NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-3929

___________

C.G.; R.G., o/b/o C.B.G.,

Appellants

v.

WINSLOW TOWNSHIP BOARD OF EDUCATION

___________________________________________

On Appeal from the United States District Court

for the District of New Jersey

(District Court No.: 1-13-cv-06278)

District Judge: Honorable Robert B. Kugler

___________________________________________

Submitted under Third Circuit L.A.R. 34.1(a)

on July 14, 2017

Before: GREENAWAY, JR., SHWARTZ, AND RENDELL, Circuit Judges

(Opinion filed: July 19, 2017)

____________

O P I N I O N*

____________

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.
2

RENDELL, Circuit Judge:

On appeal, the plaintiffs, C.G. and R.G., on behalf of their child C.B.G.

(collectively, the “Plaintiffs”), challenge (1) the District Court’s order barring their

attorney, Jamie Epstein, Esq., from personally videotaping depositions during the course 

of a fee dispute and (2) the District Court’s order reducing their fee award from the 

requested $160,731 to $47,212.50. The fee dispute arose out of the settlement of an 

action seeking an individualized education plan and an accommodation plan pursuant to 

the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (the “IDEA”), 

and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (the “Rehabilitation 

Act”). Plaintiffs and the Winslow Township Board of Education (the “Board”) settled 

the dispute, and the settlement agreement awarded attorney’s fees to Plaintiffs as 

provided for in the IDEA. Because we agree with the District Court’s decision and 

reasoning on both issues, we will affirm.1

I. Deposition Recording

Plaintiffs’ counsel notified the Board of his intention to depose the Board’s 

District Administrators during the course of the fee dispute. The notices indicated that 

the depositions would be transcribed and “recorded by video,” but did not state that 

Plaintiffs’ counsel intended to record the depositions himself on his laptop. (A. 28.) 

When the parties convened for the scheduled depositions, the Board objected to 

 

1 The District Court had jurisdiction pursuant to 20 U.S.C. § 1415(i)(3)(A) and 28 

U.S.C. §§ 1331 and 1343(a)(3). We have appellate jurisdiction pursuant to 28 U.S.C. § 

1291. We write primarily for the parties and only recount the relevant background. 
3

Plaintiffs’ counsel’s attempt to videotape the depositions himself instead of using the 

services of an official court videographer. There was no objection to the videotaping in 

general or to any other feature of the depositions. 

The Magistrate Judge ruled that Plaintiffs’ counsel could not personally videotape 

the deposition. The District Court did not disturb that ruling primarily because of a 

textual analysis of the Federal Rules of Civil Procedure. The District Court noted the 

Magistrate Judge’s reasoning that while Plaintiffs’ counsel had complied with Rule 

30(b)(3)(A)–(B), which permits the videotaping of a deposition with proper notice to the 

deponent, Rule 30(b)(5)(A)–(B) precluded him from doing so himself. In particular, an 

oral deposition must be conducted by an “officer,” Fed. R. Civ. P. 30(b)(5), and 

Plaintiffs’ attorney did not qualify as an “officer,” which is defined as either a “person 

appointed by the court” or a person “designated by the parties under Rule 29(a).” Fed. R. 

Civ. P. 28(a)(2). The District Court also noted the broad deference afforded to a 

magistrate judge’s discovery ruling under a clear error or contrary to law standard of 

review.2 We review the District Court’s ruling to determine whether it is clearly 

erroneous or contrary to law. Haines v. Liggett Grp. Inc., 975 F.2d 81, 91 (3d Cir. 1992). 

On appeal, Plaintiffs urge that the Board was “properly and repeatedly noticed and 

re-noticed for the video deposition and failed at anytime to object to the video recording 

until arriving at the deposition.” (Appellants’ Br. 7.) This statement of course does not 

reconcile the notices’ complete failure to mention anything about Plaintiffs’ attorney’s 

 

2 Reviewing various cases from other circuits, the District Court correctly noted that 

this Court has not previously ruled on this procedural issue. 
4

plan to record the deposition himself.3 We agree with the District Court’s reasoning and 

we will affirm its order. 

II. Attorney’s Fees

In an IDEA proceeding, a prevailing plaintiff may recover reasonable attorney’s 

fees and costs related to the litigation. 20 U.S.C. § 1415(i)(3)(B)(i)(I). A prevailing 

plaintiff may also recover reasonable fees and costs under the Rehabilitation Act. 29 

U.S.C. § 794a(b). The District Court must determine whether a fee is “reasonable,” 

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), and there is a “strong presumption” that 

the lodestar formula—which multiplies the number of hours reasonably expended by a 

reasonable hourly rate—yields a “reasonable” fee, Perdue v. Kenny A. ex rel. Winn, 559 

U.S. 542, 554 (2010). At the District Court, the parties agreed that $425/hour is a 

reasonable hourly rate for Plaintiffs’ attorney’s services, but the Board disputed the 

reasonableness of the proffered number of hours expended. The District Court ultimately 

reduced the fee from the requested $160,731 to $47,212.50, and Plaintiffs challenge that 

reduction on appeal. 

We review the reasonableness of a fee award for abuse of discretion. Washington 

v. Phila. Cty. Ct. Com. Pl., 89 F.3d 1031, 1034 (3d Cir. 1996). The District Court’s 

finding of facts are subject to clear error review, id. at 1039, and whether the District 

 

3 Plaintiffs also refer us to their District Court brief in which they challenged the 

Magistrate Judge’s order. This reference is improper, and Plaintiffs have waived any 

arguments they seek to incorporate in that manner. See Tunis Bros. Co. v. Ford Motor 

Co., 952 F.2d 715, 741 (3d Cir. 1991) (declining to address issues where, “[i]nstead of 

providing argument with respect to their issues, the plaintiffs merely referred to their preand post-trial briefs”). 
5

Court applied the correct standards and procedures is a question of law subject to plenary 

review, Rode v. Dellarciprete, 892 F.2d 1177, 1182 (3d Cir. 1990).

The soundness of the fee award is abundantly clear from the District Court’s

thorough discussion of the disputed hours,

4

as is its reasoning for reducing the lodestar by 

50% based on the shock-the-conscience inquiry.

5

 We will therefore affirm the fee award 

of $47,212.50.

III. Conclusion

For the foregoing reasons, we will affirm (1) the District Court’s order barring 

Plaintiffs’ attorney from personally videotaping depositions during the course of the fee

dispute and (2) the District Court’s order reducing Plaintiffs’ fee award from the 

requested $160,731 to $47,212.50.

 

4 The District Court specifically highlighted such red flags as the disparity between 

Plaintiffs’ counsel’s vast expertise and the lengthy amount of time billed for routine 

matters; inadequate documentation of emails, including unrealistic lengths of time 

allotted for reading message read receipts; drafting routine petitions without relying on 

time-saving templates; neglecting to bill at lower paralegal rates where appropriate; and 

billing for hours expended on an unsuccessful recusal motion.

5 The District Court’s 50% lodestar reduction was based on Plaintiffs’ attorney’s 

“excessive billing” in this case, including for entries he had previously withdrawn, and 

“the carelessness (at best) with which [he] drafted his fee request.” (A. 22.) Cast against 

Plaintiffs’ attorney’s well-documented “history of egregious conduct in fee requests in 

the District of New Jersey” and “of grossly overstating his fees,” the “inappropriate 

reaching for fees” in this case “shock[ed] the conscience” of the District Court. (A. 21–

22.)