Tag Archives: litigation

Fourth Circuit Pulls No Punches in en banc Ruling on Second Immigration Order

In writing for the majority in the Fourth Circuit’s May 25, 2017 en banc decision on the second Immigration Order, Chief Judge Roger L. Gregory pulled no punches.  The combined opinions of the Court in International Refugee Assistance Project v. Trump (No. 17-1351) span 206 pages, but in the opening paragraph of his majority opinion, the Chief Judge puts a dagger into the Administration’s arguments.  He writes:

The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex Parte Milligan, 71 U.S.  (4 Wall) 2. 120 (1866), remains “a law for rulers and people, equally in war and in peace.”  And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with the vague words of national security, but in context drips with religious intolerance, animus, and discrimination.

There’s no ambiguity in these words.

This Blog Post is the EDVa Update’s seventh posting on the Immigration Orders.   We posted previously on EO-1 back on February 3, 7, and 14, and then on EO-2 on March 20 and 30, and again on April 21.

Thirteen of the Fourth Circuit’s fifteen judges participated in the en banc argument (two judges recused themselves—more on this below).  Chief Judge Gregory’s opinion is joined by six other judges from the court.  There are two concurring opinions (including substantially concurring votes with the majority), and three dissents.

The bottom-line result is that the Fourth Circuit affirmed the Maryland District Court’s nationwide preliminary injunction barring enforcement of Section 2(c) of Executive Order 13780, the second Immigration Order signed by President Trump.   The decision was probably expected, but the vitriolic tenor of the majority opinion is still a surprise.

The same Executive Order is the subject of an injunction entered by a Hawaii federal judge.  That ruling is also on appeal, and a three-judge panel from the Ninth Circuit heard oral argument on May 15, 2017.  That panel is not yet ruled.

On June 1, 2017, the Administration filed in the U.S. Supreme Court its Petition for a Writ of Certiorari and for an emergency stay of the decision.  A stay requires the affirmative votes of five Justices.

Isolation of the Judicial Review Issue

The issue at the core of the Immigration Order battle is whether in the immigration context the federal courts should look behind the facial justifications given for the Executive Order.  The campaign statements of candidate Trump allegedly evidenced an anti-Muslim animus, and post-inauguration statements by the President and his advisors were alleged to confirm this animus.  But it was generally conceded that the obvious flaws in EO-1 were corrected and that EO-2 was facially neutral.

In the briefing and at the oral argument, the Administration aggressively defended the second Immigration Order as facially legitimate, and argued that for this reason the Court should look no further.  The Plaintiffs alleged that the Order’s stated purpose was given in bad faith, and therefore, the federal courts must consider whether the Plaintiffs made the requisite showing of bad faith.

Fourth Circuit’s Majority Analysis

The Fourth Circuit moved to the core issue finding “that Plaintiffs have more than plausibly alleged that EO-2’s stated national security interest was provided in bad faith, as a pretext for its religious purpose.”

The Court then delivered its key finding: “Plaintiffs have made a substantial and affirmative showing that the government’s national security purpose was proffered in bad faith, we [therefore] find it appropriate to apply our long-standing Establishment Clause doctrine.”    Chief Judge Gregory concluded that “the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs.”  The opinion discusses the now familiar evidence from the litigation on both the first Immigration Order and the second Immigration Order.   “[T]he Government’s argument that EO-2’s primary purpose is related to national security . . . is belied by evidence in the record that President Trump issued the first Executive Order without consulting the relevant agencies, . . . and that those agencies only offered a national security rationale after EO-1 was enjoined.´  This leads to the circuit court’s conclusion, “[L]ike the district court, we think the strong evidence that the national security justification for EO-2 was secondary to its primary religious purpose and was offered as more of a ‘litigating position’ than is the actual purpose of EO-2.”

The Chief Judge then again applied the dagger:

The Government has repeatedly asked this Court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the in the name of the Constitution’s separation of powers.  We declined to do so not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review.  The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution.

Judge Keenan offered a concurring opinion, which Judge Thacker joined.  Judge Wynn added his own concurring opinion.

The Three Dissents

Judges Niemeyer, Shedd, and Agree wrote dissenting opinions.

In his dissent, Judge Niemeyer accepted the Administration’s argument that in the immigration context the federal courts should not look beyond the given facially legitimate and bona fide reasons for the Immigration Order.  He concludes, “considering the Order on its face, as we are required to do . . . it is entirely without constitutional fault that the Order was a valid exercise of the President’s authority . . . “Judge Niemeyer would draw the line as barring any further court review.  But after this defense was breached, he is deeply troubled by the majority’s willingness to rely on statements made by candidate Trump during the presidential campaign.

The second dissent, by Judge Schedd, joins with Judge Niemeyer, but adds a practical public interest analysis.  He concludes that “the district court’s public interest analysis misses the mark.”  When weighing the public’s interest, as courts are required to do when considering preliminary injunctions, the national security interests of the nation seem to have been swept under the rug.  Judge Shedd would deny a preliminary injunction on the ground that a balancing of interests favors enforcement of the Order.

Judge Agee joins with the other dissenters, but states as a separate basis for his dissent the questionable standing of the remaining Plaintiffs.  Obviously, if the remaining Plaintiffs have no standing, the Court could end the case.

Judge Wilkinson’s Recusal

Judge J. Harvey Wilkinson recused himself because his son-in-law is the acting Solicitor General who argued the case for the Administration.  While the recusal was legally appropriate, Judge Wilkinson’s absence deprives the decision of the analysis from one of the Fourth Circuit’s thought leaders.  His vote would not have changed the result, but if Judge Wilkinson had participated and had joined the majority, or had provided a concurring opinion, then the Administration might be very hesitant to push this case to the Supreme Court.  On the other hand, a strong dissent from Judge Wilkinson would have added gravitas to the Administration’s arguments.

Summary

The Fourth Circuit’s en banc decision in International Refugee Assistance Project v. Trump does not come as a surprise, based upon the oral argument.  The circuit court perhaps could have decided for the Administration by adopting Judge Trenga’s analysis (see EDVa Update March 30, 2017 Post, EDVa Back in the Immigration Fray: Judge Trenga Provides Qualified Win for President Trump’s New Immigration Order), but it went decidedly the other way in its 10-3 decision.  The surprise is the vitriolic tenor of the majority opinion.   The en banc argument was civil, as is always so in the Fourth Circuit.  But the opinions evidence deep-seated and intense views on the role of the federal courts and on the veracity of the Trump Administration, and certainly the Chief Judge pulled no punches when he wrote for the majority.

The late-breaking news is that the Administration has filed its Petition for Certiorari with the U.S. Supreme Court.  An early vote on the request for a stay (which can come this month before the summer recess) would signal the Court’s leaning on the issues.

Failure to Use Basic Security Protections when Transferring Electronic Files Results in Waiver of Privilege

The Attorney/Client Privilege and Work Product Protection for a video file transferred via Box.com was lost when a client failed to use basic security precautions.  A February 2017 ruling by a Western District of Virginia magistrate judge in Harleysville Insurance Company v. Holding Funeral Home, Inc. (Case No. 1:15-cv-00057) should reinforce a requirement that lawyers use basic security protections (at a minimum) for all potentially privileged or protected communications.

  1. All Too Common Facts

There are no winners in this case. Both sides of the Harleysville Insurance matter were scolded by the magistrate judge.  In this case, an insurance investigator transferred a video file to its company’s counsel using Box.com, a popular file transfer and sharing service. To notify counsel of the transfer, the investigator sent an email that included the hyperlink to the video file.  Months later, the transmission email was produced in discovery.  Defendants’ counsel spotted and then tested the hyperlink, and immediately found the video file.

It appears from the recitation of the facts that the investigator knew how to use the basic transfer capabilities of Box.com but was never trained or instructed to use even the basic security tools. For example, Box.com allows for the creation of secure folders and the controlled access to any folder.

To make matters worse, the video file resided on the Box.com site accessible by the hyperlink for at least six months.

  1. Attorney/Client Privilege and Work Product Protection Waiver

After the access to the Box.com site and the video file were exposed, Harleysville argued that the defense counsel’s access to the file was an improper, unauthorized access to privileged information, and this should require the disqualification of defense counsel. The argument in response was that Harleysville had waived any claim of privilege or confidentiality by placing the information on Box.com without using any of the available security tools.

Attorney/Client Privilege.  The court analyzed the Attorney/Client Privilege waiver separately from the Work Product Protection issue.  Its first finding was that Harleysville waived any claim of Attorney/Client Privilege with regard to the information posted on Box.com.  The court concluded that “the information uploaded to this site was available for viewing by anyone, anywhere who was connected to the Internet and happened upon the site by use of the hyperlink or otherwise.”  The decision continues, “In essence, Harleysville has conceded that its actions were the cyber world equivalent of leaving its claim file on a bench in the public square and telling its counsel where they could find it.”

Attorney/Client Privilege issues in the case were governed by state law. Virginia law provides protection for privileged communications. See Walton v. Mid-Atlantic Spine Specialists, 694 S.E.2d 545. 549 (Va. 2010).  But this privilege is an exception to the general duty to disclose and should be strictly construed.   Continuing, the proponent of the privilege has the burden to establish that the Attorney/Client Privilege applies and that the privilege has not been waived.

The Walton case adopts a multifactor analysis for determining whether the holder of a privilege took reasonable steps to prevent disclosure and also took reasonable steps to rectify the error. The first listed factor is “the reasonableness of precautions to prevent inadvertent disclosures.”  Harleysville’s failure to take any reasonable security precautions doomed its argument from the start.

Work Product Protection.  Work Product Protection in this matter was governed by federal law.  The Harleysville Court built its analysis on the Fourth Circuit’s recognition “that the inadvertent disclosure of attorney work product, even opinion work product, can result in a waiver of its protected status.”  This guidance is tempered by additional appellate authority that holds that a waiver should occur only when an attorney’s or client’s actions are “consistent with a conscious disregard of the advantage that is otherwise protected by the work product rule.”

FRE 502(b) would protect an “inadvertent” disclosure.  But the magistrate judge reasoned the disclosure here could not be inadvertent because the investigator clearly intended to transfer the video file to Box.com.  The Court also looked to Rule 502(b)(2), which provides that the disclosure is not a waiver if the holder of the protection “took reasonable to prevent disclosure.”  Again, Harleysville was in a bad place because it failed to take any steps.

The magistrate judge was obviously troubled not only by the transfer of the video file to Box.com without any security precautions, but also by the client leaving the unprotected file on the Internet site for at least six months.  The conclusion followed that this carelessness waived the Work Product Protection.

  1. Sanctions Imposed against Defense Counsel

In the introduction to this Blog post, we noted that both sides were scolded by the Court.  The investigator’s email that included the hyperlink also included a Confidentiality Notice.  This Notice coupled with the obvious significance of the video file was sufficient for the Court to conclude that the defense counsel should not have downloaded and studied the file. The Court wrote, “by using the hyperlink contained in the email also containing the Confidentiality Notice to access the Box Site, defense counsel should have realized that the Box Site might contain privileged or protected information.”

Harleysville argued that the appropriate sanction should be the disqualification of defense counsel. The magistrate judge agreed that there was an ethical stumble, but concluded that the disqualification was an unnecessarily severe sanction. She did, however, order that defense counsel should bear the parties’ costs in obtaining the Court’s ruling on the matter.

  1. Summary and Conclusions

The immediate instruction from the Harleysville magistrate judge’s ruling is that if a party chooses to use a new technology, it will be held responsible for ensuring that its employees and agents understand how the technology works, and, more importantly, whether the technology allows unwanted access by others to its confidential information.   The Box.com facts present a straightforward set of facts—the basic security features of Box.com would, if utilized, have blocked access to the video file.

The case sets the stage for a broader set of responsibilities associated with newer and more sophisticated security technologies.  For example, now that encryption technologies are readily available, should a disclosure that would have been blocked by the use of even simple encryption be deemed a waiver of privileges?   In Harleysville, the Box.com tools were present but not utilized.  In the encryption example, the tools can be acquired and then used, but as of today are probably not widely installed.  But this could change overnight when courts understand that Microsoft has added encryption options to Outlook.   The Harleysville reasoning likely will make it a requirement, not just a recommendation, that lawyers employ encryption for potentially privileged or protected communications.

H/T to Sharon Nelson and the VSB 2017 TechShow for flagging the significance of the Harleysville Ins. Co. v. Holding Funeral Home, Inc. ruling.

EDVA: Legal Malpractice Does Not Give Rise to Breach of Fiduciary Duty Claim

A claim of legal malpractice by client against a former attorney does not, at the same time, give rise to a breach of fiduciary claim under Virginia law, according to Judge Henry Hudson of the Eastern District of Virginia (Richmond Division).  Judge Hudson’s ruling is a development in the law of fiduciary duty, and it goes into territory that has not yet been covered by the Virginia Supreme Court.

In Kylin Network (Beijing) Movie & Culture Media Co. Ltd v. Fidlow, 3:16-cv-999-HEH, 2017 WL 889620 (E.D. Va. Mar. 6, 2017), the case began with a Chinese company that wanted to make a movie about the life of martial arts legend Bruce Lee.  The company hired the defendants (a Virginia attorney and his former law firm) to negotiate and obtain the movie rights with the supposed copyright owner.  According to the Complaint, after some negotiation, the attorney recommended that the plaintiff pay $1 million to the supposed seller of the rights.  After the payment was made, the plaintiff allegedly discovered the seller did not have good title to the movie rights.  The unhappy client then filed a three-count complaint in federal court against its former attorney for legal malpractice, breach of fiduciary duty, and fraud.

The defendants sought to dismiss all counts of the Complaint under Fed. R. Civ. P. 12(b)(6).  The defendants first argued that the legal malpractice claim failed due to the plaintiff’s contributory negligence.  While Judge Hudson recognized that contributory negligence could be a complete defense to legal malpractice, he ruled that the defense had to be resolved at trial by the fact-finder when “reasonable minds could disagree” on the disputed facts.  Thus, the judge denied the 12(b)(6) motion on this count.

The defendants, however, had better luck on the remaining two counts.  The plaintiffs’ breach of fiduciary duty claim, according to Judge Hudson, was based upon duties arising from the attorney-client relationship.  In turn, this relationship was based in contract, specifically the written engagement agreement between the law firm and the clients that gave rise to the legal malpractice claim.  Judge Hudson noted that the Virginia Supreme Court has not ruled on the issue, but based upon prior precedent, he held that the breach of fiduciary duty had to arise from a duty independent of the attorney-client contract.  According to Judge Hudson, “[i]n Virginia, because legal malpractice is a contract claim, an additional claim for breach of fiduciary duty must be based on something other than a violation of a duty arising under the attorney-client relationship.”

Judge Hudson then made short work of the remaining fraud count, dismissing it on similar grounds and holding that such a claim must arise from a source other than the contractual relationship between the parties.

The plaintiffs’ legal malpractice claim survived the 12(b)(6) stage, which appears to be the true core of the plaintiffs’ case.  But Judge Hudson’s opinion is notable as a development in the law of fiduciary duty in Virginia, a claim that seems to appear more frequently in business litigation in the Eastern District.

The EDVA Drama Over the Immigration Executive Order Advances to the Preliminary Injunction Opinion: An Update on the Constitutional showdown in Judge Brinkema’s Court

This Blog post is the third in a series tracking the EDVA case of Aziz et al. v. Trump, the challenge to the January 27th Immigration Executive Order.  The earlier posts covered the January 28th Habeas Corpus Petition filing and the first courtroom confrontation on Friday morning, February 3, 2017, and then followed the Commonwealth of Virginia’s Motion for a Preliminary Injunction aimed at Section 3(c) of the Executive Order, with an eye on parallel proceedings in the Seattle federal court and the Ninth Circuit.

This third Blog post reports on Judge Brinkema’s February 13th Order in Case No. 1:17cv116—LMB/TCB, which grants Virginia’s Motion for Preliminary Injunction, and the judge’s accompanying Memorandum Opinion.  Consideration of the EDVa Order necessarily includes the Ninth Circuit’s February 9, 2017 Order and Opinion denying the Government’s request for an emergency stay of the February 3rd TRO issued by the Seattle federal district court.  The Seattle TRO enjoined the enforcement of Sections 3 and 5 of the Immigration Executive Order anywhere in the nation.  The Ninth Circuit left the TRO in place and returned the matter to the Seattle court for further proceedings.

Path to February 10th Hearing

Virginia’s Solicitor General, Stuart Raphael, set the battle lines in the Aziz case when he filed the Commonwealth’s February 2nd Brief in Support of the Motion for Preliminary Injunction.  Virginia proposed a fairly narrow and targeted order.  Unlike in the Seattle case where Washington and Minnesota pursued a nationwide ban on both substantive sections of the Executive Order, Virginia focused on the harm to the Commonwealth and its residents, and it challenged only Section 3(c) of the Executive Order, the section that applied to immigrants from the seven specified countries who held Green Cards or student/work visas.  Raphael knew what evidence Virginia could marshal in the short time to the preliminary injunction hearing, and he seemingly tailored the objectives to mesh with the evidence.

On February 3rd, Judge Brinkema granted Virginia’s Motion to Intervene.  Her reasoning essentially confirmed Virginia’s standing in the case.

On Wednesday, February 8, 2017, the Government filed its opposition to Virginia’s arguments.  Prior to this pleading, the Government had submitted its brief to the Ninth Circuit and had completed the appellate argument in an extraordinary telephone hearing (the circuit judges were in California, Hawaii, and Arizona, while the arguing counsel were in Seattle and D.C. – and 137,000 listeners followed the argument online).  The Government’s argument in the EDVA case tracked its position taken in the Ninth Circuit that the states did not have standing and that the federal courts have no jurisdiction to review the President’s findings and actions in the Executive Order.  The Government’s opposition went on to contest Virginia’s Due Process and Establish Clause arguments, but offered little or no evidence to support is defense.

The next day, the Ninth Circuit ruled against the Government and rejected the effort to stay the Seattle TRO.  In the EDVA case, Virginia filed its Reply Brief along with pages of supporting affidavits and public statements made by then candidate-Trump and others.

To use a football analogy, the Government stacked its defense for an all-out blitz; in doing so, the Government risked that if the states did have standing and the federal courts decided the Executive Order was reviewable, then there would be no remaining defenders who might tackle the states’ claims on the facts.

Ninth Circuit’s February 9th Ruling

Late on Thursday, the Ninth Circuit ruled 3-0 denying the Government’s Motion for an Emergency Stay Pending an Appeal of the Seattle TRO.

The Opinion first batted down the argument that Washington and Minnesota did not have standing.  The Court then turned to the crux of the Government’s position, that the federal courts could not review the Executive Order.  The Opinion rejects the Government position: “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”  From there, the Court marches through the legal test and concludes that the Government has not met its burden to stay the TRO.

The Seattle TRO stands as a nationwide ban on enforcement of the key parts of the Executive Order.  The Government argued that the ban, even if upheld in part, was overbroad. The Ninth Circuit responded simply:  “[W]e decline to limit the geographic scope of the TRO.”

Judge Brinkema’s February 13th Order and Opinion

In a one-hour Friday morning hearing before a packed courtroom, Judge Brinkema heard arguments on Virginia’s Motion for a Preliminary Injunction in Aziz v. Trump.  Her Minute Order noted only that she was taking the matter “Under Advisement” and she would rule shortly.  The judge’s questioning of counsel, as reported by USA Today, highlighted a “startling” lack of evidence that travelers from the seven Muslim-majority countries represented a specific national security threat.  The judge, sua sponte, read from the joint affidavit by former national security officials who stated that they were “unaware of any specific threat” posed by travelers from the seven countries.  Following the hearing, the Government had few, if any, reasons to believe it might prevail when Judge Brinkema ruled.

Judge Brinkema’s Order and 22-page Opinion were released late on Monday, February 13, 2017.  The Order grants Virginia’s requested Preliminary Injunction, albeit without nationwide effect.  (For this limited scope, Judge Brinkema explains, “To avoid any claim that the preliminary injunction to be entered in this litigation is defective because of overbreadth, this Court declines the Commonwealth’s invitation to impose broader relief.”)  The Order bans enforcement of Section 3(c) of the Executive Order as applied only to Virginia residents and students who hold Green Cards or have otherwise valid visas.

Unlike the Seattle case, Aziz v. Trump followed an orderly procedure from TRO to Preliminary Injunction in the EDVA, with the opportunity for adequate briefing and presentation of evidence.  Virginia had even filed comprehensive Proposed Findings of Fact.  Indeed, Judge Brinkema’s Opinion includes an eight-page Findings of Fact section.

A year from now, the details of Judge Brinkema’s Opinion will be mostly forgotten.  Her dispatch of the Government’s lead argument that the Executive Order is not reviewable by the federal courts may, however, be long discussed.  The judge writes:

Maximum power does not mean absolute power.  Every presidential action must still comply with the limits set for Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights.

The Opinion even references Marbury v. Madison, probably the first case studied in Constitutional Law class.  

The EDVA Opinion does not discuss Virginia’s standing other than to reference Judge Brinkema’s Order and Opinion from February 3rd granting Virginia’s Motion to Intervene.  In the progression through the legal standard for preliminary injunction, the Opinion states that “[t]he Commonwealth had produced unrebutted evidence supporting its position that it is likely to succeed on an Establishment Clause claim.”  There is no discussion of Virginia equal protection, due process, or statutory claims except in a footnote where the Court explains that “[B]cause the Commonwealth has established a likelihood of success on its Establishment Clause claim, the court does not need to address [the other claims].”  The Court concluded that Virginia proved sufficient bases for the Preliminary Injunction Order.

Summary and Status

The Immigration Executive Order, issued only 2½ weeks ago, is now the subject of more than 40 lawsuits.  The drama began when international flights landed at JFK Airport and then at Dulles Airport—passengers who boarded the flights holding valid Green Cards and visas learned that an Executive Order issued after take-off blocked their legal entry into the United States.

In Aziz v. Trump, the EDVA case, the initial parties were the Aziz bothers and other travelers who were blocked from entry, denied legal counsel, and almost immediately placed on returning flights.  As the case moved forward, the parties shifted and the issues narrowed.  The Commonwealth of Virginia sought to intervene.  Soon, in both the EDVA litigation and in the Seattle case, the states had the leading roles, and the issues focused on the states’ standing and whether the federal courts could review the Executive Order.  The Ninth Circuit and now the EDVA have confirmed that the states do have standing.  And, perhaps most significantly, the courts have emphatically rejected the Government’s argument that this Executive Order is beyond review by the federal courts.

The Seattle case has returned to the district court with the initial nationwide TRO banning enforcement of most of Sections 3 and 5 of the Immigration Executive Order in place.  In a new order issued this morning, the Seattle district judge noted that the Ninth Circuit construed the TRO as a preliminary injunction, and thus he has dispensed with further consideration of a preliminary injunction and has ordered the parties “to continue with other aspects of this litigation.”

Meanwhile, after 112 Docket entries and appearances by 28 amici parties, Judge Brinkema’s more limited Preliminary Injunction Order may now be appealed to the Fourth Circuit.

Week 2 in the EDVA Drama Over the Immigration Executive Order: An Update on the Charged Immigration Issues Brewing in Judge Brinkema’s Court

While national media attention has focused on tonight’s hearing before the Ninth Circuit regarding President Trump’s immigration Executive Order, there are still proceedings in the Eastern District that could become center stage.  This Blog post is the second post tracking the legal events in the EDVA case of Aziz at al. v. Trump, the challenge to the January 27th Immigration Executive OrderLast week’s post covered the sprint from the January 28th initial Habeas Corpus Petition filing to the first courtroom confrontation on Friday morning, February 3, 2017.  This week, the focus shifts to the Commonwealth of Virginia’s Motion for a Preliminary Injunction aimed at Section 3(c) of the Executive Order, but also with an eye on parallel proceedings in the Seattle federal court and the Ninth Circuit.

Friday’s Orders in EDVA, Seattle, and the Ninth Circuit

Before the close of business on Friday, February 3, 2017, Judge Brinkema released her Order and Memorandum Opinion covering the issues argued that morning in Aziz v. Trump, Case No. 1:17cv116—LMB/TCBThe Order and Opinion continued her earlier Temporary Restraining Order (TRO) to Friday, February 10th, and set the stage for the Court’s consideration of the Commonwealth of Virginia’s Motion for a Preliminary Injunction aimed at Section 3(c) of the Executive Order.

Meanwhile, 2,500 miles away in the Seattle federal court and before the Ninth Circuit, a broader set of issues advanced.  The Seattle judge, in Washington v. Trump, 2:17cv141, issued a TRO that barred enforcement of both Section 3(c) and most of Section 5 of the Executive Order.

The Government sought emergency relief from the TRO in the Ninth Circuit Court of Appeals.  On Saturday, February 4th, the appellate court denied the Government’s request for emergency relief, but ordered the parties to file briefs on Sunday evening and on Monday.  After the expedited briefing, the Ninth Circuit scheduled a telephonic hearing for later this evening (Feb. 7th) on the Government’s Motion for a Stay of the underlying TRO.  A ruling is expected shortly, most likely within a few days.

The Immigration Executive Order

An Executive Order is technically not legislation but instead a presidential directive to executive agencies as to how to enforce certain laws.  The core of the January 27th Immigration Executive Order: (1) calls for a review by Homeland Security (in consultation with the Department of State and the Director of National Intelligence) of the U.S. visa-issuance procedures, (2) in Section 3(c), puts a 90-day ban on entry (with limited exceptions) on individuals from seven Muslim-majority countries (the ban on persons from Syria is indefinite), and (3) in Section 5, suspends for 120 days the U.S. Refugee Admissions Program.  (An added provision appearing immediately after the travel ban calls for the government to develop a “uniform screening standard and procedure” for all individuals seeking to enter the United States.  Applied literally, this appears to require all visitors to go through the same screening measures, regardless of where they come from or how long they intend to stay.  This added provision is not the subject of either the EDVa or Seattle proceedings.)

Section 3(c) is the lightning rod for the current Aziz v. Trump litigation.

EDVA Proceedings and Posture

Judge Brinkema’s February 3rd Orders granted Virginia’s Motion to Intervene.  The Court also permitted intervention by a second set of individual plaintiffs.  The judge continued her Saturday Night TRO to February, February 10th.  Under FRCP Rule 65(b)(2), a TRO’s duration cannot exceed 14 days.  Thus, Judge Brinkema will hear argument on Virginia’s Preliminary Injunction Motion on February 10th.

Virginia’s brief targets Section 3(c) of the Executive Order.  The Commonwealth filed its Complaint on February 3rd.  Its Preliminary Injunction Motion and brief were filed the day before.  The Government’s brief is due early this week.

Virginia’s argument is first that Section 3(c) is too broad.  As written, the section bars visa and Green Card holders from seven Muslim-majority countries from entry into the U.S. for 90 days.  The Virginia brief cites U.S. Supreme Court authority holding that Green Card holders have due process rights, and the Executive Order strips them of their rights without an available process.  The Virginia argument extends these rights to certain visa holders as well.

The second argument contends that the Executive Order was “motivated by animus towards Muslims.”  The brief argues that the directives are presumptively unconstitutional and should be held to strict scrutiny.

The expected Government response will track arguments in the Government’s Ninth Circuit brief described below.

Seattle Federal Court and the Ninth Circuit

As has been widely-reported in the national press, on February 3rd, a Seattle federal judge granted a TRO sought by the States of Washington and Minnesota.  His TRO is much broader than Judge Brinkema’s Order—the Seattle TRO bars enforcement of Section 3(c) and most of Section 5 of the Executive Order.   Additionally, the Seattle TRO is granted “on a nationwide basis” while Judge Brinkema’s current Order is narrowly written.  The parties in the Seattle matter were directed to submit no later than the end of February 6th a briefing schedule.  In an email from the Washington Solicitor General to the Department of Justice counsel, Washington State proposes that the Preliminary Injunction briefs be due on February 9, 15, and 17 in the Seattle district court.

Meanwhile, the Government sought from the Ninth Circuit an immediate stay of the Seattle TRO.   On Saturday, February 4th, a two-judge panel denied the emergency motion.  The Court ordered Washington and Minnesota to file briefs by 11:59 p.m. PST on Sunday night.  The states filed.  The Government’s Reply came in right at the 3 p.m. PST deadline.

The Washington/Minnesota Brief in Opposition to the Motion for a Stay includes a supporting declaration signed by former members of the Obama Administration, including Madeline Albright, John Kerry, Michael Hayden, Janet Napolitano, Leon Panetta, and Susan Rice that makes, among other things, a policy argument.   The affidavit concludes by alleging that “the Executive Order does not further—but instead harms—sound national security and foreign policy.”

The Government’s response argues from the start that “the Executive Order is a lawful exercise of the President’s authority over the entry of aliens into the United States and the admission of refugees.”  The response also attacks the Seattle TRO as “vastly overbroad.”

If the Ninth Circuit denies the Government’s Motion for a Stay, then a route to the U.S. Supreme Court theoretically opens.  But the more likely result is that the case remains at least for another ten days in the Seattle district court—the Seattle judge’s TRO lasts at most 14 days, so he should rule on the Motion for Preliminary Judgment, probably close to February 17th.  That Order could then go back to the Ninth Circuit, and then possibly to the U.S. Supreme Court.

State Department and Homeland Security Press Releases

At the same time as the legal wrangling, the State Department issued a press release stating that it had restored more than 50,000 cancelled visas and that the “provisional revocation [of visas pursuant to the Executive Order] is now lifted, and those visas are now valid for travel to the United States, if the holder is otherwise eligible.”

Similarly, Homeland Security announced via its website on February 4th that it had “suspended all actions to implement the Immigration Executive Order and will resume standard inspections of travelers as it did prior to the signing of the travel ban.”  But the press release added that the Justice Department will continue to defend the Executive Order.

The Preliminary Injunction Hearing on Friday, February 10th

Assuming that the Ninth Circuit denies the Government’s Motion for a Stay, the national focus likely shifts to the EDVA proceedings because of the Preliminary Injunction hearing set for this Friday before Judge Brinkema.  This hearing comes at least one week before the issues regarding the Executive Order would likely return to the Seattle federal courtroom.

Unless the Ninth Circuit provides a comprehensive opinion in response to the Motion to Stay the Seattle TRO, a ruling and opinion from Judge Brinkema will be the first substantive ruling on provisions of the Executive Order.  We might then expect the Government to take the issue immediately to the Fourth Circuit.

Thus, it is very possible that the national spotlight will suddenly shift to Alexandria after tonight’s telephone hearing before the Ninth Circuit.  If you are a practitioner appearing in federal court in Alexandria for Friday motions, be prepared for a heavy police presence, protesters, and a long line at security.

Proportionality Redux: The Sedona Conference Revisits its Commentary on Proportionality in Electronic Discovery

When Working Group 1 of The Sedona Conference (Sedona) publishes one of its eDiscovery White Papers, the consequence is often that Sedona steers the development of the law rather than merely reports on developments.  This observation is intended as a compliment, not a criticism. Sedona’s publications have guided the development of eDiscovery law since publication in 2003 of The Sedona Principles; Best Practices, Recommendations & Principles for Addressing Electronic Document Production, and have earned recognition as the gold standard for both the practical and scholarly discussion of eDiscovery issues.

In November 2016, Sedona released its Public Comment Version  of its Commentary on Proportionality in Electronic Discovery (“2016 Commentary”).  This version follows Sedona’s 2010 and 2013 Commentaries on Proportionality and its Fall 2015 publication in The Sedona Conference Journal of Judge Craig B. Shaffer’s scholarly article, “The ‘Burdens’ of Applying Proportionality” (also available for download from Sedona’s website).

This Blog post is not a critique or even a summary of the 2016 Commentary, but serves as a signpost directing litigators to Sedona’s website and the White Paper with the suggestion that the work be a resource for every federal litigator.

The December 2015 Rules Amendments: Key Rules Completely Revamped

The 2016 Commentary reminds us that “Rules 26 (b)(1) and 37(e) were completely revamped in December 2015.”  The amendments are the product of at least five years of  committee work and the most extensive public debate over any rules amendment going back to and probably including the Federal Rules of Civil Procedure introduction in 1938.

For federal court litigators on the front lines, these amendments should carry enormous, almost religious significance.  Chief Justice John Roberts emphasized in his 2015 Year-End Report on the Federal Judiciary that these developments were indeed a “Big Deal.”   See Kurz, J, “The Chief Justice and the Big Deal in the December 2015 Amendments to the Federal Civil Rules,” EDVA Update Blog (February 8, 2016).

The Chief Justice wrote that amended Rule 26(b)(1) “crystallizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.”   Before the amendment, the boundary for the scope of discovery was relevancy.  While for at least three decades federal courts had wrestled with various proportionality considerations embedded in the discovery section of the Federal Rules, the consensus is that proportionality had gained little or no traction for the day-to-day practice of law.  Each time we checked, proportionality slipped deeper into the forgotten fine print of rule subsections and subparts.  With the December 2015 amendment, the discovery scope boundaries are revised to matters “relevant to any party’s claim or defense and proportional to the needs of the case . . .” (emphasis added).  The amended rule then identifies six consideration points.  Proportionality thus moved from the proverbial rule sub-basement (Rule 26(b)(2)(iii)) to the front foyer.

The rule-makers opted in Rule 26(b)(1) not only to elevate proportionality as a discovery touchstone along with relevancy, but seemingly weighted them equally.  This amendment was then paired with the total revision of Rule 37(e), the rule that provides directions for data preservation and spoliation sanctions.   For our coverage of the Rule 37(e) amendment, see Kurz and Mauler, “Proposed Rule 37(e) Cleared by the U.S. Judicial Conference,” EDVA Update Blog (September 29, 2014).  Under these combined rules, a proponent of discovery should now be prepared to defend both the relevancy and the proportionality of requested discovery. Additionally, when conducting a post hoc analysis of preservation decisions, the reasonableness of the preservation should depend in part on proportionality considerations.

Sedona’s 2016 Commentary on Proportionality in Electronic Discovery

The intervening development between the earlier Commentaries and Judge Shaffer’s work and now the 2016 Commentary is the arrival of the December 2015 amendments to Rule 26(b)(1) and Rule 37(e).

The 2016 Commentary revises only slightly the previously published Sedona Principles of Proportionality.  These principles first appeared in the 2010 Commentary. The discussion under each principle is now considerably more robust than in the prior versions. Of course, this is the expected result now that we have the amended rules, the Committee Notes, and nearly a year of case law applying the amended rules.

Some commentators have observed that many practitioners, and even some federal courts, have continued seemingly oblivious to the December 2015 amendments.  This was expected—as we all know, court procedural rules can be mind-numbing, and it will reasonably  take several years for amendments, even highly consequential amendments, to achieve broad effect.  The Chief Justice’s “Big Deal” reminder in his 2015 Report was probably more an effort to accelerate what was otherwise anticipated to be slow change, and not a response to minimally-observed changes on the front lines of litigation.

Sedona’s 2016 Commentary does not admonish either the bar or the bench regarding recognition of the rules amendments.  Rather, the Commentary summarizes the rules amendments, and then works through the six Principles of Proportionality using for the first time a detailed set of 24 Comments.  With each Comment, the Commentary suggests how the new rules can and should work in practice.  For example, under Principle 1 (which addresses proportionality in preservation) in Comments 1.a and 1.b, the language is “proportionality principles may be considered in evaluating the reasonableness of prelitigation preservation efforts,” and “a post hoc analysis of a party’s preservation decisions should [be made] in light of the proportionality factors set forth in Rule 26, and the reasonableness of the preservation parties’ efforts.”  Consistent with Sedona’s practices, the Comments are supported by comprehensive footnotes.

As a second example, the same bridge from Principle to Comments and practical advice can be seen in the discussion of Principle 4 (proportionality decisions should be based on information other than speculation). Comment 4.b directs that “Discovery must be limited if producing the requested information is disproportionate to its likely benefits . . . .”  In Comment 4.c the instruction is that “courts may order sampling of the requested information to determine whether it is sufficiently important to warrant discovery.”

Making Use of Sedona’s 2016 Commentary

Sedona’s White Papers should be a part of every federal litigator’s eDiscovery toolkit.  The White Papers are the preferred starting point to understand the current state of eDiscovery law, to track recent developments, and to appreciate pending or future rules amendments.  Overall, Sedona presents balanced assessments of eDiscovery issues, and provides the best available practical guidance as well as scholarly research and analysis.

We appreciate the practical value of the 2016 Commentary.  This reflects the make-up of the team of lawyers and judges who drafted the Comments. The team members, all respected eDiscovery veterans, include front-line litigators and two federal court magistrate judges.  In many instances, they provide granular, step-by-step recommendations for implementing the Principles.  For this reasons, the Commentary may prove to be especially valuable in resolving many of the eDiscovery challenges that routinely arise in federal court litigation.

The 2016 Commentary, while currently at the Public Comment Version stage, is no exception to the continuing quality of Sedona’s White Papers.  The writers and editors have produced the best available resource on proportionality in eDiscovery, including bringing to date the developments associated with the December 2015 amendments to Rule 26(b)(1) and Rule 37(e).

Filing Deadline Changes: The Disappearance and then the Return of the 3-Day Cushion

On December 1, 2016, amendments to Fed. R. Civ. P. Rule 6(d) went into effect.  At the same time, amendments to EDVa Local Civil Rule 7(F)(1) also went into effect.  For practical purposes, the F.R.C.P amendments make ECF service good for nearly all purposes and eliminate the added 3-day cushion that applied to most response and reply filings.  The EDVa Local Rule revision adds back the otherwise lost three days.  While the overall consequence may seem insignificant, you should be alert to at least one nuance from these changes.

To appreciate the changes, we summarize below the F.R.C.P. Rule 6(d) amendment and the changes to Local Civil Rule 7(f)(1).  Then we revisit the Sprint Option provision in the standard Rule 16(b) Scheduling Order used in the Alexandria Division.  See R. Larson, “The 1-Week EDVa Discovery Sprint from Filing to Ruling in 7½ Days.”  As explained below, the combined new F.R.C.P. and Local Rule amendments provide some added coverage for the beloved Sprint Option.

FRCP Rule 6(d) Amendments — Good-bye 3-Day Cushion

In April 2016, the U.S. Supreme Court approved the F.R.C.P. Rule 6(d) amendment that removes electronic service from the modes of service under Rule 5(b) that allows an extra three days for responses.   The Rule before amendment provided:

(d) Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a).

The workings of this Rule for the most part simply extended the motion response and reply times by three days.  For example, a motion that provided 11 days for the response in fact provided 14 days because of the 3-day cushion that was automatically added.  Now, when the services is by ECF (which is covered as electronic service under Rule 5(b)(2)(E)), the 3-day cushion vanishes.

The amended version of the Rule looks almost exactly the same except a close look shows that subpart 5(b)(2)(E) has been erased.   This now-gone segment is where Rule 5(b) allows for electronic service, which we usually translate to mean ECF service.  A quick look at Rule 5(b)(2)(E) suggests that the electronic service provisions apply only if the receiving party “consented in writing” to electronic service.   You might conclude that the changes add to a big nothing because you perhaps could refuse to consent.  You may have forgotten, however, that when you registered for ECF filing (as all EDVa practitioners are required to do) you consented to electronic service.   The EDVA Complete E-Filing Policies and Procedures Manual provides in Chapter 4 that “[b]y participating in the electronic filing process, the parties consent to the electronic service of all documents and will make available electronic mail addresses for service.”

To this point in the analysis, the F.R.C.P. Rule 6(d) amendments effectively shorten the response and reply times for most motion pleadings.

Local Civil Rule 7(F)(1) Amendment — the 3 Lost Days Return

EDVa Local Civil Rule 7 covers local Motions practice.  Subpart (F)(1) provides for filing response and reply briefs, and until the new revisions took effect set the filing dates at 11 days and three days respectively.  But with the addition of the 3-day cushion, the effective response and reply dates have been 14 days and six days.  The Local Rule subpart read (until now):

(1)  All motions, unless otherwise directed by the Court and except as noted herein below in subsection 7(F)(2), shall be accompanied by a written brief setting forth a concise statement of the facts and supporting reasons, along with a citation of the authorities upon which the movant relies. Unless otherwise directed by the Court, the opposing party shall file a responsive brief and such supporting documents as are appropriate, within eleven (11) days after service and the moving party may file a rebuttal brief within three (3) days after the service of the opposing party’s reply brief. No further briefs or written communications may be filed without first obtaining leave of Court. [Emphasis added.]

Absent modification of this Local Rule, the amendments to F.R.C.P. Rule 6(d) would result in significantly shorter response and reply times.

The EDVa amendments to Local Civil Rule 7(F)(1) substitute 14 days and three days as the new response and reply dates.  This Local Rule change was issued on extreme short notice—on November 17, 2016, only two weeks ago.  So we are essentially back where we started.  The major difference is that we have eliminated a provision appropriate to the time when nearly all pleadings traveled by snail mail.

When practicing in other Districts, be sure to check the Local Rules to see whether the EDVa changes have been adopted in the other District.   Failure to check could potentially result in painful consequences.

The Sprint Option and the Alexandria Division’s Rule 16(b) Scheduling Order

The give/take changes described above are not entirely neutral.  One difference is that the combined new F.R.C.P. and Local Rule amendments provide added coverage for the Sprint Option.

What we refer to as the “Sprint Option” is a creature of the standard Alexandria Division Rule 16(b) Scheduling Order, and it is not a Local Rules provision.   The standard Scheduling Order issued by the Alexandria magistrate judges includes this language:

In order to provide for the prompt resolution of non-dispositive matters, a non-dispositive motion may be filed and served by no later than 5:00 p.m. on a Friday and noticed for a hearing at 10:00 a.m. on the following Friday. Under this expedited schedule, a response must be filed and served by no later than 5:00 p.m. the Wednesday before the hearing and any reply should be filed and served as early as possible on Thursday to give the Court time to review all pleadings before the hearing. At the moving party’s discretion, a non-dispositive motion may also be filed and noticed for a hearing in accordance with the briefing schedule provided in Local Civil 7(F)(1) discussed above in order to provide additional time for briefing and consideration by the Court. [emphasis added]

In short, file and serve by 5 PM on Friday, and you can be before the Court the next Friday morning.

This is a key provision that greatly disturbs lawyers from other districts, but also one that keep the Rocket Docket roaring forward.  The 3-day cushion, however, had the potential to disrupt this process.  To stay on the Sprint Option track, a party had to avoid the 3-day cushion in prior F.R.C.P. Rule 6(d).  This required service of the pleading by “handing it to the person” to be served, or by leaving the pleading at the person’s home or office.   For practice in the Alexandria Division, this was a major impediment if the opposing counsel (or local counsel) was anywhere outside of Alexandria.

The above-describe challenge goes away with the combined F.R.C.P. Rule 6(d) and EDVa Local Rule 7(F)(1) amendments.  ECF service by 5:00 PM on Friday (with the NEF returned—service time is when the NEF issues, and not when you hit the last ECF button) suffices, and the Sprint Option is now more widely available without concerns about the in person service and the 3-day cushion.  The same applies to the Sprint Option responses and replies—ECF filing is adequate service without adding the 3-day cushion.

Handling Overlapping and Duplicative Damages

In a recent case, Judge Liam O’Grady astutely handled in his Jury Instructions and a Special Verdict Form the prospect of a jury’s duplicative and overlapping damage determinations.  He then resolved the parties’ dispute on overlapping damages when he decided post-verdict remittitur motion.  This case provides a roadmap for practitioners on how to handle similar problems in future cases.

Multi-count Complaint and Overlapping Damages

The case of Hair Club for Men, LLC v. Ehson et al, Civil Action No. 1:16cv236–LO/JFA involved a two-year covenant not-to-compete.  Plaintiff (a former employer) sued to enforce the covenant against a departing employee and her new employer.  Plaintiff sought not only an injunction but also considerable damages.

The Complaint alleged the usual suite of claims found in covenant-not-to-compete cases. The leading claim was for Breach of Contract, followed by claims for Trade Secrets Misappropriation, Tortious Interference, Unjust Enrichment, and Breach of Fiduciary Duty.

The case narrowed at summary judgment when the Court held that the defendants were liable on certain counts.  Judge O’Grady ruled that the non-compete covenant was enforceable, and that, as a matter of law, the ex-employee breached her fiduciary duty.  But still the Trade Secrets and Tortious Interference claims had to be tried, and the measure of damages for all claims was left open for trial.  Perhaps surprisingly, the case did not settle after these rulings.

Seven months after filing of the Complaint, the case went to a jury trial for four days.  The jury’s Special Verdict Form awarded Breach of Contract damages of $156,096, and then awarded damages of $258,330 on each of the three remaining counts.  Additionally, the jury responded to the question of whether the damages awarded were duplicative by circling “Yes.”

Jury Instructions and Special Verdict Form

Judge O’Grady’s jury instructions navigated through the duplicative damages issue, and the Special Verdict Form focused the jury on the key question of duplication.  Jury Instruction No. 39 addressed the possibility of overlapping damage awards:

In this case, Hair Club seeks to recover the same type of damages for lost profits on its breach of contract, breach of fiduciary duty of loyalty, misappropriation of trade secrets and tortious interference with contract and business advantage claims. A party is not entitled to multiple recovery for its losses. However, if you find that Hair Club has proved every element of each of its damages, and is entitled to recover for its claimed losses, you will be asked whether the recovery is duplicative, so that Hair Club does not recover more than it is entitled.

On the Special Verdict Form, Question No. 7 asked “Are any of the answers to questions 1, 3, 5, or 6 duplicative?”, followed by a simple “Yes/No” option.  (The four identified questions corresponded to Plaintiff’s four separate remaining counts.)

Dealing with Duplicative Damages

Despite the simple “Yes/No” question, the jury’s verdict left uncertainty as to the overall damages.  If the Court simply added all of the multiple damage awards, then the result would be a judgment for $934,086.  Plaintiff agreed that the jury intended that the three awards of $258,330 were for the same conduct and damage.  But Plaintiff also argued that the Breach of Contract damages should be added to the common damages, for a total damage award of $414,426.  Judge O’Grady, however, concluded that the appropriate total damage award was $258,330.

Virginia law prohibits the award of duplicative damages “when the claims, duties, and injuries are the same.” Wilkins v. Peninsula Motorcars, Inc., 266 Va. 558, 587 S.E.2d 581 (2003).  Judge O’Grady added that the “two claims are not duplicative if the conduct underlying the claims is different.”  For this, he cited Advance Marine Enterprises, Inc. v. PRC Inc., 256 Va. 106, 501 S.E.2d 148 (1998), and his analysis tracks the Wilkins opinion.  The trial court must “evaluate whether multiple damage awards constitute impermissible double recovery” and that under Virginia law it is the responsibility of the trial court in reviewing a verdict to supervise “the damage awards to avoid double recovery.”

Plaintiff relied on Advanced Marine to argue that the damages were in part separate and therefore should be added to yield the aggregate damage award, but Judge O’Grady distinguished Advance Marine.   In that case, the plaintiff proved a common set of compensatory damages under separate claims for Trade Secrets Misappropriation and Business Conspiracy.  While the plaintiff was limited to only one set of compensatory damages, the plaintiff was allowed to recover both punitive damages under the Trade Secrets claim and to treble the compensatory damages under the Business Conspiracy claim.

Judge O’Grady summed his conclusion by stating that “compensatory damages for the same injury, based on the same evidence, should be awarded only once.  This was consistent with Advance Marine.  This rule holds even if the injury is articulated in multiple causes of action with separate burdens of proof.”  But equally important, the judge ruled that it was his responsibility to make the determination using the jury’s answers on the Special Verdict Form.

Summary

The dilemma of overlapping and repetitive damages arises frequently.  In the case before Judge O’Grady, the jury considered damages on four separate counts.  The trial evidence, however, addressed the damages as a single compensatory loss.  When the jury answered that the damages were duplicative, it was then the trial judge’s responsibility to resolve the parties’ disagreement on the extent of the duplication.

Too often, a jury’s verdict states only its liability findings and separate awards on multiple counts.  In this situation, a judge ventures into potentially dangerous territory if he or she imputes that the damages are duplicative.

A question for both trial lawyers and judges is how best to manage this issue to steer away from the quagmire.  Judge O’Grady’s jury instruction in Hair Club cleanly instructs on duplicative damages.  He coupled his Instructions with the simple Special Verdict Form question about duplication.  In Hair Club, this seems to have worked well, and perhaps is the model for multi-count cases where the claimed damages overlap.

New Trend in Attorney’s Fees Declarations?

As the judges of the Eastern District continue to differ regarding reasonable hourly rates for attorneys, practitioners need to be aware of a potential new trend regarding declarations supporting or opposing petitions for attorney’s fees.  Unfortunately, that new trend appears likely to make such petitions more detailed and time-consuming – and therefore, more expensive.

Traditionally, declarations supporting a petition for attorney’s fees in the Eastern District have followed a familiar pattern: An outside attorney reviews the hourly rates charged, the number of hours charged, the docket sheet, and selected motions/briefs.  The resulting opinions were usually based upon a “general” review of or familiarity with the litigation.  These reviews were not usually “deep dives” into the documents, pleadings, or billing records for a good, simple reason:  keeping costs down.

This custom may need to change, based upon the recent case of Salim v. Dahlberg, 1:15-cv-468 LMB / IDD, 2016 WL 2930943 (E.D. Va. May 18, 2016), which was covered by the EDVA Update here.  In that case, Judge Leonie M. Brinkema of the Alexandria Division was faced with a petition for attorney’s fees after the plaintiff prevailed on part of his civil rights claim.  The petition was supported by declarations from six leading attorneys, all whom have extensive experience in the Eastern District.  As Judge Brinkema said in her opinion, all six were “well-known to and well-respected by the Court,” and all “summarily conclude[d] that the hourly rates charged and hours worked were reasonable.”

In opposition, the defendant submitted one declaration by attorney Wayne G. Travell, a partner with Hirschler Fleischer’s Tysons office.  Despite the lop-sided number of supporting declarations, Judge Brinkema rejected much of the plaintiff’s fee petition (along with the conclusions in the six supporting declarations) and essentially adopted much of the opinion and analysis expressed by Mr. Travell.

Mr. Travell’s declaration is extensive, at 18 pages long with 47 paragraphs.  He discusses in detail the steps he took to form his opinion (including documenting the telephone calls he had with the respective counsel).  He recounts the applicable law, and then provides a detailed recitation of the facts (citing and quoting from the pleadings in the case).  The heart of his declaration, however, appears to be nearly eight pages of detailed examination of the plaintiff attorney’s time records, including identifying alleged instances of double-billing, block-billing, and vague entries.

In her opinion, Judge Brinkema sided with Mr. Travell’s declaration because he “actually reviewed counsels’ billing records, provide[d] a detailed analysis of those records, discusse[d] the specific issues involved in the case, and evaluate[d] the work performed with respect to those issues.”  In contrast (according to the court’s opinion), the six supporting declarations were unpersuasive because none went into a “detailed analysis of plaintiff’s counsels’ time sheets; instead, the declarants base their conclusions almost exclusively on a review of the pleadings and of [plaintiff counsel’s] declaration.”

Mr. Travell’s declaration is another example of judicial pushback in the Eastern District against excessive attorney hourly rates (or, at least hourly rates perceived as excessive by the bench).  But it also likely signals that some judges will more closely scrutinize petitions for attorney’s fees, including attorney declarations that support and oppose those petitions.  For this reason, Mr. Travell’s declaration is likely a roadmap for future petitions in the Alexandria Division, if not throughout the Eastern District.  And the irony is straight-forward:  While the intent may be to hold down hourly rates, the added expense of more detail in such declarations will ultimately increase the cost of litigation overall.  But regardless of this impact, practitioners need to be aware of this possibility.

Is there a New Cap on Recoverable Attorney Rates in EDVA?

There is yet further disagreement among the judges of the Eastern District regarding reasonable attorney hourly rates.  As we noted in a previous EDVA Update here, this disagreement is manifesting itself most frequently in the Alexandria Division, as judges there confront (and push back against) the higher hourly rates frequently charged by larger law firms in the Northern Virginia/ DC metro area.

Today’s example of the disagreement comes in the recent case of Integrated Direct Marketing, LLC v. Drew May, et al., 1:14-cv-1183, 2016 WL 3582065 (E.D. Va. June 28, 2016).  In this case, Judge Leonie M. Brinkema of the Alexandria Division of the Eastern District invited a plaintiff to file a motions for sanctions and attorney’s fees after successfully demonstrating that the defendant made materially false statements in both an affidavit and during courtroom testimony.  But after the plaintiff petitioned for over $63,000 in attorney’s fees, Judge Brinkema strongly criticized the hourly rates and record keeping of plaintiff’s counsel, and she cut the fee award down to only $17,000.

To justify their hourly rates, plaintiff (represented by attorneys from both the DC and Connecticut offices of Ogletree, Deakins, Nash, Smoak & Stewart, PC) relied upon the matrix of hourly rates approved by Judge Gerald Bruce Lee in Vienna Metro (discussed in a prior EDVA Update here).  But Judge Brinkema rejected the Vienna Metro matrix.  By doing so, she sided with Judge T.S. Ellis’s opinion in Route Triple Seven (also discussed in a prior EDVA Update here) in the ongoing dispute regarding hourly attorney rates.  Below is a summary of the experience levels of each attorney, the hourly rates sought by the plaintiff, and the rates awarded by Judge Brinkema:

Attorney’s Legal Experience

Requested Hourly Rate

Awarded Hourly Rate

30 years $ 545 $ 450
9 years $ 395 $ 350
6 years $ 335 $ 275
5 years $ 320 $ 250

To set these hourly rates, the court followed the rates determined by Judge Ellis in Route Triple Seven.  Significantly, Judge Brinkema did not rely upon any other expert witness testimony or evidence to set these hourly rates.  (And, as we saw in the Route Triple Seven case, there the court relied upon its own “experience” to determine an appropriate reasonable rate.)  These hourly rates are in sharp contrast to the $550 – $600 hourly rates approved by Judge Lee in Vienna Metro.

It is clear that a revolt against high hourly rates (or, at least, rates perceived as high) is brewing among many judges of the Alexandria Division of the Eastern District.  It also appears that a hard cap of approximately $450 – $500 for an experienced attorney’s hourly rate is forming, at least in the eyes of several judges who have rejected the Vienna Metro matrix.