2017 - 05 - 11 DKT 26 DART Resp To Adelman MAtty Fees

Case 3:16-cv-02579-B Document 26 Filed 05/11/17 Page 1 of 8 PageID 278
IN THE UNITED STATE DISTRICT COURT

NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
AVI S. ADELMAN
Plaintiff,

v. Civil Action No. 3:16-cv-2579

DALLAS AREA RAPID TRANSIT,
and STEPHANIE BRANCH, individually
and in her official capacity as a Dallas
Area Rapid Transit Police Officer
Defendants.
DARTS OBJECTIONS AND RESPONSE TO PLAINTIFFS MOTION

FOR ATTORNEYS FEES PURSUANT TO RULE 37
TO THE HONORABLE U.S. MAGISTRATE JUDGE:
COMES NOW Defendant Dallas Area Rapid Transit (DART) and files its
Objections and Response to Plaintiffs Motion for Attorneys Fees Pursuant to Rule
37 and submit the following:
I. Objections to Plaintiffs Motion for Attorney Fees
DART objects to Plaintiffs motion for attorney fees because the motion and/or
affidavit is not limited to fees that Plaintiff incurred in making and briefing
Plaintiffs motion to compel. Plaintiffs itemized table from May 1-8, 2017 includes
approximately 4.6 hours of time billed that is attributable to drafting or revising the
Plaintiffs partial resolution of motion to compel; drafting motion for attorneys fees
and preparing attorney fees affidavit. (ECF No. 25, App. p. 4). When considering
a motion for attorney fees, a court reviews the total hours attributed or incurred for
briefing, editing and filing the motion to compel. Richmond v. SW Closeouts, Inc.,
2016 WL 4368305 *1, *4 (N.D. Tex. Aug. 16, 2016)
DARTs Objections & Response to Plaintiffs Motion for Attorney Fees Page 1 of 7
DART objects to Plaintiffs motion for attorney fees because the application or
affidavit does not include detailed billing records or invoices for entries of April 4-
7, 2017. (Doc. 25, App. 4). These hourly entries of approximately 12.3 hours are
described as draft, work on, revise, finalize or file the MTC and do not present
adequate recorded time records as evidence and appear to be excessive, duplicative,
unnecessary, or inadequately documented to establish a reasonable time expended.
Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993)(party seeking reimbursement of
attorneys fee bears burden of establishing the number of hours expended through
the presentation of adequately recorded time records and a court may exclude any
time that is excessive, duplicative, unnecessary, or inadequately documented). See
also, Tollett v. City Kemah, 285 F.3d, 357, 367 (5th Cir. 2002) (Court may award
attorney fees based on billing records and affidavit in the record)
II. Summary
1. Counsel for DART, Plaintiffs counsel and Branchs counsel-Jane Bishkin
have conferred in a professional and courteous manner throughout this
litigation.
2. As noted in Plaintiffs motion there has been phone contact and email
correspondence demonstrating efforts to resolve the discovery issues.
(See also DART Exh. 1, p. 13-24 ).
3. DART has produced over 1,700 pages of documents responsive to
Plaintiffs discovery requests, discovery is ongoing and the discovery
deadline is August 7, 2017.
4. On February 16, 2017 DART submitted discovery responses to Plaintiff
and disclosed and identified documents it was withholding through a
privilege log pertaining to Plaintiffs RFP No. 9-Officer Branchs
complete personnel file and RFP No. 10-all documents relating to any
complaints against Officer Branch and any investigations of Officer
Branch. (DART Exh. 1, p. 1-4)
5. In its privilege log dated February 16, 2017, counsel for DART at the time
believed documents pertaining to unfounded police department internal
affairs complaints were confidential pursuant to Abbott v. City of Corpus
Christi, 109 S.W.3d 113, 122 (Tex. App.- Austin 2003); City of San
Antonio v. Tx. Attorney Gen. 851 S.W.2d 946, 949 (Tex. App. -Austin
1993)(information maintained in a police departments internal file
pursuant to Govt. Code 143.089(g) is confidential) (DART Exh. 1, p.
1, FN 1).
6. Counsel for DART was out of the office for approximately one week
during DISD spring break starting on March 13, 2017.
7. DART and Plaintiffs counsel conferred by email or phone about
documents pertaining to RFP No. 9 & 10 and DART agreed to further
describe the documents being withheld. On March 27, 2017 DART
submitted its First Amended Privilege Log. (DART Exh. 1, p. 5-9). On
March 27, 2017, counsel for DART apologized to Plaintiffs counsel for
the delay that was due to an upcoming DART jury trial. (DART Exh. 1, p.
18).
8. On or about March 27, 2017, after conferring with Plaintiffs counsel on
documents pertaining to RFP 10, DART agreed to research whether its
basis for withholding these documents was applicable to federal claims.
9. On March 30, 2017, counsel for DART was lead attorney in a jury trial
styled Teresa Craig v. DART, DC15-07406, in the 44th Judicial District
Court, Dallas County.
10. On April 10, 2017, counsel for DART was lead attorney in a one-week
jury trial styled ATU v. DART, DC13-05156, in the 95th Judicial District
Court, Dallas County. Plaintiffs Counsel was informed of this jury trial.
(DART Exh. 1, p. 22).
11. On or about April 17, 2017, counsel for DART completed research on
whether its state law basis applied in federal court for withholding police
internal affairs investigation documents pursuant to Abbot and City of San
Antonio. DART read Betzer v. Stephens, 2003 WL 22175993 *1, (E.D.
La) and learned that no blanket privilege exists under the federal
common law for either personnel files or IAD [Internal Affairs
Department] records. Id. at *5.
12. On April 26, 2017 DART supplemented its Discovery responses to
Plaintiffs Request for Production; Request for Admissions; and Request
for Interrogatories.
13. On April 27, 2017, pursuant to an agreement, DART produced documents
pertaining to complaints related to Branch under Plaintiffs RFP No. 10.
When the documents were hand-delivered to Plaintiffs counsel, he made
changes to the agreement. (DART Exh. 1, p. 25). DARTs counsel called
Plaintiffs counsel and informed him that Branchs attorney-Bishkin
should be notified about these changes. Bishkin was out of town until May
1 and when she returned, she agreed to the changes and the modified
agreement and the documents were hand delivered to Plaintiffs counsel
on May 2, 2017. (DART Exh. 1, p. 26).
14. On May 3, 2017, the deposition of Officer S. Branch was taken and
Plaintiffs counsel had the documents related to RFP No. 10 and had the
opportunity to question Officer Branch about prior internal affair

complaints and investigations.
15. On May 9, 2017, counsel for DART called Plaintiffs counsel and
requested a face-to-face meeting to discuss the remaining issues in the
request for production, requests for admission, and interrogatories set out
on page two of Plaintiffs Notice of Partial Resolution (ECF No. 20). A
face-to-face meeting is scheduled for May 11, 2017 at 2:00 pm at DART.
I. Argument and Authorities
Pursuant to Local Rule 7.1(a) and Dondi Properties Corp. v. Commerce Sav.
& Loan Assn. 121 F.R.D. 284, 289-90, good faith efforts by the parties to resolve
their discovery disputes results in greater control over the outcome, allows for
compromise or appreciably narrowed issues and such efforts result in cost
savings for the litigants.
Sanctions under Rule 37 may be available where there is willful disobedience
or gross indifference by a disobedient party. Dorsey v. Acad. Moving & Storage,
Inc., 423 F.2d 858, 860 (5th Cir. 1970).
Rule 37(a)(5)(A) states: if the motion is granted or if the disclosure or
requested discovery is provided after the motion was filed-the court must, after
giving an opportunity to be heard, require the party or deponent whose conduct
necessitated the motionto pay the movants reasonable expenses incurred in
making the motion, including attorneys fees. But the court must not order this
payment if: (i) the movant filed the motion before attempting in good faith to
obtain the disclosure or discovery without court action; (ii) the opposing partys
nondisclosure, response, or objection was substantially justified; or (iii) other
circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A).
Here, Plaintiffs Notice of Partial Resolution of Plaintiffs Motion to Compel

(ECF No. 20) states:
On April 26, 2017, DART served supplemental responses to Adelmans
discovery requests and also produced additional documents. DARTs
supplement includes new documents responsive to RFP Nos. 11-14, one
of the subjects of Adelmans Motion to Compel. DART also withdrew its
relevance objection to RFP 10, now disputing only whether it can mark
responsive documents Attorneys Eyes Only. Additionally, DARTs
supplemental interrogatory answers addressed the issue raised in
Adelmans Motion to Compel with regard to Interrogatory No. 4. Finally,
DARTs supplemental responses to Adelmans requests for admission
addressed the issues raised in Adelmans Motion to Compel with regard to
RFA No. 18.
DART identified or disclosed the documents it was withholding under RFP 9

and 10 on February 16, 2017 in its privilege log. (DART Exh. 1, p. 1-4). After
conferring with Plaintiffs counsel, DART described the documents more
specifically on March 27, 2017 in its First Amended Privilege Log. (DART Exh.
1, p. 5-9). The identification and disclosure of documents under RFP 9 and 10
was done by DART before the Plaintiffs Motion to Compel was filed on April
7, 2017. (ECF No. 16). In addition, as noted above by Plaintiff, DART
supplemented or withdrew objections made for interrogatory No. 4 and RFA No.
18.
Counsel for DART believed that by discussing these discovery matters by
phone and email and by agreeing to review the discovery disputes, supplementing
responsive documents and changing responses to Admissions as admitted above
by Plaintiff, it was working in good faith consistent with Dondi to resolve the
discovery dispute prior to any court resolution.
DARTs belief that the cases of Abbott and City of San Antonio pertaining to
police department internal files applied to this case was incorrect but reasonable
until research proved otherwise and DART produced the documents on April 27
and May 2 prior to the Courts order dated May 4, 2017.
Counsel for DART regrets not filing a Response to Plaintiffs Motion to
Compel and any delays in getting discovery matters resolved was related to jury
trial preparation and two jury trails during this time-period and not a clear record
of abusive delay, willful disobedience, bad faith, gross indifference or
contumacious conduct by DART. Counsel for DART believed that after
supplementing discovery on April 26, 2017, any of the remaining discovery
issues would be further identified, narrowed and resolved.
DART and Plaintiff have a face-to-face meeting on May 11, 2017 at 2:00 pm
to discuss any unresolved discovery matters.
DART respectfully request this Court to consider all the circumstances
presented here in determining whether the actions taken by DART were
substantially justified and whether an award of attorney fees would be unjust.
Thank you.
By: s/ Higinio Gamez

Higinio Gene Gamez
Senior Assistant General Counsel
SBN: 90001969
LEGAL DEPARTMENT
DALLAS AREA RAPID TRANSIT
P. O. Box 660163
Dallas, Texas 75266-7255
(214) 749-3196 Fax (214) 749-0281
ggamez@dart.org
Attorney for Defendant DART
CERTIFICATE OF SERVICE
This is to certify that on May 11, 2017, a copy of this document was served via the Courts
ECF filing system or by facsimile upon Plaintiffs Counsel: Tyler J. Bexley, Reese, Gordon,
Marketos, LLP, 750 N. Saint Paul Street, Suite 610, Dallas, Texas 75201-3202. Fax: 214-501-
0731, tyler.bexley@rgmfirm.com and Jane Bishkin, Law Offices of Jane Bishkin, 10000 N.
Central Expressway, Ste. 400, Dallas, Tx. 75231, jbish@swbell.net.
/s/ Higinio Gamez_______

Higinio Gene Gamez
Attorney for Defendant DART

Case 3:16-cv-02579-B Document 26-1 Filed 05/11/17 Page 1 of 26 PageID 286
DART'S EXHIBIT 1 Page 1














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Case 3:16-cv-02579-B Document 26 Filed 05/11/17 Page 1 of 8 PageID 278

IN THE UNITED STATE DISTRICT COURT

DARTS OBJECTIONS AND RESPONSE TO PLAINTIFFS MOTION

TO THE HONORABLE U.S. MAGISTRATE JUDGE:

opportunity to question Officer Branch about prior internal affair

Here, Plaintiffs Notice of Partial Resolution of Plaintiffs Motion to Compel

DART identified or disclosed the documents it was withholding under RFP 9

By: s/ Higinio Gamez

/s/ Higinio Gamez_______

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