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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 08-01916-MD-MARRA

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN TORT
STATUTE AND SHAREHOLDERS
DERIVATIVE LITIGATION
/

This Document Relates To:

ATS ACTION

08-80465-CIV-MARRA (D.C. Action) (Does 1-144 et al.)

__________________________________________/

ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANT CHIQUITA’S PETITION FOR FEES
INCURRED IN LITIGATING MOTION TO COMPEL COMPLIANCE
WITH ORDERS COMPELLING WITNESS PAYMENT DISCOVERY

The Court previously granted Defendant Chiquita Brands International Inc. (“Chiquita”)’s

Second Motion to Compel Compliance With Court Orders on Witness-Payment Discovery against the

law firm of Conrad & Scherer LLP and Attorney Terrence Collingsworth (“Collingsworth”), and

simultaneously granted Chiquita’s request for an award of attorneys’ fees and costs incurred in litigating

the motion [DE 1726]. Chiquita has since filed its fee petition [DE 1732], along with supporting proofs

documenting the attorneys’ fees billed on this matter which have been paid in full to the law firm of

Covington & Burling LLP, its original counsel of record [DE 1732-1 (Affidavit of Eric Hellerman);

DE 1732-2 (Accounting Report--Billing Itemization); DE 1732-3 (Attorney Biographies)].

Attorney Collingsworth has filed a response in opposition to the fee petition [DE 1736], as has

Conrad & Scherer [DE 1735]. Chiquita has filed its reply [DE 1740]. Following careful review of

the parties’ submissions, the Court finds this matter is properly resolved without a hearing. For reasons

discussed below, the Court grants Chiquita’s petition in part, and sets the reasonable attorneys’ fees to
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be taxed in favor of Chiquita and against Attorney Collingsworth and Conrad & Scherer LLP at

$30,057.50, payable by no later than May 20, 2020.

I. DISCUSSION

A. Background – Fee Entitlement

This Court previously concluded that Chiquita should receive an award of fees for the time spent

litigating its second motion to compel Plaintiffs’ compliance with two discovery orders concerning witness

payments made by or at the behest of Plaintiff’s agents. The Court found a fee award justified “[b]ased on

the historical dilatory and obstructionist discovery misconduct of Plaintiff’s counsel,” as catalogued in

Chiquita’s motion, as well as counsel’s “patent lack of good faith in the assertion of privilege as purported

ground for withholding the vast majority of responsive documents on the witness payment issue.”

[December 17, 2017 Order] [DE 1726, ¶ 6].

Although the December 2017 Order did not expressly identify the authority for issuing the fee

sanction, in clarification the Court now states that this award is made pursuant to Fed. R. Civ. P.

37(b)(2)(A), which provides for sanctions for failure “to obey an order to provide or permit discovery.”

Rule 37(b)(2)(C) further provides that, instead or in addition to the various substantive sanctions authorized

by Rule 37(b)(2)(A), the court must order the payment of reasonable expenses and attorney’s fees caused

by the failure to obey the court’s order by the disobedient party or the attorney representing that party, or

both, “unless the failure was substantially justified or other circumstances make an award of expenses

unjust.” Fed. R. Civ. P. 37(b)(2)(C).

Chiquita filed its second motion to compel compliance on April 27, 2016 [DE 1080], seeking

enforcement of a May 2015 [DE 797] and an August 2015 discovery order [DE 872]. Those orders were

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direted to discovery transgressions of Attorney Collingsworth, who at that time was a partner employed by

the law firm of Conrad & Scherer, a position he held up through approximately December 2015.1

Chiquita has provided evidence that it attempted in good faith to obtain the various categories of

withheld discovery material from Collingsworth before pursuing its second motion to compel. This

material included, among other things, documents pertaining to witness payments made to Ivan Otero, a

Colombian attorney (associated with Collingsworth) alleged to be a conduit of cash payments to various

paramilitary figures anticipated to appear as witnesses in this case. Collingsworth had resisted production

of that material, taking the position that Otero was not an “associate” or “agent” of any witness in the case,

and therefore outside the sweep of the May and August 2015 discovery orders. This material also included

a large score of heavily redacted documents, approximately 2/3 of which Collingsworth was ultimately

ordered to produce without redaction (over asserted work product privilege objections).

Collingsworth urges the Court to deny Chiquita’s fee petition outright, contending no sanction is

appropriate because he had a good faith basis for disputing Otero’s status as an “agent” or “associate” of

any witness in this case, and that this was a reasonable, unresolved legal position at the time which

“substantially justified” his initial refusal to produce the Otero documents. He also argues that at least

nine of the redactions which he made on other documents were upheld by the Court, further evincing his

good faith effort to comply. Finally, he argues that the fee now claimed by Chiquita is excessive, based

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Mr. Collingsworth and Attorney Paul Wolf originally entered appearances for Does 1-144 in this case. The ongoing
dispute between those attorneys regarding representation of Does 1-144 is noted, by not addressed, by this Order. On
August 21, 2008, Attorney Collingsworth filed a new firm affiliation notice, signaling that he had joined the law firm
of Conrad & Scherer and on whose behalf he entered an appearance [DE 15, Case 08-80865]. Four days later,
Collingsworth filed a motion seeking designation of himself and Conrad & Scherer as lead counsel for Does 1-144,
seeking in this vein to side-step his ongoing dispute with Attorney Wolf over representation [DE 17, Case 08-80865].
Seven years later, in December 2015, Collingsworth filed an unstipulated motion to substitute International Rights
Advocates (IRA) in place of Conrad & Scherer as counsel for Does 1-144, indicating that he had recently left Conrad
& Scherer and joined IRA [DE 297, Case 08-80865]. Thus, the discovery abuses charged to Collingsworth, at the
heart of the instant motion, were largely committed during his tenure at Conrad & Scherer.

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on unnecessarily duplicative and unreasonable levels of hourly billings (148.3 total hours) on a relatively

straightforward discovery motion.

Conrad and Scherer, in turn, argues that it should not share any fee liability in this matter because

the two underlying discovery orders were directed to and exclusively referenced Attorney Collingsworth

as the discovery wrongdoer – not Conrad & Scherer. It also seeks an apportionment of responsibility for

any fee sanction entered, presumably on this same theory of eschewed responsibility for discovery abuses

committed by firm members without its direct participation.

After carefully reviewing the record, the Court finds no evidence to support the suggestion that

Collingsworth’s insistence on withholding the Otero materials was substantially justified, or that any other

circumstances would render the imposition of a fee sanction against him unjust. If Collingsworth felt he

had a good faith basis for excluding the Otero materials from the court-ordered production of witness

payment documents, when Chiquita pressed him for those specific materials after his first and incomplete

production wave, he could have sought clarification from this Court, or pursued an interlocutory appeal to

the Eleventh Circuit Court of Appeals. He did neither, but instead continued to delay compliance, operating

on what was at best untested assumptions about Oterio’s relationship as an “agent” for at least two key

paramilitary witnesses involved in this case. This intransigence compelled Chiquita to force the issue for

a third time, triggering its second motion to compel compliance with the court-ordered witness payment

discovery.

Collingsworth’s position in resisting this production (or the cache of other heavily redacted

documents) was not substantially justified, and no other circumstances exist which would render a fee

sanction against him unjust. The Court therefore reaffirms its ruling that Collingsworth is liable to Chiquita

as the “advising attorney” behind the discovery abuses for attorneys’ fees incurred in litigating this matter.

In re Sunshine Jr. Stores, Inc. 456 F.3d 1291, 1304 (11th Cir. 2006) (“A party .. demonstrates bad faith by

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delaying or disrupting the litigation or hampering enforcement of a court order.”)(quoting Barnes v. Dalton,

158 F.3d 1212, 1214 (11th Cir. 1998)).

The Court also rejects Conrad & Scherer’s argument that it should not be sanctioned because the

discovery orders in question were directed specifically at Collingsworth, and not the law firm for which he

worked. It does not contest that Collingsworth was a member of the firm, and hence an employee, at the

time he committed the discovery transgressions at issue (between May 2015 and December 2015). Any

implicit suggestion that the firm cannot be sanctioned as the “advising attorney” behind these transgressions

therefore is rejected. Conrad & Scherer entered an appearance for Does 1-144 in August 2008, when

Collingsworth filed a notice of firm affiliation under a Conrad & Scherer signature block. As counsel of

record from that point forward, Conrad & Scherer owed Plaintiffs a duty of full representation, and owed

this Court a duty to comply with all court orders, including discovery orders. That the firm may have

delegated case management authority to Collingsworth does not relieve it of those duties. Its requested

“apportionment” of the fee award – by which it presumably is asking the Court to discern which conduct is

attributable to Collingsworth and which is attributable to the firm – is rejected given its continued affiliation

with Collingsworth at all material times. As to Chiquita, Conrad & Scherer is therefore here held equally

responsible, as “advising attorney” for the subject discovery abuses, with Collingsworth. Stuart I. Levin

& Associates, P.A. v. Rogers, 156 F.3d 1135 (11th Cir. 1998).

B. Law Governing Attorney Fee Awards

Reasonable attorneys’ fees are generally calculated using the traditional “lodestar” method to

obtain an objective estimate of the value of an attorney’s services. Norman v. Housing Authority of City of

Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). Under this approach, a court determines a reasonable

fee by multiplying “the number of hours reasonably expended on the litigation … by a reasonable hourly

rate.” United States v. Patrol Servs., Inc., 202 Fed. Appx. 357, 359 (11th Cir. 2006) (quoting Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983)). A reasonable rate of pay is defined as “the prevailing market rate in

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the legal community for similar services by lawyers of reasonably comparable skills, experience and

reputation,” Norman, 836 F.2d at 1299.

The party moving for fees bears the burden of establishing the “reasonableness” of the hourly rate

and number of hours expended through specific evidence supporting the hours and rates claimed. Hensley

v. Eckerhart, 461 U.S. 424, 433 (1983); Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994). As a

basic premise, the fee applicant may not recover fees for hours that are “excessive, redundant, or otherwise

unnecessary,” Hensley, 461 U.S. at 434-35; Oxford Asset Management., Ltd. v. Jaharis, 297 F.3d 1182,

1197 (11th Cir. 2002). When a request for fees is unreasonably high, the court may “conduct an hour-by-

hour analysis or it may reduce the requested hours with an across-the-board cut.” Bivins v. Wrap it Up,

Inc., 548 F.3d 1348, 1350 (11th Cir. 2008). The court may also use “its own knowledge and expertise” in

coming to an independent judgment regarding the reasonableness of a requested fee, with or without the

aid of witnesses. Loranger, 10 F.3d at 781; Norman, 862 F.2d at 1299.

C. Reasonableness of Hours Claimed

Chiquita requests $84,843 in attorneys’ fees for work performed in briefing its second motion to

compel compliance with the court’s disocvery orders by five different attorneys - John Hall (partner -37

years’ experience), Shankar Duraiswamy (partner - 15 years’ experience), Eric Hellerman (senior of-

counsel -40 years’ experience), Jose Arvelo (associate -13 years’ experience) and Jaclyn Martinez Resly

(associate -9 years’ experience). Covington & Burling LLP billed a combined total of 148.3 attorney hours

expended by these attorneys on this matter, and Chiquita has paid that bill in full.

The Court agrees that the hours claimed are excessive, and appear to rest primarily on the inordinate

number of attorneys working on this matter. The motion to compel was relatively straightforward and did

not require the combined efforts of two partners, one senior “of counsel” and two senior associates. See

generally Herrington v. County of Sonoma, 883 F.2d 739, 747 (9th Cir. 1989); Cruz v. Alhambra School

Dist., 601 F. Supp. 2d 1183, 1191 (C.D. Cal. 2009) (“[C]ourts ought to examine with skepticism claims

that several lawyers were needed to perform a task, and should deny compensation for such needless

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duplications when three lawyers appear for a hearing when one would do”) (quoting Democratic Party of

Wash. State v. Reed, 338 F.3d 1281, 1286 (9th Cir. 2004)).

In determining the reasonableness of hours spent in relation to a discovery motion, the Court

considers factors such as the complexity of the issues raised, the need to review the record and pleadings,

and the need to conduct legal research, in addition to the length of the briefing – in this case eighteen (18)

pages on the initial motion to compel [DE 1180] and thirteen (13) ages on the reply brief. Cimini v. White,

2020 WL 343766 (D. Nev. 2020). Having reviewed those factors here, the Court agrees that the hours

claimed are not reasonable.

First, the Court agrees that Covington & Burling over-staffed this matter by having multiple levels

of review on a routine discovery motion performed by two senior partners, and a senior of-counsel affiliate.

In reviewing the billing summary, it is apparent that Eric Hellerman, the of counsel affiliate based in New

York, and Jaclyn Martinez Resly, the nine-year associate based in D.C., did the bulk of the work. The

coordinated communications with and duplicative review of their briefing by other members of the

litigation team was simply overkill, an unnecessary luxury resulting in duplicative attorney hours devoted

to a straightforward discovery matter. The Court will therefore allow for compensation of the reasonable

hours billed by Attorneys Hellerman and Martinez Resly only for work performed in bringing this motion

to fruition. The hours billed by all other attorneys shall be excluded from the lodestar calculation.

With regard to the billable hours of Hellerman and Martinez Resly, the Court shall further reduce

the number of hours claimed as excessive to the task at hand. As a preliminary matter, the Court will

exclude the 7.5 hours of “block billing” generated by Attorney Hellerman on 3-2-16, which included

multiple communications with Collingsworth apparently in advance of the contemplated motion, as well

as actual “work on” the motion to compel. The time spent by counsel in effort to obtain the withheld

discovery before beginning to draft the motion cannot be compensated under Rule 37 will not be included

in the award.

A review of the account summary submitted in support of the fee petition further shows a total of 33

hours expended by Attorney Martinez Resly on the actual drafting of the initial motion (18 pages) and

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compilation of supporting exhibits, in addition to another 35 hours expended in preparation of the reply

brief (13 pages) (excluding multiple email and other team communications on the item). The Court finds

that the number of hours to be excessive and in the exercise of its discretion will reduce them by further.

Accordingly, the Court finds that 22 hours is a reasonable number of hours attributable to the drafting of

the initial motion, and 16 hours is a reasonable number of hours attributable to preparing the reply brief,

for a total of 38 hours.

With regard to Attorney Hellerman, the Court finds 2.3 hours to be a reasonable amount of time

expended reviewing and revising the initial motion to compel, and an additional 3.5 hours for reviewing

the opposition papers and participating in the review and revise of the final reply, for a total of 5.8 hours.

D. Reasonableness of Rates

The second step in calculating the lodestar is to determine a reasonable hourly rate “calculated

according to the prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895-

96 n. 11 (1984). Chiquita seeks an hourly rate of $ 750 per hour for Attorney Hellerman, and $565 per

hour for Attorney Martinez Resly. The Court agrees that the relevant market for fixing the rates is the

District of Colombia, the legal market in which this case was originally filed. See ACLU v. Barnes, 168

F.3d 423 (11th Cir. 1999). While the Plaintiffs challenge these rates as unreasonably high, they do not

proffer any contrary evidence challenging the reasonable of the rates. The Court therefore accepts these

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rates as reasonable and commensurate with the prevailing market rates for lawyers of comparable

experience handing similar types of litigation in the relevant market area.

E. Lodestar Calculation

In light of the reasonable hours and rates determined above, the Court calculates the lodestar as follows:

Attorney(s) Hours Hourly Rate Total

Eric Hellerman 5.8 750 4,350.00

Jaclyn Martinez Resly 38 565 21,470.00

Accordingly, the Court finds a total lodestar amount of $ 25,820.00.

II. CONCLUSION

Pursuant to the foregoing, it is ORDERED AND ADJUDGED:

1. Chiquita’s fee petition is DENIED as to the requested amount, but GRANTED as to its entitlement

to a fee sanction and as to the recovery of a reasonable fee, as set forth by this Order.

2. The law firm of Conrad & Scherer LLP and Attorney Terrence Collingsworth, individually are

ordered to pay the TOTAL AMOUNT of $25,820.00 to Defendant Chiquita Brands International

Inc. for attorney’s fees reasonably incurred in its litigation of the second motion to compel

compliance with prior discovery orders of the Court.

3. Conrad & Scherer LLP and Attorney Collingsworth shall be held jointly and several liable for the

payment of this sum. The Court will assume that the parties can attempt in good faith to make

arrangements for the payment of the attorney’s fees. If the parties are unable to agree, then Chiquita

may seek entry of a judgment.

DONE AND ORDERED in Chambers at West Palm Beach, Florida this 29th day of April

2020.

KENNETH A. MARRA
United States District Judge

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cc. all counsel

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