Trial Court Case # 3AN-06-05347CI.
Before: Carpeneti, Chief Justice, and Fabe, Winfree, Christen, and Stowers, Justices.
On consideration of the Petition for Review filed on February 19, 2010, and the response filed on March 1, 2010,
IT IS ORDERED that the petition is GRANTED in part and the trial court's order approving the respondent's discovery plan is VACATED with direction that on remand the trial court will require respondent to make a specific request by motion to the court for the supplemental information that respondent believes is necessary to contest the pending motion for attorney's fees. The trial court will then rule on any request for additional information, ordering production of the specific information it deems appropriate and necessary to contest the fee request. We do not retain jurisdiction of this matter.
As we observed in Valdez Fisheries Development Ass'n v. Froines, the trial court's "primary task" in making a Civil Rule 68 award of attorney's fees "is to determine the amount of `reasonable actual attorney's fees.' "*fn1 This determination will often require the trial court to decide "whether the hourly rate charged was reasonable and whether the number of hours worked was reasonable."*fn2 As we noted in Froines, "[t]his approach is particularly appropriate where the party against whom fees are awarded requests an itemized billing affidavit and objects to specific items in the bill as unnecessary, duplicative, or otherwise unreasonable."*fn3 We also recognized in Froines that "the itemized billing record provides a starting point because it establishes what fees were `actually' incurred."*fn4
The question presented in this petition is how the billing information provided after this "starting point" may be developed and amplified so that the trial court can accomplish its task of "determin[ing] whether the hourly rate is reasonable, and how many of the hours of work billed were reasonably incurred."*fn5 The answer is not a motion for discovery filed by the non-prevailing party. The proper procedure is a motion by the non-prevailing party requesting that the trial court order the prevailing party to supplement its fee request with additional information so that the non-prevailing party can file an appropriate objection to the fee request. After considering the motion and any response, the trial court should exercise its discretion to determine whether any supplementation is necessary. The trial court should then determine the appropriate method of inquiry, which generally will be in the form of an order to provide additional information through the production of documents or by affidavit. Although we do not rule out the possibility that in rare circumstances there might be some very limited, court-supervised discovery, the proper procedure to adduce the supplemental information necessary to challenge a fee request will generally be by motion for production of specific supplemental information. The trial court should not approve, in the first instance, a generalized discovery plan with depositions into areas naturally giving rise to concerns about attorney-client privilege and attorney work-product issues or a process that allows parties to conduct discovery without close court supervision as if they were in pre-trial discovery on the merits of the underlying case with disputes to be resolved through ad hoc motion practice.
Entered at the direction of the court.
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