IN THE SUPREME COURT, STATE OF WYOMING

2015 WY 154

OCTOBER TERM, A.D. 2015

December 8, 2015

HAROLD H. DISHMAN,

Appellant

(Defendant),

v. 

FIRST INTERSTATE BANK,

Appellee

(Plaintiff).

S-15-0039

Appeal from the District Court of Albany County

The Honorable Jeffrey A. Donnell, Judge

Representing Appellant:

Mitchell H. Edwards and Julie M. Edwards of Nicholas & Tangeman, LLC, 

Laramie, Wyoming. Argument by Mr. Edwards.

Representing Appellee:

Megan Overmann Goetz and Jodi D. Shea of Pence and MacMillan LLC, 

Laramie, Wyoming. Argument by Ms. Goetz.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made 

before final publication in the permanent volume.
1

KAUTZ, Justice.

[¶1] The district court granted a partial summary judgment in favor of First Interstate 

Bank (FIB) on its judicial foreclosure claim against Harold H. Dishman. The district 

court later held a bench trial on FIB’s claim for attorney fees and granted most of FIB’s 

requested fees and costs. Mr. Dishman appeals, claiming the district court violated the 

rules of civil procedure by allowing FIB’s detailed billing statement into evidence when 

the bank did not produce it until just before trial. Mr. Dishman also claims FIB’s request 

should have been denied, in whole or in part, because the fees were unreasonable. 

[¶2] We conclude FIB was required to produce its detailed billing statement in support 

of the claim for attorney fees, but its failure to provide it earlier was harmless. Given FIB 

failed to produce the detailed fee statement and did not follow the rules of civil procedure 

in claiming the information was privileged, the fees associated with the efforts to 

withhold the information were not reasonable, and the district court abused its discretion 

by awarding them. The district court also abused its discretion by awarding fees incurred 

in unnecessary and unproductive work. Furthermore, in the interests of equity, we reduce 

the fees incurred by FIB after the summary judgment to account for its discovery 

violations. We, therefore, affirm in part, reverse in part, and remand. 

ISSUES

[¶3] The issues in this case are: 

1. Whether the district court correctly interpreted and applied Wyoming Rules 

of Civil Procedure 26 and 37 with regard to FIB’s obligation to disclose its detailed 

attorney fee statement.

2. Whether the district court abused its discretion in awarding attorney fees to 

FIB. 

FACTS

[¶4] The underlying facts of this case are essentially undisputed. In 2004, Mr.

Dishman obtained a $20,000 line of credit from FIB, secured by a mortgage on his house 

in Laramie, Wyoming. He renewed the loan in 2009. From March 2004 through January 

2013, Mr. Dishman made all payments on the loan through automatic withdrawals from 

his account at FIB. 

[¶5] Mr. Dishman, who suffered from dementia, moved into a nursing home at the 

Laramie Care Center (LCC). In December 2012, LCC submitted an application to have 

his social security benefits redirected to pay some of the costs of his care. After the funds 
2

were diverted, the FIB account from which the automatic withdrawals for payment of the 

loan were taken was closed, resulting in Mr. Dishman’s default on the loan. 

[¶6] On October 4, 2013, FIB filed a complaint against Mr. Dishman for judicial 

foreclosure, seeking the principal balance due on the loan of $14,831.50, together with 

accruing interest, costs and attorney fees. FIB attempted various methods to obtain 

service of process on Mr. Dishman, including personal service on him at the mortgaged 

property, which was vacant; personal service on him at the nursing home, which was not 

allowed by staff; personal service upon a staff member at the nursing home; and service 

by publication. 

[¶7] Mr. Dishman’s granddaughter, Lori Dow, was designated as his attorney in fact 

under a Durable Power of Attorney signed by Mr. Dishman in 2004. Ms. Dow initially 

did not respond to FIB’s efforts to contact her but, after receiving a November 19, 2013, 

letter about the pending action, she contacted FIB and retained counsel to file an answer 

on behalf of Mr. Dishman. The parties exchanged disclosures pursuant to W.R.C.P. 26, 

and FIB served additional discovery requests upon Mr. Dishman. Although they did not 

make any formal discovery requests, Mr. Dishman’s attorneys repeatedly asked FIB to 

provide its detailed attorney fee statement so they could evaluate the attorney fees claim. 

FIB provided verified statements of the attorney fee totals but did not provide the actual 

billing statements. 

[¶8] The case languished for some time while Mr. Dishman’s attorney in fact attempted 

to sell the property and the parties looked into collateral matters, including the potential 

that a Medicaid lien would be filed on the house. With the dispositive motion deadline 

nearing, FIB filed a motion for summary judgment on all of its claims on July 29, 2014. 

In response to the summary judgment motion, Mr. Dishman conceded he owed the 

principal balance, accruing interest, late fees, annual fees, taxes, and insurance but 

contested some of FIB’s specific claims, including the amount of accrued interest, a cost 

described as a “lender’s foreclosure policy,” and attorney fees. Mr. Dishman objected to 

the attorney fees request because FIB had not provided its itemized bills, making it 

impossible to review the reasonableness of the fees. 

[¶9] After considering the parties’ filings, the district court granted FIB a partial 

summary judgment in the amount of $24,631.42, which included the principal due, 

accrued interest, and most of FIB’s costs. The district court concluded, however, there 

were genuine issues of material fact concerning the lender’s foreclosure policy and FIB’s 

attorney fees request. 

[¶10] FIB filed a motion for in camera review of its unredacted verified statement of 

costs and attorney fees. It asserted in general terms that the billing statement included 

confidential information protected by the attorney-client privilege. However, FIB never 

pointed to any specific item in the billing which would have been privileged. FIB also 
3

filed an affidavit from an outside attorney stating its fees were reasonable in light of the 

circumstances. On October 6, 2014, both parties filed trial summaries, which included 

their lists of witnesses and exhibits. FIB’s trial summary did not include its unredacted 

attorney fee statement. On October 7, 2014, the district court denied FIB’s motion for in 

camera review of its unredacted attorney fee bills. On October 9, 2014, FIB 

supplemented its exhibit list with the unredacted statement of fees and costs. 

[¶11] The district court held a bench trial on the outstanding issues on October 14, 2014. 

Mr. Dishman objected to admission of the unredacted fee statement because FIB did not 

produce it as required by the rules of civil procedure. The district court overruled Mr. 

Dishman’s objection and allowed FIB’s unredacted fee statement into evidence. FIB 

later filed a supplemental statement to add the fees associated with the trial, bringing the 

total amount of fees and costs requested by FIB to $20,615.49. 

[¶12] The district court entered an order on November 18, 2014, granting FIB most of its 

requested fees. The order stated, in relevant part:

19. [Mr. Dishman] raises the issue . . . that FIB 

should not be permitted to present its attorney’s fees and costs 

to this Court because it did not timely submit or disclose its 

itemized billings. . . . In fact, FIB asserted that this material 

was privileged and Dishman did nothing to challenge that 

assertion. Ultimately, this Court held that the subject material 

was not privileged and FIB promptly produced same. Mr. 

Dishman had avenues of relief available to him long prior to 

the trial herein, including seeking this Court’s order to 

compel discovery, of which Mr. Dishman did not avail 

himself. He cannot now be he[ard] to complain of FIB’s 

assertion of privilege when he took no action to challenge and 

from which he now seeks to benefit. 

. . . .

22. [T]he Court has reviewed the Verified Statement 

of Attorney’s Fees and Costs, provided as Exhibit 24 herein, 

as well as the Supplemental Verified Statement of Fees, filed

on October 20, 2014, and has considered the evidence and 

testimony presented at trial. The Court has considered Mr. 

Dishman’s Defendant’s Response in Opposition to Plaintiff’s 

Supplemental Verified Statement of Fees, filed on November 

4, 2014. It is mindful of the fact that Mr. Dishman is not

asserting that the hourly rate charged was “too high” but 

simply contending that the amount of time/work invested in 
4

this foreclosure action is not reasonable, particularly where 

the principal amount due was only $14,831.50. 

23. This Court agrees with the parties that a 

“simple” foreclosure matter would not, and should not, 

approach anywhere near $15,000 in costs and attorney’s fees. 

The Court also is empathetic to Mr. Dishman’s position that, 

after loyally paying FIB for almost nine years, the cessation 

of his monthly payments [was] beyond his control in that, 

despite its knowledge of Mr. Dishman’s financial obligations 

to FIB, the Laramie Care Center arranged for Mr. Dishman’s 

social security payments to be paid directly to LCC, rather 

than to FIB, apparently without Mr. Dishman’s knowledge or 

consent. [footnote omitted]. This arrangement ultimately led 

to Mr. Dishman’s default and, eventually, to this litigation. 

Finally, the Court is cognizant of the fact that Mr. Dishman 

now owes the State of Wyoming more than the likely value of 

this property in that he owes approximately $173,000.00 for 

Medicaid services provided to him and his deceased spouse, 

Patricia Dishman.

24. However, this case was anything but simple. 

Considering the complications involved in locating Mr. 

Dishman; the issues concerning his potential incompetence; 

Mr. Dishman’s significant equity in the property; dealing with 

the vacancy of the property; addressing Medicaid/Medicare 

concerns; the involvement of multiple attorneys and law firms 

[for Mr. Dishman]; and the delays in resolution caused, in 

part, by allowing Ms. Dow to attempt to sell the property, the 

vast majority of the charge[d] fees and costs are reasonable 

and were, indeed, necessary. This case involved complicated 

issues, which took a significant amount of attorney time even 

though the amount initially sought was relatively small, and 

the rates charged were reasonable and customary. Overall, 

this Court does not believe such amounts were unreasonable. 

25. The only fees with which this Court takes issue 

involve those incurred for the hiring and retention of Scott 

Meier as an expert witness for the purpose of the 

reasonableness of attorneys’ fees. Those amounts were: [list 

of billing entries totaling $2,394.50]. 
5

26. The Court finds these amounts unnecessary in 

light of Wyoming Statute § 1-14-126(b), which allows the 

court discretion to award reasonable attorney’s fees “without 

requiring expert testimony.” 

. . . .

29. The Court . . . awards a total of attorneys’ fees 

and costs in the amount of $18,220.99 (the result of the 

requested amount of $20,615.49 less the amounts associated 

with Mr. Meier of $2,394.50).

(emphasis in original). Mr. Dishman filed a timely notice of appeal. 

STANDARD OF REVIEW 

[¶13] We review the question of whether the district court correctly interpreted the rules 

of civil procedure de novo. Windham v. Windham, 2015 WY 61, ¶ 12, 348 P.3d 836, 840 

(Wyo. 2015) (applying de novo standard of review to Rule 37 interpretation). The district 

court’s decision awarding attorney fees is reviewed under the abuse of discretion 

standard. Morrison v. Clay, 2006 WY 161, ¶ 16, 149 P.3d 696, 701 (Wyo. 2006). A

court abuses its discretion if it exceeds the bounds of reason under the circumstances. 

Joe’s Concrete & Lumber, Inc. v. Concrete Works of Colorado, Inc., 2011 WY 74, ¶ 12, 

252 P.3d 445, 448 (Wyo. 2011).

DISCUSSION

1. General Law on Attorney Fees Awards

[¶14] Wyoming subscribes to the American rule regarding recovery of attorney fees. 

The rule makes each party responsible for its own fees unless an award is permitted by 

contract or statute. Thorkildsen v. Belden, 2012 WY 8, ¶ 10, 269 P.3d 421, 424 (Wyo. 

2012); Garwood v. Garwood, 2010 WY 91, ¶ 32, 233 P.3d 977, 984 (Wyo. 2010). The 

party who is seeking an award of fees has the burden of proving the reasonableness of the 

claimed fees. To meet that burden, the claimant must present an itemized billing 

reflecting the time and the rate and evidence demonstrating the fee was reasonable. Tolin 

v. State, (In re NRF), 2013 WY 9, ¶ 7, 294 P.3d 879, 882 (Wyo. 2013). See also Pekas v. 

Thompson, 903 P.2d 532, 536 (Wyo. 1995). The claimant must show the “nature of the 

service performed, the time expended, and the hourly fee customarily charged for such 

service.” Ringolsby v. Johnson, 2008 WY 127, ¶ 17, 193 P.3d 1167, 1171 (Wyo. 2008), 

quoting Jones Land & Livestock Co. v. Fed. Land Bank of Omaha, 733 P.2d 258, 265 

(Wyo. 1987) (emphasis omitted). As part of his duty to claim only reasonable fees, an 

attorney must exercise “billing judgment.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 

S.Ct. 1933, 1939–40, 76 L. Ed. 2d 40 (1983). “‘Billing judgment is usually shown by the 
6

attorney writing off unproductive, excessive, or redundant hours.’” NRF, ¶ 9, 294 P.3d at 

883-84, quoting Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 662 (5th Cir. 

2002). An affidavit from a party or an attorney stating only the total amount of fees and 

that the amount is reasonable is not sufficient to satisfy the burden of proof. See, e.g., 

Meyer v. Travelers Ins. Co., 741 P.2d 607, 609 (Wyo. 1987); Greenough v. Prairie Dog 

Ranch, Inc., 531 P.2d 499, 503-04 (Wyo. 1975). 

[¶15] In determining the reasonableness of the fee request, Wyoming courts follow the 

federal lodestar test, which requires a determination of “(1) whether the fee charged 

represents the product of reasonable hours times a reasonable rate; and (2) whether other 

factors of discretionary application should be considered to adjust the fee either upward 

or downward.” Weiss v. Weiss, 2009 WY 124, ¶ 8, 217 P.3d 408, 410-11 (Wyo. 2009), 

quoting Forshee v. Delaney, 2005 WY 103, ¶ 7, 118 P.3d 445, 448 (Wyo. 2005). The 

district court has broad discretion in fashioning an attorney fee award. See, e.g., 

Garwood, ¶ 38, 233 P.3d at 986; Jensen v. Milatzo-Jensen, 2013 WY 27, ¶ 35, 297 P.3d 

768, 779 (Wyo. 2013). Wyo. Stat. Ann. § 1-14-126 (LexisNexis 2015) provides a list of 

factors the court may consider in determining an appropriate fee award:

(b) In civil actions for which an award of attorney’s fees is 

authorized, the court in its discretion may award reasonable 

attorney’s fees to the prevailing party without requiring 

expert testimony. In exercising its discretion the court may 

consider the following factors:

(i) The time and labor required, the novelty and difficulty 

of the questions involved, and the skill requisite to perform 

the legal service properly;

(ii) The likelihood that the acceptance of the particular 

employment precluded other employment by the lawyer;

(iii) The fee customarily charged in the locality for similar 

legal services;

(iv) The amount involved and the results obtained;

(v) The time limitations imposed by the client or by the 

circumstances;

(vi) The nature and length of the professional relationship 

with the client;
7

(vii) The experience, reputation and ability of the lawyer 

or lawyers performing the services; and

(viii) Whether the fee is fixed or contingent.

[¶16] In exercising its discretion, the district court has the obligation to scrutinize the fee 

application “with an experienced eye.” NRF, ¶ 9, 294 P.3d at 883, citing Foley v. City of 

Lowell, Mass., 948 F.2d 10, 19 (1st Cir.1991). As part of that procedure, the district 

court must “‘winnow out excessive hours.’” NRF, ¶ 9, 294 P.3d at 883, quoting Gay 

Officers Action League v. Puerto Rico, 247 F.3d 288, 296 (1st Cir. 2001). Stated another 

way, “‘[b]illing for legal services ... should not be a merely mechanical exercise.... [T]he 

Court must scrutinize the claim with particular care.... A reasonable fee can only be fixed 

by the exercise of judgment.’” Id., quoting Copeland v. Marshall, 641 F.2d 880, 888 

(D.C. Cir. 1980).

[¶17] In addition, principles of equity apply to attorney fee awards. We have explained:

[w]hile the general rule is that a valid provision for attorney’s 

fees in a [contract] is as much an obligation of the contract as 

any part of it, the trial court still has discretion in exercising its 

equitable control to allow only such sum as it thinks 

reasonable. A trial court in its discretion may properly 

disallow attorney’s fees altogether on the basis that such 

recovery would be inequitable.

Grommet v. Newman, 2009 WY 150, ¶ 61, 220 P.3d 795, 817 (Wyo. 2009), quoting 

Meyer v. Hatto, 2008 WY 153, ¶ 26, 198 P.3d 552, 557–58 (Wyo. 2008) (other citations 

omitted).

2. Admission of FIB’s Attorney Fee Statement

[¶18] The credit agreement and the mortgage executed by Mr. Dishman allowed FIB to 

recover its attorney fees for enforcement of the agreements. FIB’s complaint for judicial 

foreclosure of the mortgage on Mr. Dishman’s property included a request for an award 

of attorney fees. Given the claim for attorney fees, Mr. Dishman asserts FIB violated the 

Wyoming rules of discovery by failing to produce its detailed attorney fees statement as 

evidentiary support of its claim. 

[¶19] W.R.C.P. 26 sets out the parties’ general discovery obligations and states in 

relevant part: 

(a) Required disclosures; methods to discover additional 

matter. –
8

(1) Initial disclosures. – Except in categories of 

proceedings specified in Rule 26 (a) (1) (E), or to the extent 

otherwise stipulated in writing or directed by order, a party 

must, without awaiting a discovery request, provide to other 

parties: 

. . . .

(B) A copy of, or a description by category and 

location of, all documents. . . that are in the possession, 

custody, or control of the party and that the disclosing party 

may use to support its claims or defenses . . . ;

(C) A computation of any category of damages 

claimed by the disclosing party, making available for 

inspection and copying as under Rule 34 the documents or 

other evidentiary material, not privileged or protected from 

disclosure, on which such computation is based.

. . . . 

Unless a different time is set by stipulation in writing or by 

court order, these disclosures must be made within 30 days 

after a party’s answer is required to be served under Rule 

12(a) . . . .

(b) Discovery scope and limits. – Unless otherwise limited by 

order of the court in accordance with these rules, the scope 

of discovery is as follows:

(1) – Parties may obtain discovery regarding any matter, 

not privileged, that is relevant to the claim or defense of the 

party seeking discovery or to the claim or defense of any 

party. 

. . . .

(5) Claims of Privilege or Protection of Trial Preparation 

Materials. –

(A) Information Withheld. When a party withholds 

information otherwise discoverable under these rules by 

claiming that it is privileged or subject to protection as trial 

preparation material, the party shall make the claim expressly 

and shall describe the nature of the documents, 

communications, or things not produced or disclosed in a 
9

manner that, without revealing information itself privileged or 

protected, will enable other parties to assess the applicability 

of the privilege or protection.

. . . .

(c) Protective Orders. – Upon motion by a party or by the 

person from whom discovery is sought . . . the court in which 

the action is pending . . . may make any order which justice 

requires to protect a party or person from annoyance, 

embarrassment, oppression, or undue burden or expense, 

including one or more of the following:

(1) That the disclosure or discovery not be had;

(2) That the disclosure or discovery may be had only 

on specified terms and conditions, including a designation of 

the time or place;

. . . .

(4) That certain matters not be inquired into, or that the 

scope of the disclosure or discovery be limited to certain 

matters;

. . . .

If the motion for a protective order is denied in whole or in 

part, the court may, on such terms and conditions as are just, 

order that any party or other person provide or permit 

discovery. . . . The filing of a motion under [this rule] shall 

stay the disclosure or discovery at which the motion is 

directed pending further order of the court. . . . Counsel 

seeking such relief shall request the court for a ruling or a 

hearing thereon promptly after the filing of such motion, so 

that disclosure or discovery shall not be delayed in the event 

such motion is not well taken.

[¶20] Under Rule 26(a)(1)(B) & (C), a party is required to disclose, without waiting for 

a discovery request, all documents which it may use to support its claims and a 

computation of any category of damages claimed by the party, together with all 

documents upon which the computation is based. Given FIB was claiming attorney fees, 

it was required to provide the relevant information regarding its claim. See Tolin, ¶ 7, 

294 P.3d at 882; Pekas, 903 P.2d at 536. An itemized billing statement, listing the nature 

of the services performed, the time expended and the hourly rate is required to prove a 

claim for attorney fees, and is, therefore, a required disclosure under Rule 26(a)(1)(B) & 

(C), unless there is a basis to withhold it. Id. See also Ringolsby, ¶ 17, 193 P.3d at 1170. 
10

[¶21] Rule 26 recognizes that certain information may be privileged or protected from 

disclosure. However, under Rule 26(b)(5)(A), when a party withholds information 

otherwise discoverable on the basis that it is privileged, the party must make the claim 

expressly and describe the nature of the documents withheld in a “manner that . . . will 

enable other parties to assess the applicability of the privilege or protection.” Often, this 

information is provided via a privilege log. See generally, Williams v. Sprint United 

Mgmt. Co., 238 F.R.D. 633, 645 (D. Kan. 2006) (interpreting analogous federal rule). 

The party seeking to withhold the information may file a motion for a protective order 

under Rule 26(c). When seeking a protective order, counsel is required to request a 

hearing or ruling promptly after the motion is filed to avoid unduly delaying discovery. 

Rule 26(c). The party asserting the privilege has the burden of establishing it applies. 

Clarke v. American Commerce Nat’l Bank, 974 F.2d 127, 129 (9th Cir. 1992). See 

generally, Aland v. Mead, 2014 WY 83, ¶ 77, 327 P.3d 752, 773 (Wyo. 2014) 

(recognizing the State had burden of proving requested documents were protected by the 

attorney-client privilege). 

 

[¶22] The record in this case does not indicate that FIB provided a detailed attorney fee 

statement or a privilege log as part of its initial disclosures. Indeed, FIB apparently did 

not formally claim the information was privileged until after the district court granted the 

partial summary judgment and ruled there were genuine issues of material fact regarding 

the attorney fees claim. FIB finally asserted in its motion for in camera review of its 

unredacted statement of costs and fees that the statement “contains confidential attorneyclient privileged information that Plaintiff does not waive.” Even that filing did not 

satisfy the privilege log requirement of Rule 26(b)(5)(A) or constitute an appropriate 

motion for a protective order under Rule 26(c). 

[¶23] The district court eventually ordered disclosure of the attorney fee statement when 

it denied FIB’s motion for in camera review, effectively rejecting FIB’s claim that the 

attorney fee statement was privileged. The district court was correct. Attorney fee 

statements are not privileged simply because they pertain to the attorney-client 

relationship. Wyo. Stat. Ann. § 1-12-101 (LexisNexis 2015) generally describes the 

privilege as including communications “made to [the attorney] by his client . . . in that 

relation, or his advice to his client[.]” Attorney billing information often does not fall 

within that definition. 81 Am.Jur.2d Witnesses § 379 states the general rule: 

Typically, the attorney-client privilege does not extend to the 

fee agreement, billing records, or expense reports. However, 

although a simple invoice ordinarily is not privileged, billing 

records may be protected by the attorney-client privilege 

where they reveal the nature of the services rendered. . . .

All narrative statements in attorney fee statements are not 

per se privileged; rather, parties claiming the privilege 
11

will have to show its application to particular narrative 

statements in the billing records. 

 

(emphasis added and footnotes omitted).

[¶24] In addition, by making a claim for attorney fees, a party generally waives the 

attorney-client privilege and work product protections. 32B Am.Jur.2d Federal Courts §

2118. “[A] plaintiff waive[s] attorney-client privilege and work product protection with 

regard to complete, unredacted bills from its attorneys by seeking attorney’s fees as 

damages for breach of contract.” Id., citing Energy Capital Corp. v. United States, 45 

Fed. Cl. 1179 (2000). In Measom v. Greenwich & Perry Street Housing Corp., 752 

N.Y.S.2d 194, 196 (N.Y. Civ. Ct. 2002), the court stated: “In seeking to recover their 

attorneys’ fees and expenses, plaintiffs have placed the reasonableness, necessity, and 

value of their attorneys’ services squarely in issue, for plaintiffs’ own benefit.” “To the 

extent the attorneys’ time records are material and necessary to these issues, plaintiffs 

have waived any privilege.” Id. In Ringolsby, we addressed the waiver of the attorneyclient privilege through submission of attorney fee bills and provided an alternative to 

parties concerned about such waiver. We stated the claimant “could have reworded the 

task descriptions on the billing statements in such a manner that attorney-client privilege 

would not be waived rather than submitting redacted statements.” Ringolsby, ¶ 21, 193 

P.3d at 1171. 

[¶25] In sum, when a party makes a claim for attorney fees, the billing statements 

generally fall within the scope of production required under Rule 26. Attorney fee 

statements are not, by definition, protected under the attorney-client privilege. There is 

no blanket rule permitting a party to refuse to produce all of its detailed billing 

statements. Tacke v. Energy West, Inc., 227 P.3d 601, 609-10 (Mont. 2010). In some 

instances, however, a billing statement may contain communications between the client 

and the attorney or legal advice given, bringing it under the definition of privilege in § 1-

12-101. If a party believes that some of the material is privileged, it may withhold the 

information but it must provide an appropriate privilege log. It may also file a motion for 

a protective order, so the court can devise a plan to protect truly privileged material while 

allowing the opposing party a sufficient opportunity to review the bills to determine 

whether the charges are reasonable. In the alternative, the party can reword the task 

descriptions to remove the privileged materials. Ringolsby, supra.1

 

1 To assist in the just, speedy and inexpensive determination of cases, Rule 26 appropriately places the 

burden of early disclosure on the party who will present the evidence. We recognize that some privileged 

information may be included in attorney fee statements. The privilege log and a protective order 

procedure should adequately protect such information. Rule 26(a) permits a trial court, in appropriate 

situations, to set times for disclosure or even to defer disclosure until after liability has been established.

Nevertheless, a party like FIB cannot simply refuse to provide any information about attorney fees, 

effectively preventing any discovery on its claimed damages and increasing costs to both sides.
12

[¶26] Given FIB did not provide its detailed billing statement or a privilege log or file a 

motion for a protective order, it is clear that FIB did not comply with its discovery 

obligations under the rules of civil procedure. Consequently, we look to W.R.C.P. 37 for 

the remedy for the discovery violations:

(a) Motion for order compelling discovery. – A party, 

upon reasonable notice to other parties and all persons 

affected thereby, may apply for an order compelling 

disclosure or discovery as follows:

. . . .

(2) Motion.

(A) If a party fails to make a disclosure required by 

Rule 26(a), any other party may move to compel disclosure 

and for appropriate sanctions. The motion must include a 

certification that the movant has in good faith conferred or 

attempted to confer with the party not making the disclosure 

in an effort to secure the disclosure without court action.

. . . .

(c) Failure to disclose; false or misleading disclosure; refusal 

to admit.

(1) A party that without substantial justification 

fails to disclose information as required by Rule 26(a) or 

26(e)(1) or to amend a prior response to discovery as required 

by Rule 26(e)(2), is not, unless such failure is harmless, 

permitted to use as evidence at trial, at a hearing, or on a 

motion any witness or information not so disclosed. In 

addition to or in lieu of this sanction, the court, on motion and 

after affording an opportunity to be heard, may impose other 

appropriate sanctions. In addition to requiring payment of 

reasonable expenses, including attorney’s fees caused by the 

failure, these sanctions may include any of the actions 

authorized under Rule 37(b)(2)(A), (B), and (C) and may 

include informing the jury of the failure to make the 

disclosure.

[¶27] Mr. Dishman asserts FIB’s unredacted billing statement should have been 

excluded from evidence at trial under Rule 37(c)(1), and, without that information, FIB 

would have been unable to satisfy its burden of proving its attorney fees were reasonable. 
13

The district court rejected Mr. Dishman’s argument, faulting him for not filing a motion 

to compel FIB to produce the documents. During the bench trial, the court repeatedly 

informed Mr. Dishman’s counsel that, since they elected not to pursue production of the 

documents through a motion to compel, it was not going to exclude the documents from 

the evidence at trial. 

[¶28] A litigant can certainly file a motion to compel production of information it 

believes it is entitled to under the rules of discovery, and that will often be the most 

prudent course of action. However, by placing the burden of compelling production of 

the documents upon Mr. Dishman, the district court misinterpreted the requirements 

under Rules 26 and 37. Wright & Miller, 8B Fed. Prac. & Proc. Civ. § 2289.1 (3d ed. 

2015) explained that F.R.C.P. 37(c)(1), which is similar to W.R.C.P. 37(c)(1), provides 

for “automatic exclusion” of the undisclosed materials, although courts still have 

discretion and may choose to impose alternative sanctions. The authors described the 

purposes of the rule:

In large measure, [the automatic exclusion] sanction 

was intended to put teeth into the mandatory initial disclosure 

requirements. . . . The sanction is automatic in the sense 

that there is no need for the opposing party to make a 

motion to compel disclosure . . . in order to compel a 

further disclosure, as a predicate for imposition of the 

sanction of exclusion. . . . 

The sweep of this exclusion is softened by the proviso 

that it should not apply if the offending party’s failure to 

disclose was “substantially justified,” and that even if the 

failure was not substantially justified the exclusion should not 

apply if the failure was “harmless.” 

 

Wright & Miller, 8B Fed. Prac. & Proc. Civ. § 2289.1. Thus, the district court incorrectly 

interpreted the discovery rules when it stated that Mr. Dishman was required to file a 

motion to compel before the automatic exclusion sanction could be applied. 

[¶29] Rule 37(c)(1) provides that a party who, without sufficient justification, fails to 

disclose information as required by Rule 26 is not permitted to use that evidence at trial, 

unless the failure is harmless. Mr. Dishman claims FIB’s failure to disclose its statement 

until October 9, 2014, for the trial on October 14, 2014, was not harmless because his 

legal team had only one business day to review the information. The certificate of 

service accompanying the unredacted fee statement says it was hand delivered to Mr. 

Dishman’s attorneys on October 9, 2014. The record also contains an email 

communication indicating that FIB emailed the unredacted information to Mr. Dishman’s 

attorneys at 9:26 a.m. on Thursday, October 9, 2014. Mr. Dishman’s attorneys, therefore, 
14

had over four days to review the information, although that period included a weekend 

and Monday, October 13, 2014, which was Columbus Day. 

[¶30] The trial transcript demonstrates that Mr. Dishman was sufficiently prepared to 

challenge FIB’s attorney fees request. Mr. Dishman’s attorneys questioned FIB’s 

numerous witnesses extensively and in great detail about the proceedings in the case and 

various entries in the attorney fees statement. In addition, the October 9, 2014 email 

from FIB’s attorneys, which included the unredacted fee statement, said: “If you need 

more time to review this before trial is scheduled, I will not object to a continuance.” 

Mr. Dishman did not request a continuance. Under these circumstances, FIB’s failure to 

provide the information required by Rule 26 was harmless. The district court did not err 

by allowing the unredacted fee statement into evidence.

 

[¶31] Mr. Dishman also complains that by allowing FIB to present the unredacted fee 

statement at trial, FIB was given “more than one bite at the apple,” contrary to our 

decision in Ringolsby. Ringolsby was awarded damages, attorney fees and costs in an 

earlier action. While attempting to collect the judgment, he filed an action to pierce the 

corporate veil. After securing a judgment on the piercing claim, Ringolsby filed a motion 

for attorney fees and costs using a redacted billing statement. Although he offered to 

provide the unredacted statement for in camera review if requested by the district court, 

the court ruled that Ringolsby had not met his burden of proving his attorney fees were 

reasonable and was not entitled to a second opportunity through an in camera review of 

the billing statement. Ringolsby, ¶¶ 3-11, 193 P.3d at 1168-69. This Court upheld the 

district court’s ruling. Id., ¶¶ 16-18, 193 P.3d at 1170-71. See also Pekas, 903 P.2d at 

537 (stating “if a party has had an opportunity to present proof of attorney fees to the trial 

court, and they fail to do so, the award will be summarily reversed on appeal with no 

remand.”).

[¶32] Ringolsby addressed a much different situation than the present case. Here, the 

only evidentiary hearing on attorney fees took place during the bench trial. The 

unredacted fee statement was presented at that time. FIB asked, in a pretrial motion, for 

permission to present the statement in camera, but the district court denied that request. 

Contrary to Mr. Dishman’s assertion, his earlier communications asking for the 

information did not provide FIB with opportunities (bites of the apple) to prove its 

attorney fees. Likewise, the district court did not deny FIB’s request for fees on 

summary judgment; it merely stated there were genuine issues of material fact that 

needed to be determined at a full evidentiary hearing. The proceedings in this case did 

not provide FIB with multiple opportunities to prove its attorney fees claim.

3. Attorney Fees Award 

[¶33] Mr. Dishman argues the district court abused its discretion by awarding FIB over 

$18,000 in attorney fees and costs to secure a judgment on a debt with a principal balance 
15

of less than $15,000. He asserts FIB’s fees were not reasonable. As we stated, infra, the 

district court has broad discretion in awarding fees, but the claimant has the burden of 

showing the fees are reasonable under the federal lodestar test. 

[¶34] The district court accurately stated that this judicial foreclosure action was 

significantly more complex than a typical advertisement and sale foreclosure. However,

in awarding FIB most of its requested fees and costs, the district court did not take into 

account the bank’s discovery violations or its obligation to exercise billing judgment. As 

we discussed above, FIB did not follow the proper course in asserting its billing 

statement was privileged, undertake an appropriate analysis to determine whether the 

information was actually subject to privilege, or make any effort to reword its 

descriptions to avoid possible disclosure of privileged material. Instead, it simply 

withheld the information without explanation and then filed a belated motion to present 

the information to the district court in camera. 

[¶35] Under these circumstances, it is unreasonable to expect Mr. Dishman to pay fees 

associated with FIB’s improper efforts to avoid its discovery responsibilities and to skirt 

its burden of proving in open court that its fees were reasonable. See generally, Hensley 

v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983) (discussing generally 

the concept of carving out unsuccessful or improper fees from an attorney fees award). 

Some of the improper fees were disallowed as part of the district court’s rejection of fees 

associated with FIB’s expert attorney. However, there were other fees associated with 

FIB’s discovery violations that were unreasonable and should have also been denied,

including: 1) an October 6, 2014, $182 charge for research on in camera review of 

privileged documents and incorporation of the same into FIB’s trial summary; 2) an 

October 7, 2014, $168 charge for research on in camera review; 3) October 9, 2014 

charges of $307.50 and $15 for follow-up after the district court denied in camera review 

of the billing statement, preparation of supplemental exhibits (including the unredacted 

billing statement), and email correspondence with opposing counsel concerning the 

supplemental exhibits. In addition, FIB charged at least one-half hour of attorney time on

five separate occasions for preparation of its statement of fees. That should have been a 

very simple administrative task involving little more than printing the bills but, because 

FIB improperly redacted the description of services from the statements, it resulted in

$195 in attorney fees. The fees related to FIB’s discovery violations totaled $867.50. 

They were not reasonable and should not have been charged to Mr. Dishman. 

[¶36] The district court’s decision also does not reflect that it held FIB to its duty to 

exercise billing judgment by “writing off unproductive, excessive, or redundant hours.’” 

NRF, ¶ 9, 294 P.3d at 883-84, quoting Green, 284 F.3d at 662. According to Mr. 

Dishman, FIB should not have expended funds for: preparing documents for an 

advertisement and sale foreclosure when it did not proceed that way; exploring various 

legal issues like lender liability; service by publication; and unnecessary discovery 
16

requests. He also claims FIB spent an exorbitant amount of time preparing for summary 

judgment. 

[¶37] As Mr. Dishman points out, FIB’s billing statement included charges for preparing 

for foreclosure by advertisement and sale, which it did not complete. Those fees 

included: 1) a June 14, 2013 charge of $80 for beginning work on notice of intent to 

foreclose; 2) a July 15, 2013 charge of $80 for “[b]rief review of foreclosure policy, 

update to partner, update to client, began revisions to draft of notice of intent to 

foreclosure;” 3) a July 16, 2013 charge of $176 for “[c]ontinued revisions on notice of 

intent to foreclosure, finalize documents, forward to partner for review;” 4) a July 31, 

2013, $156 charge for “[r]eview of title work, review of 10 day Notice of Intent to 

Foreclose in draft,” and “[c]onsider good faith issues and follow up on the same.” In 

total, FIB charged $492 for preparation of an advertisement and sale foreclosure which 

was never completed. The time spent in the effort was unproductive and should have 

been written off as part of FIB’s billing judgment. 

[¶38] FIB also charged $704 for researching “lender liability” on August 1 and 2, 2013. 

At trial, FIB’s attorney testified the task described as “lender liability” research included 

investigation of how to properly foreclose upon an incompetent person, the process of 

judicial foreclosure and how to avoid risks associated with those procedures. The 

mortgage and the credit agreement executed by Mr. Dishman allowed FIB to recover its 

attorney fees for enforcement of the agreement. Given Mr. Dishman did not assert a 

claim for “lender liability” at any time during this action, the time FIB’s counsel spent 

researching lender liability was not necessary to the enforcement of the agreements in 

this case. The fees associated with research of lender liability were not recoverable. 

[¶39] The district court also approved the attorney fees and costs associated with service 

of process by publication. W.R.C.P. 4 governs service of process and provides in 

relevant part:

(d) Personal Service. – The summons and complaint shall 

be served together. The plaintiff shall furnish the person 

making service with such copies as are necessary. Service 

shall be made as follows:

(1) Upon an individual other than a person under 14 years 

of age or an incompetent person, by delivering a copy of the 

summons and of the complaint to the individual personally, or 

by leaving copies thereof at the individual’s dwelling house 

or usual place of abode with some person over the age of 14 

years then residing therein, or at the defendant’s usual place 

of business with an employee of the defendant then in charge 

of such place of business, or by delivering a copy of the 
17

summons and of the complaint to an agent authorized by 

appointment or by law to receive service of process;

(2) Upon a person under 14 years of age or an 

incompetent person, by serving the same upon the guardian 

or, if no guardian has been appointed in this state, then upon 

the person having legal custody and control or upon a 

guardian ad litem;

. . . .

e) Service by Publication. – Service by publication may be 

had where specifically provided for by statute, and in the 

following cases:

(1) When the defendant resides out of the state, or the 

defendant’s residence cannot be ascertained, and the action is:

(iii) For the sale of real property under a mortgage, lien 

or other encumbrance or charge;

. . . .

(3) In actions which relate to, or the subject of which is 

real or personal property in this state, when a defendant has or 

claims a lien thereon, or an actual or contingent interest 

therein or the relief demanded consists wholly or partly in 

excluding the defendant from any interest therein, and . . . 

defendant’s place of residence cannot be ascertained[.] 

. . . .

(e) Requirements for Service by Publication. – Before 

service by publication can be made, an affidavit of the party, 

or the party’s agent or attorney, must be filed stating that 

service of a summons cannot be made within this state, on the 

defendant to be served by publication, and stating the 

defendant’s address, if known, or that the defendant’s address 

is unknown and cannot with reasonable diligence be 

ascertained, detailing the efforts made to obtain an address, 

and that the case is one of those mentioned in subdivision (e); 

and when such affidavit is filed, the party may proceed to 

make service by publication. In any case in which service by 

publication is made when the address of a defendant is 

known, it must be stated in the publication. Immediately after 

the first publication the party making the service shall deliver 
18

to the clerk copies of the publication, and the clerk shall mail 

a copy to each defendant whose name and address is known 

by registered or certified mail and marked “restricted 

delivery” with return receipt requested, directed to the

defendant’s address named therein, and make an entry thereof 

on the appearance docket.

[¶40] FIB filed an affidavit pursuant to Rule 4(f) stating that service of process by 

publication was warranted because efforts to serve Mr. Dishman at his home were 

unsuccessful, the property appeared vacant, and, although attempts had been made to 

serve him at the LLC, it could not confirm that he actually lived there. These statements 

are contradicted in other parts of the record. In a November 19, 2013 certified letter to 

Ms. Dow, FIB indicated the bank was aware that Mr. Dishman lived at LLC, it had been 

informed by LLC that Ms. Dow held power of attorney for Mr. Dishman and gave her 

notice the case was pending in district court. 

[¶41] The record also indicates that FIB knew Mr. Dishman was incompetent. FIB’s 

attorney, Megan Goetz, testified:

Q. Were there issues – once the complaint was drafted, 

were there issues in getting Mr. Dishman served?

A. There were.

Q. Can you please describe those?

A. We were unable to get Mr. Dishman served at [the 

mortgaged property]. We had been told through a grapevine 

chain of communications at the bank that we believed 

initiated with Ms. Dow that Mr. Dishman was located at the 

Laramie Care Center. We had been sending demand letters 

and notices via certified mailed to Mr. Dishman at both 

addresses. 

Interestingly enough, they were being returned. They 

were initially returned by the Laramie Care Center, later 

accepted. At one point the certified mailing was actually 

changed. We’re not sure how that happened. But someone 

changed the address on the green card and had it sent to Ms. 

Dow at [her] address.

We then received that notice and tried to make contact 

with Ms. Dow at [her address] and the letters were returned. 

And we received – I received a call from Laramie Care 

Center finally saying, yes, he was there, he was incompetent, 

and we should stop contacting them or trying to get any 

information out of them. 
19

[¶42] Service of process by publication is only allowed when personal service is not 

reasonable or practical. See, e.g., First Wyo. Bank, N.A., Rawlins v. Trans Mountain 

Sales & Leasing, Inc., 602 P.2d 1219, 1223 (Wyo. 1979); In re Longquest’s Estate, 526 

P.2d 994, 998 (Wyo. 1974). FIB knew Mr. Dishman’s location, knew he was 

incompetent, believed Ms. Dow was his attorney-in-fact, and knew her address. 

Consequently, it could have personally served Mr. Dishman under Rule 4(d)(2) by 

serving Ms. Dow. FIB’s counsel charged $270 in fees for service by publication and the 

cost of publication was $693, for a total of $963. Those expenses were unreasonable and

should have been deducted from FIB’s request. 

[¶43] Mr. Dishman also challenges the fees associated with FIB’s discovery requests,

seeking information about the status and condition of the house and an accounting of the 

payments he had made to the bank. He claims the bank could have obtained the 

information about the house by driving by and FIB already had the information about his 

payments. The district court did not abuse its discretion by allowing FIB to recover the 

fees associated with the discovery requests. The bank was entitled to detailed 

information about its collateral, i.e., whether it was occupied, its condition, and who was 

taking care of any required maintenance. The question about Mr. Dishman’s records of

the payments he made to the bank was also relevant to determine whether there was any 

discrepancy in the bank’s accounting and calculation of the amounts due.

[¶44] Finally, Mr. Dishman challenges the amount awarded to FIB for preparation of the 

summary judgment materials, which he calculates as $3,611. Mr. Dishman’s principal 

argument is that FIB’s right to a judgment on the amounts due under the line of credit 

was not contested. The district court correctly recognized there is nothing in the record 

showing that Mr. Dishman conceded the debt or the principal amount due early in the 

litigation. In fact, the documents in the record, including his answer which denied almost 

every allegation of the complaint, demonstrate that all of FIB’s claims were at issue until 

Mr. Dishman responded to FIB’s motion for summary judgment. At that point, he 

conceded he owed the principal amount of the debt, accrued interest and most of the 

costs. Although the fees awarded FIB for preparation for summary judgment were

significant, we are not convinced the district court abused its discretion by allowing them.

[¶45] However, many of the fees incurred after summary judgment could have been 

avoided if FIB had complied with its discovery obligation and produced the unredacted 

attorney fee statement earlier in the litigation. The district court’s incorrect 

understanding of the discovery rules gave it a skewed perspective in determining whether 

FIB’s post-summary judgment fees were reasonable. The trial transcript demonstrates 

that Mr. Dishman would have challenged some of the charges regardless of when the 

unredacted statements were produced, but the parties may have been able to agree on 

others. We cannot determine, in hindsight, which fees would have been incurred even if 

FIB had produced its complete fee statement in a timely manner as required by the rules 

of discovery. Nevertheless, we conclude it is inequitable to allow FIB to recover all of its 
20

fees when earlier production of the descriptions of the nature of services would have 

helped the parties focus on the items actually in dispute. See Grommet, supra. 

[¶46] We have, in the past, approved a district court’s determination that fees should be 

reduced by an overall percentage. In NRF, ¶ 20, 294 P.3d at 888, we affirmed the district 

court’s decision reducing the attorney fees by fifty percent. Under the circumstances of 

this case, we conclude equity requires that we reduce the post-summary judgment fees,

which we have not already disallowed, by fifty percent. The total of these fees is $4,100, 

so fifty percent is $2,050. We conclude, therefore, the district court allowed $5,076.50 in 

fees that were improper. Consequently, the amount of attorney fees that should have 

been awarded was $13,144.49 ($18,220.99 awarded by the district court less the 

$5,076.50 in improper fees). 

 

[¶47] Appellee requested an award of attorney fees incurred in responding to this appeal. 

We conclude that Appellee could have avoided substantial cost, and this appeal, by 

simply complying with the clear rules related to disclosure of itemized attorney fees 

statements, and with WRCP 26. As we have affirmed only in part, and reversed in part, 

we find that each party should bear its own costs and attorney fees incurred in this appeal. 

[¶48] Affirmed in part, reversed in part, and remanded for entry of an order granting 

FIB’s request for attorney fees in the amount of $13,144.49.