IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KAREN JO BARROW, §

 §

Plaintiff, §

 § Civil Action No. 3:00-CV-0913-D

VS. §

 §

GREENVILLE INDEPENDENT SCHOOL §

DISTRICT, et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

In this action by plaintiff Karen Jo Barrow (“Barrow”) against defendants Greenville

Independent School District (“GISD”) and Dr. Herman Smith (“Dr. Smith”), the court addresses the

remaining post-judgment matters that require a decision: Barrow’s application for attorney’s fees

from Dr. Smith, the deferred portion of her motion to alter or amend the judgment, and her

objections to GISD’s bill of costs. For the reasons that follow, the court awards Barrow attorney’s

fees in the sum of $631,293.00, and $22,775.22 in expenses and taxable costs of court; it grants her

motion to alter or amend the judgment to the extent of awarding her expenses and taxable costs

against Dr. Smith; and it sustains in part and overrules in part her objections to GISD’s bill of costs

and awards costs to GISD of $14,492.65.

I

 The court assumes the parties’ familiarity with its prior opinions in this case. In its most

recent decision, Barrow v. Greenville Independent School District, 2005 WL 1867292 (N.D. Tex.

Aug. 5, 2005) (Fitzwater, J.) (“Barrow VI”), the court established a procedure for Barrow to submit,

 

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1

Barrow filed a preliminary attorney’s fees application on April 11, 2005. In accordance

with Barrow VI, she filed the instant fee application on August 25, 2005 (amended on September

6, 2005), supported by a brief and a seven-volume appendix. Dr. Smith filed his response and

objections, a supporting brief, and an appendix on September 13, 2005. As permitted by Barrow

VI, he adopted materials already on file consisting of the response, brief, and six-volume appendix

filed June 14, 2004, and supplement to response filed June 23, 2004, which he had submitted as part

of an attorney’s fees alternative dispute resolution (“ADR”) procedure presided over by Judge

Sanders, and Judge Sanders’ June 27, 2004 report. (Although the ADR procedure has been referred

to as “arbitration,” it is best described as a voluntary, non-binding ADR procedure in which the

parties participated in an attempt to settle the case before trial.) Barrow filed a reply brief on

September 28, 2005. 

2

As directed in Barrow VI, in her first amended attorney’s fees application, Barrow has

broken these sums out to show that amount as of the dates of the offers of judgment. See P. Am.

Applic. 1-3.

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and for Dr. Smith to oppose, an application for attorney’s fees under 42 U.S.C. § 1988.1

 

Barrow seeks an award of attorney’s fees and expenses totaling $2,093,521.91, which

consists of $1,989,360.50 in attorney’s fees and $104,161.41 in expenses.2 She requests an

attorney’s fees award for work performed by four attorneys: Wm. Charles Bundren, Esquire

(“Bundren”); Kelly J. Shackelford, Esquire (“Shackelford”); Hiram S. Sasser III, Esquire (“Sasser”);

and Jonathan M. Saenz, Esquire (“Saenz”). Bundren is Barrow’s lead counsel in the case. Bundren

practices law with Wm. Charles Bundren & Associates, P.C. (“WCBA”). Shackelford is the founder

and Chief Counsel of Liberty Legal Institute (“Liberty”), a civil liberties education and legal defense

organization specializing in religious freedom cases. Sasser is Liberty’s Director of Litigation, and

Saenz is a Liberty Staff Attorney. Dr. Smith opposes Barrow’s fee application on several grounds,

asserting that the court should reject the request in its entirety or, alternatively, should award a

substantially reduced amount.

Barrow requests compensation for Bundren’s services based on 3,703.85 hours at the hourly

rate of $450, totaling $1,666,732.50. For Shackelford’s work, Barrow requests compensation based

 

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3

According to Shackelford, until mid-2004, his time records were forwarded to Bundren to

be input into his firm’s computerized timekeeping system.

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on WCBA’s time records for 320.1 hours at $400 per hour and based on Shackelford’s separate time

records for 248.2 hours at the same hourly rate, for 568.3 hours totaling $227,320. Barrow seeks

fees for 220.6 hours at $205.00 per hour for Sasser’s services, totaling $45,223.00. Finally, she

requests compensation for 286.2 hours at $175.00 per hour for Saenz’s services, totaling $50,085.00.

To support the fee application, Barrow has submitted four sets of billing records. First, she

has proffered WCBA’s records, which include all of Bundren’s time entries. They also include

Shackelford’s time entries prior to June 23, 2004, although Shackelford was associated with Liberty,

not with WCBA, throughout the history of the case.3

 Second, Barrow has submitted Shackelford’s

separate time sheets for his work on and after June 23, 2004. Third and fourth, she has submitted

separate time records for Sasser and Saenz, respectively.

Also pending before the court is the deferred portion of Barrow’s April 11, 2005 post-trial

motion to alter or amend the judgment. In a memorandum opinion and order filed in conjunction

with entering the judgment in this case, the court explained that, with respect to Barrow’s action

against Dr. Smith, the judgment provided that Barrow would bear her own taxable costs of court,

subject to the court’s amending the judgment in response to a timely filed post-judgment motion.

See Barrow v. Greenville Indep. Sch. Dist., No. 3:00-CV-0913, slip op. at 1-2 (N.D. Tex. Mar. 25,

2005) (Fitzwater, J.). Barrow challenged this part of the judgment in her motion to alter or amend

judgment. In Barrow VI the court denied the motion except to the extent it deferred a final decision

due to the outstanding issue of Barrow’s recovery of attorney’s fees and costs. See Barrow VI, 2005

WL 1867292, at *32. The court addresses today whether the judgment should be altered or amended

 

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4

This calculation is based on $15,455.00 in actual damages, prejudgment interest (which

Barrow calculates to be $2,967.44), and $20,000 in punitive damages. Adding these sums together,

Barrow obtained a judgment in the amount of $38,422.44. See Barrow VI, 2005 WL 1867292, at

*22 (“Barrow points out that the court awarded her judgment for $15,455.00 plus prejudgment

interest, which she calculates to be $2,967.44. The judgment also awarded her $20,000 in punitive

damages. Adding these sums together, Barrow obtained a judgment in the amount of $38,422.44.”).

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to assess Barrow’s expenses and taxable costs of court against Dr. Smith.

The judgment awarded GISD its taxable costs of court against Barrow, and the clerk of court

taxed GISD’s costs in the sum of $19,741.13. On April 13, 2005 Barrow filed objections to GISD’s

bill of costs. In Barrow VI the court deferred its decision on her objections. Id. The court also

resolves Barrow’s objections in this opinion.

II

The court turns first to Barrow’s first amended attorney’s fees application. Barrow is entitled

under the judgment to recover from Dr. Smith actual and punitive damages and prejudgment interest

totaling $38,422.44 on her parental rights claim under 42 U.S.C. § 1983.4

 In a § 1983 case, “the

court, in its discretion, may allow the prevailing party, other than the United States, a reasonable

attorney’s fee as part of the costs[.]” 42 U.S.C. § 1988(b). Although § 1988 uses the word “may,”

the court’s discretion to deny attorney’s fees to a prevailing party is extremely narrow. See Scham

v. Dist. Courts Trying Criminal Cases, 148 F.3d 554, 557 (5th Cir. 1998). “Absent special

circumstances that would render such an award unjust, a prevailing plaintiff should be awarded

§ 1988 fees ‘as a matter of course.’” Id. (quoting Espino v. Besteiro, 708 F.2d 1002, 1005 (5th Cir.

1983)).

To calculate the amount of a reasonable attorney’s fee, the court begins by “determin[ing]

the compensable hours from the attorneys’ time records, including only hours reasonably spent.”

 

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As the court notes supra at note 1, in Barrow VI it permitted the parties in litigating this fee

application to adopt materials already on file. Dr. Smith has adopted materials submitted to Judge

Sanders as part of the ADR procedure. Therefore, to understand Dr. Smith’s opposition arguments,

it is necessary to consult his September 13, 2005 response and objections to plaintiff’s fee

application, September 13, 2005 brief in support of response and objections to plaintiff’s fee

application, June 14, 2004 response and objections to plaintiff’s fee application (including volume

1, which contains his brief), and the supporting appendixes filed on June 14, 2004 and September

13, 2005. 

For clarity, when the court refers in this memorandum opinion to “D. Br.” it means Dr.

Smith’s September 13, 2005 brief in support of response and objections to plaintiff’s fee application.

When the court refers to “D. ADR Br.” it means the brief included in volume 1 of Dr. Smith’s June

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Shipes v. Trinity Indus., 987 F.2d 311, 319 (5th Cir. 1993). The court may reduce the number of

compensable hours “[w]here the documentation of hours is inadequate.” Hensley v. Eckerhart, 461

U.S. 424, 433 (1983). The court also excludes any hours that it determines “are excessive,

redundant, or otherwise unnecessary.” Id. at 434. The court next “must select an appropriate hourly

rate based on prevailing community standards for attorneys of similar experience in similar cases.”

Shipes, 987 F.2d at 319. “The number of compensable hours is then multiplied by the selected

hourly rate to produce the ‘lodestar’ amount.” Id.; see also Rutherford v. Harris County, Tex., 197

F.3d 173, 192 (5th Cir. 1999) (citing League of United Latin Am. Citizens #4552 v. Roscoe Indep.

Sch. Dist., 119 F.3d 1228, 1232 (5th Cir. 1997) (“LULAC”)). The fee applicant bears the burden to

substantiate both the requested hours and the hourly rate. Hensley, 461 U.S. at 437. After

calculating the lodestar amount, the court must then determine whether the lodestar should be

adjusted based on the factors listed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th

Cir. 1974). Shipes, 987 F.2d at 320. 

III

Relying on the materials he submitted to Judge Sanders as part of a pretrial attorney’s fees

alternative dispute resolution (“ADR”) procedure5 and Judge Sanders’ report, Dr. Smith contends

 

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14, 2004 ADR response and objections to plaintiff’s fee application. When the court refers to “D.

ADR Resp.” it means the response and objections included in volume 1 of Dr. Smith’s June 14, 2004

response and objections to plaintiff’s fee application. When the court refers to “D. ADR Resp.” by

a volume and page designation, e.g., D. ADR Resp. 2:1, it means the volume and page of a volume

other than volume 1 of Dr. Smith’s June 14, 2004 response and objections to plaintiff’s fee

application. By “D. ADR Resp. Supp.” it means Dr. Smith’s June 21, 2004 supplement to his

response and objections to plaintiff’s fee application.

6

The court is especially grateful to Judge Sanders for his willingness to preside over the ADR

procedure and for the time he devoted to the matter.

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that Barrow is not entitled to recover any attorney’s fees, expenses, or costs, and he requests that the

court adopt Judge Sanders’ conclusion that the evidence is insufficient to sustain an award of

expenses or costs. The court will not deny Barrow’s fee application on this basis.

Although the court’s decision today reaches conclusions that are in some respects similar to

those found in Judge Sanders’ report, Judge Sanders issued his findings as part of a non-binding

ADR procedure.6

 The court must independently perform its obligation to decide Barrow’s fee

application. “Absent special circumstances that would render such an award unjust, a prevailing

plaintiff should be awarded § 1988 fees ‘as a matter of course.’” Scham, 148 F.3d at 557 (quoting

Espino, 708 F.2d at 1005). Although the court concludes that Barrow’s fee request must be

substantially reduced, it also finds that there are no special circumstances that support completely

denying her an award of attorney’s fees.

IV

Dr. Smith maintains on several grounds that Barrow’s fee request should be rejected in its

entirety or drastically reduced. He contends that Barrow has failed to meet her burden of proof

because no reasonable client would accept her counsels’ records due to the use of block billing. Dr.

Smith also posits that Bundren’s available time records are facially unreliable because the

 

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7

In her reply brief, Barrow asserts that Bundren ceased this practice after May 1, 2004

“because of Smith’s complaining.” P. Reply Br. 6 n.15.

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computerized records have been massively altered and Bundren claims to have worked an inhuman

number of hours.

A

The court turns initially to Dr. Smith’s objection to Barrow’s counsels’ use of block billing.

Dr. Smith argues that block billing is not a normal business practice in this community and that it

is prohibited by law, learned treatises, and responsible clients. He maintains on this basis that the

court should reject Barrow’s fee application in its entirety or, alternatively, reduce the number of

hours by 75% to 85%.

“The term ‘block billing’ refers to ‘the time-keeping method by which each lawyer and legal

assistant enters the total daily time spent working on a case, rather than itemizing the time expended

on specific tasks.’” Robinson v. City of Edmond, 160 F.3d 1275, 1284 n.9 (10th Cir. 1998) (quoting

Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc., 82 F.3d 1533, 1554 n.15 (10th Cir. 1996)). All

of Bundren’s time entries before May 1, 2004 are block billed. On May 1, 2004 Bundren began

using a different entry for each task rather than for each day, and he continued this practice through

the end of the fee application period.7

 All of Shackelford’s time entries prior to February 16,

2005—including those contained in the WCBA billing records and in his separate records—are

block billed. On and after February 16, 2005 Shackelford did not uniformly block bill, although

some entries continue to group several tasks together. Sasser’s and Saenz’s time entries do not

appear to be block billed.

Courts disfavor the practice of block billing because it impairs the required reasonableness

 

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evaluation. When time records are block billed, the court cannot accurately determine the number

of hours spent on any particular task, and the court is thus hindered in determining whether the hours

billed are reasonable. See Trulock v. Hotel Victorville, 92 Fed. Appx. 433, 434 (9th Cir. 2004)

(unpublished mem.) (“[B]lock billing creates some impediments to the analysis of attorney fee bills.

. . .”); Gratz v. Bollinger, 353 F.Supp.2d 929, 939 (E.D. Mich. 2005) (“As a result of such ‘block

billing,’ the Court is not able to determine the number of hours expended on each discrete task.

Thus the Court cannot determine whether the number of hours billed are reasonable.”); Aiello v.

Town of Brookhaven, 2005 WL 1397202, at *3 (E.D.N.Y. June 13, 2005) (“[B]lock billing would

impede the Court’s ability to ascertain the nature of the work performed.”); Hells Canyon Pres.

Council v. U.S. Forest Serv., 2005 U.S. Dist. LEXIS 15311, at *10 (D. Ore. Mar. 7, 2005) (Block

billing “prohibit[s] a thorough reasonableness determination.”); Sea Spray Holdings, Ltd. v. Pali Fin.

Group, Inc., 277 F.Supp.2d 323, 326 (S.D.N.Y. 2003) (“[T]he substantial amount of block billing

in the fee requests renders it difficult to determine whether, and/or the extent to which, the work

done by Buyers’s attorneys is duplicative or unnecessary.”). The Tenth Circuit, for example,

strongly discourages the practice of block billing.

 The use of billing practices that camouflage the work a lawyer does

naturally and quite correctly raise suspicions about whether all the

work claimed was actually accomplished or whether it was necessary.

This concern is particularly important in a situation where a party is

seeking to have his opponent pay for his own lawyer’s work. 

Robinson, 160 F.3d at 1284.

An example from Bundren’s time records demonstrates the difficulty his block-billing

practice creates for the court. On September 5, 2001 Bundren billed 8.0 hours. Rather than separate

his work into more discrete entries or categories, he combined all his tasks into the following single

 

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entry (the description is so long that it spills over into a second entry):

Receipt and review of correspondence from Tom Brandt, Esq.

regarding defendant’s “latest version” of proposed Joint Status

Report on settlement negotiations and length of trial; review Joint

Status Report “latest version” proposed by Dr. Herman Smith;

preparation of correspondence with Kelly Shackelford; telephone

conversation with Kelly Shackelford regarding Defendant’s proposed

Joint Status Report concerning settlement progress and settlement

negotiations; review local rules and Federal Rules of Civil Procedure

regarding information and “argument” of counsel included within a

Joint Status Report to the Court; telephone conference with Court’s

secretary regarding proper content of Joint Status Report on

settlement negotiations; preparation of correspondence to Tom

Brandt, Esq. and Cobby Caputo, Esq. regarding Plaintiff’s Objections

to Defendant’s case and improper conduct of Defendants reported in

the proposed Joint Status Report; research Northern District’s civil

expense and delay reduction plan and confidentiality of ADR

proceedings under Section III., F. of Northern District Plan; legal

research regarding Texas statutes on alternative dispute resolution

mediation session; review mediation files concerning contract and

agreements signed by parties to keep communications at ADR

proceedings confidential; continued legal research concerning

motivating factors of Dr. Herman Smith in making decision to not

promote or recommend Karen Jo Barrow for an administrator’s

position and mixed motive cases under Title VII and under

employment discrimination under Section 1983; (continued next

item)

(cont from prev. slip) continued legal research concerning Dr.

Herman Smith’s assertion of a “Mt. Healthy” defense based upon

motivating factors which Dr. Herman Smith did not know in July of

1998; continued review of deposition transcripts, deposition exhibits

and evidence to determine viability of Dr. Herman Smith’s “Mt.

Healthy” defense based upon other motivating factors which caused

him to discriminate against Karen Jo Barrow; review Defendants’

proposed language in Joint Status Report to the Court; preparation of

draft of Plaintiff’s proposed insert (alternative) to Defendants’

proposed language in Joint Status Report.

P. App. 545. Because of the block billing, the court cannot accurately determine how much of the

8.0 hours Bundren devoted to any particular task, or even to a category of tasks, within the day.

 

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These entries are found on April 3, 5, 11, 23, 26, 27, and 30, 2001.

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Although the example the court cites is particularly problematic, there are several others like it. The

records reflect that Bundren typically compiled together into one day’s entry such discrete tasks as

reviewing notes, preparing for discovery, writing correspondence, drafting pleadings, and

conducting legal research.

Another example sheds additional light on the challenge that block billing creates for the

court. Throughout April 2001 Bundren has seven billable entries that include communications with

Shackelford.8

 Because all the entries are block billed, the court can only conclude that, during a one

month period, Bundren spent somewhere between 0.7 hours and 47.7 hours communicating with

Shackelford. This wide range is found in only a single month; the problem is compounded when

the entries are extrapolated over the entire 1998-2004 block-billing period. Given the vastness of

the range, the court cannot determine, inter alia, the reasonableness of the time Bundren billed for

communicating with Shackelford.

Shackelford also engaged in block billing, but his time records are generally more

illuminating. While Bundren’s individual time entries often contain five or more tasks, Shackelford

usually performed only a single task during a particular day; on the days he bills for more than one,

only two or three tasks are usually grouped together.

Most courts that have addressed the problem of block billing have concluded that denying

all block-billed attorney’s fees is not an appropriate remedy. See, e.g., Trulock, 92 Fed. Appx. at

434 (holding that block billing “is not a basis for refusing to award attorneys’ fees”); Cadena v.

Pacesetter Corp., 224 F.3d 1203, 1215 (10th Cir. 2000) (concluding that block billing “is not per

se forbidden”); Rodriguez v. McLoughlin, 84 F.Supp.2d 417, 425 (S.D.N.Y. 1999) (“[T]he practice

 

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of block billing is not prohibited in [the Second] Circuit.”). Rather, most courts reviewing blockbilled time entries have performed a percentage reduction either in the number of hours or in the

lodestar figure. See, e.g., Paris v. Dallas Airmotive, Inc., 2004 WL 2100227, at *9-*11 (N.D. Tex.

Sept. 21, 2004) (Lindsay, J.) (applying percentage reduction because of block billing); Robinson,

160 F.3d at 1284-85 (“[A] district court does not abuse its discretion in reducing a plaintiff’s fee

request when the request is based on time records that are rather sloppy and imprecise.”) (internal

quotation omitted); Aiello, 2005 WL 1397202, at *3 (“[C]ourts apply percentage cuts where there

is a substantial amount of block billing in a fee request.”) (internal quotation omitted). The

reduction usually ranges between 10% to 30%. See, e.g., In re Pierce, 190 F.3d 586, 594 (D.C. Cir.

1999) (applying 10% reduction); Gratz, 353 F.Supp.2d at 939 (same); Aiello, 2005 WL 1397202,

at *3 (same); Welch v. Metro. Life Ins. Co., 2004 U.S. Dist. LEXIS 28576, at *10 (C.D. Cal. Sept.

20, 2004) (block billing “can result in overbilling of between 10 and 30 percent.”); Okla. Natural

Gas Co. v. Apache Corp., 355 F.Supp.2d 1246, 1265 (N.D. Okla. 2004) (adopting magistrate judge’s

15% reduction in case applying Oklahoma fee-shifting statute); Sea Spray, 277 F.Supp.2d at 326

(applying 15% reduction); Gonzalez v. Bratton, 147 F.Supp.2d 180, 213 (S.D.N.Y. 2001) (applying

12% reduction).

Based on Bundren’s extensive block billing in this case, which occurred over a substantial

time period, the court will reduce Barrow’s request for Bundren’s time by 20% for services rendered

between August 27, 1998 and May 1, 2004. Because Shackelford engaged in some block billing,

the court will reduce Barrow’s request for Shackelford’s time by 10% for services rendered between

September 22, 1998 and February 15, 2005. From the time records submitted, the court has

determined that Bundren billed 2,177.15 of his claimed hours between August 27, 1998 and May

 

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The court reached this finding by deducting from the 2,667.05 hours he claimed for the

period August 27, 1998 through September 7, 2004 a total of 489.9 hours for the period between

May 1, 2004 and September 7, 2004, leaving a net sum of 2,177.15 hours.

10The court reached this finding by adding to the total number of hours he claimed between

September 22, 1998 and June 22, 2004 in the time records of WCBA (320.1 hours) the sum of 19.9

hours reflected in his own time records for the period June 23, 2004 through February 16, 2005.

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1, 2004.9

 The court reduces that number to 1,741.72 hours based on the 20% block billing

adjustment. The remaining 1,526.7 claimed hours have not been reduced on this basis. The court

has determined that Shackelford block-billed 340 of his claimed hours from September 22, 1998

through February 15, 2005.10 The court reduces that number to 306 hours based on the 10% block

billing adjustment. The remaining 228.3 claimed hours (i.e., 568.3 - 340) have not been reduced on

this basis.

The court disagrees with Dr. Smith’s reliance on Walker v. U.S. Department of Housing &

Urban Development, 99 F.3d 761 (5th Cir. 1996), to contend that the court should deny Barrow’s

application in its entirety based on her counsels’ practice of block billing. In Walker the Fifth

Circuit held that a paralegal’s billing records were “woefully inadequate to support any fee

application” because, inter alia, all the time was block billed. Walker, 99 F.3d at 773 (The billing

records “never separate out her day, always lumping all of the day’s activities together.”). Walker,

however, is distinguishable from this case. The Walker panel based the denial of the paralegal’s fees

both on block billing and on the fact that the records were too vague. See id. (“The original records

contain terse listings: ‘library research,’ ‘analyzing documents,’ ‘reading background documents,’

‘phone interviews,’ with no further explanation.”). As the court explains later, although some of

Bundren’s and Shackelford’s entries are vague, the records do not suffer from the same pervasive

 

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11Although a large number of Bundren’s block-billed entries contain vaguely described tasks,

they are often a small portion of the entire time entry. For example, the following is Bundren’s July

26, 2000 entry, for which he billed 5.6 hours (the vague portions are italicized):

Preparation of revisions to Response to Request for Production;

preparation of correspondence; preparation of Request for

Production to Greenville Independent School District; preparation of

correspondence with Cobby Caputo, Esq.; preparation of revisions to

Plaintiff[’s] Request for Production to Dr. Smith; telephone

conference with client; preparation of revisions to interrogatories to

Herman Smith.

P. App. 485 (emphasis added).

12For example, in Hollowell v. Orleans Regional Hospital LLC, 217 F.3d 379 (5th Cir. 2000),

the Fifth Circuit affirmed an award of attorney’s fees even though the billing records “lumped

together” the time entries. Id. at 392-93. The district court had “found the . . . billing records

specific enough to determine that the hours claimed were reasonable for the work performed.” Id.

at 393. The Fifth Circuit noted that “even a failure to provide contemporaneous billing statements

‘does not preclude an award of fees per se, as long as the evidence produced is adequate to

determine reasonable hours.’” Id. at 392 n.18 (quoting La. Power & Light Co. v. Kellstrom, 50 F.3d

319, 325 (5th Cir. 1995) (per curiam)).

13In his September 13, 2005 brief, Dr. Smith adopts pages 11-13 of his ADR response in

support of this argument. See D. Br. 7 n.6. At these pages of his ADR response, Dr. Smith relies

on nine examples that he posits are indicia of either gross incompetence or fraud that lead to the

conclusion that no responsible client would accept the fee application as supporting a bill. These

objections are either included at other portions of Dr. Smith’s opposition briefing and addressed by

the court in those contexts or are so conclusory that they do not merit a specific ruling. Accordingly,

the court will not address them here.

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vagueness problem found in the Walker paralegal’s records.11 Thus Walker does not support

completely denying Barrow’s fee request to the extent the application is based on block-billed

time.12

B

Dr. Smith maintains that Barrow’s application should be rejected in its entirety or drastically

reduced because Bundren’s billing records are for two reasons facially unreliable.13 First, he posits

that Bundren’s original, contemporaneous handwritten time records have been destroyed and his

 

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14In his June 14, 2004 ADR response, Dr. Smith objects to the computerized records on the

basis that they “are not the best evidence of the time spent on the case.” D. ADR Resp. 6. Although

he did not renew this objection in his current response and objections and brief, to the extent he

intends to raise an objection under Fed. R. Evid. 1002, the court overrules it. Such an objection

would have merit only if Barrow were relying on the computerized records to prove the content of

the handwritten records.

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computerized records are unreliable because they have been massively and inexplicably altered after

the fact during billing judgment review.14 Second, he asserts that when Bundren’s time records are

analyzed together with his fee records in other cases, they indicate that he worked inhuman hours.

Dr. Smith relies on an analysis of time records that Bundren submitted in support of Barrow’s

present fee application, those produced at earlier points in this litigation, and the records that

Bundren submitted in support of fee applications in two other lawsuits: Chiu v. Plano Independent

School District, No. 4:99-CV-1966 (E.D. Tex.), and Williams v. Kaufman County, No. 3:97-CV0875-L (N.D. Tex.) (Lindsay, J.).

Dr. Smith argues that a comparison of the time records that Bundren submitted in support

of Barrow’s instant and ADR procedure fee applications with time records that she provided during

the fall of 2003 indicates that Bundren made massive alterations during his billing judgment review.

Dr. Smith supposes that, because under Fifth Circuit precedent billing judgment reductions should

be visible to the court, Bundren will contend that these are data entry errors. He posits, however,

that such extensive errors—which account for almost 1,000 hours claimed in Bundren’s original

records—appear to call into question the validity of the records as a whole. He points to several

specific changes as particularly troubling and argues that these entries support denying the fee

application in its entirety. Included are instances where Bundren removed items from the

description of work performed but did not change the amount of time claimed. In his ADR brief,

 

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- 15 -

Dr. Smith also cites several instances where, between the time Bundren presented billing records

and the time of his ADR fee application, he changed the time allocated or tasks performed. Dr.

Smith contends these are not examples of billing judgment but of errors in the records, and he urges

that the vast number of alterations renders the records fundamentally unreliable.

Dr. Smith also contends that the time records Bundren presented in Chiu and Williams

undermine the reliability of the records adduced in this case because together they reflect that he

regularly worked in excess of what is humanly possible. Among other examples, Dr. Smith cites

the period July 5, 2001 through August 7, 2001, which reflects that Bundren took no days off and

billed an average of 16.7 hours per day, with no day fewer than 12.5 hours, many days greater than

18 hours, and one day (July 24, 2001) the impossible amount of 24.1 hours.

In 2003 Bundren provided Dr. Smith a copy of his billing records up to that date. Dr. Smith

has submitted a copy of the 2003 records as part of the record. Comparing the 2003 billing records

with Barrow’s instant fee application, it is clear that portions of Bundren’s billing records have been

significantly altered in the intervening two years. Barrow asserts that Bundren’s alterations were

performed as an exercise of billing judgment. Bundren also avers that he “found very few data entry

errors in the time records.” P. App. 39. To conclude that an attorney has exercised billing judgment,

the court would expect to find records with some time entries marked as billable and others

designated non-billable. See Alberti v. Klevenhagen, 896 F.2d 927, 930 (5th Cir. 1990) (“Ideally,

billing judgment is reflected in the fee application, showing not only hours claimed, but also hours

written off.”). The sum of the billable and non-billable hours would reflect the total number of hours

the attorney worked on the case. The court would be able to evaluate the attorney’s exercise of

billing judgment by examining the hours billed and, inter alia, comparing them to the hours not

 

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- 16 -

billed.

In several instances, this is what Bundren has done. For example, Bundren’s June 12, 2000

entry shows that he worked 4.8 hours on this case. He has marked 1.5 hours as “DNB [Do Not Bill]

Time,” P. App. 477, reflecting that he concluded that only 3.3 hours could reasonably be billed for

that day’s tasks. In others, however, rather than mark some or all hours as non-billable, Bundren

has simply changed the raw number of hours that he claimed he worked. For example, Bundren’s

June 2, 2000 entry has been altered from 7.2 hours in the 2003 records to 5.0 hours in the fee

application. For at least two days’ time records—July 11 and 12, 2001—all entries for Bundren,

Shackelford, and a legal assistant have been completely deleted. Alterations such as these, which

are found throughout the fee application, undermine the assertion that Bundren engaged in billing

judgment review.

Having considered Dr. Smith’s objections and the relevant records, the court holds that

Barrow should be denied attorney’s fees based on the unreliability of Bundren’s time records. If

Bundren actually worked all the hours reflected in the 2003 billing records and has simply reduced

the hours in an exercise of billing judgment—either by marking them as non-billable or by changing

the raw number of hours worked—then during 2001 he worked an inhuman number of hours. When

the court adds together the hours Bundren claims he devoted to this case from July 5, 2001 to August

7, 2001 with the hours he billed in Chiu and Williams, the records indicate that he worked

continuously, without taking any days off, and that on no day did he bill fewer than 12.5 hours.

During the same period, the records indicate that he billed, on average, 16.7 hours each day,

including four consecutive days of in excess of 18 hours. The records also indicate that on July 24,

 

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15There are other time entries that cause the court concern. For example, Bundren’s entry

on November 2, 2000 contains one task: “Review voice mail from opposing counsel.” P. App. 495.

Bundren billed 0.4 hours for this task. At 24 minutes, this was either a very lengthy voice mail, it

took Bundren a great deal of time to listen to and review it, or both. Additionally, although both

Bundren and Shackelford bill for numerous telephone conferences with each other, Bundren

consistently bills more time than Shackelford for the same conversation.

16Bundren testified in his deposition as follows:

Q: All right. As you sit here today, and in your current

computer system, do you know whether or not you have the

capability of giving a prebill to the court or to us that will reveal what

amount of time you actually wrote down on your handwritten daily

time log for a particular day?

* * *

A. As to each and every day, no.

Q. (By Mr. Brandt) As to a particular day.

A. Well, as I said, when I started the prejudgment review

process, billing judgment review process in this case, I started with

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2001 he worked the impossible amount of 24.1 hours.15

Barrow also asserts that Bundren made the alterations to correct data entry errors. Bundren

avers that law clerk time was inadvertently entered together with his own time from June to

September 2001 and that the alterations to the raw hours and descriptions were made to correct these

data entry errors. If so, this perhaps explains why Bundren’s records originally reflected his

working an “inhuman” number of hours from July 5, 2001 to August 7, 2001. But this explanation

also raises questions that it does not adequately answer. 

First, given the number of substantial data-entry errors, the court questions why Bundren

asserts in his fee application that he “found very few data entry errors in the time records.” P. App.

39. Second, it is not apparent how Bundren could have accurately corrected the errors without

comparing the time entries to the contemporaneously handwritten time sheets, which are apparently

no longer available.16 Third, the court questions why Bundren would alter the raw amount of time

 

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the prebill worksheet, raw data that had come out of the computer.

D. ADR Resp. Supp. Ex. 2 at 297.

17Although Barrow filed this lawsuit in 2000, her counsel began providing legal services in

1998.

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reflected in several entries without also changing the descriptions of the tasks performed. For

example, the 2003 records reflect that Bundren worked 9.0 hours on September 7, 2001. The fee

application states that he worked 6.0 hours on that day, and all 6.0 hours are marked as billable. If

Bundren removed the 3.0 hours because he discovered that law clerk time had been inadvertently

entered with his time on that day, the court would also expect to see the law clerk’s tasks removed

from the description. Yet the description of Bundren’s tasks is exactly the same in the fee

application as it is in the 2003 records. These modifications are not consistent with correcting the

inadvertent combination of law clerk time and tasks with Bundren’s.

The court does not expect Bundren and his staff to enter all records perfectly the first time;

over a seven-year period17 some data-entry errors will occur. But the scale of the errors in

Bundren’s records calls into question the accuracy of Barrow’s entire fee application. Ultimately,

the court cannot determine whether Bundren made the alterations in exercising billing judgment or

did so to correct data entry errors. But regardless of the reason, Barrow’s attempts to explain the

alterations do not address the court’s concerns about the reliability of the records, and its ability to

rely on the accuracy of the records is materially compromised. 

Accordingly, given the magnitude of the changes in relation to the number of hours that

Barrow seeks for Bundren’s services, the court will reduce Bundren’s time by an additional 20%

based on the unreliability of the records. See Hensley, 461 U.S. at 433 (“Where the documentation

 

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14The motions are: (1) Dr. Smith’s May 22, 2000 partial motion to dismiss; (2) Barrow’s

October 3, 2000 motion for leave to take in excess of ten depositions; (3) GISD’s June 22, 2001

motion to quash the deposition of Cobby Caputo, Esq.; (4) Barrow’s June 29, 2001 motion for leave

to take in excess of ten depositions; (5) Barrow’s June 29, 2001 motion for temporary restraining

order and preliminary injunction; (6) Barrow’s July 12, 2001 motion to shorten time to respond to

her preliminary injunction application; (7) Dr. Smith’s August 1, 2001 motion to extend deadline

for designating expert witnesses; (8) Dr. Smith’s August 15, 2001 motion to quash and for protective

order; (9) Barrow’s September 4, 2001 motion to file second amended complaint; (10) Barrow’s

September 13, 2001 motion to compel Dr. Smith to answer interrogatories; (11) Barrow’s September

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of hours is inadequate, the district court may reduce the award accordingly.”); Hopwood v. Texas,

236 F.3d 256, 279 (5th Cir. 2000) (affirming 25% reduction in fee award based, inter alia, on

inadequate documentation); LULAC, 119 F.3d at 1233 (“[D]istrict courts enjoy broad discretion to

exclude or reduce hours based on insufficient documentation. . . .”).

V

Dr. Smith additionally objects on several grounds that the hours Barrow claims in her fee

application were unreasonably expended. He maintains that (1) the time Barrow requests for

pursuing 15 lost motions is unreasonable; (2) the fee application contains unreasonable time for

prelitigation activities; (3) the time spent on legal research is unreasonable; (4) the descriptions for

many time entries are too vague or ambiguous to be compensable; (5) Barrow unreasonably seeks

compensation for clerical tasks at an attorney’s rate; (6) Bundren’s and Shackelford’s participation

in two moot courts was unreasonable; (7) time Bundren spent traveling to and attending a continuing

legal education (“CLE”) session is not compensable; (8) time Bundren spent speaking with the

media is not compensable; (9) Barrow seeks compensation for time spent pursuing claims unrelated

to the claim on which she prevailed; and (10) various other entries are not compensable.

A

Dr. Smith argues that Barrow should not recover for time Bundren spent on 15 motions14 that

 

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14, 2001 motion to enlarge page limitations; (12) Dr. Smith’s September 17, 2001 motion for leave

to file two motions for summary judgment; (13) Dr. Smith’s September 19, 2001 motion to show

cause and for sanctions; (14) Barrow’s September 27, 2001 motion for sanctions against Dr. Smith;

and (15) Dr. Smith’s November 5, 2001 motion to strike Barrow’s expert witness.

- 20 -

she lost “unless they are either (1) so intertwined with [her] successes as to be impossible to

segregate; or (2) further the progression of the case.” D. ADR Br. 46. He implicitly maintains that

the motions were neither intertwined with her successes nor furthered the progression of the case.

The court will not deny time spent on these motions solely on the basis that Barrow did not

prevail on them. Barrow’s lack of prevailing-party status would deny her an award of attorney’s

fees only on unsuccessful claims, not unsuccessful motions. See Hensley, 461 U.S. at 434-35

(holding that work performed on distinctly different, unsuccessful claims is not compensable); Von

Clark v. Butler, 916 F.2d 255, 259 (5th Cir. 1990) (affirming reduction in hours based on district

court’s inability to distinguish between hours spent on successful claim and unsuccessful claim). 

B

Dr. Smith makes a general and somewhat conclusory objection to the reasonableness of the

time Barrow’s counsel spent on this case before she filed the lawsuit in May 2000. He posits that

the wasted time is particularly egregious when applied to him because he did not become a party to

a claim until suit was filed and he had no opportunity to attempt to settle beforehand. 

Dr. Smith directs the court to no legal authority for the proposition that the court should not

award attorney’s fees for time expended before filing suit. Section 1988 does not distinguish

between attorney’s fees incurred before and after a lawsuit is filed. Prelitigation services are often

necessary and desirable, because attorneys can determine that no suit should be filed or can tailor

the case to particular parties or to those claims that appear to have merit. The ultimate determination

 

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concerning the amount of fees awardable for prelitigation services is made under the methods and

standards that govern fee applications generally. 

Moreover, his objection is not sufficiently specific for the court to address it. A wide array

of prelitigation activities would be expected in an employment discrimination-type case, including,

inter alia, conducting informal discovery, performing legal research, drafting pleadings, undergoing

administrative procedures, and sending demand letters. The only specific reason Dr. Smith cites in

his brief for why the prelitigation fees are unreasonable is that the excessive amount may have

caused Barrow not to accept defendants’ offers of judgment. This circumstance, even if true, does

not of itself demonstrate that the fees are unreasonable. Thus the court will award reasonable

attorney’s fees for Barrow’s counsel’s prelitigation activities.

C

Dr. Smith argues that Barrow’s counsel billed for an unreasonable amount of time

conducting legal research. As of the date of the fee application, Bundren’s civil litigation experience

exceeded 25 years. Since 1993 he has specialized in representing plaintiffs in civil rights cases.

Bundren’s experience is relevant not only to what is his reasonable hourly rate but also to what is

the reasonable number of hours for him to expend on a case. See Rainey v. Phila. Hous. Auth., 832

F. Supp. 127, 130 (E.D. Pa. 1993) (“The level of skill and experience claimed by counsel not only

informs the Court’s judgment as to the appropriate hourly fee but also helps establish how much

time counsel reasonably should have spent performing a particular task.”). In his deposition,

Bundren opined that in a complex case one might expect a more experienced attorney, commanding

a higher rate, to conduct more research than would a novice attorney. This court cannot accept this

premise. One of the principal reasons a client is willing to pay a higher hourly rate for an

 

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experienced attorney’s work is that the attorney can be expected to have sufficient expertise in the

relevant field and knowledge of the applicable law to work more efficiently. “[N]ormally the higher

the allowed hourly rate commanded based upon skill and experience, the shorter the time it should

require an attorney to perform a particular task.” Id. “A fee applicant cannot demand a high hourly

rate—which is based on his or her experience, reputation, and a presumed familiarity with the

applicable law—and then run up an inordinate amount of time researching that same law. Double

dipping, in any form, cannot be condoned.” Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir.

1983).

Bundren’s and Shackelford’s practices of block billing make it impossible to know exactly

how many hours of legal research are included in the fee application. After extensively reviewing

the time records, however, the court agrees with Dr. Smith that the compensation for legal research

time that Barrow seeks is unreasonable. In an exercise of billing judgment, Bundren and

Shackelford should have written off a much larger amount of legal research time because of their

hourly rates. The court deems a 5% reduction in Bundren’s billed hours and a 5% reduction in

Shackelford’s billed hours to be appropriate for unreasonable legal research. See Hopwood, 236

F.3d at 279 (affirming a 25% reduction in fee award based on, inter alia, lack of billing judgment);

Walker, 99 F.3d at 770 (“The proper remedy when there is no evidence of billing judgment is to

reduce the hours awarded by a percentage intended to substitute for the exercise of billing

judgment.”). Although a substantial portion of Sasser’s and Saenz’s billed time is also for legal

research, no reduction is necessary because their hourly rates reflect that they would be expected

to spend more time on legal research.

 

 Case 3:00-cv-00913-D Document 497 Filed 12/20/05 Page 22 of 57 PageID 5856
15The objections are set out in a chart contained in pages 1-94 of volume 2 of his ADR

appendix. See D. ADR Resp. 2:1-94.

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D

Dr. Smith objects to several time entries on the ground that they are vague or ambiguous and

thus make it impossible to determine whether the activity is compensable and reasonable.15

As the fee applicant, Barrow “bears the burden of establishing entitlement to an award and

documenting the appropriate hours expended.” Hensley, 461 U.S. at 437; see also Bode v. United

States, 919 F.2d 1044, 1047 (5th Cir. 1990) (per curiam) (holding that fee applicant’s burden is met

“only by presenting evidence that is adequate for the court to determine what hours should be

included in the reimbursement”). “In determining the amount of an attorney fee award, courts

customarily require the applicant to produce contemporaneous billing records or other sufficient

documentation so that the district court can fulfill its duty to examine the application for

noncompensable hours.” La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995) (per

curiam) (quoting Bode, 919 F.2d at 1047). “The district court may properly reduce or eliminate

hours when the supporting documentation is too vague to permit meaningful review.” Id. at 326.

Vague entries are those that are “not illuminating as to the subject matter” or “vague as to precisely

what was done.” Id. Entries such as “revise memorandum,” “review pleadings,” “review

documents,” and “correspondence” are sufficiently vague that the court can accept or reject them

in a fee application. See id. at 326-27, 326 n.11. 

Barrow’s application contains a host of vague entries, such as “review file,” “preparation of

correspondence,” “review correspondence,” “phone conference with co-counsel,” “legal research,”

and “review email.” Accordingly, the court will not award attorney’s fees for the services described

 

 Case 3:00-cv-00913-D Document 497 Filed 12/20/05 Page 23 of 57 PageID 5857
16A thorough review of the records for vagueness reveals that somewhat more than 20% of

Bundren’s entries and more than 10% of Shackelford’s entries are inadequately documented. The

court is satisfied, however, that the reductions it is applying for vagueness together with the

significant reductions for block billing are sufficient to encompass the vague and ambiguous entries.

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in these entries. See Hensley, 461 U.S. at 433 (“Where the documentation of hours is inadequate,

the district court may reduce the award accordingly.”); Kellstrom, 50 F.3d at 326. 

Because of block billing, it is impossible to conduct meaningful review and determine the

precise number of hours that should be reduced in each time entry due to vague descriptions. The

court has therefore attempted to reach a fair determination by alternate means. After extensively

reviewing the records, the court finds that at least 20% of Bundren’s billed time and at least 10%

of Shackelford’s billed time is based on descriptions that are too vague to support an award of

attorney’s fees.16 The court will therefore further reduce Bundren’s billable time by 20% and

Shackelford’s time by 10%. See Hensley, 461 U.S. at 433 (“Where the documentation of hours is

inadequate, the district court may reduce the award accordingly.”); Hopwood, 236 F.3d at 279

(affirming 25% reduction in fee award based, inter alia, on inadequate documentation); LULAC, 119

F.3d at 1233 (“[D]istrict courts enjoy broad discretion to exclude or reduce hours based on

insufficient documentation. . . .”). Because Sasser’s and Saenz’s records were not block billed, a

more detailed analysis is possible. After examining the individual entries to which Dr. Smith

objects, the court finds that descriptions associated with 2.1 hours of Sasser’s billed time and 16.8

hours of Saenz’s billed time are inadequately documented and disallows these hours accordingly.

E

Dr. Smith argues that some of the time for which Bundren has billed is for clerical work that

does not merit compensation at an attorney’s rate. The court agrees that three of the specific entries

 

 Case 3:00-cv-00913-D Document 497 Filed 12/20/05 Page 24 of 57 PageID 5858
17The three entries are as follows: (1) June 23, 2000—“docket deadlines into calendar and

docket control,” P. App. 480; (2) June 26, 2000—“docket scheduling order and deadlines from

scheduling order,” id. at 481; and (3) June 21, 2001—“review and reorganize documents produced

by Greenville Independent School District and exhibits to the depositions following the deposition

of LaDayne Wilson and Randy Tarpley,” id. at 525.

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to which Dr. Smith objects contain clerical work.17 Time spent on clerical work is not compensable

at Bundren’s rate. See Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989). Bundren’s practice of

block billing prevents the court from determining exactly how much time he spent on the clerical

tasks. Concerning the entries to which Dr. Smith objects as clerical, the court finds that

approximately one hour is billed for clerical tasks and reduces the fee award accordingly.

F

After the court granted Dr. Smith’s summary judgment motion on the basis of qualified

immunity, Barrow successfully appealed to the Fifth Circuit. See Barrow v. Greenville Indep. Sch.

Dist., 332 F.3d 844 (5th Cir.) (“Barrow”), cert. denied, 540 U.S. 1005 (2003). Before the Fifth

Circuit heard the appeal, Bundren participated in two separate moot court arguments: one at the

University of Texas at Austin School of Law and one at the University of Houston Law Center.

Bundren has billed for the time he spent preparing for, traveling to, and participating in the moot

court sessions. Shackelford has also billed for the time he spent preparing for, traveling to, and

attending the moot court session in Austin and organizing the moot court argument in Houston.

Shackelford has also billed for the time he spent traveling to and attending oral argument before the

Fifth Circuit. Dr. Smith objects to this time as unreasonable.

The court concludes that it was reasonable for Bundren to participate in one formal moot

court session, but not in the other, especially given his experience at that time of approximately 23

years as a litigator and his participation in approximately 12 informal practice sessions.

 

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Accordingly, the court will reduce Bundren’s time by 13.5 hours for the Austin moot court.

The court finds that, because Bundren alone argued before the Fifth Circuit and is the lead

counsel in this case, Shackelford’s participation in the Austin moot court session and his time

incurred in attending the oral argument in the Fifth Circuit are redundant. Accordingly, the court

will reduce Shackelford’s time by 23.4 hours. See Hensley, 461 U.S. at 434 (“Counsel for the

prevailing party should make a good-faith effort to exclude from a fee request hours that are . . .

redundant. . . .”).

G

Dr. Smith objects to the six hours that Bundren billed for traveling to and attending a CLE

presentation on qualified immunity delivered by Dr. Smith’s lead counsel on July 26, 2001. He

argues that time spent on CLE is not compensable under § 1988. 

In his deposition, Bundren defended billing for this time on the ground that it provided a

“golden opportunity” to discern his opposing counsel’s mental impressions and to glean his work

product on the qualified immunity defense. D. ADR Resp. 6:69. The court agrees with Dr. Smith

that Bundren’s attendance at the CLE presentation, although perhaps helpful, is not compensable.

See Hensley, 461 U.S. at 434 (“Hours that are not properly billed to one’s client also are not properly

billed to one’s adversary pursuant to statutory authority.” (quoting Copeland v. Marshall, 641 F.2d

880, 891 (D.C. Cir. 1980) (en banc))). The court will subtract the six hours from Barrow’s fee

award.

H

Dr. Smith objects to two of Bundren’s billed entries that contain time for speaking with the

media about the case. In his deposition, Bundren explained his billing for this time:

 

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When you’re dealing with public entities, it is sometimes

helpful to help a case get resolved if you have communications with

the media, so that the citizens who are paying the tax dollars for

lawyers who are representing the public entity will have an

opportunity to petition their government in order to resolve and settle

disputes.

D. ADR Resp. 6:69. 

Barrow has adduced no evidence that demonstrates that her counsel’s conversations with the

media helped settle the case. Without evidence of the efficacy of the media conferences, the court

will not award her fees for the time that Bundren devoted to them. See Watkins v. Fordice, 7 F.3d

453, 458 (5th Cir. 1993) (“[W]e find no abuse of discretion in the district court’s exclusion of the

press-conference hours, because Appellants did not present any evidence regarding the efficacy of

the press conferences. . . .”). Although determining the exact amount of time spent on the media

conferences is impossible due to Bundren’s practice of block billing, the court finds that it is

approximately 3.9 hours. Thus the court will reduce Bundren’s time on Barrow’s fee award by 3.9

hours.

I

Dr. Smith objects to entries within the fee application concerning claims he believes are

unrelated to the single claim on which Barrow prevailed. Specifically, he objects to time spent

pursuing a claim against him under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.

§ 2000e et seq., and litigating claims against GISD.

1

Dr. Smith objects to time Barrow’s counsel billed for pursuing a Title VII claim against him.

When Barrow filed this lawsuit in May 2000, she asserted a Title VII claim against Dr. Smith

individually. The court dismissed the cause of action early in the case on Dr. Smith’s motion to

 

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dismiss, concluding that he was not Barrow’s employer and thus not a proper defendant under Title

VII. See Barrow v. Greenville Indep. Sch. Dist., No. 3:00-CV-0913-D, slip op. at 4 (N.D. Tex. July

14, 2000) (Fitzwater, J.). Barrow asserts that in an exercise of billing judgment, Bundren has

designated all time related to Title VII as non-billable. Because several time entries with “Title VII”

in the description are marked billable, Dr. Smith objects.

Although Barrow did not prevail on her Title VII claim, she is nevertheless entitled to

reasonable attorney’s fees for services concerning the claim if they are sufficiently related to her

parental rights claim, on which she did prevail. See Hensley, 461 U.S. at 434-35. In Barrow VI the

court denied Dr. Smith’s request to recover attorney’s fees for time his counsel expended defending

the Title VII claim. See Barrow VI, 2005 WL 1867292, at *28. The court reasoned that all of

Barrow’s claims, including her Title VII action, were related to her parental rights claim because

each depended on the same set of factual circumstances. See id. at *29. Based on the court’s

conclusion in Barrow VI, it will not deny Barrow attorney’s fees for the few entries that her counsel

has not written off and that contain indications that the services in question related in some way to

Barrow’s Title VII claim.

2

Dr. Smith also objects to time spent pursuing claims against GISD. Because Barrow was not

a prevailing party as to GISD, the court must not award time her counsel spent pursuing claims

against GISD that are unrelated to her prevailing claim against Dr. Smith. Although most of the

entries that contain time spent on claims that relate only to GISD have, in whole or in part, been

marked “Do Not Bill,” some entries remain “Billable.” Although Bundren’s practice of block

billing precludes an exact determination of the time billed for claims against GISD, the court’s best

 

 Case 3:00-cv-00913-D Document 497 Filed 12/20/05 Page 28 of 57 PageID 5862
18The court finds that there is a sufficient distinction between the necessity to have two

attorneys for the same party participate in a settlement conference, and to have two attend an oral

argument where only one attorney will present argument, that the court’s reasoning concerning

denying Shackelford’s moot court and Fifth Circuit argument fees does not apply here.

- 29 -

estimate is that Bundren billed for 14.8 hours that have not as yet been written off. This time will

not be awarded.

J

Dr. Smith objects to time Shackelford, Sasser, and Saenz billed for various activities as

redundant and duplicative. First, he objects to Sasser’s attendance at the interview of witness Susan

Crow on March 12, 2005 because Bundren also attended. He argues that it was wasteful for two

attorneys to bill for interviewing the witness. The court agrees. 

Second, he objects to the time Shackelford and Sasser billed to attend the June 25, 2004

settlement conference before a magistrate judge, contending that one attorney’s presence would have

been sufficient. The court agrees that Sasser’s attendance was redundant and unnecessary, but the

court finds that it was reasonable for Shackelford to attend the settlement conference.18 

Third, Dr. Smith objects to billing for Sasser’s attendance at the pretrial conference. Because

Bundren and Shackelford were also in attendance, the court agrees that Sasser’s attendance was

duplicative and that his time is not reasonably compensable. 

Fourth, Dr. Smith objects to time billed for Sasser’s and Saenz’s attendance at trial. He

posits that since Shackelford attended and was not responsible for examining witnesses, he could

have peformed any other coordination necessary. Barrow has not met her burden of demonstrating

why it was necessary for four attorneys to attend trial. Because Sasser’s and Saenz’s trial attendance

was duplicative, the court will not award Barrow attorney’s fees for their time attending trial.

 

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- 30 -

Accordingly, the court will reduce Sasser’s billable time by 114.8 hours and Saenz’s billable time

by 70.1 hours.

K

Dr. Smith finally objects to various other entries as being unreasonable. The court

recognizes that it is possible that Barrow’s fee application seeks compensation for other

unreasonably expended time. Dr. Smith has failed in his objections, however, to demonstrate why

the entries to which he objects are unreasonable. Additionally, the court is persuaded that the

percentage deductions it has already made are sufficient to account for such unreasonable services.

Thus the court will make no additional reductions on this basis.

VI

Having determined the reasonable number of hours to be included in the lodestar calculation,

the court next considers the question of reasonable hourly rates. 

A

The hourly rates to be used in the lodestar calculation are determined by “the prevailing

market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895 (1984). As the fee

applicant, Barrow bears the burden of demonstrating “that the requested rates are in line with those

prevailing in the community for similar services by lawyers of reasonably comparable skill,

experience, and reputation.” Id. at 895 n.11. Barrow requests $450 per hour for Bundren, $400 per

hour for Shackelford, $205 per hour for Sasser, and $175 per hour for Saenz. 

As of the date of the fee application, Bundren had been in private-practice civil litigation for

over 25 years. Since 1993 he has primarily represented plaintiffs in civil rights cases. He asserts

that his current customary hourly rate is $475, although in this case his hourly rate is $450.

 

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Shackelford has 17 years of experience, and his practice also focuses on civil rights, primarily

religious freedom. In his affidavit, Shackelford does not indicate what is his current customary

hourly rate; he instead asserts that his “reasonable rate in this case is $400 per hour,” P. App. 62

(emphasis added), and his “hourly rate with regard to this matter is $400,” id. at 66 (emphasis

added). In addition to Bundren’s and Shackelford’s affidavits, Barrow has submitted the affidavits

of four attorneys who practice in the Northern District of Texas: Donovan Campbell, Jr., Esquire

(“Campbell”), David J. LaBrec, Esquire (“LaBrec”), Robert T. Mowery, Esquire (“Mowery”), and

Charles A. Gall, Esquire (“Gall”). Each avers that $450 is a reasonable hourly rate for Bundren and

that $400 is a reasonable hourly rate for Shackelford.

 Dr. Smith contends the rates Barrow requests for Bundren and Shackelford are

unreasonable; he does not challenge the rates for Sasser and Saenz. Dr. Smith maintains that (1)

Bundren and Shackelford have never received their claimed historical rates; (2) the court should

discount the affidavits of Campbell, LaBrec, Mowery, and Gall because they specialize in areas

outside civil rights law, such as commercial litigation; (3) LaBrec’s testimony about customary rates

contradicts the rates actually charged by and awarded to senior partners in his own firm; and (4) in

the two cases in which Bundren was awarded unusually high rates, the defendants did not contest

the amount of the claimed rates. Dr. Smith relies on the affidavit of Edward B. Cloutman, III,

Esquire (“Cloutman”) to rebut the affidavits on which Barrow relies.

B

Dr. Smith first challenges the hourly rates that Barrow requests for the services of Bundren

and Shackelford, arguing that they have never received these hourly rates. “When the attorney’s

customary hourly rate is within the range of hourly fees in the prevailing market, that rate should

 

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19Shackelford avers that, in another case in this court involving civil liberties and religious

rights, he was awarded in early 2004 attorney’s fees at an hourly rate of $350 for work done

primarily in 2003. Although the court will consider this evidence in determining a reasonable rate

for his work in this case, this is not proof of customary rates charged to and paid by fee-paying

clients. 

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be considered in setting a reasonable hourly rate.” LULAC, 119 F.3d at 1234. Bundren does not

indicate what is his current customary hourly rate to fee-paying clients. He asserts that his “current

hourly rate for handling matters such as this matter . . . is $475.” P. App. 47. But he does not state

that he has ever been paid at this rate. Shackelford likewise opines concerning what is reasonable

in this case, but he does not aver that he has been paid by other clients at this rate. Moreover, apart

from the fees awarded in other cases in which Bundren or Shackelford participated, Barrow has not

submitted any evidence of the attorneys’ customary rates.19 Thus in setting a reasonable hourly rate,

the court cannot consider the customary hourly rates that Bundren and Shackelford have charged

and been paid.

Dr. Smith also argues that the court should discount the affidavits of Campbell, LaBrec,

Mowery, and Gall, each of whom practices in the area of complex civil litigation. The court is

aware from its experience over the years with several of these attorneys that they are highly skilled

and ethical practitioners. Nevertheless, although some of them have experience in civil rights

litigation, none purports to focus his law practice on this area of the law. The prevailing market rate

is the rate charged “for similar services by lawyers of reasonably comparable skill, experience, and

reputation.” Blum, 465 U.S. at 895 n.11 (emphasis added). Unlike Cloutman, on whose testimony

Dr. Smith relies, none of these attorneys routinely provides similar services to those of Bundren and

Shackelford, i.e., plaintiff’s civil rights and employment discrimination representation. The court

 

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20Because the court does not rely on LaBrec’s deposition, it need not address Dr. Smith’s

contention that LaBrec’s testimony contradicts the rates charged by senior partners in his firm. 

The court likewise need not address in detail Dr. Smith’s fourth argument, in which he

contends that, in the two cases where Bundren was awarded unusually high hourly rates, the

defendants did not contest the rates. In neither Barrow’s reply brief nor in Bundren’s affidavit does

Barrow specifically rely on the fee awards in those cases to support Bundren’s claimed hourly rate

in this case.

21Cloutman’s affidavit is dated June 11, 2004. Although a period of 18 months has elapsed

since then, and substantial proceedings have since taken place, the court finds that his opinion

concerning a reasonable hourly rate—which is stated as a range—is entitled to the weight the court

gives it. In particular, when Cloutman expressed his opinion, he was aware that Barrow sought $450

per hour for Bundren’s services and $400 per hour for Shackelford’s.

22Cloutman has capably tried cases before this court and has appeared in several suits over

a period of several years.

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thus finds that their testimony is outweighed by Cloutman’s.20

Dr. Smith also relies on Cloutman’s affidavit to rebut the attorney affidavits on which

Barrow relies.21 Cloutman is a Dallas attorney with over 36 years’ experience. He practices in the

area of plaintiff’s civil rights and labor and employment, and he has been a board-certified specialist

in labor and employment law since 1975, when certification by examination first became available

in Texas. He has litigated numerous claims brought under 42 U.S.C. §§ 1981, 1982, 1983, 1973, and

2000e.22 Cloutman opines that, for plaintiff’s civil rights attorneys in the Northern District of Texas

with 20 to 30 years of experience, hourly rates range between $250 to $350 depending on the

complexity of the case and the degree of recovery obtained. He states that this case “does not have

the appearance of complex litigation,” D. ADR Resp. 1: 6, and that “[t]he ‘lodestar’ rate should be

set in light of the lack of complexity of this litigation.” id. at 7 (italics substituted for bold font). He

recommends that Bundren’s rate be set somewhere in the middle of the $250 to $350 per hour range.

Based on Cloutman’s extensive experience and skill in the type of litigation involved in this

case and his ability to opine concerning the prevailing market rate charged for similar services by

 

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23Although these findings might warrant correspondingly lower rates for Sasser and Saenz,

Dr. Smith does not expressly challenge their rates, and the court will not adjust them lower in the

absence of a specific objection and argument that supports such an adjustment.

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lawyers of reasonably comparable skill, experience, and reputation, the court finds persuasive his

opinion concerning what is the range of a reasonable hourly rate. Having considered the record in

this case, including the attorney’s fee submissions, and Bundren’s skill, experience, and reputation,

the court finds that the reasonable hourly rate for his services is $300. Shackelford has less

experience than the range of 20 to 30 years on which Cloutman based his opinion. Based on the

same considerations of skill, experience, and reputation, the court sets Shackelford’s hourly rate at

$250.23

VII

The court next calculates the lodestar fee and considers the Johnson factors.

A

For the reasons explained above, the court reduces Bundren’s claimed time as follows. From

the total claimed hours of 3,703.85, the court subjects 2,177.15 block-billed hours to a 20%

reduction (i.e., 435.43 hours). The court thus reduces the total of 3,703.85 hours by 435.43 hours

based on block billing. The court makes three additional percentage reductions from the sum of

3,703.85: 20% for unreliable records (740.77 hours), 5% for unreasonable legal research (185.19

hours), and 20% for vague descriptions (740.77 hours). The court also deducts 39.2 hours based on

objections sustained to specific services. This results in a total number of approved hours of

1,562.49 for Bundren’s services. The court multiplies this by the hourly rate of $300, resulting in

a lodestar of $468,742.00.

Concerning Shackelford, from the total claimed time of 568.3 hours, the court subjects 340

 

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24The Johnson factors are as follows: (1) the time and labor required for the litigation; (2)

the novelty and complication of the issues; (3) the skill required to properly litigate the issues; (4)

whether the attorney was precluded from other employment by the acceptance of this case; (5) the

attorney’s customary fee; (6) whether the fee is fixed or contingent; (7) whether the client or the

circumstances imposed time limitations; (8) the amount involved and the results obtained; (9) the

experience, reputation, and ability of the attorney; (10) the “undesirability” of the case; (11) the

nature and length of the attorney-client relationship; and (12) awards in similar cases. Johnson, 488

F.2d at 717-19.

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block-billed hours to a 10% reduction (i.e., 34 hours). The court thus reduces the total of 568.3 by

34 hours based on block billing. The court makes two additional percentage reductions from the

total claimed hours of 568.3 hours: 5% for unreasonable legal research (28.41 hours), and 10% for

vague descriptions (56.83 hours). The court also deducts 23.4 hours based on objections sustained

to specific services. This results in a total number of 425.66 approved hours for Shackelford’s

services. The court multiplies this by the hourly rate of $250, resulting in a lodestar of $106,415.00.

Based on the foregoing findings and reasoning, the court reduces Sasser’s time by 116.9

hours, resulting in 103.7 hours. Multiplying Sasser’s hours by the hourly rate of $205.00 yields a

lodestar fee of $21,258.50. The court reduces Saenz’s time by 86.9 hours, resulting in 199.3 hours.

Multiplying Saenz’s hours by the hourly rate of $175.00 yields $34,877.50. 

The sum of the attorney’s fees for all of Barrow’s attorneys is the lodestar fee of

$631,293.00.

B

After calculating the lodestar, the court is obligated to consider whether it should be adjusted

upward or downward based on the Johnson factors. Rutherford, 197 F.3d at 192.24 The court “must

be careful, however, not to double count a Johnson factor already considered in calculating the

lodestar when it determines the necessary adjustments.” Shipes, 987 F.2d at 320. Dr. Smith has not

 

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- 36 -

requested an adjustment to the lodestar based on the Johnson factors, nor has he discussed the

applicability of the factors in this case. Nevertheless, the court has considered each of the 12 factors.

The court concludes that, with the exception of the eighth, each factor is either subsumed within the

lodestar calculation or is not sufficiently pertinent to the facts of the case to warrant discussion. See

Curtis v. Bill Hanna Ford, Inc., 822 F.2d 549, 552 (5th Cir. 1987) (“In applying [the Johnson

factors], the district court must explain the findings and the reasons upon which the award is based.

However, it is not required to address fully each of the 12 factors.” (citation omitted)). 

The eighth factor is “[t]he amount involved and the results obtained.” Johnson, 488 F.2d at

717-19. “Indeed, ‘the most critical factor’ in determining the reasonableness of a fee award ‘is the

degree of success obtained.’” Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting Hensley, 461

U.S. at 436). “[I]f ‘a plaintiff has achieved only partial or limited success, the product of hours

reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive

amount.’” Id. (quoting Hensley, 461 U.S. at 436).

From a non-monetary standpoint, Barrow clearly obtained excellent results. The gravamen

of her suit was that Dr. Smith refused to interview or promote her unless she placed her children in

public school, thereby violating her constitutionally protected right as a public-school employee to

select a private-school education for her children. She sought relief under § 1983 for violations of

her rights under the First and Fourteenth Amendments and on state-law causes of action arising

under Chapter 110 of the Texas Civil Practice and Remedies Code and Article I, § 6 of the Texas

Constitution. She also alleged a Title VII claim against Dr. Smith that was dismissed early in the

case. Barrow did not prevail on each legal theory, but “claims for relief that involve a common core

of facts, or derive from related legal theories, cannot be viewed as a series of discrete claims.”

 

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25Interest is not included in the results obtained for purposes of comparing the results with

the fee award. See Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1048 n.6 (5th Cir. 1998).

- 37 -

Hernandez v. Hill Country Tel. Coop., 849 F.2d 139, 144 (5th Cir. 1988). Moreover, she established

by her lawsuit that her constitutional right had been violated, that she had sustained actual damages

as a result, and that Dr. Smith should be punished for his conduct through an award of punitive

damages. Before trial, she prevailed in the Fifth Circuit, securing a ruling that “the constitutional

right of public-school employees to select a private-school education for their children was clearly

established when Smith refused to consider Barrow for the position of assistant principal.” Barrow,

332 F.3d at 848. When her success is viewed without reference to the damages award, no reduction

in the lodestar is warranted based on the eighth Johnson factor. See Hensley, 461 U.S. at 435

(“Where a plaintiff has obtained excellent results, . . . . the fee award should not be reduced simply

because the plaintiff failed to prevail on every contention raised in the lawsuit. . . . The result is

what matters.”). 

The court’s analysis does not end, however, with the assessment of Barrow’s success in

establishing her right to recover judgment against Dr. Smith. “The amount of damages a plaintiff

recovers is certainly relevant to the amount of attorney’s fees to be awarded. . . .” City of Riverside

v. Rivera, 477 U.S. 561, 574 (1986) (plurality opinion). Barrow recovered $35,455.00 in actual and

punitive damages. The lodestar fee is therefore over 17 times the monetary result Barrow obtained.25

“An attorneys’ fee award does not need to be commensurate with the actual amount of

dollars awarded to the plaintiff.” Green v. Adm’rs of the Tulane Educ. Fund, 284 F.3d 642, 663 (5th

Cir. 2002). “A rule that limits attorney’s fees in civil rights cases to a proportion of the damages

awarded would seriously undermine Congress’ purpose in enacting § 1988.” City of Riverside, 477

 

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- 38 -

U.S. at 576. Thus

[i]n the absence of other Johnson factors justifying a reduction in a

fee award, a district court should not reduce the fee award solely

because of a low damages award. Such an approach would lead to a

proportionality requirement between the amount of attorney’s fees

and the amount of damages and was explicitly rejected by the Court

in Riverside. 

Cobb v. Miller, 818 F.2d 1227, 1235 (5th Cir. 1987); accord Hollowell v. Orleans Reg’l Hosp. LLC,

217 F.3d 379, 392 (5th Cir. 2000). Nevertheless, “[t]he amount of damages a plaintiff recovers is

. . . one of many factors that a court must consider when calculating an award of attorneys’ fees.”

Green, 284 F.3d at 663. While “[t]here is no per se requirement of proportionality in an award of

attorney fees under 42 U.S.C. § 1988[,] . . . proportionality is an appropriate consideration in the

typical case.” Hernandez, 849 F.2d at 144 (citing City of Riverside, 477 U.S. 561). 

The court’s consideration of proportionality requires that it “give primary consideration to

the amount of damages awarded as compared to the amount sought.” Migis v. Pearle Vision, Inc.,

135 F.3d 1041, 1048 (5th Cir. 1998) (addressing Title VII claim) (quoting Farrar, 506 U.S. at 114).

In the June 2001 report of Barrow’s damages expert, J. Herbert Burkman, Ph.D. (“Dr. Burkman”),

he opined that her net income losses ranged from $70,008.00 to $109,091.00, and her net pension

losses ranged from $32,464.00 to $70,022.00. Nov. 5, 2004 App. to D. Mot. for Summ. Judgment

606. He concluded under all three scenarios that her lost past income was $15,455.00. Id. at 701.

He opined that the present value of her lost future income ranged from $54,553.00 to $93,636.00.

Id. When added to $15,455.00, these figures account for the $70,008.00 to $109,091.00 range of

damages. He opined that the present value of her lost pension income ranged from $32,464.00 to

$70,022.00. Id. Together, her past and future damages ranged from $102,472.00 to $179,113.00.

In his November 2003 updated report, however, Dr. Burkman reduced the three scenarios

 

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to one and revised his overall opinion downward based on updated information. He increased the

amount of back pay from $15,455.00 to $25,454.00. Id. at 693. But he opined that the present value

of Barrow’s future net lost income was $10,998.00. Id. The reduction resulted from Barrow’s

promotion to an administrative position in academic year 2001-02. Id. at 694. For similar reasons,

he also reduced the present value of her future net lost pension income to $8,398.00. Id. 

Consistent with Dr. Burkman’s updated report, in closing argument Barrow asked the jury

to award $25,000 for lost back pay and $19,000 for lost future pay. The jury returned a verdict of

$15,455.00 for lost earnings in the past—effectively adopting Dr. Burkman’s June 2001 opinion

over his November 2003 opinion—and $0 for lost earnings that she would likely suffer in the future,

rejecting the claim that she would suffer any lost future pay or pension benefits. 

In analyzing the amount of damages awarded to the amount sought, the court concludes first

that the proper comparison is between what Barrow sought at trial based on the November 2003

expert opinion and what the judgment awarded based on the verdict. Barrow should obtain the

benefit of lowering her damages claim during the course of the litigation based on the fact that she

had been promoted. The court should not compare the damages the judgment awards her against

what she sought before a promotion effectively reduced her monetary damages. This is true in any

case in which a plaintiff has a duty to mitigate damages, and it is particularly true in this case, since

Dr. Smith argued by pretrial motion and at trial that Barrow had failed to mitigate her damages.

Comparing the judgment with what Barrow sought at trial based on Dr. Burkman’s

November 2003 opinion, the court holds that the lodestar should not be reduced. Barrow obtained

approximately 35% of the actual damages she sought. Although this is comparatively small when

 

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26The court recognizes that, in Migis, the panel reversed a fee award where the plaintiff

obtained only approximately 24% of the actual damages sought. See Migis, 135 F.3d at 1048

(plaintiff requested $50,000 in compensatory damages and was awarded $12,233.32). But unlike

the instant case, in Migis the plaintiff had originally sought $325,000 in back pay and benefits and

punitive and compensatory damages, recovered only $12,233.32, and the amount sought was “over

twenty-six times the damages actually awarded.” Id. Additionally, unlike this case, where Barrow

prevailed against Dr. Smith on the central theory of her case, in Migis the plaintiff prevailed on only

one act of discrimination that supported one theory of recovery. Id.

27Dr. Smith also cites three cases from the Seventh Circuit.

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viewed only as a percentage, it is only $28,545.00 shy of the actual damages sought.26 Additionally,

in response to her request for an unspecified amount of punitive damages, the jury awarded $20,000,

a sum that exceeds the actual damages. Together, the actual and punitive damages total

approximately 80% of the actual damages requested. Considering these facts together, the court

declines based on the eighth Johnson factor to adjust the attorney’s fee award based on the

proportionality of the damages award to the lodestar.

VIII

Dr. Smith argues that Barrow’s fee request should be reduced because of numerous

settlement offers. He reasons that even if his offers of judgment under Fed. R. Civ. P. 68 were not

technically effective, they are proof that Barrow’s fee application should be drastically reduced. The

only case from this circuit that Dr. Smith cites in support of this proposition is Jason D.W. v.

Houston Independent School District, 158 F.3d 205 (5th Cir. 1998) (per curiam).27 Jason D.W.

concerned an award of attorney’s fees under 20 U.S.C. § 1415, the fee-shifting provision of the

Individuals with Disabilities in Education Act. Section 1415 (e)(4)(F)(i) provides for a reduction

of attorney’s fees when the fee applicant has unreasonably protracted litigation by, for example,

refusing to accept a reasonable settlement offer. Jason D.W., 158 F.3d at 211. Because § 1988

 

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contains no such provision, Jason D.W. is inapposite. The court is not aware of any binding

precedent, and Dr. Smith has not directed the court to none, that holds that the court can reduce a

fee award based on a plaintiff’s refusal of an offer of judgment that is not effective under Rule 68.

Consequently, the court declines to do so in this case.

IX

Dr. Smith next maintains that his Rule 68 offers were effective. For the reasons that follow,

the court holds they were not.

As the court explained in Barrow VI, in order for Rule 68 to benefit Dr. Smith, the value of

the judgment Barrow obtained, plus the value of Barrow’s pre-offer court costs and attorney’s fees,

must not exceed $100,000 before January 18, 2001, and must not exceed $154,666.00 before

September 8, 2004. See, e.g., Barrow VI, 2005 WL 1867292, at *26 (addressing January 18, 2001

offer) (“[F]or purposes of conducting the comparison called for by Rule 68, the court must compare

Dr. Smith’s offer to the value of the judgment Barrow obtained ($38,422.44), plus the value of the

sum of Barrow’s pre-offer court costs and attorney’s fees, to ensure the comparison of like

‘judgments.’”). “Because Barrow pursued her constitutional claims under § 1983, as a prevailing

plaintiff, Barrow would be entitled to recover reasonable attorney’s fees as part of her costs pursuant

to 42 U.S.C. § 1988. Thus in the instant case, the ‘costs’ mentioned in Rule 68 encompass not only

Barrow’s taxable court costs, but also her reasonably-incurred attorney’s fees.” Id. at *18 (citation

omitted). And as the court explains below in addressing Barrow’s requests for out-of-pocket

expenses, § 1988 fee awards also include reasonable out-of-pocket expenses that are part of the costs

normally charged to a fee-paying client. See infra § XI(B). Accordingly, if the sum of the value of

Barrow’s $38,422.44 judgment, plus her reasonable pre-offer costs and attorney’s fees, plus her

 

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28The court would deduct 65% from Bundren’s 482.1 hours, resulting in 168.8 hours, and

multiply those hours by the rate of $350, for a total of $59,080. It would deduct 25% from

Shackelford, resulting in 18.6 hours, and multiply those hours by the rate of $300, for a total of

$5,580. Together, the fees would exceed the $61,577.56 threshold. (For mathematical simplicity,

the court calculates all threshold sums in the amounts necessary to equal Dr. Smith’s offers. The

court recognizes that it must add one penny to these sums to exceed the offers.)

29Based on the rates approved today, Bundren’s 168.8 hours would be valued at $50,640 and

Shackelford’s 18.6 hours would be valued at $4,650, for a total of $55,290, leaving Barrow

$6,287.56 short of the $100,000 threshold.

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reasonable out-of-pocket expenses that are recoverable as part of her attorney’s fees, exceeds

$100,000 or $154,666.00 on the relevant date, Rule 68 does not result in a denial of attorney’s fees

and costs.

The court first considers the $100,000 offer of judgment made on January 18, 2001. Barrow

seeks the sum of $176,175.00 for the services of Bundren and Shackelford through January 16,

2001. This amount is based on 482.1 hours for Bundren, at the hourly rate of $350, and 24.8 hours

for Shackelford, at the hourly rate of $300. Were the court to apply to these claimed hours the

percentage cuts specified above and calculate the lodestar using the rates Barrow seeks, the

attorney’s fees would exceed the $61,577.56 threshold (i.e., $100,000 - $38,422.44) that, combined

with the $38,422.44 award of actual and punitive damages and prejudgment interest, is necessary

to exceed Dr. Smith’s $100,000 Rule 68 offer.28 Of course, the court has today approved lower

hourly rates for each attorney. At these 2005 rates (there is insufficient evidence in the record to

enable the court to calculate in a non-arbitrary manner any lower rates for the 1998-2001 period),

and applying the percentage cuts, Barrow falls $6,287.56 short of meeting the $100,000 threshold.29

The court finds, however, from its entry-by-entry study of the time records for the period August

27, 1998 through January 17, 2001 that, at least for the following reasons, it should not apply the

 

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30This reasoning applies regardless of the hourly rate the court uses in assessing this time

period. In other words, even if the court could use the 2005-approved rates for Bundren and

Shackelford as starting points, and had a basis in the record to extrapolate backward in time to use

lower rates for the 1998-2001 period, the result would be the same.

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percentage cuts according to a methodology that would trigger the preclusive effect of Rule 68.30

First, the percentage cuts are based on a fair and reasonable analysis of almost seven years

of legal services (including five years of litigation), but they are less precise when overlaid on

discrete periods of time. The prelitigation and litigation activities covered by the 1998-2001 time

period are not in all respects like those found throughout the entire life of this case. Particularly

given the closeness of the amount necessary to put Barrow over the threshold ($6,287.56), the court

cannot justify using what might be termed rough percentages to decide a question that calls for

precision.

Second, Barrow’s counsel have written off many hours during this period, and Barrow does

not seek compensation for the non-billable services. Several of these hours include legal research.

Although the court would have at least applied a 5% reduction for legal research and might have

applied the other percentage reductions, it likely would not have disapproved the hours in their

entirety. At Bundren’s and Shackelford’s court-approved hourly rates ($300 and $250), it would

not require reinstatement of very many of the hours written off to make up the $6,287.56 shortfall.

Third, Barrow has not sought any compensation for a substantial number of hours incurred

by legal associates and legal assistants. Under § 1988 these types of services are recoverable at

market value if the prevailing practice in the relevant community is to bill these services directly to

clients. LULAC, 119 F.3d at 1235 (citing Missouri, 491 U.S. at 286-88). While the court will not

award today fees that Barrow does not seek, the court can rely on her counsels’ exercise of billing

 

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31The court addressed Dr. Smith’s August 23, 2000 $30,000 offer of judgment in Barrow VI.

See Barrow VI, 2005 WL 1867292, at *24.

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judgment to justify its decision not to apply the percentage cuts uniformly to the 1998-2001 period

to trigger the effect of Rule 68. 

After considering these factors and conducting an extensive review of the pre-January 18,

2001 records, the court finds that, as of January 18, 2001, Barrow’s court costs and attorney’s fees

exceeded $61,577.56. Consequently, the value of the judgment Barrow obtained, plus the value of

Barrow’s pre-offer court costs and attorney’s fees, exceeded $100,000. Dr. Smith’s Rule 68 offer

of judgment does not entitle him to relief.

The court next considers the September 8, 2004 offer of $154,666.00. This offer can be

addressed in short order. The court finds that, as of September 7, 2004, a date that followed

extensive, additional pretrial motion practice and proceedings, including a successful appeal to the

Fifth Circuit, Barrow had incurred far more than the sum of $116,243.56 in attorney’s fees that was

necessary to overcome the offer of judgment.

Accordingly, the court holds that Dr. Smith’s offers of judgment do not preclude Barrow

from recovering her attorney’s fees and costs.31

X

Finally, Dr. Smith argues that Barrow’s fee application should be rejected in its entirety

because Bundren’s records show evidence of fraud or gross incompetence. He relies on the

alterations that Bundren made to his time records, the inhuman number of hours Bundren claims to

have worked in this case, Chiu, and Williams, and his contemporaneous work on at least 14 other

cases (including appeals to the Fifth Circuit and the Texas Supreme Court). Dr. Smith requests that,

 

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32In Williams Judge Lindsay assessed similar evidence from this case, Chiu, and Williams

in the context of deciding a motion for new trial on the issue of attorney’s fees and request for leave

to take related discovery. See Williams, No. 3:97-CV-0875-L (N.D. Tex. Mar. 15, 2004) (Lindsay,

J.). He observed concerning five instances of questionable entries (grossly excessive hours billed

on five days) that they raised both the possibility of fraud and the possibility that the entries resulted

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if the court concludes that he has provided insufficient evidence to justify complete rejection of the

fee application, he be allowed to conduct discovery to compare Bundren’s time records in other

cases with those he submitted in this case, Chiu, and Williams.

The court declines on the grounds asserted to reject Barrow’s fee application in its entirety,

and it also denies Dr. Smith’s request for discovery. The court’s analysis of the question whether

Bundren was grossly incompetent in how he maintained his time records in this case, or even in

Chiu or Williams, is subsumed in its decisions concerning whether Barrow’s fee application should

be reduced based on factors the court has already addressed. In other words, if Bundren was grossly

incompetent in how he recorded his time, such conduct has resulted in the fee reductions that the

court has already made based on recognized standards. Whether the reductions result from gross

incompetence or mere negligence or ineptitude is not determinative. His timekeeping practices have

resulted in his loss of fees that he might otherwise have been able to support had he kept time

properly.

The allegations that Bundren’s records contain “indicia of fraud,” D. Resp. 10, or “evidence

of fraud,” D. Br. 24, are very serious charges. Based on its careful study of the record developed

in this case, including Bundren’s billing records, the court is not prepared to find that Bundren

engaged in fraudulent billing practices. Such a conclusion would require a finding of scienter that

the court will not make on a paper record and for which there are insufficient grounds to warrant an

evidentiary hearing.32 At a minimum, however, what has come to light concerning Bundren’s billing

 

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from “lack of attention to detail, simple mistake, or some other unintentional conduct.” Slip op. at

5. He noted that these instances represented but a small number of thousands of time entries

spanning a period of seven to eight years. Id. at 5-6. Although he held that challenges to time

entries in the present case should be raised in this litigation, id. at 6-7, he also concluded that the

occurrence of errors in Chiu or this case “simply does not suggest that fraud was perpetrated on the

court regarding attorney’s fees in [Williams],” id. at 7.

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practices from the analysis of his time records in this case, Chiu, and Williams warrants his making

immediate and substantial changes in those practices, if he has not done so already.

XI

Barrow seeks reimbursement for the following categories of costs and expenses, totaling

$104,161.41: mediation fee, deposition transcripts, office and vendor duplication (photocopies),

telecopies (facsimiles), filing fees/court costs, attorney travel, delivery/courier services, expert

witnesses, telephone charges, and other (courtroom equipment). Barrow bears the burden of

supporting her request for costs and expenses with evidence documenting the costs incurred. Wright

v. Blythe-Nelson, 2004 WL 2870082, at *9 (N.D. Tex. Dec. 13, 2004) (Fitzwater, J.) (citing

Waggoner v. Trans Union, LLC, 2003 WL 22838718, at *2 (N.D. Tex. Nov. 24, 2003) (Fish, C.J.)).

Dr. Smith objects to Barrow’s claimed expenses, contending the request should be denied or reduced

because the claimed expenses are not sufficiently supported, are unavailable or limited by statute,

or are not recoverable because they are unreasonable, are unrelated to her claims against Dr. Smith,

or relate to matters that she lost. He also maintains that she is estopped from requesting or receiving

costs and expenses to the extent she fails to meet the specificity standards on which she relies to

object to GISD’s bill of costs.

 

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3328 U.S.C. § 1920:

A judge or clerk of any court of the United States may tax as costs the

following:

(1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any part of the stenographic

transcript necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and copies of papers necessarily

obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of

interpreters, and salaries, fees, expenses, and costs of special

interpretation services under section 1828 of this title.

A bill of costs shall be filed in the case and, upon allowance, included

in the judgment or decree.

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A

The court first considers whether the expenses Barrow seeks are recoverable under 28 U.S.C.

§ 1920.33 Under § 1920 Barrow’s expenses for deposition transcripts are available if the materials

were necessarily obtained for use in the case. Wright, 2004 WL 2870082, at *10. Photocopy

expenses are compensable if the copies were necessarily obtained for use in the litigation. Id. Court

costs that are specified in § 1920 are taxable. See 28 U.S.C.§ 1920; Crawford Fitting Co. v. J. T.

Gibbons, Inc., 482 U.S. 437, 439-40 (1987) (holding that costs specified in § 1920 are taxable),

superseded in part by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074.

Telecopy (facsimile) charges, attorney travel expenses, delivery/courier services fees, and telephone

charges, are not recoverable under § 1920. Wright, 2004 WL 2870082, at *10. Neither are

mediation fees, see Mota v. University of Texas Houston Health Science Center, 261 F.3d 512, 530

(5th Cir. 2001), nor expert witness fees or courtroom equipment costs, which are not enumerated

in § 1920, see, e.g., Gaddis v. United States, 381 F.3d 444, 451-52 (5th Cir. 2004) (en banc) (holding

 

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that, under Crawford Fitting, only expenses listed in § 1920 are recoverable).

1

Barrow requests deposition expenses in the amount of $20,128.22. Costs related to taking

depositions and obtaining stenographic copies of depositions are allowed if the materials were

necessarily obtained for use in the case. Wright, 2004 WL 2870082, at *10 (citing Stearns Airport

Equip. Co. v. FMC Corp., 170 F.3d 518, 536 (5th Cir. 1999); Waggoner, 2003 WL 22838718, at *2).

As evidence of her deposition expenses, Barrow first submits a letter from Janis Rogers &

Associates (“JRA”) listing the invoices WCBA has paid in this case, which total $16,133.47.

Barrow also submits a letter from Jill Johnson Court Reporting that reflects deposition fees in the

amount of $2,901.75. Finally, in her fee application, Barrow requests reimbursement for $1,193.00

with the description “Rogers, Harris (dep. Gib Weaver Lubbock, Texas 6/2001),” P. Am. Applic.

2, but she submits no letter or invoice to support this expense.

Dr. Smith objects specifically to 17 entries (for subpoenas, depositions, and nonappearance

fee) reflected on the JRA letter, totaling $5,573.98. First, he objects to fees for the depositions and

subpoenas for GISD School Board members, arguing that their testimony was relevant only to issues

related to Barrow’s claims against GISD. Second, he objects to the depositions by written questions

that Barrow attempted to conduct but that the court concluded were unwarranted. Third, he objects

to the deposition-related fees for persons who were not called as witnesses. Fourth, he objects to

the fees resulting from Barrow’s failure to appear at a deposition she called. 

The court disallows these expenses. First, in her reply brief, Barrow has made no attempt

to show that these depositions were necessarily obtained for use in her case against Dr. Smith.

Second, the court will not allow recovery of expenses for depositions on written questions that the

 

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34Additionally, for reasons explained infra at § XII, the court has overruled Barrow’s

objections to GISD’s request for reimbursement for deposition transcripts.

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court earlier found were unwarranted or for a nonappearance by the plaintiff.

Dr. Smith also objects generally to the remaining deposition expenses. He contends that

Barrow is estopped from requesting deposition expenses contrary to the standards on which she

relies in objecting to GISD’s bill of costs. As the court notes below, Barrow objects to GISD’s

request for deposition expenses on the ground, inter alia, that GISD relies on letters from court

reporters—ironically, the very same reporters on which Barrow relies—contending the letters are

hearsay and that the best evidence of what GISD actually paid would be the invoices and copies of

checks.

Although Barrow’s position in objecting to GISD’s bill of costs is inconsistent with the

approach she has taken in her own fee application, Dr. Smith has not demonstrated that she is legally

estopped on that basis from applying for the deposition expenses at issue. He has not preserved any

other objections to the remaining deposition expenses, and the court overrules his objections except

to the extent set forth above.34 The court deducts $5,138.13 from the total claimed amount of

$20,128.22 for deposition expenses, resulting in a net award of $14,990.09.

2

Barrow seeks $8,813.15 for office and vendor duplication (photocopies), including $8,661.20

through WCBA’s records and $151.95 through Liberty’s records. “Before the district court can tax

costs for photocopies, it must find that the copies for which costs are sought were necessarily

obtained for use in the litigation.” Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994)

(per curiam). “Moreover, [Barrow] must offer some proof of the necessity.” Id. Although Barrow

 

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35Bundren also avers that he has written off $53,336.32 in duplication expenses during the

period January 19, 2001 through June 30, 2003. P. App. 46.

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is not required to “identify every xerox copy made for use in the course of legal proceedings,”

Fogleman v. ARAMCO (Arabian American Oil Co.), 920 F.2d 278, 286 (5th Cir. 1991), she is

expected to “demonstrat[e] that reproduction costs necessarily result from that litigation,” id. 

WCBA’s records contain 79 pages of entries for photocopies; Liberty’s photocopy entries

are contained in seven pages of expenses. Each entry discloses the date, the person who made the

copies, and the cost. With the exception of some of the Liberty entries, however, Barrow does not

categorize the photocopies or otherwise indicate what was copied or how it was used. Beyond

Bundren’s broad statement that the expenses, including deposition expenses, “are reasonable and

the type of expenses that lawyers in Dallas, Texas normally bill their clients,” P. App. 46-47, Barrow

has provided no information by which the court can determine the necessity of the photocopies.35

In Wright the court relied on similar reasoning to reject a request for reimbursement for photocopies.

See Wright, 2004 WL 2870082, at *10 (declining to award such expenses where billing statements

contained 33 pages of entries for photocopies and, although each entry contained date, person who

made the copies, and cost, applicant did not categorize photocopies or otherwise indicate what was

copied or how it was used and, beyond counsel’s broad statement that all expenses were necessarily

incurred in prosecuting lawsuit, she provided no information by which court could determine

necessity of photocopies). 

The court has determined from the Liberty records that the sum of $15.06 in photocopying

expenses meets the controlling standard. The court therefore denies Barrow’s request for office and

vendor duplication expenses except in the amount of $15.06.

 

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- 51 -

3

Barrow seeks court costs in the amount of $250. Her request is based on two entries: one

on April 28, 2000 for $150 with the description “Filing Fees,” P. App. 819, and one on May 10,

2000 for $100 with the description “Court Costs,” id. Apart from these descriptions, Barrow

submits no other evidence or explanation to support the costs. The court will allow the $150 filing

fee but disallows the $100 nondescript court costs because Barrow has not met her “burden of

furnishing a reasonable accounting.” Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1099

(5th Cir. 1982), overruled in part by J.T. Gibbons, Inc. v. Crawford Fitting Co., 790 F.2d 1193, 1195

(5th Cir. 1988); see also Wright, 2004 WL 2870082, at *11.

B

Barrow argues in her reply brief that her expenses, including expert witness fees, that are

limited by §§ 1920 and 1821 are recoverable as part of the attorney’s fees under an amendment to

the Civil Rights Act of 1991 (“CRA”). She posits in her brief and reply brief that reimbursement

for out-of-pocket expenses incurred by the prevailing party’s counsel and normally charged to feepaying clients are part of the attorney’s fees award and are not subject to §§ 1920 and 1821. Dr.

Smith asserts in his ADR briefing and in his fee application briefing that, even if Barrow can recover

out-of-pocket expenses that are not explicitly listed in § 1920, the expenses she seeks should be

severely limited. He contends that §§ 1920 and 1821 limit the award of expert witness fees. The

court addresses first whether the mediation fee, telecopy (facsimile) charges, attorney travel

expenses, delivery/courier services fees, telephone charges, and courtroom equipment fees are

otherwise recoverable. 

In Associated Builders & Contractors of Louisiana, Inc. v. Orleans Parish School Board,

 

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36In his fee application brief, Dr. Smith posits “regarding all other claimed expenses” that

Barrow has failed to offer additional support beyond what she provided in the ADR procedure. D.

Br. 23. He contends that, like Judge Sanders, the court lacks sufficient evidence to justify an award

of expenses. This assertion is not a sufficient objection to these expense items. Dr. Smith also

argues that, in Bundren’s deposition, he admitted that his records do not show, in pertinent part,

when telecopy expenses were incurred. This deficiency does not question the reasonableness of

such charges and whether a fee-paying client would reimburse counsel for them.

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919 F.2d 374 (5th Cir. 1990), the Fifth Circuit held that “[a]ll reasonable out-of-pocket expenses,

including charges for photocopying, paralegal assistance, travel, and telephone, are plainly

recoverable in section 1988 fee awards because they are part of the costs normally charged to a

fee-paying client.” Id. at 380 (citing Int’l Woodworkers of Am. v. Champion Int’l Corp., 790 F.2d

1174, 1185 (5th Cir. 1986); Missouri, 491 U.S. 274). Dr. Smith does not contest that expenses for

mediation fees, telecopy (facsimile) charges, attorney travel expenses, delivery/courier services fees,

telephone charges, and courtroom equipment fees are normally charged to a fee-paying client. The

only expenses that Barrow currently claims, that have not already been addressed in this opinion

(i.e., photocopying), and that Dr. Smith specifically challenges, are attorney travel expenses,

facsimiles, and long distance. The amounts that Barrow now seeks for these expenses are

considerably less than those at issue in the ADR procedure. Dr. Smith does not sufficiently explain

in his present briefing why these requests are still objectionable.36 Accordingly, the court awards

Barrow reimbursement for these claimed expenses under § 1988.

C

Barrow seeks expert witness fees totaling $67,456.48 for four separate experts: David Sharp

(“Sharp”)—$906.25; LaBrec—$31,333.88; Dr. Burkman—$15,543.75; and Campbell—$19,672.60.

Recovery of expert witness fees is governed by § 1920(6) (court appointed experts) and

§ 1821(a)(1) (addressing, inter alia, any witness in attendance at any court of the United States or

 

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before any person authorized to take his deposition pursuant to any rule or order of a court of the

United States). The maximum allowable fee under § 1821(b) is $40 per day for an expert who

testifies at trial or by deposition, and it is error to award a prevailing party expenses for expert

witnesses that exceed this amount. See, e.g., Holmes, 11 F.3d at 64 (vacating and remanding award

that exceeded statutory allowable rate of $40 per day). “Additionally, expert fees are not

recoverable.” Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993) (citing 28 U.S.C. §§

1821, 1920; Crawford Fitting, 482 U.S. 437).

Neither Sharp, LaBrec, nor Campbell testified at trial. Sharp and LaBrec each testified one

day by deposition. Dr. Burkman testified on two different days at trial and testified one day by

deposition. Barrow is entitled to reimbursement at the rate of $40 per day for the trial and deposition

testimony of these experts, totaling $200. See 28 U.S.C. § 1821(a)(1), (b).

Barrow contends that the fees of these experts are compensable under § 1988 as a result of

the amendment made to § 1988 by the CRA. The CRA added subsection (c) to § 1988, explicitly

providing for expert fees for parties prevailing on § 1981 and § 1981a claims. See CRA, Pub. L. No.

102-166, § 113, 105 Stat. at 1079. It does not include awarding expert fees in § 1983 cases. See

§ 1988(c). Because §§ 1920, 1821, and 1988(c) are all unavailing to Barrow, and because she

directs the court to no other statutory authority under which she may be reimbursed, the court holds

that Barrow cannot recover for expert witness expenses a sum greater than the $200 awarded based

on § 1821(a)(1).

 

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Based on the foregoing rulings, the court awards Barrow the following sums as expenses and

taxable costs: 

mediation fee $1,316.00

deposition transcripts $14,990.09

office and vendor duplication (photocopies) $15.06

telecopies (facsimiles) $87.07

filing fees/court costs $150.00

attorney travel $2,537.64

delivery/courier services $0.00

expert witnesses $200.00

telephone charges $107.34

courtroom equipment $3,372.02

TOTAL $22,775.22

XII

The court now considers Barrow’s objections to GISD’s bill of costs. The clerk of court

taxed GISD’s costs in the amount of $19,741.13. Barrow objects to the award, contending the court

should deny all costs requested or substantially reduce the costs awarded.

A

Barrow first objects to GISD’s claim for $8,503.51 in photocopying expenses. She maintains

that GISD has not shown their necessity for trial. In response, GISD asserts that the copying costs

listed were all actual and necessary in preparation for trial, they were for pleadings and trial

preparation, and the copies were itemized and broken down and presented in the standard custom

and practice for practicing in this district. It posits that the shared costs are not being charged twice

and that they were actual and necessary.

GISD’s bill of costs includes seven pages of itemized photocopies that amount to $3,766.84

of her expenses. For the remaining $4,736.37 in joint reproduction costs, which represents

 

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photocopying that GISD shared with Dr. Smith, the bill of costs includes tables that summarize the

photocopying expenses by month but that do not in any way categorize how the photocopies were

used. As did Barrow when requesting reimbursement for photocopying expenses, GISD has the

burden to “demonstrate that reproduction costs necessarily result from th[e] litigation.” Fogleman,

920 F.2d at 286. GISD need not identify every photocopy, id., but the court must be able to find that

the copies were necessarily obtained for use in the litigation, and GISD must offer some proof of

the necessity, see Holmes, 11 F.3d at 64.

The court has considered, item by item, the seven pages of itemized photocopies and finds

that GISD has met its burden with regard to $3,255.03 in photocopying expenses. The descriptions

for these copies are sufficient, coupled with the court’s knowledge of the case and its procedural

history, to indicate to the court what was copied and how it was used. GISD has neither met its

burden concerning the balance of the itemized expenses nor concerning the summarized expenses.

Accordingly, the court sustains Barrow’s objection to the extent that it allows $3,255.03 in

photocopying costs of GISD’s claim for $8,503.51.

B

GISD requests $11,237.62 for deposition transcripts provided by two court reporters.

Barrow objects based on hearsay and best evidence grounds to GISD’s reliance on the court reporter

letters to support this request. This objection is misplaced. 

28 U.S.C. § 1924 provides:

Before any bill of costs is taxed, the party claiming any item of cost

or disbursement shall attach thereto an affidavit, made by himself or

by his duly authorized attorney or agent having knowledge of the

facts, that such item is correct and has been necessarily incurred in

the case and that the services for which fees have been charged were

actually and necessarily performed.

 

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37GISD demonstrates in its reply brief why it acted properly by paying court reporters for

stenographic copies rather than making or obtaining photocopies. 

- 56 -

GISD’s submission to the clerk of court complies with the statute. It is supported by the affidavit

of Dennis J. Eichelbaum, Esquire, who states that he has personal knowledge of the facts stated, that

the summaries and/or invoices for taxable costs are true and correct, and that they have been

necessarily incurred in the case and that the services for which fees have been charged were actually

and necessarily performed. Because GISD’s submission satisfies § 1924, Barrow’s hearsay and best

evidence objections lack force.

Barrow also objects to the deposition expenses on the ground that GISD has not shown why

they were necessary for trial. She contends that GISD did not notice or request any depositions,

almost all witnesses at trial were GISD employees or Board members, and GISD’s affidavit fails to

provide details of the description why the copies were necessary for trial. She maintains that, if

GISD paid for the original transcript of any witness, it was a gratuitous expense because GISD could

have made photocopies or obtained such copies from Dr. Smith.37

Costs related to obtaining stenographic copies of depositions are allowed if the materials

were necessarily obtained for use in the case. Wright, 2004 WL 2870082, at *10. The court’s

review of the depositions in question indicates that they were necessary. GISD seeks reimbursement

for copies of depositions of 27 witnesses and one telephonic court hearing. Of the 27 witnesses, 19

testified at trial. Four of the remaining witnesses gave depositions concerning attorney’s fees. One

witness was excluded by virtue of a trial ruling concerning the admissibility of evidence. Three

other persons, whom Barrow deposed, did not testify at trial but were listed as possible witnesses.

It was necessary that GISD obtain copies of all the depositions at issue. The court therefore

 

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overrules the objection.

Having considered Barrow’s objections to GISD’s costs, the court sustains in part and

overrules in part the objections, reduces the taxable costs, and taxes GISD’s costs against Barrow

in the amount of $14,492.65.

XIII

Based on the foregoing rulings, the court grants the deferred portion of Barrow’s April 11,

2005 post-trial motion to alter or amend the judgment to the extent of awarding Barrow her expenses

and taxable costs of court against Dr. Smith. The motion is otherwise denied in all respects.

* * *

For the reasons set out above, the court grants Barrow’s application for attorney’s fees from

Dr. Smith to the extent set forth in this memorandum opinion and order, grants her motion to alter

or amend the judgment to the extent of awarding Barrow her expenses and taxable costs of court

against Dr. Smith, and sustains in part and overrules in part her objections to GISD’s bill of costs.

The court has filed an amended judgment today that gives effect to the rulings in this memorandum

opinion and order.

SO ORDERED.

December 20, 2005.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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