UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ TEAM SYSTEMS INTERNATIONAL, LLC, Plaintiff - Appellant,

v. JEFF HAOZOUS, a/k/a Jeff Houser, individually and as President of Fort Sill Apache Industries and Chief Executive Officer of Fort Sill Apache Industries Board of Directors; FORT SILL APACHE INDUSTRIES; FORT SILL APACHE INDUSTRIES BOARD OF DIRECTORS, as Managers of Fort Sill Apache Industries, Defendants - Appellees. No. 16-6277 (D.C. No. 5:14- CV-01018-D) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , PHILLIPS , and McHUGH , Circuit Judges.

________________ _________________ Plaintiff Team Systems International, LLC (TSI), sued Fort Sill Apache Industries (FSAI), the FSAI Board of Direct ors, and its President and CEO, Jeff Haozous (the Defendants) for breach of cont ract and related claims. The district

* After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 23, 2017
Elisabeth A. Shumaker Clerk of Court2 court dismissed its complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim (the Dismissal) , and we affirmed. Team Sys. Int’l, LLC v. Haozous , 656 F. App’x 907, 913 (10th Cir. 2016). The district court awarde d attorney fees in favor of the Defendants, and TSI now appeals that award. 1
I. BACKGROUND TSI sued the Defendants alleging they breached the parties’ Engagement Agreement. Under the Agreement, FSAI prom ised to compensate TSI if it obtained “financing” or a “strategic partner” for FSAI’s constructi on contracts with the federal government. Id . at 909 (internal quotation mark s omitted). TSI arranged for payment and performance bonds relating to an FSAI construction project and introduced FSAI to a company th at became the primary subcontractor for the project. When FSAI refused to compensa te TSI, TSI filed this suit . The district court ruled that TSI failed to state a breach of contract claim against FSAI or Mr. Haozous because the performance bond did not constitu te “financing” and the subcontractor was not a “strategic partner,” and because the FSAI Board was not subject to suit. Id

. The Defendants then moved for an attorn ey fees award of $32,530.25 under Okla. Stat. tit. 12, § 936(A), which permits an award of reasonable attorney fees for the prevailing party in a civil suit for “servi ces rendered.” In supp ort of their motion,

1 In affirming the dismissal of TSI’s complaint, we granted the defendants’ motion for attorney fees on appeal, and remanded to the district court for a determination of the amount to award. The district court entered its award of attorney fees for the appeal , and TSI is appealing that award in a separate pending appeal, Team Sys. Int’l, LLC v. Haozous , No. 17-6139 (10th Cir. Appeal docketed June 13, 2017).3 they submitted affidavits and partially-redacted billi ng records from the two law firms that represented them on the Dismi ssal. The Defendants stated the billing records were redacted to preserve attorn ey-client and work-product privilege and offered to provide unredacted records to the court for in camera review. TSI conceded that the Defendants were entitled to an award under § 936. But it argued the Defendants’ submis sions were insufficient to en able the district court to determine if the fee request was reasonable because their redacted billing statements omitted detailed descriptions of tasks and used block-billi ng entries, which show only an attorney’s total daily time rather than itemizing each task. TSI also objected that Defendants’ offer to provi de unredacted records for in camera review would deprive it of “the opportunity to formulate a reasoned response to the un-redacted billing records.” Aplt. App. at 126. TSI requested copies of the unred acted copies and an opportunity to respond to the r easonableness of the request. The district court concluded it was unabl e to assess the reasonableness of the requested award because of th e redactions in the attorn eys’ billing records and the use of block-billing entries. It directed the Defendants to subm it to the court for in

camera review unredacted billing statements and contemporaneous time records showing the services rendered and the tim e spent on specific tasks. TSI did not object to this order. Several months later, after this cour t affirmed the Dismissal, the district court granted the Defendants’ fee award. The district court stated it reviewed the unredacted billing statements and contemporaneous time records of most of the Defendants’ attorneys, though some4 attorneys did not have contemporaneous time-records other than the billing statements. It found “that, for the most pa rt, the amount of attorn ey fees requested by the [Defendants] represents a reasonable su m for the legal services provided by their counsel in the successful de fense of [the] action.” Id . at 248. The court noted that not all time spent on the Dismissal was bi lled to TSI or was included in the fee request. It found that the time billed wa s reasonable and appropr iate, and that the billing statements reflected a proper exercise of billing j udgment. It concluded there were some unsupported block-billing entrie s and some duplication of services by multiple attorneys. After perfo rming a lodestar calculation, it ruled that a ten percent reduction in the requested award would yi eld a reasonable fee award of $29,234.47. On appeal, TSI argues the district cour t abused its discre tion by conducting the
in camera review of the unredacted records. II. DISCUSSION “We review the district c ourt’s award of attorney fees for abuse of discretion.” Chieftain Royalty Co. v. Enervest Energy Institutional Fund XIII-A, L.P. , 861 F.3d 1182, 1187 (10th Cir. 2017). “A district court abuses its disc retion where it commits a legal error or relies on clearly errone ous factual findings, or where there is no rational basis in the ev idence for its ruling.” Clark v. State Farm Mut. Auto. Ins. Co. , 433 F.3d 703, 709 (10th Cir. 2005) (internal quotation mark s omitted). A district court’s decision to review certain documents in camera or ex parte is reviewed for abuse of discretion.” Estate of Trentadue ex rel. Aguilar v. United States , 397 F.3d 840, 860 (10th Cir. 2005) (emphasis added).5 In this diversity case, the law of the fo rum state, Oklahoma, controls the award of attorney fees. Chieftain Royalty Co. , 861 F.3d at 1188. Under Oklahoma law, an award of fees under § 936 is mandatory, but “[t]he dete rmination of reasonableness and the amount of the fee award are gene rally left to the sound discretion of the district court.” JLEE Co. v. Reneau Seed Co ., 332 P.3d 297, 300 (Okla. Civ. App. 2014) (internal quotation marks omitted). TSI asserts three reasons why the dist rict court abused its discretion in conducting an in camera review of the unredacted bil ling records: (1) courts may only review a document in camera for the limited purpose of determining whether a privilege was validly asserted; (2) FSAI waived any attorney-client privilege by virtue of requesting attorney fees—thus, there was legal no basis for Defendants to redact any portion of thei r records; and (3) the in camera review violated its due process rights. TSI did not present these ar guments to the district court—neither in response to the Defendants’ original fee re quest, in response to the district court’s ruling that it would review the unredacted records in camera , nor even in a postjudgment motion. TSI’s failure to raise these arguments in district court resulted in a forfeiture. See Richison v. Ernest Grp., Inc ., 634 F.3d 1123, 1128 (10th Cir. 2011) (“[I]f [a] theory . . . wasn’t raised be fore the district court, we usually hold it forfeited.”). Forfeited arguments are ordinarily review able under the plain-error standard. Id . But TSI did not argue for the application of plai n error on appeal in its opening brief. Its arguments are, therefore, waived. See McKissick v. Yuen , 618 F.3d 1177, 11896 (10th Cir. 2010) (“[E]ven if [the appellant’s] arguments we re merely forfeited before the district court , [its] failure to explain in [its] ope ning appellate brief why this is so and how they survive the plain error standard waives the arguments in this court.”). 2
We are left with TSI’s broad asserti on that the district court abused its discretion in conducting an in camera review of the unredacted records because TSI could not meaningfully challenge the reas onableness of the f ee request. Because billing records and time sheets might reveal attorney-cli ent communications, aspects of these records may be protected by privilege. E.g ., United States v. Anderson (In re Grand Jury Subpoenas) , 906 F.2d 1485, 1492-93 (10th Ci r. 1990) (holding that fee contracts could reveal attorney-c lient privilege and noting that in camera review of any of possibly privileged docum ents would be appropriate); Chaudhry v. Gallerizzo , 174 F.3d 394, 403 (4th Cir. 1999) (holding billing records constituted attorney-client and work-product privileged communications because they revealed legal research, including the identity of the federal stat utes researched, which would divulge confidential information re garding legal advice).
In camera review enables protection of privileged material, see, e.g., Kerr v.
U.S. Dist. Court , 426 U.S. 394, 405 (1976), and c ourts have reviewed unredacted billing records and time sheets in camera to protect privilege in making attorney fee

2 TSI argues in its reply brief that we s hould apply plain error review to its due process arguments, but “[t]he ge neral rule in this circuit is that a pa rty waives issues and arguments raised for the fi rst time in a reply brief,” Reedy v. Werholtz , 660 F.3d 1270, 1274 (10th Cir. 2011) (brackets and internal quotation marks omitted), and McKissick makes clear a party must argue for pl ain-error review in its opening brief, 618 F.3d at 1189.7 awards. E.g ., Fry v. AOK Energy Servs., LLC , No. 14–CIV–508–RAW, 2015 WL 13388434, at *1 (E.D. Okla. Oct. 2, 2015) (denying respondent’s objection to an award of any fees based on redact ed billing entries and conducting in camera review of the unredacted records); see also Almeida v. Amazon.com, Inc. , 456 F.3d 1316, 1328 (11th Cir. 2006) (upholding fee award notwithstanding trial court’s failure to explain how it calculated an attorney fee award because it conducted an in camera review of the unredacted billing statements and could rely on its own knowledge to determine a reasonable attorney fee award); Nat’l Fitness Co. v. ProCore Labs., LLC , No. 3:11–CV–1352–L, 2013 WL 4546860, at *3 (N.D. Tex. Aug. 28, 2013) (stating plaintiffs seeking attorney fees may submit attorney b illing records ex parte to the court for in camera review if they are concerne d about “divulging privileged or confidential matters”). This court has held that a court revi ewing a fee request did not abuse its discretion in denying the re sponding party access to the itemized time records and conducting in camera review of those records. Garcia v. Tyson Foods , Inc. 770 F.3d 1300, 1309 (10th Cir. 2014) (ruling court acted within its discretion to conduct an ex parte, in camera review of billing records where it allowed the responding party to obtain summaries and depose someone familiar with the billing practices). Here, TSI did not pursue other avenues of discovery or contend on appeal that alternative discovery would have been inadequate. Moreover, TSI has not shown that the district court’s reasons for its ruling were inadequate. Accordingly, we are not8 persuaded the district court abused its discretion when it conducted its in camera review of the billing statem ents and time records. Judgment affirmed.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge