to bring suit. See ACLU Audit and Plaintiffs’ Audit (attached as Exhibits 4 and 5) and designations of "Plaintiff Recruitment". These prevailing plaintiffs are neither poor nor powerless, and they absolutely did not have to entice their counsel with the prospect of a fee award in order to secure representation. Rather, counsel affirmatively contacted individuals and persuaded them to serve as plaintiffs for this cause.

6  Each Intervenor stated that he or she had no other information, other than that provided by counsel, to support the allegation that access to their material had been blocked by the Defendant. Arau Dep. at p.62, ll. 7-14; Filkins Dep. at p.38, l. 6 - p.45, l. 6; Gardner Dep. at p.9, ll. 3-10; Hapchuk Dep. at p.29, l. 18 - p.34, l. 12; Meyers Dep. at p.16, l. 17 - p.17, l. 19., at p. 35, ll. 1-17; Morse Dep. at p.11, l. 3 - p.13, l. 17; Ockerbloom Dep. at p.55. ll. 3-12; Wallace Dep. at p.39, l. 17 - p.40, l. 17. See attachments to Defendant’s Motion for Summary Judgment.
7  See Mainstream Loudoun Complaint and Defendant’s Motion to Dismiss at Exhibit B.

Moreover, neither the Intervenors nor the Plaintiffs suffered any kind of injury that a fee award to their counsel would make whole. As their counsel make clear, the plaintiffs never paid and were never expected to pay any attorneys’ fees to their counsel. Plaintiffs’ Pet. at Ex. 3; Intervenors’ Hansen Dec. at 12. None of the plaintiffs were required to bear any of the costs since all costs were paid by the two non-profit litigation organizations that funded this suit. Id. With regard to the Intervenors, the record shows that the Intervenors were not even aware that their web-sites had been blocked until the ACLU contacted them for purposes of its suit.6 With regard to the original Plaintiffs, [begin page 10] these fee petitions are flatly inconsistent with the organization’s oft-espoused concern for the best interests of Loudoun County.7

Any fee award will go to the ACLU, People for the American Way, and Hogan & Hartson. These organizations actively sought to serve as counsel, located plaintiffs to bring this case, and willingly participated in this case, without requiring any payment for fees or expenses. The considerations relied upon by plaintiffs’ counsel actually support no fee award in this case.

IV.  Any Lodestar Figure Should Be Based On Defendant’s Actual Incurred Fees

If the Court were to award fees notwithstanding these considerations, the parameters for any such award are established by prior decisions, including most specifically this Court’s decision in Urofsky v. Allen, Civil Action No. 97-701-A (May 19, 1998), cited and relied upon in both fee petitions. Plaintiffs’ Pet. at 8; Intervenors’ Pet. at 2-3. Under that decision, as well as other 42 U.S.C. 1988 precedents, the fee-setting process begins with "an objective estimate of the value of the services provided." Intervenors’ Pet. at 1. Defendant submits that any such objective estimate will begin with the $133,932 in fees incurred by the Board to defend this case, not the combined $488,000 in fees sought by the phalanx of plaintiffs’ counsel.

8  The presence of the additional plaintiffs unnecessarily complicated and prolonged the litigation. The evidence developed in discovery plainly showed that the Intervenors were recruited by the ACLU and had not sought legal assistance in redressing any grievances they had. The evidence further showed that a few of the original Intervenors plainly had no standing, that at least one of the Intervenors had no material on the Internet that could have been affected by the Board’s Policy, and that none of the Intervenors had suffered any injury other than (perhaps) a transitory inability of a theoretical library patron to access their material. The Intervenors complicated discovery by producing experts whose reports were entirely irrelevant to the outcome of the litigation and were not relied upon by the Court in rendering its judgment. In short, Intervenors’ presence added nothing of value and in fact required the expenditure of unnecessary time and expense for both the Defendant and the original Plaintiffs.

A starting point for any reasonableness analysis should begin with the Court’s observation in Urofsky that, while "use of multiple attorneys to prosecute a case is not inherently unreasonable, . . . defendant’s competent but comparatively understaffed defense of this action demonstrates that the army of attorneys plaintiffs assembled was [begin page 11] unnecessary here." Urofsky, at 6. In Urofsky, the ACLU fielded ten attorneys. Here, while the ACLU fielded a total team of 5 lawyers and additional law clerks, paralegals and law student interns, not a single one of those individuals was a necessary or reasonable addition to the multi-lawyer team that began this case on behalf of Mainstream Loudoun. The presence of the Intervenors and their counsel did not affect the outcome in any way favorable to their cause. While the Intervenors added to the complications of the standing issues, they added no arguments on the merits that were not already competently advanced by Mainstream Loudoun’s counsel. The absence of any need for the increased fees attributed to Intervenors’ counsel has been recognized by Mainstream Loudoun when it’s President stated publicly that "Mainstream’s attorneys have encouraged the ACLU to settle the case for a lesser fee." Loudoun Times-Mirror, February 3, 1999, at A9.8

9  Defendant submits that the difficulty of the task confronting plaintiffs’ counsel was not as great as that confronting defense counsel. Their case consisted of applying established First Amendment principles and precedents. Our defense rested substantially in advancing novel theories of constitutional and statutory law. An objective analysis of the comparative difficulty of litigating the two positions leads to the conclusion that the task confronting defense counsel was substantially greater than that confronting plaintiffs’ counsel. That comparative difficulty underscores the reasonableness of the effort expended by defense counsel and the unreasonableness of the resources applied by the plaintiffs.

Counsel for Mainstream Loudoun was also unnecessarily numerous. The lead counsel, Robert Corn-Revere of Hogan & Hartson, undertook the representation as an approved pro bono activity of his firm. Both he and his firm are admittedly competent. Indeed, he is a self-acknowledged expert in First Amendment law and professor at the Catholic University Law School where he teaches First Amendment law. See Plaintiffs’ Pet. at Ex. 3F. Defendant submits that he needed no additional legal assistance to fully, [begin page 12] competently and successfully litigate this case.9 Thus, the services of counsel for People for the American Way were extraneous and unnecessary to the ultimately successful effort of the lead counsel for the original Plaintiffs.

V.  The Petitions Seek Fees That Are Not Allowed Under Urofsky,
Established Authority, and the Plaintiffs’ Own Petitions

The Plaintiffs and Intervenors seek $488,000 in attorneys’ fees and costs for tasks that are expressly barred either by this Court’s decision in Urofsky, by established authority, or by the representations of plaintiffs’ counsel themselves. Defendant has undertaken its own analysis of the fee petitions. This analysis discloses at least 1177.61 hours of time and $260,806.79 in fees and expenses that should not be allowed. Two spreadsheets summarizing our own analysis of the ACLU’s and the Plaintiffs’ billing records are attached as Exhibits 4 and 5. The Defendant challenges billing entries that describe the following tasks: communications between counsel; observing colleagues in court and at depositions; travel time; plaintiff recruitment; preparation of expert reports; preparation of un-filed stipulations and a denied motion to compel; review of drafts of the other plaintiffs’ materials or preparing for another plaintiffs’ motions hearing; administrative work; tasks that are vaguely described, took an excessive amount of time, or were for publicity purposes; and unnecessary expenses. Several of the billing entries describe two or more of the challenged tasks. In order that the Court does not "double-

[begin page 13]

count" the deductions which should be made, the Defendant’s "hours" tables include the hours allotted to a challenged billing entry only once.

Counsel Communication

In Urofsky, this Court held that "a defendant should not be made to pay each plaintiffs’ attorney for time spent conferencing with other plaintiffs’ attorney about a case one attorney could have handled alone." Urofsky, at 6. Both the Plaintiffs and the Intervenors’ counsel represent that they have reduced their fees’ request in accordance with Urofsky. Indeed, the Intervenors’ counsel expressly represent that they "eliminated all time spent meeting and conferring with ACLU co-counsel, with the exception of several hours spent preparing for argument on the major substantive motions of this case." Intervenors’ Pet. at 2. Notwithstanding these representations, the Plaintiffs’ and the Intervenors’ counsel have requested fees for an astronomical amount of time spent conducing intra-counsel and inter-counsel conferences. See ACLU Audit and Plaintiffs’ Audit and designations of Communication. As evidenced by the attached audits, both Plaintiffs’ and Intervenors’ counsel seek fees for ongoing and regular conferences between counsel in which they coordinated their efforts and collaborated on work products. As in Urofsky, "conferences and document exchanges make up a hefty portion of the billable hours plaintiffs claim." These deductions should be as follows:

ATTORNEY

HOURS

FEES

HANSEN

30.77

$7,384.80

BEESON

76.04

$13,307.00

SALYER

0.1

$10.00

CORN-REVERE

358.75

$86,100.00

WILTSIE10

64.75

$14,892.50

CALLAHAN

71.25

$10,687.50

MINCBERG

51.25

$12,300.00

OTTINGER

120.00

$27,600.00

TOTAL

772.91 $172,281.80
10  The deduction in Ronald Wiltsie’s time should probably be greater than this, as he had numerous conferences which are not accounted for in his task descriptions. For example, from the period of January 15, 1998 to June 26, 1998, Corn-Revere’s billing entries state that he met with Wiltsie at least 29 times and billed 108.5 hours for tasks which included these meetings. Although Wiltsie billed 181.25 hours for this same time period, Wiltsie only describes one meeting on May 29, 1998 within this time period.

[begin page 14]

Counsel Not Needed For Matter

In Urofsky, this Court also reduced the plaintiffs’ fee award by a "significant number of hours for time [plaintiffs] spent observing co-counsel perform at deposition or oral argument." Urofsky, at 7. Nonetheless, as evidenced by their own billing records, the Plaintiffs and Intervenors seek fees for these very tasks. See Audits and designations of Not Needed. These deductions should be as follows:

ATTORNEY

HOURS

FEES

HANSEN

1

$240.00

SALYER

1.6

$160.00

WILTSIE

9.5

$2,185.00

CALLAHAN

10

$1,500.00

MINCBERG

15.25

$3,660.00

OTTINGER

7

$1,610.00

TOTAL

44.35 $9,355.00

Travel Time

In Urofsky, this Court also reduced the plaintiffs’ fee award for time spent travelling to Virginia and for expenses in travelling to Virginia. Urofsky, at 5. Again, the Intervenors’ counsel represented to the Court that they "have eliminated all time spent travelling between New York City and Washington, D.C., and between Washington, D.C. and Alexandria." Intervenors Pet. at 2. However, this statement is simply incorrect, and Intervenors’ counsel seek fees for these very trips. See Audit of ACLU and designations of Travel Time. The Intervenors’ counsel should also not recover fees for time spent travelling to California, because there is no indication that work was performed during this time. See Riddell v. National Democratic Party, 712 F. 2d 165 (5th Cir. 1983) David C. v. Leavitt, 900 F. Supp. 1547 (D. Utah, 1995). These deductions should be as follows:

[begin page 15]

ATTORNEY

HOURS

FEES

HANSEN11

20.6

$2,472.00

BEESON

19.17

$3,354.75

TOTAL

39.77 $5,826.75
11  Chris Hansen reduced his hourly fee for travel time to $120 per hour.

Plaintiff Recruitment

The Plaintiffs and Intervenors’ counsel also seek fees for time which admittedly was exercised for the purposes of "plaintiff recruitment" or for conferring with "potential plaintiffs." See Audits and designations of Plaintiff Recruitment. Although 42 U.S.C. 1988 allows a prevailing plaintiff to recover his attorneys’ fees, no authority allows attorneys to recover monies for time spent attempting to locate plaintiffs or in encouraging them to participate in suit. These deductions should be as follows:

ATTORNEY

HOURS

FEES

BEESON

34.83

$6,095.25

OTTINGER

6.5

$1,495.50

TOTAL

41.33 $7,590.75

Expert Report Preparation

Likewise, the Plaintiffs’ and Intervenors’ seek fees for time devoted to editing, finalizing, and preparing their expert witness reports. See Audits and designations of Preparation of Expert Report. Although counsel may review and discuss the report with the expert, courts have uniformly criticized the practice of attorneys assisting in the actual writing and editing of an expert’s report. As explained in Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384, 394 (N.D.Cal. 1991):

[I]t would be fundamentally misleading, and could do great damage to the integrity of the truth finding process, if testimony that was being presented as the independent thinking of an ‘expert’ in fact was the product, in whole or significant part, of the suggestions of counsel. The trier of fact has a right to know who is testifying. If it is the lawyer who really is [begin page 16] testifying, surreptitiously through the expert . . . it would be fundamentally unfair to the truth finding process to lead the jury or court to believe that the background and personal attributes of the expert should be taken into account when the persuasive power of the testimony is assessed.

See also Smith v. State Farm Fire and Casualty, 164 F.R.D. 49, 54 (W.D.Va. 1995) ("‘the report should be written in a manner that reflects the testimony to be given by the witness,’ and not the closing argument of Plaintiffs’ attorney."); Occulto v. Adamar of New Jersey, 125 F.R.D. 611, 615-16 (D.N.J. 1989) ("A party receiving an adversary’s expert signed report has a right to rely upon the document for what it purports to be . . . . Experts participate in a case because, ultimately, the trier of fact will be assisted by their opinions, [and] [t]hey do not participate as the alter-ego of the attorney who will be trying the case.") These deductions should be as follows:

ATTORNEY

HOURS

FEES

HANSEN

13.83

$3,319.20

BEESON

3.16

$553.00

CALLAHAN

7.75

$1,162.50

OTTINGER

1.5

$345.00

TOTAL

26.24 $5,379.70

Motion to Compel or Stipulations

The Plaintiffs’ counsel also represented to the Court that "hours spent on an unsuccessful motion to compel and on preparing a joint stipulation of facts were deleted because the motion to compel was denied and the stipulations were never filed." Plaintiffs’ Pet. at 14. Again, this statement is not correct. See Plaintiffs’ Audit and designations of Motion to Compel and Stipulations. In addition, Intervenors’ stipulations were never filed, and -- as implicitly recognized by Plaintiffs’ counsel -- fees for this time should not be recoverable. See ACLU Audit and designation of Stipulations. These deductions should be as follows:

[begin page 17]

ATTORNEY HOURS FEES

HANSEN

3.2

$768.00

BEESON

35.75

$6,256.25

CORN-REVERE

32.5

$7,800.00

WILTSIE

18.75

$4,312.50

CALLAHAN

14.25

$2,137.50

OTTINGER

1.5

$230.00

TOTAL

105.95 $21,504.25

M.L. Work or ACLU Work

12  Indeed, for conferences with Hansen and Corn-Revere, as well as her own preparation for the Motion to Dismiss argument, Ann Beeson claims approximately 18 hours of work on February 25, 1998.

The Intervenors’ counsel seek fees for an excessive amount of time preparing for argument on Defendant’s Motion to Dismiss, which was directed against the Plaintiffs. See ACLU Audit and designation of M.L. Work.12   Likewise, Plaintiffs’ counsel seek fees for time reviewing drafts of the Intervenors’ pleadings. See Plaintiffs’ Audit and designations of ACLU Work. These deductions should be as follows:

ATTORNEY HOURS FEES

BEESON

17.85

$3,123.75

OTTINGER

3.25

$747.50

TOTAL

21.1 $3,871.25

Administrative Work

Both Plaintiffs’ and Intervenors’ counsel seek fees for routine activities such as making flight reservations, calling court reporters, organizing their files, and calling couriers. See Audits and designations of Administrative Work. These deductions should be as follows:

ATTORNEY

HOURS

FEES

HANSEN

3.7

$888.00

BEESON

3.83

$670.25

WILTSIE

.25

$57.50

CALLAHAN

4.25

$712.50

TOTAL

12.3 $2,328.25

[begin page 18]

Vague, Excessive, or Publicity Work

Finally, Plaintiffs’ counsel seek fees for a substantial amount of time conducting activities that are described only as "filing" or (a month and a half before trial) "pretrial preparation." See Plaintiffs’ Audit and designations of Vague. Likewise, Plaintiffs’ and Intervenors’ counsel seek fees for an excessive amount of time conducting activities, such as lunch with an expert or a call to the Court’s clerk, that should not have taken the amount of time described. See Audits and designations of Excessive. Plaintiffs’ counsel also seek fees for activities such as preparing statements for the Loudoun Board of Trustees’ public meetings. See Audit and designations of Publicity Work. These deductions should be as follows:

ATTORNEY

HOURS

FEES

HANSEN

2.3

$552.00

BEESON

58.67

$1,211.00

SALYER

14.3

$1,430.00

WILTSIE

37

$8,510.00

TOTAL

112.27 $11,703.00

Unnecessary Expenses

Intervenors’ counsel seek costs for travel to and from the Washington, D.C. area, notwithstanding this Court’s holding in Urofsky. As well, Plaintiffs’ counsel apparently seek $3,341.14 for air travel expenses, notwithstanding their representations that air travel expenses were only $1,741.32 comprising $1,641.32 for one ticket and $100 for another ticket. See Plaintiffs’ Pet. at Ex. 3, p. 13. Finally, Plaintiffs’ counsel seek to recover almost $2,000 in long distance telephone, Federal Express, and other [begin page 19] communications charges. Considering Plaintiffs’ counsel’s proximity to this Court and the client, these charges were most likely incurred as part of the ongoing communication with Intervenors’ counsel. These deductions should be as follows:

ACLU

Travel for Janes Depo

$908.15

ACLU

Travel for Filkins

$1,861.11

ACLU

Travel for Arau

$1,441.90

ACLU

Travel for Ockerbloom

$717.15

ACLU

Travel for Meyers

$340.08

ACLU

Travel for Morse

$1,368.30

ACLU

Hansen Travel

$427.62

ACLU

Sehgal Travel

$537.87

Plaintiffs’

Travel Expenses

$1,756.15

Plaintiffs’

Communication Expense

$1,960.21

TOTAL

 

$11,318.54

Total Fee and Expense Deduction Summary

The plaintiffs have requested fees and expenses for tasks expressly not compensable under Urofsky, applicable law, and their own representations to the Court. Collectively, the total sum of deductions against Plaintiffs’ and Intervenors’ counsels’ fee and expense requests should be at least the following:

ATTORNEY

HOURS

FEES

HANSEN

75.4

$15,624.00

BEESON

246.21

$43,086.75

SALYER

16

$1,600.00

CORN-REVERE

391.25

$93,900.00

WILTSIE

130

$29,900.00

CALLAHAN

107.5

$16,125.00

MINCBERG

66.50

$15,960.00

OTTINGER

144.75

$33,292.50

ACLU EXPENSES

 

$7,602.18

PLAINTIFFS’ EXPENSES

 

$3,716.36

TOTAL

1177.61 $260,806.79

 [begin page 20]

VI.  Payment Of Any Fee That May Be Awarded Should Be Limited
To Non-Programmatic Funds As They Become Available

13  Ken Bass billed time at $220 an hour (75% of his customary hourly rate), and Damon Wright billed time at $68 an hour (50% of his customary hourly rate). Those rates are well within the rates allowed in Urofsky for counsel of comparable experience, stature, and background. See Venable resumes of defense counsel attached as Ex. 6.

Defense counsel agreed to undertake this matter at 75% of our customary hourly fees.13   Henderson Declaration at 4. That discount was based on the public service nature of the case and the limited fiscal resources of the Library Board. Defense counsel also recognized that the costs of litigation could pose a significant undesirable burden on the Library Board’s public mission. Because the Board has no revenues, no income other than appropriated funds, and no endowment, any requirement that the Board pay all fees as incurred would necessarily have an adverse impact on library services and would impair the Library’s mission. Accordingly, defense counsel agreed that the Board would only be expected to pay fees from available funds that were not required to fund the Library’s activities. These funds came from two sources: (1) unexpended appropriations allocated for staff positions that were vacant; and (2) a $18,000 emergency appropriation from the Loudoun County Board of Supervisors. Henderson Declaration at 5.

The realities of the Board’s budget combined with the issues in the case provide the "special circumstances" that would make an award of fees "unjust" as contemplated in Hensley v. Eckerhart, 461 U.S. 424 (1983). Unlike many public bodies and state governments that have an ability to pass litigation costs on to the public through taxation, the Library Board is totally dependent for funding on the political process of the Loudoun County Board of Supervisors. Bowers Declaration at 9. There is no "slush fund", general expense fund, or reserve fund for the Library. The only funds it has are funds specifically earmarked for Library purposes. It is possible that in the future funds will [begin page 21] again become available because of unfilled staff vacancies or a special appropriation from the Board of Supervisors. Neither of those possible sources of funds are within the Board’s control. Because the Board has no ability to pay any additional fees, absent one of these two developments, it would be unjust to impose a fee on the Board unless it is expressly conditioned on payment only from vacancy reserves or special earmarked appropriations from the Loudoun Board of Supervisors.

The Court is well-aware of the fact that the issue of Internet filtering is one of national significance. Thus far the Loudoun County Library has been the standard bearer for those numerous libraries, admittedly a minority, who have taken a stand in opposition to the policy of the American Library Association. The stand Loudoun took cannot be said to have been reckless or in disregard of the law. Prior to this court’s decision, there was no judicial guidance on the issues in this case. As soon as this Court declared the law and decided an issue of first impression, the Library Board promptly changed its policy to comply with that decision, reserving is right to seek appellate review. The constitutional issue remains an open one at the appellate level. All counsel agree that it is an issue of national public concern and one on which reasonable lawyers – and judges – could disagree. In short, the public interest is well-served by full litigation of this issue. Given the absence of precedent that should have precluded the Board from adopting its Internet Policy in good faith, any fee that would otherwise be awarded should be substantially reduced, if not eliminated in its entirety.

[begin page 22]

VI. Conclusion

For the aforementioned reasons, the Board of Trustees of the Loudoun County Library respectfully requests that the Plaintiffs’ and Intervenors’ attorneys’ fees and costs petitions be denied.

Respectfully submitted,

____________________________

Kenneth C. Bass, III
Damon W.D. Wright
Venable, Baetjer and Howard, LLP
2010 Corporate Ridge, Suite 400
McLean, VA 22012
(703) 760-1600

Attorneys for Defendant

 

CERTIFICATE OF SERVICE

I hereby certify that on this 8th day of February, 1999 a copy of the foregoing Defendant’s Opposition to Attorneys’ Fees Petitions was served by first-class mail, postage prepaid, on:

Robert Corn-Revere
Ronald J. Wiltsie
HOGAN & HARTSON L.L.P.
555 Thirteen St., N.W.
Suite 1300
Washington, DC 20004-1109
(202) 637-5600
Counsel for Plaintiffs

and

Ann Beeson
Christopher A. Hansen
Marjorie Heins
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street
New York, NY 10004
(212) 459-2500

Counsel for Intervenors

_______________________________

Damon W.D. Wright

 

Subscriptions | FAQ | Notices & Disclaimers | Privacy Policy
Copyright 1998-2008 David Carney, dba Tech Law Journal. All rights reserved.
Phone: 202-364-8882. P.O. Box 4851, Washington DC, 20008.