Eisner v. Enhanced Recovery Company, LLC, 1:17-cv-01240

Plaintiff Bradley Eisner sued Enhanced Recovery Company, LLC under the FDCPA after a December 8, 2016 phone call; the Rephen Firm represented Eisner.
Non‑attorney representative Wanda Frazier recorded a call and forwarded it to M. Harvey Rephen, the Rephen Firm’s principal, prompting discovery into the Frazier–firm relationship.
Defendant subpoenaed Rephen as the firm’s corporate representative for multiple depositions; Rephen repeatedly failed to appear or refused to answer most questions, invoking the Fifth Amendment.
The district court twice sanctioned Rephen and the Rephen Firm: (Sept. 2018) fees/costs for missed depositions, and (Aug. 2019) dismissal and fees/costs for refusal to answer at deposition.
Defendant moved to liquidate the two sanction awards, submitting contemporaneous billing and cost records; Plaintiff did not oppose liquidation.
The magistrate judge recommends granting the motion but reduces the paralegal rate and corrects an arithmetic error, recommending awards of $23,268 in attorneys’ fees and $6,633.31 in costs.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 37 sanctions were appropriate for Rephen’s discovery noncompliance	Did not oppose liquidation; no substantive defense to fee request	Repeated failures to appear and refusal to answer justified mandatory fee/cost awards under Rule 37(b)	Sanctions were appropriate; fees/costs recoverable absent substantial justification
Whether Fifth Amendment invocation excused attendance or corporate testimony	Rephen asserted privilege	Privilege does not excuse attendance nor corporate‑representative testimony	Court agreed with defendant; privilege unavailable to avoid corporate testimony
Whether Defendant’s submitted fees (rates/hours) were reasonable and documented	No objection to documentation	Contemporaneous billing showing 73.2 hours; requested rates $395 (partner), $260 (associate), $160 (paralegal)	Records sufficient; hours reasonable; approved attorney rates but reduced paralegal rate to $100/hr; lodestar = $23,268
Whether claimed costs were supported and correctly totaled	No opposition	Submitted costs totaling $3,922.20 and $2,711.11 for each sanction award	Court corrected arithmetic error and awarded $6,633.31 in costs

Braswell v. United States, 487 U.S. 99 (1988) (corporate representative privilege limits)
N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136 (2d Cir. 1983) (requirement for contemporaneous time records)
John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172 (2d Cir. 1988) (fee award under Rule 37 mandatory absent justification)
Hensley v. Eckerhart, 461 U.S. 424 (1983) (burden to justify fee request; lodestar method principles)
Blum v. Stenson, 465 U.S. 886 (1984) (need for satisfactory evidence that requested rates align with prevailing community rates)
Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994) (district court discretion in selecting rates)
Simmons v. New York City Transit Auth., 575 F.3d 170 (2d Cir. 2009) (rates should be consistent with prevailing local rates)