Correspondence between Menefee to Chasez (Magistrate); James v. Home Construction Company of Mobile Order; Major v. Treen Notice of Deposition

    BLACKSHER, MENEFEE & STEIN, P.A. 

ATTORNEYS AT LAW 

405 VAN ANTWERP BUILDING 

P. 0. BOX 1051 

MOBILE, ALABAMA 36633 

JAMES U. BLACKEHER November 19, 1984 TELEPHONE 
LARRY T. MENEFEE (205) 433-2000 

GREGORY B. STEIN 

Hon. Alma Chasez 
United States Magistrate 
United States Courthouse 
for the Eastern District of Louisiana 
Chambers C-151 
500 Camp Street 
New Orleans, Louisiana 70130 

Re: Barbara Major et al. v. David C. Treen, et al. 
C.A.N0g.82-1192 Section C 
  

Dear Magistrate Chasez: 

I am representing plaintiffs on their claim for an award of 
attorneys' fees and expenses in this matter. I ask that you 
accept this letter brief in opposition to the motion to quash 
filed by the defendants. I understand the motion to quash is 
scheduled for a hearing by telephone conference with Your Honor 
on Wednesday, November 21, 1984, at 1:30 p.m. 

Background of the Litigation   

This litigation involves the congressional reapportionment of the 
State of Louisiana. After a successful hearing before a 3-judge 
panel, plaintiffs filed a motion for an award of attorneys' fees 
and expenses on or about August 24, 1984. Plaintiffs request an 
award of fees and expenses of $744,872.06. 

Plaintiffs' notice of deposition is directed to the defendants 
(the governor and other governmental officials) 

or their agents, servants or employees who are most 
knowledgeable with regard to:  



Hon.Alma Chasez 
November 19, 1984 

2. The objections and contentions of the defendants 
relating to plaintiffs' motion for an award of 

attorneys' fees and expenses previously filed in this 
action, particularly relating to those factors 
enumerated in Johnson v. Georgia Highway Express, 488 
F.2d 714 {5th (37.1374), 
  

First, it may be helpful to understand what is not in dispute. 
It is not in dispute that discovery may be conducted. The 
defendants have indicated the desire to take five depositions of 
plaintiffs’ counsel and those are presently being scheduled in 
Washington D.C., Lafayette, Louisiana, and New Orleans. The 
defendants have agreed to respond to paragraph 1 of the Notice of 
Deposition. Duces tecum requests have been prepared by both 
parties and documents will presumably be exchanged in the near 
future. Furthermore, the defendants cannot claim that this 
deposition is burdensome, vexacious or overreaching. This is the 
only deposition which plaintiffs contemplate taking of the 
defendants and undersigned counsel's best estimate is that it 
would only last from 30 minutes to as much as one hour and 
one-half. 

  

The only grounds to be asserted to this Court quashing the 
subpoena would be an assertion of a work product privilege. And 
that simply is not applicable in any way to this deposition. 
Nothing in the notice of deposition is objectionable. If 
objectionable questions occur, they can be handled as in any 
other deposition. The discovery of opinions and contentions of 
an opposing party are expressly provided for. Fed.R.Civ.P. 
26(b)(4) and Rule 33(b). As the committee comments to Rule 33(b), 
Federal Rules of Civil Procedure, the 1970 amendments note: 

As to requests for opinions or contentions that call 
for the application of law to fact, they can be most 
useful in narrowing and sharpening the issues, which is 
a major purpose of discovery. 

Discovery of the objections and contentions of the opposing party 
are especially appropriate concerning a claim for attorneys' fees 
in this case for the following reasons: 

1. Johnson v. Georgia Highway Express, supra, provides an 
easily defined checklist of approximately twelve factors which 
the court must address determining a reasonable fee. The scope 

   



Hon. Alma Chasez | Page Three 
November 19, 1984 

of the inquiry in this deposition is thus narrow and easily 
defined. The factors are well known to lawyers, having been a 
part of the Code of Professional Responsibility for decades. 
Johnson v. Georgia Highway Express, supra, 1488 F.2d at 719. See 
also ABA Code of Professional Responsibility, Ethical — 
Consideration 2-18, Disciplinary Rule 2-106. 

1 
2. Recent Supreme Court decisions caution against lengthy 

protracted litigation on the fee issue. The discovery device 
that plaintiffs' seek to utilize "can be most useful in narrowing 
and sharpening the issues," supra. See the discussion by 
Professor Moore at paragraph 26.53[3]. Consistent with the 
judicial goal of minimizing the extent of litigation on fee 
issues, it is wasteful of litigant and court time for plaintiffs 
to prepare full proof on all twelve Johnson factors if the 
defendants do not object to their applicability. For example, 
knowing whether the defendants disagree with plaintiffs' claim 
that the issues in this case were both novel and difficult 
(Johnson factor no.2) or whether the defendants contend that 
pTaintiffs' attorneys did not have the experience, reputation and 
ability appropriate to conduct this litigation (Johnson factor 
no.9) may significantly affect the amount of preparation and time 
in court necessary to present plaintiffs' case. Unless this 
limited discovery is permitted, significant additional litigant 
and judicial time will be required to resolve these issues. 

  

3. The defendants have indicated they would probably 
designate Ms.Bowers as their agent to respond to such inquiries. 
There is no reason to expect that an experienced and competent 
attorney like Ms.Bowers would divulge work product information. 
Defendants will be able to produce a well trained, well educated 
witness to respond to a very well defined area of inquiry. The 
deposition will help avoid time consuming exchanges of 
interrogatories and answers thereto with arcanely worded 
answers. This type of discovery device is most appropriate for 
this type of litigation than perhaps any other. 

  

4. Finally, the timing of the discovery is appropriate. 
Plaintiffs' motion for an award of fees and expenses was filed on 

August 24, 1984. If this matter is not to mushroom into 

1. Hensley v. Eckerhart, 3.5. 76 | .Ed.2d 40 (1983): Blum 

v. Stenson, 52 U.S.L.W.4377 (1984); see also Johnson v. Georgia 
Highway Express, 488 F.2d 714, 720 (5th Cir.T1974%). 

  

  
  

   



Hon.Alma Chasez | Page Four 
November 19, 1984 

complicated and protracted litigation, it is certainly reasonable 
to expect that after 90 days to contemplate plaintiffs' request 
the defendants can reasonably articulate their objections and 
contentions concerning plaintiffs’ claim. 

The defendants rely upon Hickman v. Taylor and express concern 
about disclosure of "mental impressions,” "personal beliefs," or 
"interviews." This is exactly what plainiffs do not desire. 
Plaintiffs do not want impressions or beliefs but desire a 
statement of the factual and legal opinions and contentions as 
expressly provided for in Rules 26 and 33, Fed.R.Civ.P. The 
Southern District of Alabama several years ago routinely issued 
an order requiring the defendant to specify its contentions 
regarding the Johnson factors. A copy of such an order is 
attached. More recently depositions have been used as being more 
efficient and responsive. Perkins v. Mobile Housing Board, 
C.A.N0.80-0491-C (S.C.Ala.) Finally we emphasize that plaintiffs 
do not require that Ms.Bowers or any other attorney be produced. 
If defendants are truly fearful of Ms.Bowers divulging her 
“mental impressions" as opposed to the defendants contentions and 
objections, they should produce a defendant or another agent. 
Indeed, both parties seem to agree that mental impressions should 
not be divulged but contentions and objections should be 
divulged. For example, defense counsel has by telephone informed 
the plaintiffs that the defendants do not object to specific 
entries of time claimed for compensation, but that the overall 
total is excessive. Divulging this contention certainly did not 
invade the work product. 

  

  

The noticed deposition will not require answers into any 
privileged area, thus the motion to quash must be denied. 
Furthermore, this is the most efficient method of narrowing 
issues and avoiding unnecessary expenditures of litigant and 
court time. This discovery should be especially favored on 
attorney fee issues. Defendants' Motion to Quash should be 
denied. 

Thank you for your consideration. 

 



Hon.Alma Chasez Page Five 
November 19, 1984 

Very respectfully, 

BLACKSHER, MENEFEE & STEIN, P.A, 

Larry . Menefee 

LTM:pfm 

Encl. 

CC: Patricia Bowers, [sq. 
William P. Quigley, Esq. 
Steven Scheckman, Esq. 
R. James Kellogg, Esq. 
Stanley Halpin, Esq. 
Lani Guinier, Esq. 
Armand Derfner, Esq. 

Ms. Bowers' letter of the 16th of November indicated that 
matters concerning her notice of deposition of Ms. Lani 
Guinier may be heard during the telephone conference of 
November 21st. I will not have time to formulate a written 
response, but enclose a copy of Ms. Bowers' notice of 
deposition for your convenience. 

 



IN THE UNITED STATES DISTRICT COURT FOR THE 
  

SOUTHERN DISTRICT OF ALABAMA 
  

SOUTHERN DIVISION 
  

ROSCOE JAMES, etc., 

Plaintiff, 

vs. CIVIL ACTION NO. 77-324-H 

HOME CONSTRUCTION COMPANY 
OF MOBILE, INC., 

Defendant. 

The following procedure and timetable will govern the 

award of attorneys' fees and costs in this action: 

First, plaintiff has fourteen (14) days from the date 

of this order to file an appropriate motion with supporting 

affidavits for their award of attorneys' fees and costs. 

Second, defendant has fourteen (14) days thereafter to 

file any objections to plaintiff's motion, specifically 

addressing defendant's position regarding each of the factors 

enumerated in Johnson v. Georgia Highway Express, 488 F.2d 714 
    

(5th Cir. 1974). Further, defendant is directed to specify 
  

what it contends to be a reasonable amount of attorneys' fees 

and costs and the amount of any uncontested fees. 

Third, in the event there is not an agreement between the  



parties, both parties have fourteen (14) days thereafter 

to take depositions in support of their respective positions. 

Fourth, after the time for taking depositions has expired, 

the Court will ser a date for the submizsion of briefs or 

schedule oral argument as the Court deems necessary. 

DONE this _/ i} day of lp 1983. : ’ 
  

: , 
7 / 

[4 7 ) Nor lhgt 

Chief Judge 
  

 



IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, ET AL 

Plaintiffs CIVIL ACTION 

versus NO. 82-1192 

DAVID C. TREFN, BTC., ET AL SECTION C 

Defendants 

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Logie JE ME TRE GT EL GER Be A Le 

NOTICE OF DEPOSITION 
  

Larry T. Menefee 

Blacksher, Menefee & Stein, P.A. 

Attorneys at Law 

405 Van Antwerp Building 
P. QO. Box 1051 
Mobile, Alabama 36633 

You are hereby notified that on the 28th day of November, 

©1984, at 11:00 a.m. the defendants in the above-styled cause 

will take the deposition of Lani Guinier. 

The deposition will be taken in accordance with and 

pursuant to Rule 30, the Federal Rules of Civil Procedure, in 

the law offices of the NAACP Legal Defense Fund, 806 15th Street, 

N.W., Suite 940, Washington, D.C. before an officer duly authorized 

to take depositions and will continue from day to day until com- 

pleted. 

Deponent is to produce (without need of subpoena duces 

tecum pursuant to agreement of counsel) the following documents:  



1. Copies of all retainer agreements and other types 

of written fee arrangements with Plaintiffs, Major, et al, and 

all documents evidencing the terms of agreement. 

2. Copies of all time records kept by each attorney, 

law clerk, paralegal, etc., in regard to this matter. (Names 

of clients or cases other than those involved in this action 

may be stricken or deleted, however, the time spent on other 

cases on days for which time is being claimed in this case, should 

be included.) 

. 3. Copies of all travel and expense vouchers which 

are being claimed in this action. 

4. Copies of all invoices, pills, and other requests 

for payment for photocopies in this case, with proof of their 

payment. 

5. Copies of all phone logs kept by each attorney, 

law clerk, paralegal, etc., indicating calls made, to whom, and 

for what amount of time, in this matter. (Names and numbers 

of individuals other than those involved in this action may be 

stricken.) 

6. Copies of documentation for all expedited delivery 

charges (U.P.S., Federal Express, etc.) for which reimbursement 

is sought in this action, 

7. Copies of the following documents in all cases 

in which your firm has petitioned for attorney's fees in the 

past twenty-four months; petitions or applications for fees, 

including amendments and supplements; affidavits in support of  



the petitions and applications; court orders on each fee petition; 

and all settlement agreements reached in lieu of a court order, 

requiring fees to be paid to you. 

8. Copies of all articles, published papers, speeches, 

and other written matter authored by you discussing civil 

rights, federal practice, and/or voting litigation. 

9. Your current resume. 

10. Copies of all records which summarize "billed" 

hours by day, week, and month for the period included in the 

present fees claim. 

11. Copies of all statements from all expert witnesses 

upon whose testimony you intend to rely in support of your present 

fees application. 

12. Copies of all unpublished opinions on voting litiga- 

tion attorney's fees within your possession, your firm's posses- 

sion, your client's possession, your attorney in this fee matter's 

possession. 

Respectfully submitted this 16th day of November, 1984, 

Respectfully submitted, 

WILLIAM J, GUSTE, JR. 

ATTORNEY GENERAL 

KENDALL L.: VICK 

ASSISTANT ATTORNEY GENERAL 

CERTIFICATE OF SERVICE 
| certify that a copy of the forzooing nieading has been 

served upon counsel for alt part :3 ym 7 the same C 

to each, praperi d an! postage prepaid ASSISTANT ATTORNEY GENERA 

Oo LQ LOUISIANA DEPARTMENT OF JUSTICE 
Sg 234 LOYOLA AVENUE, 7TH PLOOR 

NEW ORLEANS, LOUISIANA 70112 

PHONE: {504) 568-5575