IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JENI PORCHE, and )

MARGARET L. HOSTY, )

) Civil Action No. 02 C 7707

Plaintiffs, )

) Judge Ronald A. Guzman

vs. ) Magistrate Judge Susan E. Cox

)

ROGER ODEN, et al., )

)

Defendants. )

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ 

SUBMISSION OF COSTS AND FEES

ASSOCIATED WITH MOTION FOR SANCTIONS

The Defendants, Roger Oden, et al., by and through their attorney, Lisa Madigan, and in

response to the Plaintiff’s Motion for Discovery Sanctions Against Defendants, state as follows:

Following entry of the Court’s order of February 27, 2009, finding that Defendants failed

to preserve certain documents that the Court found relevant to Plaintiffs’ claim for retaliation,

counsel for Plaintiffs submitted an invoice for $31,587.50 and has asked the Court to “make such

award as it deems just in all the circumstances.” See Letter of March 26, 2009 [Dkt. 247]. To

properly assess what is an appropriate award, Defendants respectfully request that the Court

consider the relief afforded and the fees and costs that a reasonably diligent attorney would likely

have incurred in petitioning the Court for such relief. Seen in this light, Plaintiffs’ request for

$31,587.50 in fees and costs is plainly excessive. Defendants respectfully suggest that any award

of fees and costs be limited to no more than $5,000, an amount that is clearly commensurate with

the nature of the relief obtained and the scope of the sanction.

This Court ordered sanctions against the Defendants pursuant to Rule 37(c)(1). In
Krumwiede v. Brighton Assoc. L.L.C., 2006 WL 2349985 (N.D.Ill.) Magistrate Judge Ashman

also evaluated an award of attorneys fees and costs pursuant to Federal Rule of Civil Procedure

37(b)(2) and 37(c)(1). Citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), Judge Ashman

explained that “the amount of a reasonable fee is the number of hours reasonable expended on

the litigation multiplied by a reasonable hourly rate.” Krumwiede at *1. The party petitioning for

fees “bears the burden of documenting the appropriate hours expended. . . and must not include

hours that are excessive, redundant, or otherwise unnecessary.” Id. citing Hensely at 437, 434. 

When a request for attorneys fees and costs is excessive, a District Court has discretion to 

reduce the request or to deny it entirely. Ingram v. Jones, 46 F.Supp.2d 795, 798 (N.D.Ill. 1999).

Additionally, the District Court “should scrutinize the fee petition carefully for indications of

duplicative time.” Id. citing FMC Corp. v. Varonos, 892 F.2d 1308, 1316 (7 Cir. 1990). In

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Brown v. Stackler, the Seventh Circuit affirmed the district court’s denial of attorneys fees

because the claim of billable time was “utterly unreasonable. . . on a plain and simple case.” 612

F.2d 1057, 1059 (7 Cir. 1980). And in Budget Rent-A-Car System, Inc. v. Consolidated Equity th

LLC, the Seventh Circuit ordered sanctions against Consolidated Equity for a frivolous appeal,

but then denied Budget’s fees and costs because they were exorbitant. 428 F.3d 717 (7 Cir. th

2005). The Seventh Circuit instructed that, “when an award of fees is permissive, denial is an

appropriate sanction for requesting an award that is not merely excessive, but so exorbitant as to

constitute an abuse of the process of the court asked to make the award.” Id. at 718. 

The Court concluded that Plaintiffs should have kept all thesis approval forms for the 101

students who obtained a Master’s Degree in English from GSU from 2000 through 2007. In its

February 27 Order, the Court awarded sanctions under Rule 37(c)(1) against defendants for th

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failing to preserve all such documents and ordered that at trial “only original documents

produced be admitted.” Defendants respectfully submit that this is a ruling, substantially

different than the ruling requested by Plaintiffs, that Plaintiffs could have obtained with

significantly less time, effort, and cost than what was apparently incurred. No significant legal

research was required – Plaintiffs’ legal memoranda cite only boilerplate propositions – and a

reasonably drafted argument for exclusion of Defendants’ demonstrative chart could well have

been prepared in a number of hours. Counsel’s invoice shows that almost 70 hours were spent

on the motion papers.

Here Plaintiffs’ Counsel’s invoice contains what is simply an inordinate amount of hours

expended on the Motion for Sanctions. Counsel’s recorded time on the matter total 69.75 hours

or more than eight (8) straight days of attorney work at $435 an hour. In addition to eight hours

of research, Counsel spent 38.25 hours “researching/drafting motion for sanctions.” It is unclear

from the motion whether this time was spent researching or actually drafting. The designations

are not specific enough. If dedicated to research, they are especially excessive, in light of the fact

that the vast majority of the Memorandum in Support of the Motion for Sanctions was a

recitation of the time line of events that occurred during the parties’ discovery process. Very little

of the Memorandum, only two of the twelve and a half pages, was dedicated to any case law. It is

Counsel’s duty to clearly specify the use of his time and he does not do so. Either way, the

amount of time spent on a relatively simple issue is excessive. 

Time spent on the reply is equally excessive in light of the relief obtained and equally

unclear as to what time was spent on which particular aspects of creating the pleadings. Counsel

spent 19.5 hours “researching/drafting reply in support of sanctions motion,” in addition to

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another 4 hours “drafting/filing the reply.” Additionally, Counsel’s two legal assistants spent a

total of 2.25 assisting with the filing of the reply. 

The requested attorneys fees and costs total is especially excessive given that the

Plaintiffs did not prevail on the majority of the arguments they pleaded. Despite arguments from

the Plaintiffs to the contrary, the Court did not find that the Defendants fabricated documents or

violated the May 9, 2008, Court Order. In fact, the Court did not even find that the Defendants

had violated Rule 37(b)(2)(A) and did not order the jury instruction requested by the Plaintiffs. 

WHEREFORE, the Defendants request that the Court reduce Plaintiffs’ Counsel’s

request for attorneys fees and costs to no more than $5,000. 

LISA MADIGAN Respectfully Submitted,

Attorney General of Illinois

 /s/ Rachel Fleischmann 

RACHEL FLEISCHMANN

PETER C. KOCH

Assistant Attorneys General

Office of the Illinois Attorney General

100 West Randolph Street, 13 Floor th

Chicago, Illinois 60601

312 - 814 - 6122 / 6534 phone

312 - 814 - 4425 fax

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