To Get Attorneys’ Fees, Be Aware That Your Billing Records Are Subject to Discovery

In Yamada v. Nobel Biocare Holding AG, ___ F.3d ___, No. 14-55263 (9th Cir. Apr. 20, 2016), a dentist brought a class action against the distributor of the dental implants he used in his practice on a large number of his patients. The implants had failed and European regulatory agencies urged the distributor to remove the implants from the market. The underlying matter eventually and attorneys for the class brought a motion for nearly six years of attorneys’ fees and litigation expenses of just under $4.5 million. As was to be expected, Nobel’s counsel opposed the motion given the size of the demand. In their argument, Nobel argued that the summary nature of counsel’s bills were insufficient to support an award of fees. The court agreed and ruled that unredacted billing records should be submitted in camera for further consideration. The ruling provided that copies would not be provided to Nobel as the judge considered he was sufficiently versed in billing matters to make a determination as to their propriety.

The Ninth Circuit reviewed the award and found the court had abused its discretion. The district court’s use of in camera submissions to support its fee order was a violation of the Defendants’ due process rights. Id. at *14. The matter was remanded with instructions to redact privileged information.

Clearly, the Circuit Court did not find it appropriate for the judge to serve as a quasi-expert witness or co-counsel in this respect, ousting defendants’ right to see and question supporting evidence. Further, while portions of billing records may be held to be privileged, they are not entitled to blanket protection.

The bottom line is, if you want attorneys’ fees, you must be willing and able to provide the documentation to those you expect to pay them.

For other information about attorneys’ fees, we invite you to review the links below to Legal Issues from Litigation Pathfinder.

You may also be interested in the following Legal Insights White Paper:

Turning the Tables: Effective Strategies for Shifting the Burden of Attorneys’ Fees