UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

Case No. 2:15-cv-10248-DML-EAS

Hon: David M. Lawson

NANCY MCKEE,

individually, and on behalf of all those CLASS REPRESENTATION

similarly situated,

Plaintiff, 

vs. 

NAVIENT SOLUTIONS, INC. 

f/k/a SALLIE MAE, INC., a foreign 

corporation,

Defendant.

___________________________________________________________________

R. Christopher Cataldo (P39353) Tod Aronovitz 

JAFFE, RAITT, HEUER & WEISS, PC ARONOVITZ LAW

27777 Franklin Rd., Ste. 2500 2 S. Biscayne Boulevard

Southfield, MI 48034 One Biscayne Tower, Suite 2630

(248) 351-3000 Miami, FL 33131

ccataldo@jaffelaw.com (305) 372-2772 

ta@aronovitzlaw.com

Timothy J. Sostrin

KEOGH LAW, LTD.

55 W. Monroe Street, Suite 3390 

Chicago, Il 60603

(312) 726-1092 

sostrin@keoghlaw.com

PLAINTIFF’S MOTION TO COMPEL PRODUCTION OF 

DEFENSE COUNSEL’S BILLING RECORDS AND EXTEND DEADLINE 

FOR PLAINTIFF’ REPLY IN SUPPORT OF HER MOTION FOR 

ATTORNEY’S FEES AND EXPENSES

Case 2:15-cv-10248-DML-EAS ECF No. 33, PageID.287 Filed 10/06/15 Page 1 of 10
2

Plaintiff, Nancy McKee, moves this Honorable Court for the entry of an Order 

compelling Navient Solutions, Inc. (“Navient”) to produce its counsel’s billing 

records for this case, which are relevant to rebut the arguments that Navient made in 

opposition to Plaintiff’s Motion for Attorney’s Fees and Expenses (Doc. 25) (“Fee 

Petition”). Plaintiff also requests that the Court extend the deadline for Plaintiff’s 

reply brief in support of the Fee Petition to the date that is ten days after the 

production of Navient’s counsel’s billing records. 

BRIEF IN SUPPORT OF MOTION

Issue Presented: Whether Navient should produce its counsel’s billing 

records for this case. 

Authorities: Black v. Lojac Enters., 1997 U.S. App. LEXIS 17205, * 

13 (6th Cir. 1997); Pollard v. E.I. DuPont De Nemours & Co., 2004 U.S. Dist. 

LEXIS 6345 (W.D. Tenn. Feb. 24, 2004); Davis v. Fidelity Techs. Corp., 180 

F.R.D. 329 (W.D. Tenn. June 3, 1998); Mitroff v. Xomox Corp., 631 F. Supp. 25, 

28 (S.D. Ohio 1985); Mann v. Acclaim Fin. Servs., 348 F. Supp. 2d 923, 930 (S.D. 

Ohio 2004).

Background

In order to kill this putative class action and escape massive liability,

Defendant Navient Solutions, Inc. f/k/a Sallie Mae, Inc. (“Navient”) served 

Plaintiff with an offer of judgment that could arguably moot Plaintiff’s individual 

Case 2:15-cv-10248-DML-EAS ECF No. 33, PageID.288 Filed 10/06/15 Page 2 of 10
3

claim and require dismissal of the putative class claims as well. See Brunet v. City 

of Columbus, 1 F.3d 390, 399 (6th Cir. 1993).

Navient resorted to this tactic because this action, were it to proceed, would

establish that Navient continues to violate the Telephone Consumer Protection Act

(47 U.S.C. § 227) despite two prior class actions that together required Navient to 

pay over $33,000,000 to the benefit of the class. See Arthur v. Sallie Mae, Inc.,

No. 10-00198 (W.D. Wa.); Cummings v. Sallie Mae, Inc., No. 12-9984 (N.D. Ill.) 

Rather than risk liability on that scale yet again, Navient offered Mrs. McKee 

thousands of dollars more than she would have received as an individual had the

case proceeded to pretrial settlement or trial, and thus threatened dismissal of the 

putative class claims for mootness. Rather than risk that outcome and the sanctions 

imposed by Rule 68 for the rejection of complete offers of relief, Plaintiff accepted 

the offer of judgment. Doc. 20.

Pursuant to the offer of judgment, Plaintiff moved for an award of attorneys’ 

fees and costs on August 28, 2015. Doc. 25. In its opposition brief (Doc. 27), 

Navient argues that Plaintiff’s counsel engaged in “excessive and inappropriate 

billing,” (id. at p. 17), that Plaintiff seeks fees for a “staggering number of hours”

(id. at p. 14), that “it is inconceivable that [Plaintiff’s] counsel . . . could have spent 

this amount of time on legitimate litigation efforts” (id. at p. 2), and that “the Court 

should be skeptical of the time spent.” (id. at p.3). Navient’s counsel’s billing 

records in this case are highly relevant to Plaintiff’s rebuttal of these arguments.

Case 2:15-cv-10248-DML-EAS ECF No. 33, PageID.289 Filed 10/06/15 Page 3 of 10
4

On September 21, 2015, Plaintiff therefore requested that Navient produce 

its counsel’s billing records. See Exhibit 1. The parties agreed to confer about the 

issue, and in the meantime, stipulated to a two week extension for Plaintiff’s reply 

brief to allow for a possible resolution of this dispute. Id.; Doc. 30 – Stipulation. 

On September 30, 2015, Navient confirmed that it would not agree to produce its 

billing records. Exhibit 2. Plaintiff files this motion as a result. 

Law and Argument

A. Navient’s Counsel’s Billing Records for this Case are Relevant to Rebut 

Navient’s Arguments against Plaintiff’s Fee Petition

Courts within the Sixth Circuit have repeatedly ruled that the amount of time 

billed by a party opposing a fee petition is relevant to determining whether the 

petitioner’s fees are reasonable. As the 6th Circuit stated in Black v. Lojac Enters., 

“undoubtedly, where the issue of the reasonableness of the time expended is fully 

joined, the amount of time spent by the opposing party is a relevant benchmark as 

to the amount of time reasonably required.” 1997 U.S. App. LEXIS 17205, * 13 

(6th Cir. 1997), citing Mitroff v. Xomox Corp., 631 F. Supp. 25, 28 (S.D. Ohio 

1985) (“Pertinent to any consideration of a reasonable amount of time expended in 

the prosecution of a law suit is the amount of time expended by the defendant in 

defending that law suit.”); Mann v. Acclaim Fin. Servs., 348 F. Supp. 2d 923, 930 

(S.D. Ohio 2004) (“the amount of time expended on the case by Acclaim's counsel 

suggests that the amount of time expended by Plaintiff's counsel is reasonable.”); 

Case 2:15-cv-10248-DML-EAS ECF No. 33, PageID.290 Filed 10/06/15 Page 4 of 10
5

see also Stastny v. Southern Bell Tel. & Tel. Co., 77 F.R.D. 662, 663-64 (W.D.N.C. 

1978) (“In a contest over what time was reasonably and necessarily spent in the 

preparation of a case, it is obvious that the time that the opposition found necessary 

to prepare its case would be probative.”)

As described above, Navient argues that the time Plaintiff’s counsel spent in 

this case was excessive and unreasonable. When faced with virtually identical 

arguments, courts within the Sixth Circuit and elsewhere1 have compelled the party 

opposing the fee petition to produce its own counsel’s billing records, finding the 

records to be relevant to the argument that the fees requested are excessive and 

unreasonable. For instance, in Pollard v. E.I. DuPont De Nemours & Co., 2004 

U.S. Dist. LEXIS 6345 (W.D. Tenn. Feb. 24, 2004), the defendant DuPont 

opposed the plaintiff’s fee petition, arguing “that the fee petition includes hours 

that are ‘patently excessive, redundant, or unnecessary.’” Id. at * 9. The plaintiff 

moved to compel DuPont’s counsel’s billing records and the Court ordered their 

production, holding that DuPont’s billing records “would serve as a logical 

yardstick from which to determine the reasonableness of such time expended by 

the plaintiff's counsel” Id. 

Similarly, in Davis v. Fidelity Techs. Corp., 180 F.R.D. 329 (W.D. Tenn. 

June 3, 1998), the defendant Fidelity objected to Plaintiff’s request for fees and 

 1 Some jurisdictions require a party opposing a fee petition to produce its own 

counsel’s billing records. See Local Rule 54.3(d)(5) (N.D. Illinois).

Case 2:15-cv-10248-DML-EAS ECF No. 33, PageID.291 Filed 10/06/15 Page 5 of 10
6

expenses on the grounds that the “plaintiff's request includes unnecessary and 

excessive charges.” Id. at 331. The plaintiff moved to compel Fidelity’s billing 

records and the Court granted the motion, holding that “Fidelity’s attorney fee 

statements could be relevant to responding to portions of the first objections that 

plaintiff’s fee request includes unnecessary and excessive charges.” Id. at 332.

The same result was reached in Murray v. Stuckey’s Inc., 153 F.R.D. 151 

(N.D. Iowa 1993). In Murray, the defendants “resisted plaintiffs' fee claim both on 

the basis of the number of hours claimed and the hourly rate applied.” Id. at 152. 

The Court held that “both the number of hours devoted to the case by defendants' 

attorneys and their hourly rates . . . are relevant to plaintiffs' attorney fee claim” and 

ordered that “the hours expended by all attorneys, including in house counsel for the 

defendants, must be disclosed.” Id. at 153; see also Stastny, 77 F.R.D. at 664 

(ordering that “the defendant must provide information as to the number of hours 

that each attorney (private and house counsel) spent on this case. They should also 

indicate on what matters the time was spent.”).

Likewise, in Coalition to Save Our Children v. State Bd. of Educ., 143 F.R.D. 

61 (D. Del. 1992), the defendant Red Clay opposed the plaintiff’s fee petition, 

arguing that “many of plaintiff's billable hours unnecessarily overlap and [that] 

plaintiff engaged in unnecessary work.” Id. at 62. The plaintiff moved to compel 

the production of Red Clay’s billing records, and the Court ordered the production, 

holding that “since Red Clay raised the issues of reasonableness and ‘overlap’ by 

Case 2:15-cv-10248-DML-EAS ECF No. 33, PageID.292 Filed 10/06/15 Page 6 of 10
7

the plaintiff, the information outlined above may be helpful to plaintiff in responding 

to Red Clay's allegations.” Id. at 66. 

Even courts that have denied a motion to compel the opposing party’s billing 

records have noted that the records would be relevant if the court were faced with 

arguments similar to those made by Navient in this case. See Montgomery v. Kraft 

Foods Global, Inc., 2015 U.S. Dist. LEXIS 24533, *12 (W.D. Mich. March 2, 2015) 

(“Defendants are not arguing that Montgomery's counsel spent too much time on a 

particular task, for which their counsels' billing records could arguably be 

relevant.”). As Navient repeatedly argues that the time spent by Plaintiff’s counsel 

in this case is excessive, its own records are highly relevant to Plaintiff’s rebuttal of 

that argument.

In response to Plaintiff’s request that Navient produce its billing records, 

Navient objects that the entirety of its records are not relevant to Plaintiff’s fee 

petition because its overall work was not limited to plaintiff’s individual claim.

Exhibit 2. This objection lacks merit for two reasons: First, the parties did not brief 

a class certification motion and Navient did not even produce any classwide 

discovery. Any work that Navient’s counsel performed regarding class certification 

issues must be limited indeed. Second, the work that Navient contends it performed 

on class certification is still relevant to rebut Navient’s contention that a portion of 

Plaintiff’s counsel’s work was also performed on the class claims rather than 

Plaintiff’s individual claim. To the extent Navient’s records identify work 

Case 2:15-cv-10248-DML-EAS ECF No. 33, PageID.293 Filed 10/06/15 Page 7 of 10
8

attributable only to the class claims, those records are relevant to the pending fee 

petition. 

Conclusion

WHEREFORE, Plaintiff respectfully requests that Navient produce its inhouse and outside counsel’s complete billing records for this case. Plaintiff further 

requests that her Reply brief in support of her Fee Petition be extended to the date 

that is ten days after the production of Navient’s counsel’s billing records. 

 

CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 7.1(a)

I hereby certify that the parties have made a good faith effort to reach a 

concurrence on the relief sought in this motion. The parties were unable to reach 

an agreement regarding the production of Navient’s counsel’s billing records for 

this case. 

DATED: October 6, 2015 Respectfully submitted,

By: /s/ Timothy J. Sostrin

Timothy J. Sostrin (IL Bar: 6290807)

tsostrin@keoghlaw.com

Keith Keogh

Keith@keoghlaw.com

KEOGH LAW, LTD.

55 W. Monroe Street, Suite 3390 

Chicago, Il 60603

(312) 726-1092 Telephone

(312) 726-1093 Facsimile

Case 2:15-cv-10248-DML-EAS ECF No. 33, PageID.294 Filed 10/06/15 Page 8 of 10
9

Tod Aronovitz

ta@aronovitzlaw.com

ARONOVITZ LAW 

2 S. Biscayne Boulevard

One Biscayne Tower, Suite 2630

Miami, FL 33131

(305) 372-2772 Telephone

(305) 397-1886 Facsimile

R. Christopher Cataldo (P39353)

ccataldo@jaffelaw.com 

JAFFE, RAITT, HEUER & WEISS, PC

27777 Franklin Road, Suite 2500

Southfield, MI 48034

(248) 351-3000 Telephone

(248) 351-3082 Facsimile

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on October 6, 2015, I electronically filed the foregoing 

paper with the Clerk of the Court using the ECF system which will send notification 

of such filing to the following Service List.

/s/ Timothy J. Sostrin

KEOGH LAW, LTD

55 W. Monroe Street, Suite 3390 

Chicago, Il 60603

(312) 726-1092 Telephone

(312) 726-1093 Facsimile

tsostrin@keoghlaw.com

IL Bar: 6290807

Case 2:15-cv-10248-DML-EAS ECF No. 33, PageID.295 Filed 10/06/15 Page 9 of 10
10

SERVICE LIST

Nancy McKee vs. Navient Solutions., et al.

Case No. 2:15-cv-10248-DML-EAS

Hon: David M. Lawson

Attorneys for Plaintiff 

and Proposed Class:

R. Christopher Cataldo (P39353)

ccataldo@jaffelaw.com 

JAFFE, RAITT, HEUER & WEISS, PC

Attorneys for Plaintiff

27777 Franklin Rd., Ste. 2500

Southfield, MI 48034

Telephone: (248) 351-3000

Facsimile: (248) 351-3082

Tod Aronovitz 

ta@aronovitzlaw.com

ARONOVITZ LAW

One Biscayne Tower, Suite 2630

2 South Biscayne Boulevard

Miami, FL 33131

Telephone: (305) 372-2772

Facsimile: (305) 397-1886

Timothy J. Sostrin

sostrin@keoghlaw.com

KEOGH LAW, LTD.

55 W. Monroe Street, Suite 3390 

Chicago, Il 60603

Telephone: (312) 726-1092 

Facsimile: (312) 726-1093 

Attorneys for Defendant, Navient 

Solutions, Inc. f/k/a Sallie Mae, Inc.

Lisa M. Simonetti 

lsimonetti@vedderprice.com

VEDDER PRICE (CA), LLP

Attorneys for Defendant

1925 Century Park East, Suite 1900

Los Angeles, CA 90067

Telephone: (424) 204 7700

Facsimile: (424) 204-7702

Jeffrey G. Collins (P37260)

jcollins@collinslegal.net

COLLINS & COLLINS P.C.

1323 Broadway, Suite 800

Detroit, MI 48226

Telephone: (313) 963-2303

Case 2:15-cv-10248-DML-EAS ECF No. 33, PageID.296 Filed 10/06/15 Page 10 of 10