Last week’s Privilege Point described courts’ varied approaches to losing litigants’ efforts to discover the winning lawyers’ billing entries when the winners seek recovery of their attorney’s fees.
In Blonder v. Independence Capital Recovery, LLC, No. 21-CV-0912 (ARR) (AYS), 2022 U.S. Dist. LEXIS 165096, at *3 (E.D.N.Y. Sept. 13, 2022), the court handling a Fair Debt Collection Practices Act case approved some of the winning plaintiff’s redactions, but found that other “billing entries were incorrectly redacted as they do not reveal any actual communications with the client or the mental impressions of any attorney working on behalf of Plaintiff.” Three days later, the court in Blue Buffalo Co. v. Wilbur-Ellis Co. agreed with a Special Master’s conclusion that the winning plaintiff “cannot demand that [defendant] pay for a specific task while at the same time refusing to reveal what that task is.” Case No. 4:14 CV 859 RWS, 2022 U.S. Dist. LEXIS 167569, at *8 (E.D. Mo. Sept. 16, 2022) (internal citation omitted). The court allowed plaintiff only to protect from discovery “genuinely confidential information or sensitive attorney advice” – ordering plaintiff to produce entries that “mostly describe work done at a high level of generality.” Id. at *15-16. Eleven days after that, the court in Clerk of the Common Council v. Freedom of Information Comm’n also adopted this general approach – noting that “[t]here is a general agreement that attorney billing statements and time records are protected by the attorney-client privilege only to the extent that they reveal litigation strategy and/or the nature of services performed.” 263 A.3d 1, 12 (Conn. App. Ct. 2022) (citation omitted).
Few if any courts acknowledge the common sense conclusion that a litigant’s lawyer’s billing records are by definition work product – presumably adopting a sort of implicit “substantial need” analysis on the work product side.