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Judge Won’t Destroy Hourly Rate & Attorney Fee Data

April 22, 2020 | Posted in : Billing Record / Entries, Expenses / Costs, Fee Data / Fee Analytics, Fee Discovery, Fee Request, Hourly Rates

A recent Law 360 story by Andrew Stricker, “King & Spalding Denied Destruction of Fee Docs in FOIA Case, reports that a federal judge in Washington, D.C. refused to grant a request from King & Spalding LLP to "turn back the clock" and destroy court records that included the firm's billing rates and other fee data.  Partially denying a recent motion from the law firm in a Freedom of Information Act case with the federal government, U.S. District Judge Amit P. Mehta also said he would not order officials at the U.S. Department of Health and Human Services and the Department of Justice to destroy or return copies of the documents they were served.

King & Spalding "asks the court to turn back the clock and treat the sealed material as if [the firm] had never intentionally placed it on the court's docket," Judge Mehta said.  "That the court cannot do."  The decision springs from the firm's attempt to cloak the billing rates of King & Spalding lawyers who sued the HHS and DOJ after the agencies refused to hand over information related to an investigation into medical implant manufacturer Abiomed, a King & Spalding client.

After winning the FOIA case, King & Spalding petitioned for attorney fees early this year, and attached sealed exhibits containing billing rates and information about the work the firm had done to support the fee motion.  But on April 8, one day after Judge Mehta said it was "untoward" of the firm to keep the information out of the public domain as it sought federal dollars, the firm moved to withdraw its fee motion as well as the sealed exhibits.  The firm's motion also requested a court order for its clerk and the government to "destroy all copies of the sealed exhibits in their possession."

The defense opposed the request, telling the court that it was unaware of any authority requiring them "to destroy copies of non-privileged documents that, upon service on the government, became part of a government system of records."  In his decision, Judge Mehta agreed that the firm had offered no justification for destroying the records, despite its citation of a New York federal court decision about courts' inherent powers over their own processes to prevent injustices.

King & Spalding "does not assert that defendants must destroy or return their service copy to prevent abuse, oppression or injustice," the judge said.  "Indeed, it seems that plaintiff's demand for relief is premised on little more than its mistrust of defendant's continued retention of the records.  But that is not a sufficient reason."

While Judge Mehta had previously ruled that the fee exhibits could not remain sealed, he reasoned that the firm's about-face on the fee request "changes that calculus[.]"  "Although the court continues to believe that the likelihood of competitive harm is low if the exhibits were made public, that factor does not override the absence of any genuine public interest in their unsealing," he wrote.

King & Spalding filed FOIA requests in 2016 seeking correspondence within the government about Abiomed.  The agencies dragged their feet for years and cost the firm "hundreds of thousands of dollars" in fees and costs in the ensuing litigation, which the government ultimately lost at summary judgement, according to the firm's Feb 3 fee motion.