Debate with Greer Lawsuit thread regulars about the proper FAQ to be posted in the OP

[Dizzyuntildeath]

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Why, God?

Sunrise, sunset.

 

[TooManyKittens]

My dude, if you are going to attempt a FAQ on pretty much ANY topic, you have to be prepared to take corrections and criticism sometimes harshly delivered. You cannot be precious about your feefees in something like this. Especially in a place like Kiwi Farms.

Thanks for the attempt though, you have a solid foundation of a FAQ for the thread.

Fair. Not going to say anything else on this.

That said other than the back and forth about sanctions reduction, I don't see any other actionable suggestions unless people agree that some of the questions should be removed.

As far as the sanctions question goes, at this point there's lapsus suggestion before usefuls correction to it but then an entirely different take from friend of Dorothy parker. Or what reads as an entirely different and longer take. And that does not read to me as the same as what Shiny Star has said.

So I have 3 takes one with corrections (we shall disregard my prior wrong one), all about the same legal occurrence. I suppose I'm going to break this down incredibly autistic engineer like before I try to put it back into English.

Sequence of events (?) in discrete steps that are quite possibly also wrong

1. Magistrate issues sanctions on Greer for fucking around in discovery, for reasonable costs incurred by defense caused by said fuckery.

2. Hardin submits reasonable costs around 5000, in the opinion of the thread this is on the low end of what costs could have been.

3. Magistrate ??? Does he say anything here? (Anyone recall the docket #) Ie yes proceed?

4. Russell objects to this sanction to the District Judge

5. District Judge takes the objection. Reduces the sanction to 1000, because Russell is pro se and this is his first sanction. Here's the part that nobody seems to say the same thing on:

- ignoring Hardin's fee list which is against local court rules (but not case law?)
- or ignores Hardin's fee list completely within court rules and does not permit a response to the objection and *that* lack of allowing a response is against court rules.

My understanding from the original thread was "reasonable" fees are supposed to be accepted for discovery sanctions and the lack of analysis of Hardin's fee list is a problem. But per friend of Dorothy parker it isn't, that part is well within normal discretion of the court. So I don't even know how to sum that one up

 

[Friend of Dorothy Parker]

How about just say the district court did what it did, and leave the editorial out of it? Or maybe a comment that many disagree with or are disappointed by the dist ct’s approach, but that the district court gave its reasons as IFP and first sanction?

 

[Useful_Mistake]

around 5000,

$ 5,369.93 (or with the offset $5,144.68). It was later amended up by $300 when Mr. Hardin noticed a billing mistake

3. Magistrate ??? Does he say anything here? (Anyone recall the docket #) Ie yes proceed?

To that specific issue - no, but he did order Greer to "submit briefing on the issue of Rule 37(a)(5)(A) fees" for a different issue

- ignoring Hardin's fee list which is against local court rules (but not case law?)
- or ignores Hardin's fee list completely within court rules and does not permit a response to the objection and *that* lack of allowing a response is against court rules.

The court must order "the movant's reasonable expenses incurred in making the motion, including attorney's fees" to be paid, which necessitates considering such expenses, though a hearing on the issue is not needed. See, broadly Rule 37(a)(5)(A) and Webb v. Cnty. of Stanislaus, 2:21-mc-00696-JNP-JCB (D. Utah Apr. 29, 2022)

The violation of the local rules was not giving the opportunity for Mr. Hardin to respond when the District Judge was planning on affirming Russ' objections. See DuCivR 72-2 (b) (2) ("The district judge may overrule the objection by written order at any time but may not sustain it without giving the opposing party an opportunity to file a response."

The calculation for what is reasonable and not is largely mentioned here:

Exactly. As the 10th Circuit put it, "In other words, an “attorney fee” arises when a party uses an attorney, regardless of whether the attorney charges the party a fee; and the amount of the fee is the reasonable value of the attorney's services. The payment arrangement for an attorney can vary widely—hourly rate, flat rate, salary, contingency fee, pro bono. What the client pays or owes the attorney may not accurately reflect the reasonable value of the services" Centennial Archaeology, Inc. v. Aecom, Inc., 688 F.3d 673, 83 Fed. R. Serv. 3d 48 (10th Cir. 2012)

Indeed. The judge has discretion to play around with the numbers a bit; he can increase or decrease the number from what Mr. Hardin asked. See, broadly, ARUP Labs. v. Pac. Med. Lab., 2:20-cv-00186 (D. Utah Aug. 25, 2023) (also Stella v. Davis Cnty., 1:18-cv-00002-JNP (D. Utah Aug. 18, 2023))

Now, good friends, what is it that the 10th Circuit has instructed the lower courts to be a reason enough to increase the attorney fees? Well, one of the accepted reasons is whether or not the plaintiff "was confronted with a real risk of not prevailing." To be clear, this is not a hindsight review, but one based from the facts and law as it were when the suit was filed. Whether any facts at the core of the case were disputed (oh, say for example, whether the book ever was on KF) is also a factor in considering. Though, this is something Mr. Hardin would have to make an issue of. See, broadly, Homeward Bound v. Hissom Memorial Center, 963 F.2d 1352 (10th Cir. 1992)

Generally, Lodestar method is used (i.e multiplication of a reasonable hourly rate by a reasonable number of hours expended.) On a first-foot basis, "reasonable hourly rate" would be whatever Mr. Hardin usually charges, provided it is not in conflict with with rates provided by lawyers of reasonably comparable skill, experience, and reputation for similar services. See, for example, Hollaar v. Marketpro S., 2:22-cv-559-TS (D. Utah Aug. 28, 2024). Reasonable number of hours is a lot less easily defined, but if it's not something obviously absurd (for example in Vic Mignogna case the lawyer for Funimation charged the company many hours to find out if calling someone a pedophile and a rapist is defamatory per se when any and all caselaw on the issue clearly stated that it was. Those number of hours were found unreasonable, if memory serves) it will probably stick (though I make no guarantees)

Spoiler: Interesting caselaw tidbit

OF NOTE, if Greer had done and won what Mr. Hardin did and win, he would not be entitled to that repayment of attorney's fees. See, for example, Grays v. Auto Mart U.S., LLC, No. 21-1312 (10th Cir. Jul. 15, 2022) ("But as the district court correctly explained, Rule 37 does not empower the district court to award attorney fees to a pro se litigant. And assuming constitutional equal protection guarantees apply here, there was no violation because hired counsel and a pro se litigant are not similarly situated. See Pickholtz, 284 F.3d at 1375 (explaining that Rule 37(a)(5)(A) requires that expenses were "incurred," and a pro se litigant, even if an attorney, does not incur attorney's fees)"), or OMNIQ Corp. v. REDLPR LLC, 2:19-cv-437-CW-DBP (D. Utah Feb. 18, 2025) ("The court is aware that more recently Amit has appeared pro se in this action. As such, he would not be entitled to recover attorney fees, and the court would not award him any attorney fees for work done during those pro se periods."). That said, he might or might not be entitled to repayment of "reasonable expenses". See Grays v. Auto Mart U.S., LLC, Civil Action No. 18-cv-01761-MSK-NYW (D. Colo. Oct. 28, 2019) (148 and 167 finding that " there here is some authority for the proposition that although pro se litigants cannot recover attorney fees under Rule 37(a)(5), they can recover “documented and reasonable litigation costs” under that Rule" and finding that despite the previous order, there were no "reasonable costs attributable to making the (successful portion of) her November 2019 Motion to Compel.")

 

[TooManyKittens]

Alright then, let me try to sum that up. As my goal here isn't actually commentary or opinion on this one but the clarity is useful to understand where the lines are in this one.

Q: What happened with discovery sanctions?

A: The Magistrate Judge granted a first sanction against Russell for discovery misconduct. There are pending motions by Hardin for further sanctions that are not addressed yet. For the first sanction Hardin submitted a fee breakdown amounting to $ 5,369.93 and approximately one month later amended to $5639.93

Russell objected to the District Judge and asked to be only sanctioned $500. The District Judge reduced the sanctions to $1000 citing first sanction and pro se/IFP status. Two unusual things happened here.

The District Judge did not follow local court rules and permit Hardin to respond to the objection before affirming it.

The District Judge also did not use the standard "Lodestar" calculation, and acknowledged this did not cover the defense costs. The lack of consideration for defense expenses violates case law although adjusting the fee is otherwise in the courts discretion for reasonability.

All amounts above do not subtract the fee owed Russell for costs incurred during the 10th appeal process, which are deducted from the end amount by mutual agreement.

 

[Useful_Mistake]

and later amended to $5639.93

Notably about a month after the District Court's order.

The District Judge did not follow case law and permit Hardin to respond to the objection before affirming it.

The district court did not follow:
1. The local rules violation was not giving the opportunity for Mr. Hardin to respond when the District Judge was planning on affirming Russ' objections. I incorrectly previously used the term "caselaw". My bad.
2. The actual caselaw violation was in not considering Null's expenses.

but within the courts discretion to do.

Incorrect.

 

[TooManyKittens]

Notably about a month after the District Court's order.

The district court did not follow:
1. The local rules violation was not giving the opportunity for Mr. Hardin to respond when the District Judge was planning on affirming Russ' objections. I incorrectly previously used the term "caselaw". My bad.
2. The actual caselaw violation was in not considering Null's expenses.


Incorrect.

Edited the prior post to try again. I'm going to defer to you over Friend of Dorothy Parker for what is and is not against caselaw.

 

[obsdj]

I still think it needs to be made clear that the sanction being discussed is just for one specific piece of discovery fuckery. A number of casual viewers of the legal thread have been of the impression that the sanction was for, like, ALL the fuckery. Hardin has since requested additional sanctions for additional fuckery that has yet to be dealt with by the court.

 

[Useful_Mistake]

I still think it needs to be made clear that the sanction being discussed is just for one specific piece of discovery fuckery. A number of casual viewers of the legal thread have been of the impression that the sanction was for, like, ALL the fuckery. Hardin has since requested additional sanctions for additional fuckery that has yet to be dealt with by the court.

Oh, yeah, good point

 

[TooManyKittens]

Edited that last Q/A set again to mention that and copied it in to the first post of this thread