IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

BARK, an Oregon non-profit 

corporation, FRIENDS OF 

MOUNT HOOD, an Oregon nonprofit corporation, 

NORTHWEST ENVIRONMENTAL 

DEFENSE CENTER, an Oregon 

non-profit corporation, and 

SIERRA CLUB, a California 

non-profit corporation, 

Plaintiffs, 

v. 

LISA NORTHROP, Acting 

Forest Supervisor of the Mt. 

Hood National Forest, BILL 

WESTBROOK, Zigzag District 

Ranger, KENT CONNAUGHTON, 

Regional Forester for Region 

6, and the UNITED STATES 

FOREST SERVICE, a federal 

agency, 

Defendants, 

v. 

RLK AND COMPANY, an Oregon 

corporation, 

DefendantIntervenor. 

Page 1 - OPINION AND ORDER 

Case No. 3:13-cv-00828-AA 

OPINION AND ORDER 

Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 1 of 21
Ralph 0. Bloemers 

Christopher G. Winter 

Crag Law Center 

917 S.W. Oak Street, Suite 417 

Portland, Oregon 97205 

Attorneys for plaintiffs 

Sean E. Martin 

Stephen J. Odell 

United States Attorney's Office 

1000 S.W. Third Avenue, Suite 600 

Portland, Oregon 97204 

Attorneys for defendants 

Erika E. Malmen 

Robert A. Maynard 

Perkins Coie, LLP 

1111 W. Jefferson Street, Suite 500 

Boise, Idaho 83702 

Sarah J. Crooks 

Perkins Coie, LLP 

1120 N.W. Couch Street, lOth Floor 

Portland, Oregon 97209 

Attorneys for defendant-intervenor 

AIKEN, Chief Judge: 

Plaintiffs Bark, Friends of Mount Hood, the Northwest 

Environmental Defense Center, and the Sierra Club filed suit 

against defendants Lisa Northrop, Bill Westbrook, Kent Connaughton, 

and the United States Forest Service, alleging violations of the 

National Environmental Policy Act ("NEPA") and the National Forest 

Management Act ( "NFMA") . The Court subsequently granted defendants' 

and defendant-intervenor RLK and Company's ("RLK") motions for 

protection, thereby precluding plaintiffs from engaging in 

discovery and limiting review of plaintiffs' claims to the 

administrative record in accordance with the Administrative 

Procedure Act ("APA"). Pursuant to Fed. R. Civ. P. 26 and Fed. R. 

Civ. P. 37, RLK moves for expenses, in the amount of $34,170.95, 

Page 2 - OPINION AND ORDER 

Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 2 of 21
incurred in connection with its motion for a protective order. For 

the reasons set forth below, RLK's motion is granted in part, in 

that attorney fees and costs are awarded in the reduced sums of 

$10,965.82 and $863.94, respectively. 

BACKGROUND 

This dispute arises out of defendants' decision to approve 

RLK's development proposal for the Timberline Ski Area Mountain 

Bike Trails and Skills Park (the "Project"). On May 16, 2013, 

plaintiffs initiated this action, alleging that defendants' 

acceptance of RLK's Master Development Plan ("MOP") and amendment 

of RLK' s Special Use Permit ("SUP") violated NEPA and was both 

arbitrary and capricious under 5 U.S.C. § 706(2), and an agency 

action unlawfully withheld pursuant to 5 U.S.C. § 706(1) . 1 

On June 4, 2013, the Court granted RLK's motion to intervene. 

On June 25, 2013, defendants and RLK stipulated that they would not 

proceed with the Project until this Court made a decision on the 

merits. On July 16, 2013, defendants timely answered plaintiffs' 

complaint. On August 12, 2013, defendants lodged the administrative 

record, comprising nearly 30,000 pages, for judicial review. 

On October 16, 2013, plaintiffs served interrogatories, 

requests for admission, and requests for production on defendants 

and RLK. On October 31, 2013, defendants supplemented the 

administrative record with an additional 1,400-plus pages in 

response to plaintiffs' concerns about missing documents. In 

1 Plaintiffs subsequently filed an amended complaint but did 

not materially alter their claims. 

Page 3 - OPINION AND ORDER 

Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 3 of 21
November 2013, defendants and RLK separately moved for protective 

orders against discovery. Thereafter, the parties extensively 

briefed these motions, filing replies, surreplies, and a notice of· 

supplemental authority. On February 23, 2014, the Court granted 

defendants' and RLK's motions and entered a protective order that 

prevented plaintiffs from further pursuing their discovery 

requests. 

On April 1, 2014, RLK filed the present motion for $34,170.95 

in fees and costs based on work performed by Portland attorney 

Sarah Crooks and Boise, Idaho attorneys Robert Maynard, David Hunt, 

and Stephanie Regenold; RLK also sought fees for work rendered by 

paralegal Kim Sampo. Specifically, RLK requests $23,843.29 in fees 

relating to its motion for a protective order, $8,145.78 in fees 

arising out of the present motion, and $2,181.88 in costs, 

predominately for online legal research. 

STANDARDUnder Fed. R. Civ. P. 26(c), a party attempting to avoid 

discovery may move for a protective order. For good cause shown, 

the court may issue such an order to "protect a party or person 

from annoyance, embarrassment, oppression, or undue burden or 

expense." Fed. R. Civ. P. 26(c) (1). "The court must award attorney 

fees to a party who successfully moves for a protective order, 

unless that party failed to meet and confer in good faith before 

filing the motion, the opposing party's position was 'substantially 

justified,' or other circumstances make such an award unjust." 

Alexander v. Boeing Co., 2013 WL 5701432, *3 (W.O. Wash. Oct. 18, 

Page 4 - OPINION AND ORDER 

Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 4 of 21
2013) (citing Fed. R. Civ. P. 26 (c) (3); Fed. R. Civ. P. 37 (a) (5)); 

see also Rickels v. City of S. Bend, Ind., 33 F.3d 785, 786 (7th 

Cir. 1994) (Fed. R. Civ. P. 37 "presumptively requires every loser 

to make good the victor's costs"). 

DISCUSSION 

It is undisputed that the parties conferred extensively prior 

to RLK's motion for protection, such that the first exception is 

not implicated. See RLK's Mot. Expenses 5 (citing Maynard Decl. ~~ 

6-8) ; Pls. ' Resp. to Mot. Expenses 4-11. RLK' s entitlement to 

expenses therefore hinges on whether plaintiffs were substantially 

justified or the existence of other circumstances. 

I. Substantial Justification 

Plaintiffs first assert that they were substantially justified 

in both seeking discovery and opposing RLK's motion for a 

protective order. The party facing sanctions bears the burden of 

establishing that its position was substantially justified. See 

Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106-

07 (9th Cir. 2001). An individual's discovery conduct should be 

found substantially justified under Fed. R. Civ. P. 37 if it has "a 

reasonable basis in both law and fact." Pierce v. Underwood, 487 

U.S. 552, 565 (1988). Thus, a position is substantially justified 

if it meets "the traditional reasonableness standard - that is 

justified in substance or in the main, or to a degree that could 

satisfy a reasonable person." Id. (internal quotations omitted) . 

In this case, plaintiffs sought to discover information 

regarding the current and projected parking and day lodge 

Page 5 - OPINION AND ORDER 

Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 5 of 21
operations at Timberline, as well as the efforts of RLK and/or 

defendants to evaluate parking capacity; plaintiffs also sought ten 

years worth of documents concerning parking usage at Timberline. 

See RLK's Mem. in Supp. of Mot. Protective Order Ex. 1. According 

to RLK, a protective order was necessary to prevent discovery 

because judicial review under the APA was limited to the 

administrative record in existence at the time of the challenged 

agency action and none of the extra-record exceptions applied. In 

response to RLK's motion, plaintiffs shifted their focus away from 

their 5 U.S.C. § 706(2) arbitrary and capricious claims and instead 

asserted that failure to act claims brought under 5 U.S.C. § 706(1) 

were not limited to the administrative record, such that discovery 

should be allowed nto secure documents to develop a factual record 

by which to evaluate Plaintiffs' claims that the Forest Service 

failed to engage in legally required NEPA analysis." Pls.' Resp. to 

RLK's Mot. Protective Order 4-9 (citations omitted) 

In evaluating the parties' respective arguments, the Court 

endeavored to first determine the proper standard of review. 

Pursuant to that analysis, the Court found that plaintiffs failed 

to allege a 5 U.S.C. § 706(1) claim: 

[p]laintiffs cannot assert that the acceptance of the MDP 

and amendment of the SUP are final agency actions and at 

the same time argue that these actions should be reviewed 

as failures to act under§ 706(1), potentially opening 

the door to a broader scope of review and discovery . 

. amendment would [also] not permit discovery [because] 

for such a claim to have merit, the Forest Service must 

have been required to perform NEPA analysis before 

accepting the MDP. However, the Forest Service explains 

that the nacceptance" of the MDP is not an napproval" of 

the plan by the agency ... regardless of amendment, the 

facts of this case do not align with the typical facts in 

Page 6 - OPINION AND ORDER 

Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 6 of 21
a "failure to act" case [as such] claims typically 

involve allegations that a federal agency failed to 

comply with the substantive requirements of a statute 

[but plaintiffs here] allege that the Forest Service has 

failed to act because it has not met NEPA's procedural 

requirements. 

Bark v. Northrop, 2014 WL 715603, *3 (D. Or. Feb. 23, 2014) 

(citations omitted) 

As such, the Court resolved "that the appropriate APA standard 

of review for plaintiffs' NEPA claims is whether the challenged 

action is 'arbitrary and capricious' under § 706 (2) (A)," and 

"consider[ed] the motions for protective order in this context." 

Id. at *4. Ultimately, this Court held that a protective order was 

warranted because "the narrowness of the APA action for judicial 

review weighs heavily against discovery" and "plaintiffs have not 

met their burden of showing that they meet any of the narrow 

exceptions to the record rule articulated by the Ninth Circuit." 

Id. at *4-5 (citations and internal quotations omitted). 

Plaintiffs now contend that, because defendants and RLK 

maintained that "acceptance of the MDP and amendment of the SUP was 

not a 'final agency action,'" and because "the Forest Service 

prepared an Environmental Impact Statement for the ski area master 

plan before any site specific projects were prosed or approved" for 

the other big ski area on Mount Hood, discovery was necessary. 

Pls.' Resp. to Mot. Expenses 7. In other words, plaintiffs point to 

the merits of their underlying position as evidence of substantial 

justification. Plaintiffs also emphasize "the unique facts of this 

case" and that "RLK never once provided specific citations to case 

law let alone inform[ed] Plaintiffs that it would seek sanctions." 

Page 7 - OPINION AND ORDER 

Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 7 of 21
Id. at 9. 

It is 

previously] 

well-settled that "advancing arguments [that were 

rejected [by the court] contravenes long-established 

circuit precedent. 0 Lubin v. Colvin, 2013 WL 4786402, *4 (D. Or. 

Aug. 30, 2013). Essentially, plaintiffs raise the same arguments in 

response to RLK's fee request as they did in opposition to RLK's 

motion for protection. However, this Court previously rejected 

these arguments on the merits by finding that plaintiffs neglected 

to establish an extra-record exception that would apply to their 5 

U.S.C. § 706(2) claims and otherwise failed to state a claim under 

5 U.S.C. § 706(1), which might have allowed record expansion under 

the cases they cited. See Bark, 2014 WL 715603 at *3-5; see also 

Or. Natural Resources Council v. Madigan, 980 F.2d 1330, 1332 (9th 

Cir. 1992) (substantial justification was lacking where "the 

government only reasserts its position on the merits, and supplies 

nothing new to justify its position and meet its burden°); 

Thangaraja v. Gonzales, 428 F.3d 870, 874-74 (9th Cir. 2005) (in 

the context of a motion for Equal Access to Justice Act fees, "it 

will be only a decidedly unusual case in which there is substantial 

justification°). 

Furthermore, plaintiffs' contention that novel or difficult 

questions of law were present, such that their requests for 

discovery were proper and not sanctionable, is not supported by 

precedent or the evidence of record. Critically, the Court's 

analysis in granting RLK's motion was neither complex nor 

extraordinary. See, e.g., Bark, 2014 WL 715603 at *4 (noting that 

Page 8 - OPINION AND ORDER 

Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 8 of 21
"district courts have granted motions for protective orders 

prohibiting discovery in APA proceedings" under analogous 

circumstances) (citing Int' 1 Jr. Coll. of Bus. & Tech. , Inc. v. 

Duncan, 937 F.Supp.2d 202, 205-06 (D. P.R. 2012); Sierra Club v. 

U.S. Dep't of Energy, 26 F. Supp. 2d 1268, 1271-72 (D. Colo.), 

adopted by 1998 WL 895927 (D. Colo. Oct. 22, 1998)). Therefore, 

plaintiffs' position was not substantially justified. 

II. Other Circumstances 

Plaintiffs next contend that "other circumstances make an 

award unjust." Pls.' Resp. to Mot. Expenses 10. In particular, 

plaintiffs argue that: (1) "RLK prevailed, but that is not a basis 

for an award of sanctions under FRCP 3 7"; ( 2) they "brought this 

case to uphold the public interest in decisions affecting Mt. 

Hood's alpine environment" and "sought discovery after making 

extensive and still unsuccessful efforts to obtain information 

through other mechanisms"; and (3) "RLK intervened in this ca~e of 

its own accord [and] RLK's decision [has] a cost [that should not 

be] shift[ed] to non-profit organizations seeking in good faith to 

uncover relevant facts." Id. at 10-11. 

The Court finds that none of these other circumstances make 

the award of expenses unjust. First, contrary to plaintiffs' 

assertion, prevailing on a motion for protection is a basis for an 

award of expenses, except where one of three exceptions in met. See 

Fed. R. Civ. P. 37; Fed. R. Civ. P. 26; Alexander, 2013 WL 5701432 

at *3. Second, the fact that plaintiffs initiated this lawsuit to 

benefit the public or requested discovery after failing to procure 

Page 9 - OPINION AND ORDER 

Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 9 of 21
information through other means is inconsequential. If the Court 

were to accept plaintiffs' argument, the award of expenses would 

never be appropriate in environmental lawsuits, irrespective of how 

egregious the discovery conduct, as the majority of these cases are 

commenced on behalf of the public by non-profit organizations. 

Third, RLK' s present motion, if successful, would transfer the 

costs of plaintiffs' decision to pursue improper discovery. As RLK 

notes, "[i]ntervention is not an invitation to improper discovery 

or a waiver of a party's right to protect itself." RLK's Reply to 

Mot. Expenses 4. 

Because RLK successfully moved for a protective order and none 

of the three recognized exceptions apply, the Court must award 

expenses pursuant to Fed. R. Civ. P. 37 and Fed. R. Civ. P. 26. 

Thus, the sole remaining is sue is the reasonableness of RLK' s 

request. 

III. Reasonableness of RLK's Request 

Plaintiffs argue that RLK' s fee request is excessive and 

unreasonable. Yet, beyond arguing broadly that RLK's petition is 

redundant, plaintiffs do not specifically identify any duplicative 

or otherwise improper billing entries. See Pls.' Resp. to Mot. 

Expenses 11-13. 

In determining a reasonable attorney fee, the court first 

multiplies "the number of hours the prevailing party reasonably 

expended on the litigation by a reasonable hourly rate.~ Morales v. 

City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996) (as amended) 

(discussing the lodestar method). After calculating this amount, 

Page 10 - OPINION AND ORDER 

Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 10 of 21
the court considers whether it is necessary to adjust the 

presumptively reasonable lodestar figure on the basis of twelve 

factors 2 set forth in Kerr v. Screen Guild Extras, Inc., 526 F.2d 

67, 70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976). Id. 

The court is required to ensure an award's reasonableness, 

regardless of whether the opposing party objected to it. Gates v. 

Deukmejian, 987 F.2d 1392, 1400-02 (9th Cir. 1992). The court also 

possesses "considerable discretion in determining what 

attorney's fee is reasonable." Webb v. Ada Cnty., Idaho, 195 F.3d 

524, 526-27 (9th Cir. 1999), cert. denied, 537 U.S. 948 (2002). 

Accordingly, "the reasonable fee, as calculated by the district 

court, may fall short of the actual fee that the lawyer 

charges." Corder v. Gates, 947 F.2d 374, 378 n.3 (9th Cir. 1991) 

(citation and internal quotations omitted). 

A. Reasonableness of the Requested Rates 

RLK seeks the following hourly rates associated with their 

motion for a protective order 3 : $386.55 for Maynard's 2013 work and 

2 These factors are: ( 1) the time and labor required; ( 2) 

the novelty and difficulty of the questions involved; (3) the 

skill requisite to perform the legal service properly; (4) the 

preclusion of other employment by the attorney due to acceptance 

of the case; (5) the customary fee; (6) whether the fee is fixed 

or contingent; (7) time limitations imposed by the client or the 

circumstances; (8) the amount involved and the results obta~ned; 

(9) the experience, reputation, and ability of the attorneys; 

(10) the undesirability of the case; (11) the nature and length 

of the professional relationship with the client; and (12) awards 

in similar cases. Kerr, 526 F.2d at 70. 

3 RLK requests increased rates for fees relating to the 

present motion. See Maynard Decl. Ex. F. For the reasons 

discussed below, these fees are disallowed, such that the rates 

sought in conjunction therewith are immaterial. 

Page 11 - OPINION AND ORDER 

Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 11 of 21
$423.75 for his February 2014 work; $450 for Crooks' work through 

November 2013, $455.45 for Crooks' December 2013 work, and $472.50 

for Crooks' February 2014 work; $230.10 for Hunt's October 2013 

work, $231.94 for his November 2013 work, $234.77 for work he 

performed in December 2013, and $263 for his February 2014 work; 

$216.29 for Regenold's October 2013 work and $218.05 for her 

November 2013 work. See Maynard Decl. Ex. B. Maynard has over 30 

years of experience, Crooks has 17 years of experience, Hunt has 

four years of experience, and Regenold has two years of experience. 

See Maynard Decl. ~~ 18-21; see also Maynard Decl. Ex. D. 

A reasonable rate for legal services is "'calculated according 

to the prevailing market rates in the relevant community.'" 

McElmurry v. U.S. Bank Nat'l Ass'n, 2008 WL 1925119, *3 (D. Or. 

Apr. 30, 2008) (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)). 

"This District considers the most recent Oregon State Bar Economic 

Survey ( 'OSB Survey') as its 'initial benchmark' in determining 

whether hourly billing rates are reasonable." Prison Legal News v. 

Umatilla Cnty., 2013 WL 2156471, *4 (D. Or. May 16, 2013) 

(citations omitted) . "If the rate requested exceeds the average 

rate reported in the OSB Survey, the burden is on the prevailing 

party to justify that higher rate." Id. ( citation omitted) . 

Initially, "[t]he general rule is that the relevant community 

for purposes of the prevailing rate is the forum in which the 

district court sits." Id. at *5 (citations omitted). Although the 

majority of RLK's attorneys practice out of Boise, Idaho, the Court 

uses Portland as the relevant community for determining the 

Page 12 - OPINION AND ORDER 

Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 12 of 21
prevailing market rate. 

Turning to the issue of whether RLK's requested hourly rates 

are reasonable, the latest OSB Survey, issued in 2012, provides 

billing rates by locality, years of experience, and area of 

practice. See generally Maynard Decl. Ex. C. 4 The rates that RLK 

seeks are significantly higher than average for attorneys with 

comparable experience; in many instances, RLK's rates exceed the 

75th percentile. Compare id., with Maynard Decl. Ex. B. RLK 

furnished no argument or evidence to justify this increase, beyond 

declaring that the requested rates are "commensurate with the 

prevailing rates in the Portland, Oregon legal market and [are] 

reasonable and customary compared to hourly rates charged by 

[counsels'] peers in similar actions involving similar issues." 

Maynard Decl. ~~ 18-21; see also Maynard Decl. Ex. D. RLK 

additionally contends in regard to Crooks that "her rate is not 

unusual given her experience with complex commercial litigation, 

her reputation and ability, and given the size and reputation of 

Perkins Coie LLP." Maynard Decl. ~ 19. 

The Court finds that RLK failed to adequately justify their 

requested rates. See Prison Legal News, 2013 WL 2156471 at *5-6 

(increased rates were not appropriate despite the submission of 

"declarations from [plaintiff's] own attorneys, expounding upon 

4 The 2012 OSB lists the relevant hourly rates as follows: 

over 30 years experience = $340 average, $350 median, $400 75th 

percentile; 16-20 years experience = $256 average, $250 median, 

$300 75th percentile; 4-6 years experience = $210 average, $218 

median, $250 75th percentile; 0-3 years experience = .$182 

average, $175 median, $198 75th percentile. Maynard Decl. Ex. C, 

at 3-4. 

Page 13 - OPINION AND ORDER 

Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 13 of 21
their expertise in the area of prisoners' rights, which the OSB 

Survey fails to specifically take into account," as well as "eight 

declarations by other attorneys, who opine that counsels' hourly 

rates are appropriate given their skill level, the result obtained, 

the complexity of the case, and the comparable rates of similarly 

specialized attorneys with equivalent experience"). While Maynard 

and Crooks have significant experience, because this case has been 

pending on the docket for approximately one year and the parties 

have not yet begun litigating its substantive merits, the Court is 

skeptical of the justification for enhanced rates. Moreover, as 

discussed above, the Court relied on well-established precedent in 

limiting review of plaintiffs' claims to the administrative record 

that was in existence at the time of defendants' challenged 

decision, indicating that the issues presented by RLK's motion for 

a protective order were relatively straightforward. 

As a result, higher-than-average rates are not reasonable in 

the case at bar. See, e.g., Knowledge Learning Corp. v. Nat'l Union 

Fire Ins . Co . of Pittsburgh , P a . , 2 0 11 WL 213 3 8 2 4 , * 5- 6 ( D . 0 r. 

Apr. 19), adopted by 2011 WL 2115631 (D. Or. May 27, 2011) 

(awarding the median rate to specialized litigators where the case 

was insufficiently complex); Prison Legal News, 2013 WL 2156471 at 

*6 (same). Thus, the Court awards RLK's attorneys the higher of the 

average or median rate for their respective levels of experience, 

as set forth in the 2012 OSB Survey, for the purposes of 

calculating the lodestar amount. A reasonable hourly rate for: 

Maynard is $350, Crooks is $256, Hunt is $218, and Regenold is 

Page 14 - OPINION AND ORDER 

Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 14 of 21
$182. 

Lastly, RLK requests $142.66 per hour for paralegal Sampo's 

October 2013 work, $143.80 per hour for her November 2013 work, and 

$145.56 per hour for work she performed in December 2013. See 

Maynard Decl. Ex. B. "Although the OSB Survey does not include data 

on paralegal rates, this District has found such rates reasonable 

where they do not exceed the average rate for a first-year 

associate." Prison Legal News, 2013 WL 2156471 at *7 (citations 

omitted). All of the rates charged by Sampo, who has over a decade 

of experience, are less than the average rate for a first-year 

associate in Portland. See Maynard Decl. Ex. D, at 6. The Court 

awards Sampo her requested rates. 

B. Reasonableness of the Hours Expended 

RLK requests an award of fees for 116.6 hours of work 

undertaken by four attorneys and one paralegal. Specifically, RLK 

seeks compensation for the following time spent briefing its motion 

for protection: 17.4 hours for Maynard, 9.3 hours for Crooks, 44.9 

hours for Hunt, 3.5 hours for Regenold, and 10.6 hours for Sampo, 

totaling 85.7 hours. See Maynard Decl. Ex. B. RLK seeks an 

additional 30.9 hours for preparing the present motion. Maynard 

Decl. Ex. F. 

The hours requested in conjunction with RLK's motion for a 

protective order are, for the most part, reasonable. Nevertheless, 

several common billing defects appear in RLK's fee petition, such 

that reductions are appropriate. Prison Legal News, 2013 WL 2156471 

at *7 ("even where, as here, the expended time is reasonable, the 

Page 15 - OPINION AND ORDER 

Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 15 of 21
court may still reduce the fee award for defects in the 

motion for fees"). 

As a preliminary matter, the Court finds the use of four 

attorneys to litigate RLK's motion for protection excessive. Id. at 

*8-9 ("[a] party is free to hire and pay as many attorneys as it 

wishes; nonetheless, that party cannot expect to shift the cost of 

these inefficiencies to its opponent"). Hunt, who billed the most 

hours by far, is a four year associate working under the 

supervision of Maynard and Crooks. See generally Maynard Decl. Exs. 

B, D. As such, his time was spent discussing the underlying motion 

with Maynard or Crooks, or conducting legal research a~d revising 

his work "pursuant to suggestions from S. Crooks and B. Maynard." 

Maynard Decl. Ex. B, at 1-4. While the Court acknowledges the 

necessity of training and monitoring new associates, the fact 

remains that the majority of hours billed by Hunt were either 

duplicative of other attorneys' efforts or reflect substantive work 

that could have been more expediently completed by more experienced 

counsel. To account for these inefficiencies, Hunt's hours are 

reduced overall by 75%. See Prison Legal News, 2013 WL 2156471 at 

*8 (where duplicative, "the court generally excludes the more 

junior attorney's time"). This results in a deduction of 33.7 hours 

from Hunt's petition. See Maynard Decl. Ex. B. 

Further, Regenold, a two year associate, spent all of the time 

she billed cite-checking an early version RLK' s motion for a 

protective order, which was reviewed and revised by several other 

attorneys. "Tasks that are secretarial or clerical in nature, such 

Page 16 - OPINION AND ORDER 

Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 16 of 21
as proofreading, are not compensable because they are 

overhead and thus already reflected in the hourly billing rate." 

Prison Legal News, 2013 WL 2156471 at *9 (citation and internal 

quotations omitted). Because her entries do not reflect substantive 

work 6n this case, the 3.5 hours billed by Regenold are stricken. 

See Maynard Decl. Ex. B, at 1-2 (10/28/13, 11/5/13, and 11/6/13 

entries). 

RLK's fee petition also reflects frequent block billing. "This 

District has specifically cautioned against block billing" because 

this practice "greatly hinder[s] the court's ability to assess the 

reasonableness of the time expended." Prison Legal News, 2013 WL 

2156471 at *7 (citation omitted). Yet this practice may be 

"excuse[d] when the billing period is no more than three hours." 

Id. at *8 (citations omitted). When RLK's attorneys billed for a 

group of tasks, they primarily did so in smaller blocks of time. 

See generally Maynard Decl. Ex. B. Accordingly, RLK's block billing 

entries are stricken only to the extent that they exceed three 

hours. Thus, Hunt's and Crooks' hours related to RLK's motion for 

a protective order are lessened by 3. 6 hours 5 and 1. 7 hours, 

respectively. See id. at 1, 3-4 (10/24/2013, 11/27/2013, 

11/30/2013, 12/2/2013, 12/3/2013, and 12/4/2013 entries). 

Additionally, RLK's billing entries for its protective motion 

5 Hunt block-billed a total of 14.3 hours that exceeded the 

accepted three-hour billing period. See Maynard Decl. Ex. B, at 

1, 3-4 (10/24/2013, 11/27/2013, 11/30/2013, 12/2/2013, 12/3/2013, 

and 12/4/2013 entries). Because Hunt is receiving compensation 

for 25% of his petition, the Court finds a pro rata reduction of 

the hours stricken for any other reason to be proper. 

Page 17 -OPINION AND ORDER 

Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 17 of 21
include numerous redundant expenditures. "A court may deduct any 

time entries indicating that more than one attorney performed the 

same task." Prison Legal News, 2013 WL 2156471 at *8 (citations 

ami tted) . The hours billed by the least senior attorney are 

therefore stricken. 6 This results in a discounting of 1.0 hour from 

Crooks' petition. See Maynard Decl. Ex. B, at 3-5 (12/3/2013, 

12/4/13, and 2/7/14 entries). 

Finally, the Court finds that the hours accrued in conjunction 

with RLK' s fee request are not reasonable. A party entitled to 

attorney fees may also recover additional amounts, or "fees on 

fees," necessarily incurred in obtaining an award. See, e.g., 

SOC-SMG, Inc. v. Christian & Timbers, LLC, 2010 WL 2085076, *6-7 

(D. Nev. May 20, 2010) (awarding "fees on fees" under Fed. R. Civ. 

P. 37). As plaintiffs observe, "RLK seeks over $8,000 for attorney 

time drafting the motion for expenses seeking to recover 

approximately $24,000 for pursuing the motion for protective order 

[but the motion for expenses] has very little in the way of legal 

analysis on the applicabilty of FRCP 37 and focuses almost entirely 

on documenting the excessive practices of RLK's attorneys." Pls.' 

Resp. to Mot. Expenses 12. 

The Court recognizes that RLK's counsel was required to assess 

and analyze whether to bring a motion for expenses pursuant to Fed. 

R. Civ. P. 26 and Fed. R. Civ. P. 37. The Court also acknowledges 

6 The Court, however, declines to strike the duplicative 

billings for conferences between RLK's counsel and Sampo because 

"such conferences are reasonably necessary to ensure that the 

work delegated by attorneys to paralegals is properly performed." 

Prison Legal News, 2013 WL 2156471 at *8 n.9. 

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Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 18 of 21
that, in general, it takes time to assemble a fee petition. 

Regardless, the hours expended in preparing the present motion are 

improvident. For example, Hunt spent more than ten hours 

researching attorney fees and revising his work; although it 

contains relevant authorities pertaining to Fed. R. Civ. P. 37, the 

present motion, along with the accompanying declaration, are no 

more complex than what one would find in any ordinary fee petition. 

See Maynard Decl. Ex. F; see generally RLK's Mem. in Supp. of Mot. 

Expenses; RLK's Reply to Mot. Expenses. Similarly, much of RLK's 

petition is vague and/or duplicative. See, e.g., Maynard Decl. Ex. 

F (reflecting numerous entries that contain descriptions of 

"further review" or "further work") . The work of three attorneys 

and one paralegal could also have been more efficiently 

consolidated. 

As such, the Court exercises its discretion and concludes that 

"fees on fees" are not appropriate here, especially in light of 

plaintiffs' statuses as non-profit organizations that primarily 

exist to benefit the public. In other words, payment of fees 

arising out of RLK's motion for a protective order are sufficient 

to adequately deter and sanction plaintiffs for their oversights 

during the discovery process. 

In sum, after taking the above-listed deductions, 17.4 hours 

of Maynard's time is awarded at $350 per hour ($6,090 total), 6.6 

hours of Crooks' time is awarded at $256 per hour ($1, 689.60 

total), 7. 6 hours of Hunt's time is awarded at $218 per hour 

($1,656.80 total), 3.2 hours of Sampo's time is awarded at $142.66 

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Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 19 of 21
per hour ($456.50 total), 2.4 hours of Sampo's time is awarded at 

$143.80 per hour ($345.12 total), and 5 hours of Sampo's time is 

awarded at $145.56 per hour ($727. 80 total). Based on these 

calculations, the Court awards RLK $10,965.82 in attorney fees. In 

arriving at this sum, the Court considered the pertinent factors 

outlined in Kerr and finds that no further adjustments are 

necessary. 

C. Costs 

RLK seeks to recover an additional $2,181.88 in costs; this 

amount includes fees for photocopies, printing, long-distances 

telephone calls, and on-line legal research. See Maynard Decl. Ex. 

E. Plaintiffs argue that RLK is not entitled to recoup $2,150.33 

worth of on-line legal research costs, as they constitute "overhead 

and therefore [are] not properly considered." Pls.' Resp. to Mot. 

Expenses 12. The cases that plaintiffs cite in support of this 

proposition indicate only that research fees are not taxable as 

costs pursuant to Fed. R. Civ. P. 54 and 28 U.S.C. § 1920. However, 

the "present motion is not brought pursuant to Rule 54, it is 

brought pursuant to Rule 37, which expressly allows for the 

recovery of 'expenses' when a motion [for a protective order] is 

granted." Aevoe Corp. v. AE Tech Co., Ltd., 2013 WL 5324787, *8-9 

(D. Nev. Sept. 20, 2013); see also Alutiiq Int'l Solutions, LLC v. 

Lyon, 2012 WL 4182026, *4-5 (D. Nev. Sept. 17, 2012) (awarding online legal res~arch costs under Fed. R. Civ. P. 37). 

Nevertheless, as discussed above, the legal research performed 

in affiliation with the present motion was excessive. Accordingly, 

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Case 3:13-cv-00828-AA Document 102 Filed 06/17/14 Page 20 of 21
the Court's disallows $1,317.94 in on-line legal research costs 

that were accrued in conjunction therewith. See Maynard Decl. Ex. 

E, at 1; Maynard Decl. Ex. F. Costs are therefore awarded in the 

reduced sum of $863.94. 

CONCLUSION 

RLK's motion for an award of expenses (doc. 89) is GRANTED in 

part, such that RLK is awarded a total of $11,829.76 in attorney 

fees, costs, and other expenses. 

IT IS 

Dated this ' 2014. 

United States District Judge 

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