UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NANCY MCKEE,

Plaintiff, Case Number 15-10248

v. Honorable David M. Lawson

NAVIENT SOLUTIONS, INC.,

Defendant.

______________________________/

ORDER DENYING MOTION TO COMPEL PRODUCTION OF

DEFENDANT’S ATTORNEYS’ BILLING RECORDS

Before the Court is the plaintiff’s motion to compel discovery of the defendant’s attorney’s

billing records, and the defendant’s counter-motion for a protective order. The main dispute in the

case has been resolved by an accepted offer of judgment tendered under Federal Rule of Civil

Procedure 68, but the matter lingers due to satellite litigation over the amount of the “reasonable

attorneys’ fees and costs” the defendant agreed to pay via the offer of judgment. 

In its fee motion, the plaintiff asks the Court to order the defendant to pay more than

$185,000 in attorney fees and nearly $11,000 in costs. The defendant opposes the motion, arguing

that the amount is patently unreasonable in light of the straightfoward nature of the plaintiff’s

individual claims and the minimal extent of the proceedings that preceded the entry of judgment. 

The plaintiff counters that to evaluate whether the 570 hours of attorney time she claims was

appropriately spent on the case, the Court should look at the time spent by the defendant’s attorneys

as one measure of reasonableness. The defendant contends that disclosure of its attorneys’ billing

records would be inappropriate and would require it to surrender information protected by attorneyclient privilege or excluded from discovery by the work-product doctrine; but if ordered to produce

2:15-cv-10248-DML-EAS Doc # 43 Filed 12/11/15 Pg 1 of 4 Pg ID 519
those records, the lawyers should be allowed to redact privileged information. The plaintiff

responded that she does not oppose entry of the requested protective order.

In adjudicating this discovery dispute, two points come to mind. The first is that discovery

is permitted of “any nonprivileged matter that is relevant to any party’s claim or defense,” Fed. R.

Civ. P. 26(b)(1), but it must be “proportional to the needs of the case, considering the importance

of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant

information, the parties’ resources, the importance of the discovery in resolving the issues, and

whether the burden or expense of the proposed discovery outweighs its likely benefit.” Ibid. The

second is that “the determination of fees ‘should not result in a second major litigation.’” Fox v.

Vice, 563 U.S. 826, 131 S. Ct. 2205, 2216 (2011) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437

(1983)). 

The Court’s ultimate task in adjudicating the fee motion is to determine a reasonable fee,

starting with the “lodestar method” — “the number of hours reasonably expended on the litigation

multiplied by a reasonable hourly rate”—to calculate presumptively reasonable fees, which may be

enhanced or reduced based on other factors such as the success achieved by the attorney. See

Hensley, 461 U.S. at 433-35. The amount of time expended by the opposite lawyer may or may not

be helpful in assessing “the number of hours reasonably expended on the litigation” by the

claimant’s attorneys. In this case, one must stretch to reach the conclusion that defense counsel’s

time records can provide any benchmark of reasonableness for the plaintiff’s attorney’s efforts on

the individual claim prosecution. Nor has the plaintiff has made any showing that the burden and

expense of the discovery that she seeks would be proportional to the needs of the Court and the

parties in arriving at a final resolution of the remaining issues in this case.

-2-

2:15-cv-10248-DML-EAS Doc # 43 Filed 12/11/15 Pg 2 of 4 Pg ID 520
The record in this case is not complex or extensive. McKee’s claims described in the

complaint are legally and factually straightforward. She alleged that she received two calls from the

defendant on dates in September 2014. She charged that the defendant’s placement of those calls

to her cell phone number violated the Telephone Consumer Protection Act’s prohibition against

placing unsolicited calls using an automatic dialing system to generate and dial random telephone

numbers. See 42 U.S.C. § 227. The complaint, the plaintiff’s motion for attorney fees, and the

affidavits attached to the fee petition are replete with extensive references to unrelated class action

proceedings in which the plaintiff’s attorneys also participated, which they assert resulted in

settlements in favor of class plaintiffs totaling more than $33 million. However, notwithstanding

the inclusion of “class allegations” in her complaint, the plaintiff concedes that “the parties did not

brief a class certification motion and Navient did not even produce any classwide discovery.” Plf.’s

Mot. to Compel [dkt. #33] at 7. It is undisputed that the plaintiff never filed any motion to certify

a class in this case. And the express terms of the offer of judgment tendered payment of reasonable

fees and costs for the plaintiff’s individual claims only. The plaintiff accepted that offer, and she

is bound by its plain terms in seeking her satisfaction. McCain v. Detroit II Auto Fin. Ctr., 378 F.3d

561, 565 (6th Cir. 2004) (“[O]ffers [of judgment under Rule 68] and their acceptance involve

nothing more than applying the basic principles of contract law.”).

The Court finds that it would be particularly inappropriate to compel disclosure of the

defendant’s attorneys’ detailed billing records under the circumstances, where the plaintiff’s

attorneys did not attach any itemization of their own claimed hours of work to their affidavits, but

instead merely asserted, without elaboration, that they had spent certain aggregate numbers of hours

working on the case. The plaintiff’s task, in moving for an award of fees pursuant to the accepted

-3-

2:15-cv-10248-DML-EAS Doc # 43 Filed 12/11/15 Pg 3 of 4 Pg ID 521
offer of judgment, is to establish the nature and extent of the work done by her attorneys on the case

that was attributable to the plaintiff’s individual claims, and to demonstrate that the compensation

requested for that work is reasonable. The plaintiff has not demonstrated that she is lacking any

information that would be needed to make that showing. 

Accordingly, it is ORDERED that the plaintiff’s motion to compel disclosure [dkt. #33] is

DENIED.

It is further ORDERED that the defendant’s motion for entry of a protective order [dkt. #37]

is DISMISSED as moot.

It is further ORDERED that if the plaintiff desires to file a reply brief in support of her

motion for attorney fees, then she must do so on or before December 18, 2015.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: December 11, 2015

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on December 11, 2015.

s/Susan Pinkowski 

SUSAN PINKOWSKI

-4-

2:15-cv-10248-DML-EAS Doc # 43 Filed 12/11/15 Pg 4 of 4 Pg ID 522