Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TRITA PARSI and NATIONAL
IRANIAN AMERICAN COUNCIL,
Plaintiffs,
v. Civil Action No. 08-705 (JDB) SEID HASSAN DAIOLESLAM,
Defendant. MEMORANDUM OPINION & ORDER
Before the Court is [194] defendant Seid Hassan Daioleslam's final bill of recoverable costs. Pursuant to [190] [191] the Court's September 13, 2012 Memorandum Opinion and Order granting in part and denying in part defendant's omnibus motion for sanctions, defendant seeks reimbursement for the following: (1) 60% of the expenses of bringing [143] defendant's omnibus sanctions motion; (2) the last two rounds of forensic imaging by PricewaterhouseCoopers ("PwC"); (3) the expenses of bringing [112] [113] defendant's motions to compel production of plaintiff National Iranian American Council's ["NIAC"] server, Salesforce data, and membership lists; (4) one half of the expenses of Babak Talebi's deposition; (5) the expenses of obtaining [93] the Court's March 29, 2011 Order relating to Talebi's emails; (6) the expenses of serving subpoenas to obtain third-party emails; (7) one half of the expenses of the last half day of plaintiff Trita Parsi's deposition; and (8) one half of the expenses of the second day of Emily Blout's deposition. Defendant also seeks additional costs as the prevailing party under Federal Rule of Civil Procedure 54(d). He claims $284,223.34 in total, plus prejudgment and *2 postjudgment interest. See Def.'s Reply in Supp. of Bill of Costs [ECF 199] ("Def.'s Reply") 9. Plaintiffs NIAC and Parsi argue that defendant's bill of costs should be denied or substantially reduced. For the reasons set forth below, the Court will award fees and expenses in the reduced amount of $183,480.09. [1]
A district court has broad discretion in determining the size of a sanctions award. See
Beck v. Test Masters Educ. Servs., Inc., No. 04-1391,
A. Sanctions Motion
Defendant claims $33,279.91 in fees and expenses for bringing the sanctions motion. See
Def.'s Final Bill of Recoverable Costs [ECF 194] ("Def.'s Bill of Costs") 1. Plaintiffs argue that
[2]
defendant's request has several defects, the first being that the time spent on the sanctions motion
*3
by senior partner Timothy Kapshandy is unreasonable. See Pls.' Objections to Def.'s Bill of
Costs [ECF 198] ("Pls.' Objections") 9. Kapshandy claimed 39.3 hours on the motion, compared
to a combined 35 hours claimed by two more junior attorneys on the motion. See Def.'s Bill of
Costs, Ex. A. Plaintiffs argue that, rather than draft substantial portions of the motion himself,
Kapshandy should have delegated the drafting to junior attorneys and spent most if not all of his
time reviewing and editing the drafts. They ask the Court to reduce Kapshandy's hours using the
formula set forth in Mitchell v. National Railroad Passenger Corp.,
The Court declines to do so based on the specific circumstances of this case. It is not
unreasonable that just over one half of the attorney hours spent on the sanctions motion – an
omnibus motion based on eight separate areas of discovery – were spent by a senior partner.
Kapshandy was the lead attorney on the case throughout the more-than-two-year discovery period
preceding the sanctions motion, and it likely was more efficient (and cheaper) for Kapshandy to
take a larger role in drafting that motion, which was based on facts of which he had firsthand
knowledge, than he might otherwise have taken. See Am. Petroleum Inst.,
Nevertheless, it remains defendant's burden to show the reasonableness of each element
of his fee request. See New Jersey v. EPA,
as "[c]ontinue drafting/revising of mercury brief" and "[d]raft reply brief," inadequate to justify
hours claimed); Role Models Am., Inc. v. Brownlee,
Plaintiffs next challenge the amount requested for non-attorney work on the sanctions
motion. Defendant seeks compensation for 25.05 hours spent by legal assistant Meredith Dudley
and 166.6 hours spent by legal assistant Jeffery Tisak. See Def.'s Bill of Costs, Ex. A. Tisak's
time entries all say one of two things: "Review NIAC documents for sanctions motion as per T.
*5
Kapshandy," or, on and after October 3, 2011, "Review NIAC documents for upcoming sanctions
motion response as per T. Kapshandy." See id. No explanation is given as to why Tisak needed
to spend the equivalent of more than four 40-hour weeks reviewing documents related to the
sanctions motion and reply. Tisak's repetitive, generic entries are entirely inadequate, as they
provide no basis for the Court to determine the reasonableness of the hours expended. See New
Jersey,
Dudley's entries, which also lack specificity, are marginally better than Tisak's. Dudley's entries vary at least somewhat and show that she "[p]repare[d] exhibits," "[o]rganize[d] sets of documents," and "prepar[ed] reference materials," all in relation to defendant's sanctions motion. See Def.'s Bill of Costs, Ex. A. In addition, the 25 hours claimed by Dudley seem inherently *6 more reasonable than the 160-plus hours claimed by Tisak. Hence, the Court will reduce the hours claimed for Dudley's work by only 10%.
Plaintiffs' final challenge is to the expenses (e.g., copying, research, and travel charges) claimed by defendant in relation to the sanctions motion. Plaintiffs correctly observe that there are inconsistencies between defendant's billing records and some of the research charges listed. Namely, the following charges lack a corresponding billing entry and hence will be subtracted from the total expenses claimed: a $2,080.03 Lexis charge incurred by Tisak on September 8, 2011; a $86.82 Lexis charge incurred by Ross on September 26, 2011; a $16.17 Lexis charge incurred by Ross on September 27, 2011; and a $114.92 Westlaw charge incurred by Dudley on November 10, 2011. See Def.'s Bill of Costs, Ex. A. Plaintiffs also argue that defendant should not be reimbursed for the travel costs associated with the July 2012 motions hearing because defendant also argued several other motions, including the summary judgment motion, at that hearing. Because defendant would have incurred these travel costs even if there had been no sanctions motion, the Court agrees that they should deducted from the expenses claimed.
Making the above-described reductions, the Court will award $25,242.17 on the sanctions motion.
B. Forensic Imaging
By far the largest expense on defendant's bill of costs, and the expense most vigorously contested by plaintiffs, is that covering the last two rounds of PwC forensic imaging. Defendant claims $8,570 in attorney time spent on the imaging and seeks reimbursement of $136,224.32 charged by PwC for the imaging. See Def.'s Bill of Costs, Ex. B.
Plaintiffs do not challenge the attorney time spent on the imaging, but they raise *7 numerous complaints about the PwC charges. First, plaintiffs argue that the documentation of the PwC imaging charges provided by defendant is "[w]oefully [d]eficient." See Pls.' Objections 3. Indeed, all that defendant has provided are the two invoices from PwC (one for each of the last two rounds), each containing a one-page summary of charges. The charges are broken down into hourly fees and expenses, and the services and activities performed are listed. See Def.'s Bill of Costs, Ex. B. As plaintiffs point out, however, the summary gives no information on the type of work done by each employee. See Pls.' Objections 3. In addition, plaintiffs complain about the sizeable amounts of time billed by PwC managers and directors (relative to "staff") and by PwC employees based in Chicago, when the imaging was done in Washington, D.C. See id. The Court agrees that the PwC invoices are not well documented, but it is reluctant to place all fault on defendant for an outside consultant's shortcomings. After all, had plaintiffs produced all relevant computers and the shared-drive server from the beginning, defendant would have been responsible for the imaging costs in full. Nevertheless, it is defendant's burden to show the reasonableness of each element of his expense request, and defendant has provided absolutely nothing to show that two rounds of forensic imaging should cost upwards of $136,000. See, e.g., Pls.' Objections 4 (suggesting that invoice for first round of imaging would allow helpful comparison of charges); Pls.' Surreply in Opp'n to Def.'s Bill of Costs [ECF 200-1] ("Pls.' Surreply") 3-5 (asserting insufficient showing of reasonableness as to second round of imaging). Hence, an across-the-board percentage reduction is warranted. Before applying this reduction, however, the Court will address plaintiffs' challenges to particular charges on the PwC invoices.
Plaintiffs argue that all charges for forensic analysis should be excluded because, they say, this Court "specifically differentiate[d] between the costs for forensic imaging which it *8 ordered recoverable in the Sanctions order; from the cost[s] for forensic analysis which the Court ordered are not recoverable." See Pls.' Objections 4. Plaintiffs are incorrect. In ordering a "lesser amount" of fee shifting, the Court did not intend to distinguish between forensic imaging and forensic analysis, but rather intended to hold plaintiffs accountable for the extra cost of the forensic process that became necessary because of plaintiffs' failure to produce, at the outset, all devices on which relevant data might have been stored. See id. at 5 (quoting Mem. Op. (Sept. 13, 2012) [ECF 190] 4-5). In other words, the Court shifted to plaintiffs the incremental costs caused by their conduct.
Plaintiffs also object to several specific items on the PwC invoices that they claim are unrelated to the forensic imaging ordered by the Court. See Pls.' Objections 6-8. These include: (1) charges for "troubleshooting" and "server hardware," ostensibly incurred because PwC did not properly reassemble the NIAC shared drive after the second round of imaging; (2) charges for "Review[ing] and respon[ding] to" plaintiffs' filings on the motions to compel and motion for sanctions; (3) a charge for "Reproduction of deliverables from initial report"; and (4) PwC employees' travel expenses for the third round of imaging. Each item merits brief discussion.
First, it appears that PwC in fact reassembled the NIAC shared drive improperly and, as a result, had to purchase an additional device (the "server hardware") and spend time "troubleshooting" and fixing its mistake. See Pls.' Objections 6-7 & nn.2-4; id., Ex. A, Decl. of Marc Hirschfield ("Hirschfield Decl.") ¶ 12; id., Ex. C, Decl. of David Elliott ("Elliott Decl.") (describing how PwC technician came to NIAC's office to fix device). Plaintiffs are not responsible for the costs of PwC's mistakes. As defendant has not contested plaintiffs' assertions that the server hardware and troubleshooting charges were caused by PwC's mistakes, the Court *9 will deduct $576.79 for server hardware and $1,320 for troubleshooting. Second, reviewing and [4] responding to plaintiff's filings are not forensic imaging or analysis activities. Defendant has not shown the reasonableness of paying PwC for assistance beyond the imaging and analysis ordered by the Court. See Def.'s Reply 4 (stating that PwC charges for assistance are recoverable but not explaining what assistance was given or why it was needed). Hence, the charges of $14,894 and $12,477.70 for "[R]eview[ing] and respon[ding]" will be deducted. Third, reproduction of deliverables from the initial report is exactly the sort of redundant activity that would not have been necessary if there had been only one round of imaging and all "deliverables" could have been produced together. Hence, the reproduction charge will not be deducted. Fourth, as to plaintiffs' objection to paying the expenses of Chicago-based PwC employees to travel to Washington, D.C., the Court concludes that a partial reduction is warranted. It is understandable that, given the location of defendant's lead counsel in Chicago, PwC may have thought it prudent to send one or more employees from its Chicago office to be present at the imaging site. But again, defendant has not given any justification for the actual amount spent, so the Court will deduct one half of the $2,119.13 in charges for transportation, accommodation, and meals during the third round of imaging.
Finally, plaintiffs stress that, in granting sanctions related to the imaging, this Court relied on defendant's unsupported "expla[nation] at the motions hearing that conducting three separate *10 imaging sessions cost far more than conducting one larger imaging session." See Pls.' Objections 5 (quoting 9/13/12 Mem. Op. 5). But it does not require an expert to conclude that doing three rounds of imaging was far less efficient, and hence more costly, than doing just one. See id. (complaining that defendant did not provide expert testimony to show that three rounds cost more than one). Extra time had to be spent on the second and third rounds, and the analysis [5]
became more complex because data extracted during the later imagings had to be compared (three times instead of one) to data that had already been produced. The total hourly fees charged by PwC, then, were necessarily higher than they would have been if the imaging had been done at one time.
However, not all costs increased to the same degree because of the additional imaging
sessions. For example, the cost of hard drives to store the forensic images would presumably
have been roughly the same even if all of the imaging had been done at one time. See
Hirschfield Decl. ¶ 9. And even some fraction of the additional hourly fees would likely have
been incurred if the devices imaged later had instead been produced at the outset. Because
defendant should be reimbursed only for the added forensic imaging costs caused by plaintiffs'
conduct, a reduction for costs that would have been incurred in any case will be made. See
Tequila Centinela,
Subtracting the troubleshooting and server hardware charges, the reviewing and
responding charges, one half of the PwC travel expenses for the third round of imaging, and the
cost of the hard drives, and reducing the remaining amount by 33%, leaves $70,060.09. Because
this represents a substantial reduction and is based largely on the lack of justification for
particular charges on the PwC invoices, the Court will apply a further reduction of only 10% for
defendant's inadequate showing of reasonableness generally. See Beck,
C. Motions to Compel
Defendant requests $25,028.70 in fees and expenses related to his motions to compel plaintiffs have custody of hard drives while case was pending but told plaintiffs that, once case was over, plaintiffs either had to reimburse PwC for cost of hard drives or return them after wiping data); see also id., Exs. 1-A, 1-B. The Court encourages the parties to abide by any agreements between themselves but declines to take action on an issue not covered by its sanctions order.
[7] Plaintiffs have provided a declaration stating that the additional fees for doing the imaging in three rounds instead of one could have been at most $1,500, or 5 hours at $300 per hour. See Hirschfield Decl. ¶ 10. Given that PwC employees spent a combined 344.7 hours on the second and third rounds of imaging, the Court simply does not find this estimate credible. See Def.'s Bill of Costs, Ex. B. It is extremely improbable that, had the imaging been done all at once, just five of those 344.7 hours would have been saved.
Because the charges listed in PwC's invoices cannot easily be separated into charges that
would have been incurred if there had been just one imaging and those that were incurred
because there were multiple imagings, the Court will make a fixed, 33% reduction to reflect its
rough estimate of forensic imaging charges that would have been incurred in any event.
*12
production of NIAC's server and the Salesforce membership lists. As with defendant's fee
request for the sanctions motion, plaintiffs' primary objection is to the amount of time spent on
the motions to compel by senior partner Timothy Kapshandy. See Pls.' Objections 12; Pls.' Reply
in Supp. of Exceptions to Def.'s Initial Bill of Costs [ECF 149] 2-3. The Court finds that
Kapshandy's entries on the motions to compel suffer from the same lack of detail noted in Part A,
making a 10% reduction appropriate. See DL,
Plaintiffs also challenge the non-attorney time spent on the motions to compel. Both Meredith Dudley's and Jeffery Tisak's billing entries, which total 81.6 hours, are generic and repetitive. See, e.g., Def.'s Bill of Costs, Ex. C (6/15/11 Dudley entry stating "Motion to Compel Servers - Prepare exhibits for upcoming motion per T. Kapshandy"; 8/9/11 Tisak entry stating "Review NIAC documents for Motion to Compel Server as per T. Kapshandy"). Nevertheless, because the Court recognizes that preparing numerous exhibits takes time, and because Dudley's entries show somewhat more detail and variety than Tisak's, see, e.g., id. (6/10/11 Dudley entry stating "Organize discovery materials, gather documents pertinent to upcoming motions and upload to the shared server per T. Kapshandy"), the Court will allow compensation for 90% of Dudley's hours and one half of Tisak's hours, consistent with the treatment of Dudley's hours in Part A and Tisak's hours throughout the bill of costs.
Finally, plaintiffs identify three entries that appear to relate to work done on defendant's motion to compel damages discovery and not to the motions to compel production of the server and membership lists. Although two of the three entries contain, respectively, the words "server" and "membership" in addition to the word "damages," defendant has not argued that these entries in fact related to the motions to compel production and only included the word "damages" by mistake. See Def.'s Bill of Costs, Ex. C (8/8/11 Kapshandy entries). Hence, the Court will subtract 1.5 hours for these two entries, and 0.7 hours for the third entry, which reflects work done on the "damages motion to compel," see id. (8/11/11 Kapshandy entry). Making these *14 reductions to the hours of Kapshandy, Tisak, and Dudley, the Court will award $20,838.25 on [8]
the motions to compel.
D. Talebi Deposition
Defendant requests $7,599.30 in fees and expenses associated with Babak Talebi's deposition. See Def.'s Bill of Costs, Ex. D. Plaintiffs' only objection to the amount requested relates to the 37 hours claimed for Tisak's work. As discussed in Part A above, the Court will reduce these hours by 50% and hence award $6,720.55 on this item.
E. Obtaining March 29, 2011 Order
Defendant requests $17,943.22 in fees and expenses associated with obtaining the Court's March 29, 2011 Order directing plaintiffs to produce 5500 Talebi emails to the Court for in camera review. See Def.'s Bill of Costs, Ex. E. Plaintiffs again object to the proportion of attorney time spent by Kapshandy and to Tisak's hours. As above, the Court will reduce Tisak's hours by 50%. The Court will not make a specific reduction to Kapshandy's hours, however. Kapshandy's time on this item totals only 16.4 hours, and it is not unreasonable that these hours constituted 40% of the attorney time on a disputed discovery issue. In addition, Kapshandy's entries on this item are more transparent than his entries on the sanctions motion and motions to compel production, allowing the Court to better assess the reasonableness of the hours claimed. See Def.'s Bill of Costs, Ex. E (Kapshandy entries such as "Review Talebi emails," "Outline discovery issues; review court order," "Office conference plaintiff counsel re discovery disputes," "Review plaintiffs status memo; prepare response," and "Prepare for status conference"). *15 Because the time spent by Kapshandy on the listed tasks appears reasonable, the small reductions made for other work and described above are not necessary here.
In reviewing the entries on this item, however, the Court observes that many entries do
not reference the Talebi emails (or any obviously related topics), but simply reference, for
example, the status report, status conference, proposed discovery order, or other procedural
matters leading up to the March 29 Order. All of these procedural matters, however, concerned
not just the Talebi emails but other subjects as well. See Def.'s Report Regarding Status of
Discovery [ECF 87]; Def.'s Proposed Order Regarding Discovery [ECF 89]; Order (Mar. 29,
2011) [ECF 93] (order on Talebi emails and seven other discovery issues). Also included on
defendant's bill are travel expenses related to the March 4, 2011 discovery hearing, at which the
Talebi emails were just one of many issues discussed. See Def.'s Bill of Costs, Ex. E; 3/4/11 Tr.
of Discovery Hr'g [ECF 101]. Yet the Court granted sanctions for the expenses of obtaining the
portion of the March 29 Order concerning the Talebi emails, not for all expenses associated with
obtaining that order. See 9/13/12 Mem. Op. 15-16. Because the Court has no way of knowing
what proportion of the listed expenses actually relate to the Talebi emails, it will further reduce
the amount claimed (after the reduction to Tisak's hours) by 50% – a percentage reflecting, on the
one hand, that some entries specifically pertain to the Talebi emails, but, on the other hand, that
many entries refer to matters encompassing much more than the Talebi emails. See Tequila
Centinela,
F. Third-Party Subpoenas
Defendant requests $9,802.73 in third-party-subpoena expenses. See Def.'s Bill of Costs, *16 Ex. F. In their objections to defendant's bill of costs, plaintiffs object to the lack of documentation supporting the claimed costs to effectuate service. See Pls.' Objections 14-15. Defendant has provided such documentation in an attachment to his reply. See Def.'s Reply, Ex. 4. As plaintiffs raise no further objections to the expenses claimed, the Court will grant the requested amount in full. See Pls.' Surreply.
G. Parsi Deposition
Defendant requests $12,808.78 in fees and expenses associated with the last half day of Trita Parsi's deposition. See Def.'s Bill of Costs, Ex. G. Plaintiffs' only objection to the amount requested relates to the 51.5 hours claimed for Tisak's work. As discussed in Part A above, the Court will reduce Tisak's hours by 50%.
Even after this reduction, however, the Court is troubled by the number of hours claimed
for this item: 34.5 hours for time spent by three different attorneys and 73.05 hours for time spent
by three different legal assistants. See Cobell v. Norton,
H. Blout Deposition
Defendant requests $3,755.35 in fees and expenses associated with the second day of Emily Blout's deposition. See Def.'s Bill of Costs, Ex. H. Plaintiffs' only objection to the amount requested relates to the 24.2 hours claimed for Tisak's work. As discussed in Part A above, the Court will reduce these hours by 50% and hence award $3,180.60 on this item.
I. Rule 54(d) Costs
In addition to the expenses set forth in the Court's September 13, 2012 Memorandum Opinion and Order, defendant seeks costs under Federal Rule of Civil Procedure 54(d). See Def.'s Bill of Costs 3. That Rule provides that, "[u]nless a federal statute, these rules, or a court order provides otherwise, costs – other than attorney's fees – should be allowed to the prevailing *18 party." Fed. R. Civ. P. 54(d). Plaintiffs contend that the September 13 opinion and order "provide[] otherwise," because the Court declined to "'impose as sanctions all fees and expenses associated with the defense of this case'" and said that "the numerous issue-specific sanctions awards that the Court has made are all that is appropriate here." See Pls.' Objections 13-14 (quoting 9/13/12 Mem. Op. 23-24).
The Court's September 13, 2012 decision does not in any way preclude defendant from recovering costs as the prevailing party under Rule 54(d). The Court determined that the issue- specific sanctions awarded were all that were appropriate as sanctions. The Court said nothing about costs under Rule 54, which entitles a prevailing party not to "all fees and expenses," but only to the costs listed in 28 U.S.C. § 1920 and in Local Civil Rule 54.1(d). Defendant is the prevailing party in this action, see Mem. Op. (Sept. 13, 2012) [ECF 189] (granting defendant's motion for summary judgment), and therefore is entitled to costs under Rule 54(d).
Aside from arguing that defendant is not entitled to any costs under Rule 54(d) because of
the Court's sanctions order, plaintiffs do not raise any specific objections to the costs defendant
seeks to recover under the Rule. Defendant requests $29,336.55 in fees for transcripts, witnesses,
and translations. While transcript and witness fees are properly taxable, see 28 U.S.C. § 1920(2)-
(3), fees for document translation are not, see id. § 1920(6); Taniguchi v. Kan Pacific Saipan,
Ltd.,
J. Summary
*19
Tallying the fees and expenses for the items above, the Court will award $183,480.09 to
defendant. Defendant also requests prejudgment and postjudgment interest. In support of his
request for prejudgment interest, defendant merely cites D.C. Code § 28-3302, which sets the rate
of interest on District of Columbia judgments but does not give any indication as to why
defendant should be granted prejudgment interest. Absent further justification for increasing the
already-sizeable fee award here, the Court declines to award prejudgment interest. See Oldham
v. Korean Air Lines Co.,
Accordingly, for the foregoing reasons, it is hereby
ORDERED that [200] plaintiffs' motion for leave to file a surreply is GRANTED ; it is further
ORDERED that [202] plaintiffs' motion to strike defendant's verification of his final bill of recoverable costs is DENIED ; and it is further
ORDERED that plaintiffs shall pay defendant $183,480.09 plus interest from September 13, 2012.
SO ORDERED .
/s/ John D. Bates JOHN D. BATES United States District Judge Dated: April 8, 2013
Notes
[1] Also before the Court are [200] plaintiffs' motion for leave to file a surreply and [202] plaintiffs' motion to strike [201] defendant's verification of his final bill of recoverable costs. Plaintiffs' motion for leave to file a surreply will be granted, as defendant attached new materials to his reply, see Def.'s Reply, Exs. 1-4, and arguably raised new fact issues related to the forensic imagings, see Def.'s Reply 2-4. Plaintiffs' motion to strike will be denied as meritless; defendant's verification meets the requirements of 28 U.S.C. § 1924.
[2] The Court has subtracted the amount erroneously claimed for work on defendant's summary judgment motion. See Def.'s Reply 8 n.5.
[3] This is especially evident when Kapshandy's entries are viewed alongside the more detailed entries of associate Thomas Ross, whose 31 hours comprised the majority of attorney hours other than Kapshandy's. See, e.g., Def.'s Bill of Costs, Ex. A (9/12/11 Ross entry stating "Review case law for sanctions motion (0.3); email conversation with T. Kapshandy re: same (0.1); telephone conversation with M. Dudley re: filing sanctions motion (0.1); review and revise latest draft of sanctions motion (0.7)").
[4] This latter amount represents four hours (the Court's guess, and it can only be a guess, as to how much time was spent troubleshooting and actually correcting the improper reassembly) at $330 per hour, the amount billed by PwC staff member Bradley Wilson. See Elliott Decl. ¶¶ 2, 4-9 (stating that "a gentleman from PwC by the name of Brad" came to fix the device and describing the actual correction process as something done in a short amount of time); Def.'s Bill of Costs, Ex. B (showing billing rate for Bradley Wilson).
[5] Plaintiffs' arguments about PwC's broad access to the drives during the third round of imaging do not alter this conclusion. See Pls.' Surreply 2-3.
[6] The Court will not resolve the parties' internal dispute about their agreement (or lack thereof) concerning the hard drives. See Def.'s Reply 3 (explaining that defendant agreed to let
[8] The Court first subtracted the 2.2 hours for unrelated work and then applied the 10% reduction.