September 30, 2019
A recent Law 360 story by Daniel Wilson, “Law Firm Rates Can Be Sealed in Claims Court Army Dispute,” reports that a property owner can file under seal a comparison of law firm billing rates meant to help determine its attorney fees after winning a takings claim against the Army, as that comparison is a commercial document not based on public data, the Court of Federal Claims ruled. A compilation of law firm billing rates by Thomson Reuters and put forward by Waverley View Investors LLC is not based on publicly available data and is protected by a contractual confidentiality clause, and therefore can be considered confidential commercial information, Judge Charles F. Lettow ruled.
"The issue in this dispute is a close one because the public's right to access to court records is strong," Judge Lettow said. "Nonetheless, the court finds that the Thomson Reuters compilation to be provided by Waverley in connection with the present claim for attorneys fees constitutes proprietary and confidential commercial information that is deserving of protection under [the rules of the claims court]."
Waverley, which owns land in Frederick, Maryland, won a constitutional takings claim against the Army in January 2018 after the Army — looking for contamination stemming from Fort Detrick, an Army installation that borders Waverley's land — left a gravel access road and groundwater contamination monitoring wells on Waverley's land following the expiry of a right-of-entry agreement. The landowner was awarded damages of about $56,500 in March that year. Waverley asked for attorney fees last month after the Federal Circuit affirmed the claims court's original decision in May.
As part of that request, the landowner asked to file a document compiled by media and commercial data firm Thomson Reuters, a chart reflecting the billing rates of its counsel, Crowell & Moring LLP, and five other peer firms in the Washington, D.C., market — Akin Gump Akin Strauss Hauer & Feld LLP, Arent Fox LLP, Arnold & Porter, Pillsbury Winthrop Shaw Pittman LLP and Steptoe & Johnson LLP.
It urged the court to allow it to file that billing rate compilation under seal as confidential commercial information, but the government pushed back, arguing billable rate comparisons aren't protectable as either confidential business information or trade secrets. The disputed rate compilation is based on law firms' own data, self-reported to Thomson Reuters, and "is available for purchase by anyone willing to pay the price — including competitor law firms," the government said.
The government noted the claims court had previously rejected an effort by the plaintiff in another case to file a billing rate document under seal, as those rates — self-reported by the relevant law firms to the National Law Journal and to professional services firm PricewaterhouseCoopers — were "easily obtained from public sources" and wouldn't result in any harm to the relevant law firms.
But the document Waverley wanted to file under seal was different, the landowner said. Only law firms that want to participate in, and pay for, the Thomson Reuters platform — providing access to their own financial data to gain access to other law firms' data — can access that data, it noted. And it is "unvarnished" data collected directly from law firms' billing systems, unlike the self-reported data law firms provide to the media, according to Waverley.
The nature of that nonpublic data, as well as the related contractual pledge of confidentiality that participants in the system must agree to, are key differences compared to that earlier case involving publicly available billing data, and therefore Waverley had met its burden to justify a protective order, Judge Lettow said.