Nowadays, the fight over attorneys' fees and costs due a prevailing party at the end of litigation can be just as contentious--and consequential to the parties--as any single piece of the litigation itself. Parties gather evidence and present expert testimony, with the nonprevailing party contending throughout that the case was simple, should not have taken as much time or effort as it did, or that the prevailing party's counsel was otherwise unreasonable in its prosecution (or defense) of the action. Sometimes, the party opposing the fee and cost award references its own amount of time expended as a benchmark against which the reasonable amount of fees and costs awardable should be judged. Alternatively, the party seeking the fee and cost award might seek the opposing side's fee information for the purpose of establishing the reasonableness of its own time. In either event, though, how truly relevant is an opponent's billable time?
A recent Florida Supreme Court decision indicates that an opposing party's attorneys' fee and cost records are relevant, at least for discovery purposes. Yet the court's conclusion seems to conflict with the general principle held in many other cases that what an opponent spends in litigation is only marginally relevant to an ultimate determination of the reasonableness of a prevailing party's fees. The purpose of this article is to outline the relevant cases and propose a rule that takes into account both the Florida Supreme Court's recent decision and decades of seemingly contrary caselaw.
Paton v. Geico General Insurance Company
In March 2016, the Florida Supreme Court issued its opinion in Paton v. Geico General Insurance Co., 190 So. 3d 1047 (Fla. 2016). Paton arose from a lawsuit against an insurer after the insurer failed to pay the total amount claimed by the plaintiff under an underinsured motorist policy. (1) Following the plaintiff's success at trial against the insurer, she then added a bad-faith claim against the insurer pursuant to F.S. [section] 624.155. (2) After also prevailing on that claim, the plaintiff sought to recover her attorneys' fees and costs from the insurer. (3) As part of that effort, she sought discovery of her opponent's counsel's time records, including all time-keeping slips and records, bills, invoices, and other correspondence related to the payment of attorneys' fees, and all relevant retainer agreements. (4)
When the insurer objected to the discovery on the grounds that the information sought was privileged and irrelevant, the trial court ordered the production of the requested information, but permitted redaction of privileged information. (5) The insurer then filed a petition for certiorari to the Fourth District Court of Appeal, arguing that the materials sought by the plaintiff were privileged and irrelevant, and that the plaintiff had not made a special showing that would permit discovery of her opponent's billing records. (6) The insurer relied on HCA Health Services of Florida, Inc. v. Hillman, 870 So. 2d 104 (Fla. 2d DCA 2003), and Estilien v. Dyda, 93 So. 3d 1186 (Fla. 4th DCA 2012), in support of its latter argument. (7) The Fourth District granted the petition and quashed the trial court's order, relying on Estilien in noting that the plaintiff had failed to establish that the "billing records of opposing counsel [were] actually relevant and necessary, and their substantial equivalent could not be obtained elsewhere." (8)
The plaintiff then sought further review by the Florida Supreme Court. (9) After analyzing Hillman, Estilien, and Anderson Columbia v. Brown, 902 So. 2d 838 (Fla. 1st DCA 2005), the Florida Supreme Court concluded as follows:
We agree with the rationale of the First District in Anderson Columbia and conclude that the billing records of opposing counsel are relevant to the issue of reasonableness of time expended in a claim for attorney's fees, and their discovery falls within the discretion of the trial court when the fees are contested. When a party files for attorney's fees against an insurance company pursuant to sections 624.155 and 627.428, Florida Statutes, as occurred here, the billing records of the defendant insurance company are relevant. The hours expended by the attorneys for the insurance company will demonstrate the complexity of the case along with the time expended, and may belie a claim that the number of hours spent by the plaintiff was unreasonable, or that the plaintiff is not entitled to a full lodestar computation, including a multiplying factor.
Moreover, the entirety of the billing records are not privileged, and where the trial court specifically states that any privileged information may be redacted, the plaintiff should not be required to make an additional special showing to obtain the remaining relevant, non-privileged information. Additionally, even if the amount of time spent defending a claim was privileged, this information would be available only from the defendant insurance company, and the plaintiff has necessarily satisfied the second prong of the test delineated by Florida Rule of Civil Procedure 1.280(b)(4) for the discovery of privileged information --i.e., the information or its substantial equivalent cannot be obtained by other means without undue hardship. Thus, we conclude that by granting the petition for certiorari, the Fourth District improperly infringed on the sound discretion of the trial court and required Paton to meet an unnecessarily high standard. (10)
After further addressing the Fourth District's improper grant of certiorari to review such a discovery issue, the Florida Supreme Court held that "the hours expended by counsel for the defendant insurance company in a contested claim for attorney's fees filed pursuant to sections 624.155 and 627.428, Florida Statutes, is [sic] relevant to the issues of the reasonableness of time expended by counsel for the plaintiff, and discovery of such information, where disputed, falls within the sound decision of the trial court." (11)
In the years leading up to Paton, courts largely treated the issues of discovery and admissibility of an opponent's billing records with intellectual curiosity citing, in part, the unsettled state of Florida law. For instance, in 1999, the Fifth District Court of Appeal discussed the disparate views that courts across the nation had taken on the issue to that point, noting that some courts deem an opponent's billing records as irrelevant because of the influence of so many factors on a particular lawyer's bills; others routinely admit such evidence on the ground that the unique characteristics of a lawyer's billing approach go to weight but not admissibility; and still other appellate courts leave the discovery and admissibility questions in the discretionary hands of trial judges, refusing to find abuse of discretion regardless of outcome. (12) Lacking clarity in Florida on the issue, the Fifth District chose the latter and enunciated a case-by-case approach based upon each case's unique facts, with discretion vested in the trial courts. (13) On the surface, the Florida Supreme Court's holding purports to clarify the state of the law in the arena of discovery...