I

N RE SUBPOENAS TO B RADY FOL L I ARD AND MCKNI GHT & KENNED Y, L L C.
MCKNI GHT & KENNED Y, L L C,

Respondant,
v. CDW GOVERNMENT, I NC., Movant. UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

No 10-mc- 789 (ESH) (A K)

MEMORAN DUM OP INION This case is refe rre d to the undersig ned for deter mination of McKnig ht and Kenne dy , L L C’s (“Mc Knig ht”) Motion for Attorne y Fe es and Costs [14] . CDW Government, Inc. (“CDW”) f

iled an Opposition [15] and the unde rsig ned held a hear ing on January

31, 2012. Plaintiff’s Motion will be denie d, beca use Plaintiff has a strong

interest in the under lying la wsuit.

I. BACKG ROUND The Motion for Attorne y

Fe es followed CDW’s Motion for enf orce ment of a subpoe na duces te cum reque sting doc uments from the lawfirm of McK night a nd Kenne dy , L L C , and specific ally , Mr. Vince nt McKnig ht (“Mr. Mc Knig ht”). The reque sts for documents we re pa rt of discovery in a Qui Tam a ction pendingin the Norther n District of I llinois , brought by J oseph
-1-L iotine (“L iotine suit”). The L iotine suit i s one of two Qui Ta m lawsuits origina lly

filed ag ainst CDW for violations of the Trade Ag ree ment Act, 19 U.S.C. §§ 2501 et seq . The sec ond suit was filed by Br ady Folliard in the U .S. District Court for the District of Columbia (“F olliard suit”). McKnig ht repre sented F olliard in the Folliard suit. Both c ases we re ba sed on the same set of fa cts alleg ing that CDW violated the Tra de Ag ree ments Act by

selling c omputer produc ts to the U.S. Government that orig inated fr om nontrade compliant countries. ( Compl. at 5-6.) The f iling of the L iotine suit predated the f iling of the Folliar d suit, leadingthe trial judg e in the District of Columbia to dismiss the Folliar d suit on the g rounds that if more tha n one Qui Tam action is filed base d on the same f acts in diffe rent venues, the first-to-file c ase pr evails over any subsequently

filed ca se. The F olliard suit was dismiss ed on June 28, 2010. ( Id. at 6.) On Novembe r 5, 2010, CDW issued identical subpoenas on B rady Folliard ( “F olliard”) individually

and on McK

night f or docume nts releva

nt to the L iotine suit. (Resp’t’s Mot. for Attorney Fe es and Costs (“Mot. for Attorney Fe es”) at 6-7.) F olliard and McK night objec ted to the subpoena s on privileg e g rounds. ( Id. at 7.) On D ece mber 22, 2010, CDW moved to enforc e the subpoena s. (

Id. ) The Court issued a

n order on April 7, 2011 direc ting Mc Knig ht to produce documents and a

privileg e logfor a

n in camera revie w. (Or der, A pr. 7, 2011 at 12.) Pursuant to that Order , McKnig ht produce d some responsive doc uments to CDW and submitt ed to the Court two privileg e log s, 504 e-mails and 200 doc uments, including a Cooperation and Shar ing A g ree ment betwee n Folliard a nd L iotine. (Mot. for Attorne y Fe es at 2.) On May 12, 2011, CDW filed another Motion to Enforc e the Subpoena s, arguing that McKnig ht’s submissi on to the Court contained no e vidence of common intere st privilege beca use -2-McKnig ht had no evidenc e of a signe d Cooperation Agree ment. (Movant’s Mot. to Enforc e April 7, 2011 Orde r [9] .) On August 10, 2011, the Court denied the May 12 motion, noti ngthat documents submitted for the in camera revie w showed that Folliard a nd L iotine entere d into a Cooperation Agree ment in which the par ties ag ree d “to pool information for a common g oal” and to have a “c oordinated le g al strategy .” (O rder , Aug . 10, 2011 [13] at 6-7.) T he Cooperation Ag ree ment, e-ma il communications and other doc uments established a c ommon interest privileg e beg inning on August 25, 2009, and continuing throug h the April 7, 2011 Orde r. ( Id. at 7.) On September

1, 2011, McKnig ht filed a Motion for Attorne y s Fe es and Costs. I t reque sts $117,900 for 203.6 hours of w ork in conjunction with the ac tion to enforce the subpoenas. ( Resp’t’s Notice of F iling Exhibi ts, Ex . 8 [17-6] .) McKnight reque sts $625 per hour for 166.2 hour s of work, a nd $375 per hour

for the r emaining37.4 hours. Id.

II. P LAINTIFF ’S MOTION FOR A TTORNEY FEES a. F ederal Rules of Civil Pr ocedure 45( c)( 2)(B) McKnig ht argues that it should be awa rded attorney s fee s under F eder al Rules of Civil Procedur e 45(c )(2) (B ). (Mot. for Attorney Fe es at 4.) Under Rule 45, a person c ommanded to produce documents subject to a subpoe na may object to produc tion either bef ore the time specifie d for c ompliance or 14 day s after

the subpoena

is served. F ed. R. Civ. P. 45(c)(2)( B)
. The pa rty servingthe subpoena

may then move for

a cour t order c ompelling pr oduction. Fe d. R. Civ. P . 45(c) (2)( B) (i). Where the produc ing pe rson is a non-pa rty to the suit, any

resultingcourt order commandingcompliance must protect the non-pa rty “fr om significa

nt expense resulting
-3-from complianc e.” F ed. R. Civ. P. 45(c)(2)( B) (ii). 1

CDW arg ues that Rule 45(c )(2) (B ) does not apply to McKnig ht beca

use McKnight did not object to the cost of pr oduction until after he had produc ed the doc uments pursuant to the April 7, 2011 Orde r. (Mova nt’s Opp. to Resp’t’s Mot. for Attorne y Fe es and Costs (“Mova

nt’s Opp.”) [15] at 6.) CDW cites In re First Americ an Corp , 184 F.R.D. 234 (S.D.N.Y . 1998), to support its argument. In citing to In re First Americ an , CDW i g nores the c ourt’s conc lusion that if the produc ing pa

rty opposes the subpoena

or objec ts to producingthe re quested doc uments, the non-par ty is not precluded f

rom seekingreimburse ment post-production of the doc uments. Id . at 239 (“[u]nder Rule 45, a nonpar ty is not rigidly

require d to seek re imbursement for the costs of compliance prior to re sponding to a subpoena” ). The Court is also aw are that had Mr. Mc Knig ht g iven CDW advance notice of his cla im for sig nificant attorney fee s for produc ing the reque sted documents, CDW would have had the opportunity to withdraw or modify

its subpoena. See United States v. Columbia Broadcasting System, I nc. , 666 F.2d 364, 368 ( 9th Cir. 1982) (allowingthe setting of costs post-produc tion under Rule 45 in part be cause producingparty made c lear

its int ention to seek re imbursement and updated re questing parties pe riodically such that reque sting pa

rties “c ould easily

have modifie d or limited their discovery demands whe never they felt that their e x posure to potential re imbursement exceede d the value of the re quested materia l”). The Court will not preclude McK night f rom seekingproduction costs base d on the timing of its reque st.

McKnig ht is a non-par

ty beca use F olliard, his client, is not a named pa rty in the L iotine 1 suit and McKnig ht is not a counsel of re cord in the L iotine suit. -4-Rule 45' s protection of a non-par ty from sig nificant e x pense doe s not preclude the nonparty from bea ringthe costs of produc tion. In re Ex xon Valdez , 142 F.R.D. 380, 382 (D .D.C. 1992); In re Hone

ywell Int’l, Inc . Sec. Litig , 230 F.R.D. 293, 302-03 ( S.D.N.Y. 2003). Releva nt fac tors in determiningwhich par ty should bear the costs of produc tion include: (1) whe ther the non-par ty has an inter est in the outcome of the litigation; (2) whe ther the non- party can mor e
rea dily bear the costs of produc tion than the reque sting pa rty ; and (3) whether

the litigation is of public importance
. Lindor v. Calero-Portocarrero , 180 F.R.D. 168, 177 (D .D.C. 1998). Where the non- party

was involved in litigation arising out of the same f

acts or w as substantially

involved in the underly

ing tr ansac tion, courts have f ound the non-pa

rty to be interested in the outc ome of the litig ation. See W ells Fargo Bank, N.A. , v. Konove r , 259 F.R.D. 206, 207 (D. Conn. 2009); In re First Americ an Corp. , 184 F.R.D. a t 242. McKnig ht acknow ledg es that “Mc Knig ht & Ke nnedy does have an intere st in the outcome of the L iotine
case .” (Mot. for

Attorney s Fe es at 8.) Mr . McKnight stated in a written de clar ation that L iotine’s attorney

from Asc hemann Ke ller, L L C, (“Asc hemann Ke ller”) reta ined Mr. McK night beg inning in the summer of 2010 to provide leg al servic es in the L iotine suit. (Resp’t’s Mot. for an Extension of Time to Respond to C DW’s Mot. to Enforce the Subpoenas, Ex. 2 [ 4-3].) At the J anuar y 31, 2012 hear ing be fore the under signe d, Mr. McKnig ht told the Court that he continues to be involved as a

“consultant” to Aschema nn Keller . Mr. McKnig ht stated that at the resolution of the L iotine suit, he ex pects his hours to be include d alongwith Aschema nn Keller ’s in the petition for attorne y fee s. Furthe r, he r efe renc ed the sig ned Cooperation Agr eeme nt betwee n L iotine and Folliar d and stated that it would gra nt Folliard, McK

night’ s client, a perc entag e of a

ny rec overy by L iotine in the L iotine suit.

-5-Mr. McKnig ht’s repr esentation of Folliard in the F olliard suit and subsequent role of

consulting attorney

in the L iotine case preve nts him from being a neutr al non-pa rty in the L iotine suit. See In re First Americ an Corp. , 184 F.R.D. at 242 (non-par ty was “ not-neutra l” for purposes of a

war ding c osts where the non-pa rty was a n auditing f

irm that had audited one of the parties a nd had bee n a par

ty in previous litigation re sulting fr om its auditi ngwork). Reg ardingthe sec ond fac tor, which pa rty can mor e ea sily

bear the expense of pr oduction, McKnig ht points outthat CDW i s one of the la rg est private c ompanies in the U.S. (Mot. For Attorney Fe es at 9.) Mc Knig ht’s ability to bear the expense of pr oduction is differe nt than a nonparty with no connec tion to the underlying a ction. The doc uments CDW requested fr om McKnig ht are rele vant to the under lying f acts in both the L iotine and Folliar d suits. Folliard is
curr ently a co- venture r with L iotine in the L iotine suit, and Mr. McKnig ht stands to ga in financ ially

from his continued re prese ntation of Folliard a nd his status as a consultant to the L iotine liti g ation. Finally , this case ha s some public importance , as the public is intere sted in ensuringthat taxpay er dollar s are not spent on products that violate the Tr ade A g ree ments Act. The ove rwhe lming fa ctor he re, how ever , is McKnig ht’s strongfinanc ial interest in the outcome of the L iotine suit. See Lindor, 180 F.R.D. at 177. Although Mc Knig ht is a non-par ty , Mr. McKnig ht is int ertwine d with the L iotine suit. As noted above, he is a reta ined consultant of L iotine’s law firm, Asc hemann Ke ller, in the L iotine case . He e x pects to be c ompensated by Asche mann Keller

afte r the L iotine suit i s resolved. H e re mains the lawyer f or F olliard, who has a fina ncial stake in the outcome of the L iotine suit. McKnight’s involvement in the L iotine suit is strong e noug h to require it to bear the c ost of production.

-6-B. Fe es for Respondi ng to CDW’s M otion to Enf orce McKnig ht seeks fe es under Fe d. R. Civ. P . 37(a) (5)( B) for r espondingto CDW ’s Motion to Enforc e the Court’s Apr il 7, 2011 Order. ( Mot. for Attorney Fe es at 10.) Under Rule 37(a) (5)( B) , a Court deny ing a motion to compel mustrequire the movant to pay the opposing party ’s re asonable expenses in defe nding the motion, unless “the motion was substantially justified.” A discove ry

motion is substantially

justified if there is a

“g enuine dispute,” or “if
rea sonable pe ople could diffe r as to [the appropr iateness of the conteste d action].” Piercev. Underwood , 487 U.S. 552, 565, 108 S. C t. 2541, 2550 (1988). McKnig ht argues that CDW’s Motion t o Enforc e the Court’s Apr il 7, 2011 Order w as not substantially

justified. (Mot. for Attorne y Fe es at 10.) T he Court’s Or der a llowed McKnig ht to submit for in camera revie w documents showing a common intere st privilege betwee n McKnig ht and the L iotine suit, along with a pr ivilege log. ( Orde r, April 7, 2011 at 9.) McKnig ht submit ted the documents a

nd the privileg e log , and CDW filed its Moti on to Enforc e the Court’s April 7, 2011 Orde r bef

ore the Court finished its review, c laiming that Mc Knig ht should be require d to produce all of its documents bec ause the privileg e logshowed no e vidence of a c ommon interest privileg e. (Me mo in Support of Movant’s Mot. to Enforce Court’s Apr. 7, 2011 Or der [10] at 2- 5.) The Court denie d CDW’s Moti on, deter mining that base d on the in camera revie w, many of McKnight’s documents we re c overe d by the common intere st privilege . (Orde r, Aug . 10, 2011 at 6-7.) A lthough CDW’s Motion was denied, a g enuine dispute e x isted about whethe r McKnig ht’s documents we re pr ivilege d, which led the Court to re quest the in camera revie w. Using the standar d from Pierce , 487 U.S. at 565, rea sonable pe ople could diffe r as to the
-7-appropr iateness of CDW’s Moti on to Enforc e, espe cially consideringCDW di d not have a cce ss to the in camera documents whe n makingthe motion. ( SeeOpp. to Movant’s Mot. to Enforc e Court’s Apr. 7, 2011 Or der [11] at 3-4.) The timing of CDW’s Moti on alone doe s not make the Motion inappropriate or

eliminate the g enuine dispute that e x isted reg ardingthe produc tion of the documents. McKnig ht also asks for f

ees unde r 28 U.S.C. § 1927 for opposingCDW’s Moti on to Enforc e the Court’s Apr il 7, 2011 Order. 28 U .S.C. § 1927 allows the Court to award sanc tions when a party “multiplies the procee dings in a ny case unrea sonably

and vexatiously .” To wa rra nt sanctions, the par

ty ’s conduc t must be “at lea st reckle ss.” United States v. W allace , 964 F.2d 1214, 1217 (D.C. Cir. 1992). Evidenc e sug g ests that CDW brought its Motion to contest McKnig ht’s lack of

production on the mer its, rather tha n to hara ss McKnig ht or incre ase c osts. ( SeeMovant’s Mot. to Enforc e the Court’s Apr . 7, 2011 Orde r.) CDW believed it had a strong argument and only

filed one Motion; thus, it di d not act re cklessly
. See W allace , 964 F.2d at 1220 (“where courts have employed Section 1927, the attorney ’s beha vior has bee n repe ated or singula rly eg reg ious”). McKnig ht’s reque st for attorne y fee s and costs under

Fe dera l Rules of Civil Procedur e 37(a) (5)( B) and 28 U.S.C. § 1927 will be denied.

-8-III. CONCLUSION

Ba sed on the pre cedingrea sons, McKnig ht’s Motion for Attorney Fe es and Costs in the amount of $117,500 will be denie d. An Orde r will acc ompany this Memorandum Opinion.

Date: Ma rch 16, 2012 /s/ ALAN KAY UNI TED STATES MAGI STRATE J UDGE

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