GUEST BLOGGER: LEONARD BUCKLIN, ESQ.
Too many prevailing attorneys miss discovery of good fee award evidence. The time and fees of the attorney for the losing party is discoverable to establish the fee award to the prevailing party. Read the Stastny and Blowers cases.
"Although no single factor usually controls an award of attorney fees, the fees and expenses of defense attorneys are a significant factor in deciding whether the hours worked by plaintiffs' attorneys were reasonable and necessary." Stastny v. Southern Bell Telephone & Telegraph Company, 458 F.Supp. 314, 318 (W.D. N.C. 1978). [See also significant discussion in Stastny v. Southern Bell Telephone & Telegraph Co., 77 F.R.D. 662, 663-664 (W.D.N.C.1978).]
"I am persuaded by the reasoning of Stastny.... The amount of time spent by defendants' attorneys on a particular matter may have significant bearing on the question whether plaintiff's attorney expended a reasonable time.... Of course, in deciding to adhere to Stastny, I reject the approach taken in Mirabal and Samuel [the two federal cases most often cited to deny discovery of the defending attorneys time records]... The latter cases are both premised upon considerations which do not concern whether the information plaintiff seeks to discover is relevant to her claim for attorney's fees, but which relate to the proper evidentiary weight to be accorded such information....The mere possibility that the significance of the information which plaintiff seeks to discover may be discounted ....does not, however, mean that plaintiff should be precluded from obtaining the information." Blowers v. Lawyers Cooperative Publishing Co., Inc., 526 F.Supp. 1324, 1327 (W.D. N.Y. 1981). [See also, to the same effect, Henson v. Columbus Bank and Trust Company, 770 F.2d 1566, 1675 (11th Cir. 1985)("The district court abused its discretion in denying Henson's motion to compel discovery. While the concerns noted earlier regarding the relevancy of evidence of the other side's hours and fees are still prevalent, the trial judge may consider them as going to the weight of the evidence rather than its discoverability and admissibility.")]
Source: Leonard Bucklin. Bucklin has supervised litigation in 34 states, and is the author of the compact Attorney Fee Awards: a Handbook for Lawyers.