$2 million in fees and costs awarded in court access case

Courthouse News Service prevailed in its suit alleging a lack of timely access to court records and was awarded nearly $2 million in attorneys’ fees and costs. Although the defendants argued the rates charged by Bryan Cave Leighton & Pasiner’s New York and Washington attorneys were excessive, and the suit could have been litigated using local counsel, the complex and “sophisticated” constitutional issues warranted specialized counsel.

Background

Courthouse News Service, or CNS, moved for attorneys’ fees and costs. CNS is claiming: (1) $1,890,198.50 in fees incurred prior to the conclusion of trial on Feb. 5, 2020; (2) $135,747.50 in fees incurred on the fee motion and accompanying declarations and (3) $232,559.83 in non-taxable costs.

Hourly rate

Defendants objects to the plaintiff’s fee application based on the hourly rates charged by Bryan Cave Leighton & Pasiner LLP, or BCLP: (1) partner Mr. Hibsher ($730); (2) senior associate Ms. Goldman ($590); (3) junior associate Mr. Harrison ($545) and (4) paralegal Ms. Weiss ($290). Defendants aver that these hourly fees are unreasonable in light of the fact that they are based on out-of-jurisdictional averages and that this is not a highly complex or specialized case.

The court disagrees that the issues in this case are not highly complex. This case involved a sophisticated constitutional issue of first impression in this circuit that involved detailed statistical analysis. In fact, the data was of such a complex nature that the court found it necessary to conduct its own de novo review of the submitted filing data. Furthermore, the legal complexity is confirmed by the fact that different courts   have come out to conflicting conclusions regarding the legal questions resolved in this case.

Defendants also contend that there was ample local counsel who possessed the necessary skills to represent CNS. In response, plaintiff highlights that “counsel William  Hibsher has represented CNS in a variety of First Amendment-related matters since 2015, including acting as lead counsel in several federal lawsuits in which CNS asserted its First Amendment right to contemporaneous access to newly filed civil complaints in other states’ courts.” Moreover, the team at BCLP has been representing CNS in court-record accesses litigation for “almost a decade before the lawsuit was filed.”

The issues presented in this case go beyond basic issues of First Amendment law. It is entirely reasonable that plaintiff should be entitled to recover fees for the use of lawyers that have familiarity with both the plaintiff’s media practices and the complex intricacies that are involved in these right of access for the press cases. Furthermore, CNS actually paid these rates to the lawyers in this case. The court accepts this fact as additional evidence that BCLP rates are reasonable under the circumstances presented.

Hours

The court finds the billing entries up through trial reasonable under the circumstances. However the court finds that 219.9 hours billed to prepare a motion for attorneys’ fees is an unreasonable dedication of time. The court reduces the award of attorneys’ fees for preparing the fee petition by $85,747.50 to a total of $50,000. Therefore, the court awards a total of $1,940,198.50 in fees incurred for both trial and preparation of the fee petition.

Reduction of fees

Defendants are requesting a 40% reduction in fees for plaintiff’s failure to obtain a preliminary injunction. The court finds a 40% reduction excessive. However, some reduction is warranted because plaintiff sought and did not receive the extraordinary injunctive relief requested. The court finds a 10% reduction is warranted based on plaintiff’s unsuccessful claims.

Expenses

Defendants object to plaintiff’s request for $33,269.82 in non-taxable expenses as unreasonable. The objected expenses were incurred for travel and lodging for the out of state attorneys.

As the court noted, BCLP served an important role as a law firm with experience in both sophisticated press access cases and had been counsel in previous litigation with this particular plaintiff. Accordingly, the court finds plaintiff’s requested litigation expenses including expert witness fees reasonable under the circumstances.

Plaintiff’s application for attorneys’ fees granted in part, denied in part.

Courthouse News Service v. Schaefer, Case No. 18-cv-391, Sept. 4, 2020. EDVA at Norfolk (Morgan). VLW 020-3-455. 11 pp.