UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Samuel J. Bourne, Individually

and as Trustee of Bedrock Realty Trust

v. Civil No. 05-cv-365-JD

Opinion No. 2007 DNH 079

Town of Madison, et al.

O R D E R

The court previously found the defendants in contempt for

failing to adhere to a court order compelling the production of

certain documents. See Order of March 27, 2007 (document no. 80)

(the “contempt order”). Accordingly, Samuel J. Bourne’s motion

for attorneys’ fees and costs was granted and the defendants were

ordered to pay the reasonable expenses, including attorneys’

fees, associated with (1) Bourne’s motion to compel, (2) Bourne’s

objection to the defendants’ motion for a protective order or for

reconsideration, and (3) Bourne’s motion for contempt. See id.;

Fed. R. Civ. P. 37(b)(2). Bourne now submits a bill of costs and

the defendants object. Bourne has also filed a motion for leave

to reply to the defendants’ objection, to which the defendants

have objected. Additionally, Bourne moves to seal two exhibits

attached to the bill of costs and the defendants object. The

court begins with the motion to seal.

Case 1:05-cv-00365-JD Document 101 Filed 06/19/07 Page 1 of 10
1Pursuant to Local Rule 83.11(c), the exhibits were

provisionally accepted under seal at level 1 pending the court’s

ruling on the motion to seal.

2

I. Motion to Seal

Bourne filed an affidavit from his New Hampshire attorney,

Rachel A. Hampe, in support of the bill of costs. Exhibit 1 of

the Hampe affidavit provides the monthly billing statements that

Hampe’s firm, the McLane Law Firm, has submitted to Bourne for

the work performed in this case. Hampe has worked on this case

with Gerald F. Williamson, a solo practitioner from

Massachusetts. Exhibit 2 of the Hampe affidavit provides

Williamson’s billing statements. The billing statements of both

exhibits were redacted to include only information relevant to

the attorneys’ fees and costs contemplated in the contempt order. 

Bourne moves to seal the two exhibits at level 1 because

they contain information covered by the attorney-client privilege

and because they set out competitive information concerning the

rates and fees charged by Williamson and the McLane Law Firm.1

The defendants argue that Bourne has not established an

entitlement to the attorney-client privilege with regard to the

information contained in the invoices. Additionally, the

Case 1:05-cv-00365-JD Document 101 Filed 06/19/07 Page 2 of 10
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defendants argue that billing rates and fees are not protected

trade secrets, and, in any event, Bourne has already disclosed

the rates charged in this case. 

Based on the idea that democratic values are best served by

a transparent judicial system, the courts have long recognized “a

presumption that the public has a common-law right of access to

judicial documents,” including documents “which properly come

before [a] court in the course of an adjudicatory proceeding and

which are relevant to that adjudication.” In re Providence

Journal Co., 293 F.3d 1, 9 (1st Cir. 2002) (internal quotation

marks omitted). In light of this presumption, Bourne bears the

burden of establishing a sound basis for sealing the documents. 

See id. at 10 (recognizing that “‘only the most compelling

reasons can justify non-disclosure of judicial records’ that come

within the scope of the common-law right of access” (quoting FTC

v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987)). 

To assert the attorney-client privilege, Bourne must prove that:

“(1) [he] was, or sought to be, a client of the law firm; (2) the

lawyer acted as a lawyer in connection with the information at

issue; (3) the information relates to facts communicated for the

purpose of securing a legal opinion; and (4) the privilege has

not been waived.” In re: Grand Jury Subpoenas, 123 F.3d 695, 699

(1st Cir. 1997). 

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Bourne has not overcome the presumption against sealing

judicial documents. Although Bourne argues that New Hampshire’s

“right-to-know” law, see N.H. Rev. Stat. Ann. § 91-A, does not

require public disclosure of the exhibits, he has neglected to

address the threshold question of why the attorney-client

privilege should apply. With respect to attorney billing

statements, the First Circuit has resisted a per se rule either

in favor of or against the application of the attorney-client

privilege. See Grand Jury Subpoenas, 123 F.3d at 699 (agreeing

that the documents “are not per se non-privileged merely because

they were intended primarily for billing purposes”). Rather, the

circuit has instructed that the focus should be directed to the

content of the particular materials at issue. See id. Bourne

has not specifically addressed the contents of the two exhibits. 

Bourne has provided even less support for his contention

that the documents should be sealed because they reveal

competitive information concerning rates and fees. Because

Bourne failed to articulate an argument for why these specific

billing statements should be veiled from public scrutiny, the

Case 1:05-cv-00365-JD Document 101 Filed 06/19/07 Page 4 of 10
2The court additionally notes that, based on its review of

the invoices, the attorney-client privilege does not appear to

apply to them. The notations do not provide much in the way of

substantive information nor do they reveal Bourne’s trial

strategy. As to the rate information, it is not unusual for a

firm’s billing rates to be treated as a matter of public record. 

See, e.g., Access Group, Inc. v. Federico, No. 06-275, 2006 WL

3371622 (D.N.H. 2006); Silva v. Nat’l Telewire Corp., No. 99-219,

2001 WL 1609387 (D.N.H. 2001).

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motion to seal is denied. See Higgins v. New Balance Athletic

Shoe, Inc., 194 F.3d 252, 260 (1st Cir. 1999) (district court may

disregard undeveloped arguments).2

II. Bill of Costs

The court employs the lodestar method to calculate an award

of reasonable attorneys’ fees and costs. See Tenn. Gas Pipeline

Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st Cir. 1994). 

Under that method, the court calculates the number of hours

reasonably expended on the relevant tasks and multiplies that

figure by a reasonable hourly rate. Gay Officers Action League

v. Puerto Rico, 247 F.3d 288, 295 (1st Cir. 2001). The

defendants do not dispute that the hourly rates charged by

Bourne’s attorneys are reasonable. The court, therefore, will

focus on the defendants’ challenges to the specific time entries.

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A. McLane Law Firm’s invoices

The defendants challenge an entry for September 28, 2006,

because it appears in part to concern a revision to the

plaintiff’s complaint -- which is a task outside the scope of the

contempt order. The defendants also claim that the portion of

the entry pertaining to a conference call between Hampe,

Williamson, and the defendants’ attorney only concerned amending

the complaint. Because Williamson’s invoices do not corroborate

Hampe’s with regard to the subject of the call, that amount is

not allowed. 

The defendants next challenge fees charged for drafting the

motion to compel and the reply to the defendants’ objection to

the motion to compel, arguing that 6 hours is excessive as to the

former and 8.8 hours is excessive as to the latter. The court

disagrees and will sustain those entries. The court also finds

reasonable the 1.6 hours Hampe billed on October 30, 2006,

pertaining to discovery issues, but strikes the two December 2006

entries relating to Hampe’s efforts to electronically re-file the

reply after having incorrectly filed it as an exhibit to the

motion for leave to file a reply.

The entries for January 2007 pertain to Bourne’s objection

to the defendants’ motion for a protective order and to Bourne’s

simultaneously-filed motion for contempt. After warning defense

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counsel, Bourne filed the motion for contempt requesting

attorneys’ fees as a sanction. The January 2007 entries all

appear to relate to these filings and the time expended is not

unreasonable. The January 2007 entries are therefore approved.

The February 23, 2007, entry appears to concern the court’s

order to show cause why the case should not be dismissed or

stayed pending a related state court proceeding. Bourne concedes

that this charge falls outside the scope of the contempt order.

The entries for April 2007 concern the McLane Law Firm’s

work on the bill of costs and on the motion to seal the billing

statements. The time reasonably spent in preparing a fee

application is itself recoverable, ordinarily at a reduced rate. 

Brewster v. Dukakis, 3 F.3d 488, 494 (1st Cir. 1993). It is not

clear how the portion of the April 3 entry concerning the review

of documents is relevant to the contempt order. Indeed, it

appears that this was a review of the documents Bourne had sought

with the motion to compel. But because that entry also includes

a notation about working on the bill of costs, the court will

approve 1.0 hour of the 2.5 hours charged. 

Bourne’s motion to seal was denied and the court finds that

the contempt order did not contemplate recovery for time spent on

such a motion. Therefore, Bourne is not entitled to fees for

Hampe’s April 6 entry and the paralegal entry of April 9, which

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concern work on the motion to seal. Because the paralegal entry

of April 4 and Hampe’s entry of April 9 merge work on the motion

to seal with work on the bill of costs, the court approves onehalf of the fees charged for those entries.

B. Williamson’s invoices

The defendants argue that Bourne cannot recover Williamson’s

fees because he does not pay Williamson by the hour, but rather

has paid him a flat fee. But just because Bourne paid Williamson

a flat fee does not mean that his work is not reimbursable. 

Moreover, the defendants do not cite any authority suggesting

that a flat fee cannot be broken down by an hourly rate for the

purposes of awarding attorneys’ fees as a sanction against

discovery violations. Compare Lipsett v. Blanco, 975 F.2d 934

(1st Cir. 1992) (applying the lodestar methodology to calculate

an award of reasonable attorneys’ fees in a civil rights case

where plaintiff’s counsel was paid on a contingency basis). 

With respect to the defendants’ specific objections, the

court does not find any of Williamson’s time entries

unreasonable. The defendants again challenge time spent

reviewing documents. However, it appears that these document

reviews, conducted in January 2007, related to reviewing the

defendants’ original productions for the purpose of objecting to

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the defendants’ motion for a protective order. Unlike the April

3 document review, this review was necessitated by the

defendants’ discovery misconduct. 

C. Costs

The defendants also challenge Bourne’s request for $301.86

in photocopying costs. They take umbrage with Bourne’s method of

calculation -- simply requesting one-half of the photocopying

bill for each of the relevant billing months. The defendants

assert that the court should only allow reimbursement for two

copies of each page of the relevant pleadings at a rate of $0.10

per page. Thus, the defendants calculate that Bourne should be

reimbursed $31 for photocopying. Bourne responds that the McLane

Law Firm charges $0.15 per page for photocopying and that the

copying charges include copying relevant discovery materials for

counsel to review during preparation of the various filings. 

High stakes or not, the court notes that the standard is

reasonableness, not exactness. The court reduces Bourne’s

photocopying charge by one-half. 

III. Motion For Leave to File Reply

Bourne’s motion for leave to file a reply to the defendants’

objection to the bill of costs is granted. The reply was duly

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considered in reaching this decision. The additional fees that

Bourne requests in the reply are, however, denied.

IV. Conclusion

Bourne’s request for attorneys’ fees and costs (document

nos. 83 and 85) is granted to the extent outlined in this order. 

Bourne does not ask for an enhancement of the lodestar

calculation. Therefore, the defendants are ordered to pay Bourne

$150.93 for photocopying costs and $8,460.75 for attorneys’ fees. 

Bourne’s motion for leave to reply to the defendants’ objection

to the bill of costs (document no. 92) is granted. Bourne’s

motion to seal the exhibits attached to the bill of costs

(document no. 84) is denied. The clerk of the court is directed

to lift the provisional seal on the relevant documents (document

nos. 85, 89, and 94). 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

June 19, 2007

cc: Catherine M. Costanzo, Esquire

Brian J.S. Cullen, Esquire

Rachel A. Hampe, Esquire

Richard D. Sager, Esquire

Gerald F. Williamson, Esquire

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