Monday, December 19, 2005

Contemporaneously Entered (And Computerized) Time Records:

In this latest decision in the case of Cobell v. Norton from Judge Royce Lamberth of the United States District Court for the District of Columbia, a subject near and dear to my heart. Admissions were made as to ministerial changes after the fact. No cogent challenge was made as to the "currency" of the entries, as most attorneys lack the understanding of the ephemeral nature of digital data necessary to proffer same.

Link to the decision page:

Here now, an excerpt from the decision, issued December 14, 2005:

Defendants urge the Court to reject the Interim Fee Petition on the grounds that plaintiffs
failed to submit “contemporaneous records of exact time spent on the case, by whom, their status and usual billing rates, as well as a breakdown of expenses such as the amounts spent copying documents, telephone bills, mail costs and other expenditures related to the case.” Opposition, at 8 (quoting Cmty. Hearing & Plumbing Co. v. Garrett, 2 F.2d 1143, 1146 (Fed. Cir. 1993)).

Defendants take issue, for example, with plaintiffs’ stated practice of transferring time entries from hard copy to computer. The record reveals that Gingold recorded his time in a diary and then input the information into his computer, Gingold Aff., at &¶ 1 and 2; Keith Harper, John Echohawk, and Lorna Babby maintained daily records that were subsequently entered on a eekly or monthly basis on a computer database, Harper Aff., at & 2, Echohawk Aff., at ¶ 2, abby Aff., at ¶ 2; and Stacy Gingold Bear “maintained [her] time records in an annual hard copy diary . . . . [f]rom this diary, . . entered [her] time electronically into a Quattro Pro software application.” Gingold Bear Aff., at ¶ 2.

Defendants next accuse plaintiffs of improperly “modifying,” Opposition, at 10, “editing,” id., and “altering” id. n.4, their time records. Defendants cite to those entries where plaintiffs “added clarity where contemporaneous entries had been made in abbreviated, coded, short-hand, or summary form,” Gingold Aff., at ¶ 2 (August 16, 2004); or, “slightly modified some of the descriptions to clarify the task completed,” Babby Aff., at ¶ 3; or “edited some of the original description to fix obvious recording errors . . . . because of the need for increased clarity . . . [and] slightly modified some of the descriptions so as to clarify the task that I was completing,” Echohawk Aff., at ¶ 3; or “edited some of the original descriptions to fix obvious recording errors . . . . because of the need for increased clarity . . . slightly modified some of the descriptions so as to clarify the task that [he] was completing,” Rempel Aff., at ¶ 4; or “added
clarity where contemporaneous entries had been made in abbreviated, coded, short-hand, or summary form.” Gingold Bear Aff., at ¶ 2.

The Court finds defendants’ objections to plaintiffs’ practice of transferring records from one medium to another and clarifying records to facilitate judicial review, meritless. In the first instance, defendants put forth no evidence supporting their challenge. “[A] respondent to a fee application must file affidavits in opposition [] where the respondent challenges the factual accuracy of the fee petition. Joy Mfg. Corp. v. Pullman-Peabody Co., 742 F.Supp. 911, 915 (W.D. Pa. 1990). Defendants, having been present at all proceedings and having reviewed all filings could easily have “submit[ted] to the District Court any evidence challenging the . . . the facts asserted in the affidavits submitted by respondents’ counsel,” Blum v. Stenson, 465 U.S. 886, 892 n.5 (1984) (citing City of Detroit v. Grinnell Corporation, 495 F.2d 448, 472-473 (2d Cir. 1974)). Instead, defendants offer only innuendo and speculation.

Beyond this, defendants’ interpretation of the “contemporaneous time records” requirement is draconian. A time record is “contemporaneous” if its descriptions are both “accurate and current,” In re Hudson & Manhattan R. R. Co., 339 F.2d 114, 115 (2d Cir. 1964), and includes “for each attorney, the date, the hours expended, and the nature of the work done.” New York Assen for Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir.1983). While the need to “maintain contemporaneous, complete and standardized time records which accurately reflect the work done by each attorney” is “particularly apt” in EAJA petitions since “the fee requirements will be satisfied from the United States Treasury,” In re Donovan, 877 F.2d 982, 994 (D.C. Cir. 1989), this Court does not share defendants’ obsession with the medium in which plaintiffs’ time records were entered or with the fact that abbreviated notations were clarified and mistakes corrected to assist the Court’s review.

What is significant is that plaintiffs’ time entries do not constitute “casual after-the-fact estimates.” Action on Smoking and Health v. C.A.B., 724 F.2d 211, 220 (D.C. Cir. 1984). The Court has no reason to question the veracity of plaintiffs’ sworn affirmations that they clarified abbreviated notations and shorthand to allow “this Court to make an informed decision about the relevance and appropriateness of the entry,” (Gingold Bear Aff., at ¶ 2), or that they were
“diligent to check the time claimed with contemporaneous records, briefs or memoranda to ensure against recording errors.” Echohawk Aff., at ¶ 3. In short, the Court finds defendants’
exceptions to plaintiffs’ entries on the grounds that they do not constitute contemporaneous records to be without foundation.

No comments: