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C. Christine Burns #017108

Kathryn Hackett King #024698 

BURNSBARTON PLC

2201 East Camelback Road, Ste. 360

Phoenix, AZ 85016

Phone: (602) 753-4500

christine@burnsbarton.com

kate@burnsbarton.com

Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Maria Bruner and Laura Cerda,

Plaintiffs,

vs.

City of Phoenix, an Arizona Municipal 

Corporation, 

Defendant.

NO. 2:18-cv-00664-DJH

REPLY IN SUPPORT OF 

DEFENDANT’S STATEMENT OF 

ITEMIZED ATTORNEYS’ FEES 

AND COSTS

Defendant City of Phoenix (“City”) respectfully requests that the Court grant its 

Statement of Itemized Attorneys’ Fees and Costs (“Statement”) in its entirety. The 

amounts requested by the City are reasonable and were necessary to address Plaintiffs’ 

repeated violations of Fed.R.Civ.P. 26 and 34 and this Court’s MIDP and discovery 

orders. 

In their Response (Doc. 126), Plaintiffs first take issue with the time spent and 

number of lawyers involved in preparing the City’s two Motions for Sanctions and also 

preparing for and participating in the Court’s September 11, 2019 oral

argument/evidentiary hearing. But Plaintiffs fail to address the fact that the hours and

legal team were necessary because of Plaintiffs’ own conduct. First, Plaintiffs disclosed 

tens of thousands of pages of social media documents just days before the September 11 

hearing. Specifically, on September 6, 2019, the City received from Plaintiffs two sets of 

social media data production – one of which contained approximately 125 megabytes of 

Case 2:18-cv-00664-DJH Document 127 Filed 11/07/19 Page 1 of 5
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data, and the other which contained approximately 340 megabytes of data. The City had 

less than 4 business days to review all of this data before the hearing. On September 10, 

2019 – the day before the hearing – the City received another social media data 

production from Plaintiffs, which contained approximately 35 megabytes of data (this 

amounted to about 1,100 files that varied in size, some of which contained thousands of 

pages). It was necessary for the City to review and analyze the data productions by 

Plaintiffs in order to present relevant evidence at the hearing; and in fact, at the hearing,

the City used as exhibits a number of documents within Plaintiffs’ last-minute 

productions, the City cross examined both Plaintiffs and one of their computer 

consultant/expert witnesses using this information, and the City’s own computer forensics 

expert testified regarding some of this data.

The effect of Plaintiffs’ last-minute productions became especially clear at one 

point during the evidentiary hearing, when Plaintiffs’ counsel conceded they had not even 

been able to review all of the data before the hearing because it was such a large amount 

of information.1 At the hearing, the City questioned Ms. Cerda on a Facebook Messenger 

exchange between Plaintiff Bruner and Plaintiff Cerda (which was produced days before 

the hearing). Mr. Montoya argued Plaintiff Cerda “hasn’t had the opportunity to read the 

document yet. It’s voluminous” and further explained she had not reviewed all of the 

pages before the hearing “because it’s thousands – it’s thousands of pages that we gave 

them.” (See September 11, 2019 Hearing Transcript, 45:8-46:3) Thus, the City is in no 

way “embarrassed” – as Plaintiffs claim in their Response – by the time necessarily spent

to prepare the two Motions for Sanctions and to thoroughly prepare for and participate in 

the September 11 hearing. Put simply, the City was prepared to use and address 

documents in the last-minute data production at the hearing, but Plaintiffs were not.

1 It is important to keep in mind that this data had been requested by the City nearly a year 

before the hearing, and the Court ordered Plaintiffs to produce this information by July 19, 

2019 (Doc 83) and then again by August 9, 2019 (Doc. 94). Regardless, Plaintiffs did not 

produce this information to the City until after the evidentiary hearing had been scheduled 

– and just days before the hearing. 

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Further, it is significant to note that the oral argument/evidentiary hearing was 

scheduled late in the day on September 3, 2019; although the Court was likely unaware, 

the parties were participating in a deposition of a key witness on September 4. This meant 

the City had approximately one week to review the tens of thousands of pages of social 

media produced just days before the hearing, and to prepare for direct/cross examination 

of five live witnesses (the two Plaintiffs and three computer experts/consultants). 

Plaintiffs take issue with the work performed by attorney David Barton, but the majority 

of attorney Barton’s time on the sanctions issue was spent reviewing the tens of thousands 

of pages of documents Plaintiffs produced days before the hearing and helping to evaluate

how to use that information at the hearing. Mr. Barton also spent time addressing 

computer expert issues, which was a focus of the hearing given (i) Plaintiffs’ deletion and 

spoliation of relevant social media data, and (ii) the three computer experts/consultants 

who would testify at the hearing in light of Plaintiffs’ misconduct. Plaintiffs further 

question the involvement of associate attorney Michael Guilliam. Attorney Guilliam 

conducted 5.3 hours of legal research, which was then used to cite supporting case law in

the City’s two Motions for Sanctions. This is not unreasonable; indeed, it was more 

economical to have an associate attorney (at a lower billing rate) conduct legal research in 

support of the motions. Thus, the City did not over-staff or over-bill (as Plaintiffs claim) 

in preparing the two Motions for Sanctions and preparing for and participating in the 

September 11 hearing.2 

2 In a claim – such as this – for fees/costs as sanctions for violating the Rules of Civil 

Procedure, the parties are not required to comply with the requirements set forth in 

Fed.R.Civ.P. 54(d)(2) and LRCiv 54.2. See Fed.R.Civ.P. 54(d)(2)(E) (the requirements in 

“[s]ubparagraphs (A)-(D) do not apply to claims for fees and expenses as sanctions for 

violating these rules...”); see also LRCiv. 54.2 (“This Local Rule does not apply to ... 

claims for attorneys’ fees and related expenses for violations of the Federal Rules of Civil 

Procedure”). Thus, the Declaration of Kathryn H. King was not even necessary, but the 

City believed it would be helpful to the Court in interpreting the City’s Statement of 

Itemized Attorneys’ Fees and Costs. 

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Finally, in their Response, Plaintiffs continue to claim the City was always seeking 

Plaintiffs’ entire social media account information, and imply that their lack of production 

was, therefore, justified. But this is not accurate. In its September 7, 2018 Request for 

Production of Documents, No. 6, the City requested a specific scope of Plaintiffs’ social 

media: 

Please produce an unredacted, unedited digital copy of Your social media

archives (including without limitation Twitter, Instagram, LinkedIn, and 

Facebook), from January 1, 2010 through present, including all postings, 

comments, or pictures that in any way relate to, Your employment with 

the City, any current or former City employee, the City, Your claims and 

allegations in the Lawsuit, the facts and circumstances giving rise to the 

Lawsuit, Your decision to bring the Lawsuit, Defendant’s defenses to the 

Lawsuit, any witnesses or potential witnesses in the Lawsuit, Your 

alleged damages in the Lawsuit, and Your efforts to mitigate Your 

damages relating to the Lawsuit. A full and fair response to this Request 

will include posts, comments and pictures that in any way relate to Your 

emotional, mental or psychological state during the period in question.

The City’s September 7, 2018 discovery request was tailored to Plaintiffs’ claims and 

alleged damages in this case, as well as the City’s defenses; it did not request “the entirety 

of their respective social media accounts,” as Plaintiffs falsely represent in their Response. 

And the Court ordered Plaintiffs (twice) to produce the relevant social media to the City –

Orders Plaintiffs chose to defy. 

For these reasons, together with the reasons set forth in the City’s Statement of 

Itemized Attorneys’ Fees and Costs, the City respectfully requests that the Court order 

Plaintiffs to reimburse it for all of (i) its fees and costs relating to its two Motions for 

Sanctions, which would not have been necessary had Plaintiffs complied with the Rules of 

Civil Procedure and their MIDP responsibilities, (ii) its fees and costs expended on its 

significant efforts to obtain relevant social media evidence over the course of many 

months (in the form of telephone calls, letters, and emails) – all in an effort to resolve the 

matter without Court involvement, and (iii) its fees and costs expended on the social 

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media discovery dispute, which had become necessary because Plaintiffs failed to produce 

relevant social media evidence.

RESPECTFULLY SUBMITTED this 7th day of November, 2019.

BURNSBARTON PLC

By /s/ C. Christine Burns

C. Christine Burns

Kathryn Hackett King

CERTIFICATE OF SERVICE

I hereby certify that on November 7, 2019, I electronically transmitted the 

foregoing document to the Clerk's Office using the CM/ECF System for filing and 

transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

Stephen Montoya

Montoya, Lucero & Pastor, P.A.

3200 N. Central Ave., Suite 2550

Phoenix, AZ 85012

stephen@montoyalawgroup.com

Attorneys for Plaintiffs

s/ Betsy Hibbs

Case 2:18-cv-00664-DJH Document 127 Filed 11/07/19 Page 5 of 5