In Discovery Order No. 24, subsequently adopted by Judge Brieant, this court directed defendants Attorney General and Federal Bureau of Investigation to compensate plaintiff for the fees and costs incurred in bringing the sanctions motion. Id. at 36. Discovery Order No. 24 further directed plaintiff to submit an accounting of costs and hours and the regular hourly fee charged. Id. аt 37. Such an accounting has been submitted, Krinsky Affirmation dated May 5, 1982. Defendants have opposed the claim for costs and fees contained in the Krinsky Affirmation. Defendants’ Memorаndum in Partial Opposition to Plaintiff’s Claim for Fees and Costs Pursuant to Discovery Order No. 24, dated May 14, 1982 (“Defts. Mem.”).
Defendants oppose plaintiff’s cost and fee claim on the follоwing grounds:
A. The plaintiff fails to state whether it was actually charged on an hourly basis for the work performed by its counsel in connection with the sanctions motion.
C. The plaintiff’s counsel spent too much time on one task, preparation for the September 9, 1981 hearing, assuming arguendo such preparation was a sanctions related task.
D. The plaintiff improperly seeks recоvery for tasks performed after Discovery Order No. 24 was entered, i.e., “study” of D.O. 24, preparation of fee application, telephone calls about possiblе appeal from D.O. 24, correspondence with the client about D.O. 24 and other decisions.
E. The plaintiff cannot recover costs and fees generated beforе October 1, 1981 because the effective date of repeal of Rule 37(f), a waiver of sovereign immunity, did not occur until October 1, 1981.
F. The hourly rates for which counsel fee recovery is sought are excessive.
G. The expenses sought are excessive and insufficiently itemized.
These matters are resolved in succeeding sections of this Order.
A. Relevancy of Actual Billing Arrangements.
Generally, courts have concluded that the amount of a reasonable attorneys’ fee award, in contexts analogous to Rule 37 sanctions, should be determined without refеrence to any private agreement between client and counsel. See, e.g., Illinois v. Sangamo Construction Co.,
In Hamilton v. Ford Motor Co.,
Thе court’s intent in the present case was not to limit fee recovery by plaintiff to amounts actually paid out to its counsel in the past. Defendants’ literal interpretation of a phrase
B. Fee Recovery For Non-Sanctions Related Work.
Defendants’ point in this respect is, generally, well taken. Defendants’ conduct deserves punishment, and the need for deterrеnce is clear, but plaintiff is not entitled to a bonanza or an unbridled feed at the government trough.
No fee recovery will be had for work related to the preparаtion of a discovery plan.
No fee recovery will be had for work performed after the entry of Discovery Order No. 24.
Pee recovery shall be had for the work reasonably attributed to the sanctions motion as follows:
1. Pre-hearing and hearing matters.
One-third (V3) of attorney and paralegal fees for work done in preparation for the September 9,1981 hearing.
Michael Krinsky, Esq.: 7 hours
Gordon Johnson, Esq.: 25.5 hours
Ms. Cruhlac : 5.8 hours
2. Post-hearing matters.
Michael Krinsky, Esq.
Gordon Johnson, Esq.
C. Recovery for September 9th hearing preparation.
Defеndants’ point here is also well taken. Only one of the purposes of the hearing was to permit the parties to make their record on sanctions. As set forth in the previous section, it is the court’s judgment, based on a review of the transcript, that only one-third of pre-hearing and hearing attorney/paralegal work is reasonably viewed as sanctions related.
D. Work Performed after the entry of Discovery Order No. 24.
Again, defendants’ point is well taken, and no recovery will be permitted for this work. While every such order may reasonably be expected to take counsel’s time in reading and considering appeal, neither the policies underlying Rule 37 sanctions, nor the factors which led to Discovery Order No. 24 suggest that post-disposition time be compensable.
E. Pre-October 1, 1981 work.
Rule 37(f) was repealed by the Equal Access to Justice Act, Pub.L. 96-841, which by its terms applies to actions filed after or pending on October 1, 1981. Defendants’ рosition is that the language and history of this statute preclude a fee and cost award for work performed prior to October 1, 1981. Plaintiff’s view is that so long as the matter was pending on or after October 1, 1981, recovery may be had for work performed prior to that date. This issue was extensively briefed by the parties in connection with the sanctions motion.
All cases located by the parties and court squarely and uniformly support plaintiff: the Act’s “effective date is no barrier to an award of fees and costs whiсh might have occurred [earlier]”, so long as the matter is pending on or commenced after October 1, 1981. Wolverton v. Schweiker,
F. Hourly Rates.
Plaintiff seeks pаyment based on an hourly rate of $160-190 for Michael Krinsky, Esq., $125 for Gordon Johnson, Esq., and $45 for Ms. Cruhlac, a paralegal. No question can be entertained about the skill and aggressiveness of the representation provided plaintiff, but these rates are a bit higher than the hourly rates customarily granted in other fee award contexts in this locality. See, e.g., Irving Trust Co. v. Nationwide Leisure Corp., 79 Civ. 0261 (12/1/81 S.D.N.Y.) ($72.50 per hour avg. for experienced partners and inexperienced associates); Ingram v. Madison Square Garden, 76 Civ. 5870 (March 23, 1982)($100 for partner, $60 for associate); Stenson v. Blum,
The sanction here shall be based on hourly rates of $130 for Mr. Krinsky, $90 for Mr. Johnson, and $40 for Ms. Cruhlac.
G. Costs.
The cost accоunting portion of the Krinsky Affirmation is assailed on two grounds: (1) insufficient itemization; (2) no demonstrated relation to sanctions work. These objections are, generally, well taken. Plaintiff hаs merely categorized the expenses incurred, and expenses are sought for expenditures made not solely in connection with sanctions related work but also for non-sanctions related matters.
I find that the sum of $500 is a substantially documented, reasonable figure for the expenses aspect of the sanction. See Detroit v. Grinnell Corp.,
CONCLUSION
Defendants shall pay to plaintiff the sum of $11,231.00
Notes
. “Defendants do not imply that in order to be eligible for a fee award under Rule 37(b), a party actually must have incurred those fees. Rather, defendants suggest that if the Court intended to award plaintiffs (and not their counsel) compensation, the Krinsky Affirmation fails to indicate what the NLG and former plaintiffs were billed for counsel’s services and thus to establish plaintiffs’ need to be compensated.” Defts. Mem. at 3.
. “I find that the purposes of Rule 37(b), as outlined above, require ... that plaintiffs be compensated for the fees and costs incurred in bringing this motion....” D.O. 24 at 36.
.