IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ... · Case 1:12-cv-00053-MSK-BNB Document 150 Filed 10/04/13 USDC Colorado Page 4 of 32 Although the City’s expert Andrew

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00053-MSK-BNB

MAJOR JON MICHAEL SCOTT;

Plaintiff,

v.

CITY & COUNTY OF DENVER,

Defendant.

PLAINTIFF’S REPLY BRIEF IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES AND COSTS

Plaintiff, by and through counsel, hereby files his Reply Brief in Support of his Motion for

Attorneys’ Fees and Costs.

In awarding attorneys’ fees, there is a strong presumption in favor of the lodestar,

counsel’s reasonable rate multiplied by reasonable hours spent. Perdue v. Kenny A. ex rel. Winn,

559 U.S. 542, 546 (2010). Plaintiff’s counsel’s fully-documented lodestar through June 26, 2013

is $427,372.50 after the deduction of $28,320 or 6% based on billing judgment; his out-of-pocket

costs as of that date total $21,996.49. Pl.’s Mot. for Attorneys’ Fees and Costs, ECF 140 (“Fee

Motion”) at 1, 18. Defendant City and County of Denver (the “City”), through its Response to

Plaintiff’s Motion for Attorneys’ Fees and Costs, ECF 147 (“Fee Response”) provides no

evidence or arguments that undercut the strong presumption in favor of Plaintiff’s lodestar.

Case 1:12-cv-00053-MSK-BNB Document 150 Filed 10/04/13 USDC Colorado Page 1 of 32

I. The City Cannot Justify Its Silence In Response to Plaintiff’s Settlement Overtures.

Plaintiff made four unanswered settlement overtures in this case: In January, 2012, before

filing; in February, 2012, approximately one month into the case; in November, 2012, ten months

into the case; and in January, 2013, just over a year into the case. Defendant did not respond to

any of these overtures. Decl. of Amy F. Robertson in Support of Pl.’s Mot. for Attorneys’ Fees

and Costs, ECF 140-1 (“Robertson Decl.”) ¶¶ 25-39. In its Opposition Brief, the City asserts that

it did not have enough information to engage in settlement negotiations. Fee Response at 4-5.

There are two problems with this response.

First, Defendant simply ignored Plaintiff’s settlement overtures. It did not respond by

requesting additional information; rather, it did not respond at all.

More importantly, the City had -- throughout the case -- all of the information it now

claims to have lacked. The City knew the dates on which Plaintiff Scott had been in its custody,

the dates on which it had (and, by process of elimination, had not) provided interpreters and other

accommodations to him, and the identities of the sheriff’s deputies with whom Mr. Scott

interacted. For example, in June, 2012, the City responded to Plaintiff’s first interrogatories with

a precise list of the dates on which Mr. Scott had been detained and a precise list of the dates on

which he had been provided interpreters, both by the Sheriff Department and other (non-law

enforcement) agencies. Decl. of Amy F. Robertson in Support of Pl.’s Reply in Support of Mot.

for Attorneys’ Fees and Costs (“Robertson Reply Decl.”) Ex. 1 at 1-4. This belies the City’s

assertion that “it was extremely difficult . . . to pinpoint” when Mr. Scott was denied meaningful

access. Fee Response at 3.

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Despite the abundance of relevant information in the City’s files, the City refused to

discuss settlement at junctures at which Plaintiff’s fees were denominated in four or five digits.

See Robertson Decl. ¶¶ 25-39. As the Supreme Court has held, “[t]he government cannot litigate

tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in

response.” City of Riverside v. Rivera, 477 U.S. 561, 580 n.11 (1986); see also Sussman v.

Patterson, 108 F.3d 1206, 1209, 1212 n.2 (10th Cir. 1997) (upholding the finding that “the hours

expended were, in large part, necessarily incurred due to defendants’ intransigence in refusing to

negotiate or discuss settlement before and after suit was filed.”). Under these circumstances, it

would be inappropriate to reduce Plaintiff’s counsel’s lodestar.

II. Plaintiff Achieved An Excellent Result.

Plaintiff accepted an offer of judgment for $15,000 to resolve his claims under Title II of

the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., and section 504 of the

Rehabilitation Act (“section 504”), 29 U.S.C. § 794. ECF 130. These claims challenged the

City’s repeated failures to provide Mr. Scott effective communication during his detention in City

jails, in violation of 28 C.F.R. § 35.160(a), among other provisions. He did not sustain physical

injury or out-of-pocket damages, so the $15,000 judgment for the harm of discrimination per se is

an excellent result. Indeed, the City admits as much when it argues that damages are difficult to

prove in section 504 and Title II cases. See Fee Response at 2. There is no reason to reduce

Plaintiff’s counsel’s lodestar for partial success.

In his Fee Motion, Plaintiff cited to an on-point case holding that a deaf plaintiff who

obtained a settlement of $14,000 in case (like this one) under the ADA and section 504 “achieved

an excellent result.” Grievson v. Rochester Psychiatric Ctr., 746 F. Supp. 2d 454, 470

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(W.D.N.Y. 2010), cited in Fee Motion at 24. The City does not mention much less distinguish

that case, but simply asserts -- with no citation to legal or factual support -- that Plaintiff achieved

only a “technical victory” as “the degree of success obtained by Plaintiff by accepting the $15,000

offer of judgment was minimal.” Fee Response at 8-9. The City provides no cases supporting the

proposition that $15,000 is “minimal;” in the case on which it relies for the technical-victory

standard, the plaintiff had demanded $17,000,000 and received a $1 judgment. Farrar v. Hobby,

506 U.S. 103, 106-08 (1992).

The City also asserts that “the central focus of Plaintiff’s lawsuit was to obtain declaratory

and injunctive relief,” and that the parties “spent a substantial amount of attorney fees engaging in

extensive discovery related to Plaintiff’s claims for declaratory and injunctive relief,” Fee

Response at 2-3, but again offers no factual or legal citation supporting this assertion.

To the contrary, as demonstrated by the City’s retention of two experts who attempted

(unsuccessfully) to prove that Mr. Scott was not all that deaf, and its requests for school, medical,

probation, halfway house, and social media records, the focus of this litigation was on the central

liability question of Plaintiff’s communication needs. In fact, after litigating tenaciously for 16

months, the City made its first settlement overture less than a month after their second expert’s

deposition, in which she admitted, “[d]o I think that Mr. Scott needs a qualified sign language

interpreter most of the time? Yes, I probably do, but I do think he does understand stuff.” Schick

Dep. at 249-50 (Robertson Decl. Ex. 33); see also Fee Motion at 5-6 (citing other concessions in

Dr. Schick’s deposition); Schick Dep. at 1 (taken March 12, 2013); Robertson Decl. ¶ 40 (City’s

first settlement overture in April, 2013).

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Although the City’s expert Andrew Ringel opines that Plaintiff “[d]id not prevail in any

traditional sense,” Declaration of Andrew Ringel (ECF 147-1,“Ringel Decl.”) ¶ 42, this is a legal

opinion and not the proper subject of expert testimony. It is also contrary to established Supreme

Court law that a plaintiff who obtains an “enforceable judgment” is a prevailing party. Farrar,

506 U.S. at 111; see also, e.g., Barbour v. City of White Plains, 788 F. Supp. 2d 216, 221

(S.D.N.Y. 2011) (holding that a civil rights plaintiff who obtains money damages by accepting a

Rule 68 offer of judgment is a “prevailing party” for fees purposes).

Neither the City’s Fee Response nor Mr. Ringel’s declaration points to specific discovery

or motions practice that were not necessary to establish the City’s liability to Mr. Scott for

compensatory damages. Mr. Ringel asserts that Plaintiff alleged “systemic, knowing, and

intentional discrimination” as ostensible support for the proposition that Plaintiff’s focus was

injunctive relief. Ringel Decl. ¶ 55. However, a showing of intentional discrimination was

required for Mr. Scott to recover compensatory damages. Powers v. MJB Acquisition Corp., 184

F.3d 1147, 1153 (10th Cir. 1999).

Mr. Ringel also asks the Court to compare the size of the recovery to the amount of fees

requested. Ringel Decl. ¶ 55. This is inappropriate in light of the City’s resolute refusal to discuss

settlement an earlier junctures where the fees would have been far lower. “The Tenth Circuit has

long accepted the proposition that one of the factors useful in evaluating the reasonableness of the

number of attorney hours in a fee request is ‘the responses necessitated by the maneuvering of the

other side.’” Robinson v. City of Edmund, 160 F.3d 1275, 1284 (10th Cir. 1988) (quoting Ramos

v. Lamm, 713 F.2d 546, 554 (10th Cir. 1983)). In fact, the general practice of comparing the size

of the recovery to the amount of the fees has been rejected by the Tenth Circuit:

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Some courts have reduced fees when . . . the recovery was small compared to thefees counsel would have received if compensated at a normal rate for hoursreasonably expended. We reject this practice. The amount of the monetary recoveryis not as significant as the policy being vindicated. Section 1988 was designed toencourage private enforcement of the civil rights laws. Parties acting as privateattorneys general should be reasonably compensated for their vindication of thepublic policy even if they themselves do not receive a large financial benefit.

Ramos, 713 F.2d at 557.

Ultimately, even if Mr. Scott had only recovered one dollar, he would have been entitled to

full recovery of his attorneys’ fees. This is because his case achieved important public goals,

including “encourag[ing] attorneys to represent civil rights litigants, affirm[ing] an important public

right, put[ting] the defendant on notice that it needs to improve, and/or provok[ing] a change in

the defendant’s conduct.” Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1232 (10th Cir. 2001).

In fact, the City’s Rule 30(b)(6) deponent, Capt. John Romero, testified that the City’s policy

relating to communicating with deaf detainees was revised in September, 2012 to mandate for the

first time that an interpreter be called. Romero Dep. 35:18 - 36:24 & Ex. 5 at 10 (Decl. of Caitlin

Anderson in Support of Pl.’s Reply in Support of Mot. for Attorneys’ Fees and Costs (“Anderson

Reply Decl.”) Ex. 1).

III. Plaintiff’s Counsel’s Hourly Rates Are Reasonable.

The lodestar method “looks to ‘the prevailing market rates in the relevant community.’”

Perdue, 559 U.S. at 551. Plaintiff’s Fee Motion demonstrated that Plaintiff’s counsel’s rates --

$440 per hour for Ms. Robertson and $290 per hour for Ms. Lucas -- were reasonable based on

quantitative evidence of the prevailing market rates in Denver, including:

! specific rate data from the Colorado Bar Association’s 2008 Economic Survey for

attorneys with comparable experience, Fee Motion at 22-23;

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! the opinion of Darold Killmer, which in turn relied on specific recent cases

awarding comparable rates, Decl. of Darold W. Killmer In Supp. of Pl.’s Mot. for

Attorneys’ Fees and Costs, ECF 140-4, ¶ 15-17; and

! hourly rates paid for Ms. Robertson’s time by a private client and a defendant in the

implementation of a consent decree, Robertson Decl. ¶ 20.

In response, the City offers only Mr. Ringel’s opinion that these rates are not reasonable

based on his “survey,” “knowledge,” and “overall experience.” Ringel Decl. ¶¶ 60-61. The City

does not, however, offer quantitative data that contradict evidence of the prevailing market rates in

the CBA’s survey or the specific cases and clients listed by Mr. Killmer and Ms. Robertson. This

Court has criticized fee affidavits for attacking proposed rates without providing “specific factual

support” for this “inherently quantifiable matter.” Xtreme Coil Drilling Corp. v. Encana Oil &

Gas (USA), Inc., 2013 WL 3810861, at *14 (D. Colo. July 23, 2013).

Contrary to Mr. Ringel’s unsupported opinion, this Court recently approved an hourly rate

of $450 per hour for lead counsel and relied in part on precisely the survey on which Plaintiff and

his expert, Mr. Killmer, rely: “a 2008 survey by the Colorado Bar Association that found that, as

to partners in large firms, the median billing rate was $400 per hour; with a rate of $541

constituting the 95th percentile of reported rates.” Xtreme Coil, 2013 WL 3810861, at *14-15;

see also Nova Leasing, LLC v. Sun River Energy, Inc., 2013 WL 1302265, at *2 (D. Colo. Mar.

28, 2013) (holding $450 per hour reasonable for an attorney with two fewer years of experience

than Ms. Robertson); MemoryTen, Inc. v. LV Admin. Servs., Inc., 2013 WL 1154492, at *3 (D.

Colo. Mar. 19, 2013) (holding $465 to $495 per hour reasonable for an attorney with one more

year of experience than Ms. Robertson and $275 per hour an attorney with two fewer years of

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experience than Ms. Lucas); Rocky Mountain Christian Church v. Board of Comm’rs of Boulder

County, 2010 WL 3703224, at *5 (D. Colo. Sept. 13, 2010) (awarding $547 per hour and noting

evidence that some “partners in the Denver market charge rates as high as 750 dollars per hour”).

See also Robertson Reply Decl. ¶¶ 6-8, Ex. 4 at 10, and Exs. 5-6 (showing that, in an ADA case,

the Denver law firm of Littler Mendelson charged $425 per hour for an attorney with one fewer

year of experience and $440 for an attorney with three fewer years of experience than Ms.

Robertson).1

Mr. Ringel agrees that the rates for Plaintiff’s counsel’s paralegals are reasonable. Ringel

Decl. ¶ 62.

IV. The Time Spent by Plaintiff’s Counsel Was Reasonable.

Defendant’s Fee Response and Mr. Ringel’s declaration criticize almost 600 individual

entries in Plaintiff’s counsel’s time records. The subsections below first address systemic problems

with Mr. Ringel’s testimony, and then address his criticisms, grouped by their ostensible grounds.

1 Mr. Ringel also asks the Court to disregard the historical rates established by thisCourt and by Judge Kane in, respectively, Colorado Cross-Disability Coalition v. City andCounty of Denver, 06-cv-00865-MSK-BNB (“CCDC v. Denver”), and Lucas v. Kmart Corp.,2006 WL 2729260 (D. Colo. July 27, 2006) on the grounds that they were part of the approvalprocess of class actions in which fees and costs had been agreed upon. Ringel Decl. ¶ 59. Thisignores the fact that Fed. R. Civ. P. 23(e) provides that a court “may approve [a class actionsettlement] only . . . on finding that it is fair, reasonable, and adequate.” Mr. Ringel is essentiallyarguing that neither this Court nor Judge Kane did the analysis required by Rule 23(e). Mr.Ringel also asserts that “[n]either case dealt with a fee-shifting statute.” Ringel Decl. ¶ 59. Thisis also incorrect. CCDC v. Denver involved claims under Title II of the ADA and section 504, id.ECF 157-1 at 21-22, the same claims as are at issue here. Lucas involved claims under Title III ofthe ADA. Id., 2006 WL 2729260, at *1. All of these statutes have fee-shifting provisions. 42U.S.C. § 12205 (fees to prevailing parties under ADA titles II and III); 29 U.S.C. § 794a(b) (feesto prevailing parties under section 504 of the Rehabilitation Act).

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A. Defendant’s Expert Andrew Ringel

Mr. Ringel, a partner at Denver’s Hall & Evans firm (“H&E”), Mr. Ringel asserts that he

was retained to render an opinion on the reasonableness of Plaintiff’s fee request. Ringel Decl. ¶ 1.

Although he is acting as an expert in this case, Mr. Ringel and H&E appear to be regular outside

counsel to the City. For example, Mr. Ringel was the partner on the matter when H&E

represented the City in the case of Ulibarri v. City and County of Denver, 07-cv-1814-ODS-MJW

(D. Colo.), another case in which the undersigned represented deaf detainees denied effective

communication by the Denver Sheriff Department. Robertson Decl. ¶ 24(a); Robertson Reply

Decl. Ex. 2. H&E has billed the City over $136,000 in legal fees over the past 21 months.

Anderson Reply Decl. ¶ 3.

When Plaintiff’s counsel received Mr. Ringel’s declaration -- which is critical of many of

their specific billing practices -- the undersigned requested that the City provide examples of Mr.

Ringel’s billing records to the City so as to compare Mr. Ringel’s bills to the standards against

which he measures Plaintiff’s counsel. The City refused, sending only summary invoices for the

past 21 months. Robertson Reply Decl. ¶ 4 and Exs. 2, 10.

In October, 2010, however, Mr. Ringel submitted an affidavit and 71 pages of billing

records in the case of Newmont U.S.A. Ltd. v. Insurance Company of North America, 06-cv-

01178-ZLW-BNB (D. Colo.), which is publicly available on this court’s PACER system. Id. ECF

98-11 (Robertson Reply Decl. Ex. 3, referred to below as “Ringel Newmont Aff.”).2 As discussed

2 Mr. Ringel’s affidavit and billing records were submitted in support of a requestfor attorneys’ fees pursuant to a provision in a reinsurance contract. Newmont, ECF 98 at 7. Mr.Ringel testified that all of the time in his bills was compensable because it was reasonable and wasincurred in collecting amounts due under the contract. Ringel Newmont Aff. ¶ 4.

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in greater detail below, these billing records demonstrate that Mr. Ringel engages in many of the

billing practices for which he criticizes Plaintiff’s counsel. For example, Mr. Ringel criticizes

Plaintiff’s counsel for “block billing,” Ringel Decl. ¶¶ 9, 54, despite the fact that Plaintiff’s

counsel’s bills indicate the amount of time spent on each task. See generally Robertson Decl. Ex.

1. In contrast, Mr. Ringel’s bills in the Newmont matter provide only an overall total for each day,

lumping all tasks performed that day into a single entry. See Ringel Newmont Aff. at 5-75.

Mr. Ringel also criticizes Plaintiff’s counsel for spending excessive time on certain tasks,

but provides no explanation of how the tasks could have been accomplished more quickly. See,

e.g., Ringel Decl. ¶¶ 15, 19, 21, 29, 30, 32, 37, 45, 52. In contrast, Mr. Ringel regularly bills his

private client 12 to 18 minutes to review simple pleadings. For example, he billed 0.2 or twelve

minutes for “[r]eceipt and review” of a one-sentence minute order setting a status report deadline,

Ringel Newmont Aff. at 28 (10/04/07) (compare Newmont, ECF 44, Minute Order), and 0.3 or 18

minutes to read a docketing letter from the Tenth Circuit and the completed transcript order form,

Ringel Newmont Aff. at 43 (10/10/08); see also, e.g., id. at 50 (12 minutes to review notice setting

date for continued mediation (11/12/08)); 55 (12 minutes to review order extending briefing

deadline (2/23/09)); 61 (same (5/20/09)); 63 (same (6/26/09) and (7/2/09)).

These billing records are relevant not only because they impeach Mr. Ringel’s testimony on

a number of topics, but because they are evidence of how attorneys bill private clients in the open

market.

In further rebuttal of a number of Mr. Ringel’s assertions, Plaintiff submits billing records

of the Denver firm of Littler Mendelson (“Littler”) for time spent defending a claim under Title III

of the ADA, 42 U.S.C. § 12181 et seq. In re Morreale Hotels, LLC, 12-35230-ABC (D. Colo.

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Bankr.).3 The client declared bankruptcy and Littler submitted its billing records as an exhibit to

its claim to the bankruptcy court. Id. Claim 2. The entire 156-page bill is available in the PACER

system; an excerpt consisting of the bill dated November 15, 2011 is attached as Exhibit 4 to the

Robertson Reply Declaration.

B. Conferences Among Co-Counsel and Review of Co-Counsel Work.

Mr. Ringel challenges time that Ms. Lucas and Ms. Robertson spent communicating with

each other or staff, on the grounds that “[c]lients do not allow attorneys to bill for conferring with

each other or for providing directions or instructions to subordinate attorneys, paralegals and

staff,” and that some of Plaintiff’s counsel’s time was spent by lawyers “review[ing] each other’s

communications, emails or notes.” See, e.g., ¶ 9, 11.4 The Tenth Circuit rejects such broad-brush

challenges to time spent communicating with co-counsel. See Anchondo v. Anderson, Crenshaw

& Assocs, L.L.C., 616 F.3d 1098, 1105-06 (10th Cir. 2010); see also Milham v. Perez, 2005 WL

1925770, at *5 (D. Colo. Aug. 11, 2005) (“The Court is not prepared to say that interoffice

consultations between attorneys are per se unreasonable, nor that any of the entries challenged on

this point should necessarily be excluded.”)

Indeed, Mr. Ringel’s billing in the Newmont matter contradicts his assertion that “clients do

not allow” or are “unwilling to pay for” co-counsel communications, and provides support for the

3 Ms. Robertson’s law partner and husband, Timothy Fox, was one of the plaintiffsin the underlying litigation, in which Judge Matsch granted partial summary judgment in favor ofMr. Fox and his co-plaintiffs. Fox v. Morreale Hotels, LLC, 2011 WL 5439789 (D. Colo. Nov.9, 2011). The litigation was stayed when the defendant filed for bankruptcy. Robertson ReplyDecl. ¶ 6.

4 See also id. ¶¶ 13-15, 18-20, 28-31, 37-42, 44, 45, 47, 48, 50-52, 64 (the lastasserting that “clients are unwilling to pay for lawyers and paralegals to confer, consult, email,talk on the telephone, and meet with each other on an internal or co-counsel basis.”)

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proposition that when a private attorney is billing a private client -- the marketplace that the

fee-shifting analysis is meant to replicate -- it is common to bill for intra-counsel communications,

instructions to subordinates, and review of other attorneys’ emails and notes. In the Newmont

matter, Mr. Ringel was local counsel for his New York co-counsel Lloyd Gura and Matthew

Lasky of the firm Mound Cotton Wollan & Greengrass in representing Insurance Company of

North America. Ringel Newmont Aff. ¶ 2. Mr. Ringel’s 71 pages of bills include approximately

137 entries -- highlighted in Exhibit 3 to the Robertson Reply Declaration -- in which he billed for

one or more telephone calls with, emails to or from, and leaving voicemail messages for and

receiving them from Messrs. Gura and Lasky. For example, on June 2, 2008, Mr. Ringel billed 0.2

or twelve minutes to exchange messages with his co-counsel. Id. at 39; see also id., passim. He

also billed for time spent instructing his paralegals and associates, id. at 6 (6/20/06); 14 (8/4/06);

33 (4/22/08); 42 (10/5/08); 57 (3/18/09); 60 (4/29/09 and 4/30/09), and for time spent reviewing

his co-counsel’s email, see, e.g., id. at 10 (7/18/06 and 7/21/06). The Littler Morreale bills

provide further support for the proposition that private attorneys bill private clients for time spent

consulting with their co-counsel and instructing associates and paralegals. See Robertson Reply

Decl. Ex. 4 at 2 (10/3/11, 10/4/11), 4-5 (10/10/11, 10/11/11, 10/13/11), 6-7 (10/14/11, 10/17/11,

10/18/11, 10/19/11), 8 (10/24/11), 9 (10/27/11, 10/28/11).

Mr. Ringel’s challenges to time spent conferring among co-counsel and reviewing co-

counsel work are thus unfounded and should be rejected.

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C. Time Challenged as Vague.

Most of the time entries in Plaintiff’s billing records that Mr. Ringel challenges as vague in

fact provided an adequate explanation. In an abundance of caution, additional information is

provided below:

Ringel ¶ Entries challenged Additional explanation.

11 CAL 12/22/11 (0.75): Review CORArecords received from Denver re: MajorScott.

Ms. Lucas reviewed records receivedfrom the City pursuant to the ColoradoOpen Records Act. Decl. of Carrie AnnLucas in Support of Pl.’s Reply inSupport of Mot. for Attorneys’ Feesand Costs (“Lucas Reply Decl.”) ¶ 3.

11 AFR 12/28/11 (1.25): Draft demandletter and tolling agreement.

There was no entry on 12/28/11 for1.25 or 2.5 hours; the only entry forMs. Robertson that day was for draftingthe demand letter and tolling agreement. See Robertson Decl. Ex. 3 at 1. Ms.Robertson drafted a demand letter andtolling agreement that was sent to theCity on January 16, 2012. RobertsonReply Decl. ¶ 9.

11 CAL 12/28/11 (0.25): Review Scottprobation documents, backgroundcheck, registers of action.

Ms. Lucas reviewed Mr. Scott’sprobation records, a background checkof Mr. Scott and state court registers ofactions relating to cases in which he wasa defendant. Lucas Reply Decl. ¶ 4.

16 AFR 11/1/12 (2.0) Witness interview.AFR 11/2/12 (0.2) TCW potentialwitness re: Scott

Ms. Robertson spoke with two potentialwitnesses, both disclosed by the City,with relevant information, both ofwhom are concerned about retaliation. Robertson Reply Decl. ¶ 10. Plaintiff iswilling to reveal their identity in camerashould the Court believe that isnecessary.

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19 CAL 12/18/12 (0.1): Reviewdisclosures.

Ms. Lucas reviewed Defendant’sTwelfth Supplemental Disclosures,which it served on this date. LucasReply Decl. ¶ 5.

19 CAL 1/15/13 (0.1): Review discoveryresponses.

Ms. Lucas reviewed two sets ofdiscovery responses that Defendant hadserved on January 11, 2013. LucasReply Decl. ¶ 6.

19 CAL 2/25/13 (0.1) Review City’s recentdisclosures.

Ms. Lucas reviewed Defendant’sSixteenth Supplemental Disclosures,which it served on this date. LucasReply Decl. ¶ 7.

21 JE 2/1/13 (2.0): Discovery-Pulled andsaved info off Scott’s Facebook pages

JE 2/5/13 (2.5): Saving Scott’s e-mail’soff Yahoo account

JE 2/6/13 (2.2); 2/11/13 (0.5); 2/15/13(2.0); 2/18/13 (1.0); 2/19/13 (3.0):Pulling e-mails from Scott’s yahooaccount.

On February 1, 2013, Ms. Elstran spent0.5 hours researching how to retrievethe information requested by the Cityfrom Mr. Scott’s Facebook account. Ms. Elstran then initiated the process todownload the records which took 0.25hours. Ms. Elstran spent 0.75 hoursreviewing and saving all Facebookcontent info that was retrieved. Ms.Elstran then spent 0.5 hours reviewingMr. Scott’s Facebook account anddownloading missed content from thedownload process.

On February 5, 6, 11, 15, 18 and 19,2013 Ms. Elstran had to open eachindividual e-mail and print it to pdfformat. She did this with a total of2073 messages from Mr. Scott’s inbox,25 from his sent folder, and 1123 fromthe spam folder. She did this with atotal of 3221 e-mails. Decl. of JenniferElstran in Support of Pl.’s Reply inSupport of Mot. for Attorneys’ Feesand Costs (“Elstran Reply Decl.”) ¶ 3.

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28 CRA 1/17/13 (0.5) Reviewing scannedletters, email to D. Washington re: same.

Paralegal Caitlin Anderson responded toa request from the City’s paralegal,David Washington, to provide bettercopies of certain letters produced indiscovery. Anderson Reply Decl. ¶ 4.

29 AFR 2/12/13 (1.7): Read documentsfrom probation.

AFR 2/13/13 (2.5): Review probationdocuments in preparation for mtwprobation officers & atty.

The City demanded production of Mr.Scott’s probation records and noticedthe depositions of two of his probationofficers. This time was spent reviewingthe over 300 pages of probationdocuments in preparation to meet withthe two probation officers that the Cityhad indicated it would like to depose. Robertson Reply Decl. ¶ 11.

46 AFR 2/27/13 (1.2) Edit motion to quash& draft cover email to W. Shea re: same& send drafts to C. Lucas.

This time was improperly listed in“Defendant’s Experts,” see RobertsonDecl. Ex. 3 at 37. It should have beenlisted in “Plaintiff’s Expert” as the timewas spent drafting a motion to quashthe subpoena for Plaintiff’s expert’sdeposition when the City produced avideo of a 2006 interview of Plaintiff byits detectives three days before theexpert’s deposition and then initiallyrefused to postpone the deposition. Only after receiving the draft motion toquash did the City agree to postponethe deposition. Robertson Decl. ¶ 88-89.

D. Document Coding

Mr. Ringel challenges as both vague and excessive the time spent by paralegals coding

documents. He asserts that the City produced approximately 6,000 pages of documents and that

“the vast majority of those documents should not have required much, if any, coding because they

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consisted of procedures, procedure manuals, post orders, department orders, training materials,

inmate handbooks, and other similar documents.” Ringel Decl. ¶ 24; see also Fee Response at 21-

22. Although Mr. Ringel claims to have reviewed “the documents produced by Denver in their

entirety,” id., this is not an accurate description of the documents at issue in this case.

The City produced 6,456 pages of documents of which 940 were single-page documents,

192 were two-page documents, and 149 had 3-10 pages, that is, over 1,200 pages were in short

documents of one to ten pages. Contrary to Mr. Ringel’s assumption, only 12 documents in the

case had more than 50 pages. Most of the short documents were forms filled in with handwritten

information, making them difficult to read and code. Anderson Reply Decl. ¶¶ 5-6.

In addition to the City’s documents, Plaintiff’s counsel obtained documents from Plaintiff’s

mother and from his public defender, which they had to read and code both for their own

investigation and -- with respect to the former -- to respond to Defendant’s discovery. The City

also demanded production of documents from medical providers, elementary through high schools,

probation departments, halfway houses, social media, and other sources, all of which had to be

reviewed and coded. These documents totaled 4,567 pages, of which 849 were one-page

documents, 399 were two pages long, and another 295 were three to 10 pages long, that is, over

1,500 pages were in short documents of one to ten pages.5 All told, the case involved over 11,000

pages of documents, of which over 2,700 were one-to-ten-page documents. Anderson Reply Decl.

¶¶ 5, 7-8.

5 This information thus responds to Mr. Ringel’s concern that Plaintiffs did notdescribe the volume of documents reviewed. Ringel Decl. ¶ 28.

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Mr. Ringel also asks to discount document coding time based on the number of deposition

exhibits, as that “can provide a useful assessment of the number of important documents in a case,”

and challenges the time spent by attorneys reviewing documents. Ringel Decl. ¶¶ 25-28. This

reflects a misunderstanding of how discovery works. Documents do not arrive from the defendant

or a third party labeled “important” or “irrelevant.” When the City or a third party produces

hundreds of pages of (often short, handwritten) documents, Plaintiff’s counsel must review all of

them to determine which ones are relevant. When the Defendant demands production of school,

medical, probation, halfway house and social media documents, Plaintiff’s counsel must review all

of the documents obtained from those sources to ensure that only relevant, responsive documents

are produced, and that confidential or privileged material is identified and stamped or redacted.

The coding process used by Plaintiff’s counsel ensures that this is done with maximum efficiency:

paralegals review all documents and code them for basic information; this, in turn, permits

attorneys to sort and search to identify the documents relevant for experts, written discovery,

depositions, and trial. Given the quantity of documents -- most of which were produced or

demanded by the City itself -- the time spent was eminently reasonable.

E. Time Challenged as Paralegals doing Clerical Work or Attorneys DoingParalegal Work.

Mr. Ringel challenges certain time entries on the basis that the time was spent by paralegals

doing what he considers clerical work, such as filing documents using the ECF system and drafting

and sending proposed orders to Chambers. This challenge -- and those in the remainder of this

subsection -- are effectively rebutted by the Newmont bills, in which Mr. Ringel charged for his

own time spent researching, completing and revising the civil cover sheet, Ringel Newmont Aff. at

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5 (6/17/06; 6/19/06; 6/20/06), reviewing electronic case filing requirements, id. at 9 (7/8/06),

formatting a status report, id. at 25 (9/20/07), formatting and cite-checking a brief, id. at 66

(8/26/09), and drafting a transcript order form, id. at 48 (10/16/08 and 10/20/08).

Mr. Ringel also challenges a handful of entries on the basis that attorneys were performing

paralegal tasks. One subset of these entries involved 8.8 hours spent by counsel reviewing

information downloaded from Mr. Scott’s social media accounts that Defendant had demanded in

discovery. Ringel Decl. ¶ 22. This required attorney review because of the awkwardness of the

broad request for social media and dating sites, as it required sensitivity to privilege, relevance, and

confidentiality issues. Robertson Reply Decl. ¶ 12.

Another subset of these entries involves Plaintiff’s attempt to interview personnel of the

Denver Health and Hospital Authority (“DHHA”). Ringel Decl. ¶ 29. Mr. Ringel asserts that “no

email of this nature should have taken 2.4 hours to draft and send.” Id. This misapprehends the

project, which in fact required review of hundreds of jail medical documents -- mostly handwritten

forms -- to determine the relevant DHHA employees who would be appropriate to interview,

contacting the DHHA, and -- in response to their request -- drafting a substantive email explaining

the background of the case and the need for interviews, which DHHA would then send to the

requested interviewees, and then following up with DHHA. This is work that only an attorney

could do, and do efficiently. Robertson Reply Decl. ¶ 13.

Mr. Ringel criticizes Plaintiff’s counsel for a series of 0.1 entries for calendaring dates.

Ringel Decl. ¶¶ 13, 14, 19, 29-31, 37, 39, 41, 42. Mr. Ringel, however, on multiple occasions

billed 0.2 or 0.3 for receiving and reviewing orders that did nothing more than set or extend

deadlines, the equivalent of calendaring, though apparently requiring 12 to 18 minutes. Ringel

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Newmont Aff. at 9-10 (7/16/06); 19 (10/6/06); 26 (3/2/08), 28 (10/4/07), 43 (10/11/08); 46

(11/21/08); 52 (1/16/09); 55 (2/23/09); 61 (5/20/09); 63 (6/26/09).

F. Time Challenged as Excessive.

Mr. Ringel challenges certain time entries as excessive; none of these challenges has merit,

and -- as described in greater detail below -- all of the challenged time is reasonable.

Mr. Ringel objects to 2.4 hours devoted to preparing a joint motion to amend the

scheduling order. Ringel Decl. ¶ 14. The motion was drafted by F&R’s paralegal, Caitlin

Anderson, who had to review relevant email traffic with opposing counsel and gather relevant

dates. Rather than agreeing to the joint motion as drafted by Ms. Anderson, the City returned it

with a mark-up and comments, which Ms. Lucas reviewed, and Ms. Anderson implemented,

finalized and filed, and -- per local rule -- prepared and sent a proposed order to Chambers.

Anderson Reply Decl. ¶ 9. Although Ms. Robertson reviewed Ms. Anderson’s work,

corresponded with counsel for the City concerning the motion, and reviewed his mark-up, she did

not bill any time for that work. Robertson Reply Decl ¶ 14.

Mr. Ringel objects to 6.5 hours spent communicating with Mr. Scott’s mother. Ringel

Decl. ¶ 15. Because Mr. Scott has been incarcerated repeatedly over the past few years, his

records were largely in the possession of his mother, Beckie Scott. In addition, the City demanded

production of educational and medical records back to Mr. Scott’s elementary school days. These

factors made it necessary for Plaintiff’s counsel to work with Ms. Scott to get documents and

information both to investigate the case and to respond to the City’s discovery. Robertson Reply

Decl. ¶ 15. Mr. Ringel concludes that Plaintiff’s counsel should have spent three hours rather than

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six and a half -- over the course of 18 months -- working with Ms. Scott on these essential matters,

but provides no support besides his say-so for the conclusion.

Mr. Ringel objects to the time devoted to responding to Defendant’s First Set of Discovery

Requests to Plaintiffs, asserting that Plaintiff did not respond to all of the requests and that

“paralegals should have done the communication with the client and drafted the initial discovery

responses.” Ringel Decl. ¶ 21. In fact, a great deal of information is contained in even the initial

discovery responses, for example, the name and address of a doctor in Tulsa, Oklahoma who

evaluated Mr. Scott as a teenager; and the brand of hearing aids he wore in 2010; the identity of

his vocational rehabilitation counselor. See, e.g., Robertson Reply Decl. Ex. 7 at 3, 6, 8.

The statement that this information should have been obtained by a paralegal reflects Mr.

Ringel’s (and perhaps the City’s) ongoing failure to comprehend the challenges in communicating

with Mr. Scott, who is deaf, communicates in American Sign Language, and was -- starting in

September 2012 -- incarcerated at the Territorial Correctional Facility, a facility that lacked any

type of video communication. It was thus impossible to communicate by phone, and interaction

with Mr. Scott to obtain responsive information required a trip to Cañon City, and a meeting with

Mr. Scott and an interpreter. To ensure that accurate information was conveyed to the City, it was

necessary for counsel to make these trips, obtain the information, and draft the discovery

responses. Lucas Reply Decl. ¶¶ 8-10.

Mr. Ringel objects to the time that Ms. Lucas’s paralegal, Jennifer Elstran, spent obtaining

social media information. Ringel Decl. ¶ 21. To be clear: this was only done in response to

Defendant’s discovery request. Plaintiff believed and still believes that this information is deeply

irrelevant to the question whether the City provided effective communication while he was

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incarcerated. Having demanded the information, the City should not be permitted to challenge the

time necessary to procure it. In response to Mr. Ringel’s objection, Ms. Elstran explains in greater

detail in her declaration the steps necessary to obtain the social media information requested by the

City. Elstran Reply Decl. ¶¶ 3-4.

Mr. Ringel challenges the time spent by Ms. Robertson drafting a memo to file following

the City’s first independent medical examination (“IME”) of Mr. Scott. Ringel Decl. ¶ 30. The

City initially took the position that Mr. Scott was not as deaf as he claimed to be and thus

commissioned an IME by an audiologist, which Ms. Robertson attended. The examination started

with an interview (with a sign language interpreter) which, Ms. Robertson observed, came

suspiciously close to an unnoticed deposition. As such, much of the preparation of the memo to

file involved reviewing notes, recalling, and recording as accurately as possible the content of that

interview. During the examination, it became clear that the audiologist was concluding that Mr.

Scott was in fact profoundly deaf. However, in the midst of the exam, the expert became

concerned that Mr. Scott had an ear infection. The memo thus attempted to record as accurately

as possible the steps she took in response to that concern, in case the City later attempted to use

the ear infection as grounds to request a second IME. In the end, the expert agreed with Mr.

Scott’s treating physician that he had a severe to profound sensorineural hearing impairment.

Robertson Reply Decl. ¶ 17.

Mr. Ringel challenges the time spent preparing for Rule 30(b)(6) depositions of Lorrie

Kosinski, Capt. John Romero, and Maj. Frank Gale, in part on the grounds that the former two

had been deposed in the earlier case of Ulibarri v. City and County of Denver. Ringel Decl. ¶ 32.

These depositions were the first depositions taken in the present case and the document review and

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outline that Ms. Robertson prepared for those depositions served as a template for many of the

later depositions. The depositions related to facts specific to Mr. Scott’s circumstances, so the

depositions from the Ulibarri case were only helpful as to background; indeed, very little time was

spent in either Scott deposition on routine background questions (education; work history) that

were already established in the Ulibarri depositions. In addition, the Ulibarri depositions

occurred in 2009, a year before the events at issue in the present case, and the deposition of Capt.

Romero in the Ulibarri case was concerned almost entirely with the department’s observation and

suicide prevention policies -- not at issue in the present case -- as Ms. Ulibarri’s son had committed

suicide in the Denver County Jail. Robertson Reply Decl. ¶ 18.

Mr. Ringel challenges the time spent to prepare Mr. Scott for his deposition. Ringel Decl.

¶ 33. Again, Mr. Ringel’s opinion overlooks the precise communications difficulties that were at

issue in the litigation. Plaintiff’s counsel met with Plaintiff -- in short meetings circumscribed by

the rules of the Territorial Correctional Facility -- assisted by an interpreter. Because of Mr.

Scott’s communications difficulties, the process was laborious, and counsel took the time

necessary to ensure that he understood the topics being discussed and would feel comfortable in

the unfamiliar context of a deposition. Lucas Reply Decl. ¶¶ 8-11. Mr. Ringel emphasizes that the

deposition never occurred and also challenges the time spent on motions related to Defendant’s

request to depose Plaintiff. Ringel Decl. ¶¶ 33, 39. As explained in Ms. Lucas’s initial declaration,

this time was required due to the City’s multiple erroneous attempts to file a proper motion

pursuant to Rule 30(a)(2)(B), as Mr. Scott was incarcerated at the time, and their unsuccessful

attempt to deny him a Certified Deaf Interpreter. Decl. of Carrie Ann Lucas in Supp. of Pl.’s Mot.

for Attorneys’ Fees and Costs, ECF 140-3 (“Lucas Decl.”) ¶¶ 26-28. As a result, the deposition

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was scheduled and rescheduled on several occasions, requiring continual efforts to ensure that Mr.

Scott was prepared. Mr. Scott’s deposition was scheduled to begin on the same day that he

accepted the Offer of Judgment. Lucas Reply Decl. ¶ 11.

Mr. Ringel challenges time spent by counsel reading and annotating depositions that they

took. Ringel Decl. ¶¶ 34, 44, 46. The entire point of taking a deposition, however, is to generate

testimony that supports one’s client’s position. This testimony is only useful if read, identified, and

annotated for future use, as Plaintiff’s counsel did after each deposition.

Mr. Ringel asserts that it was improper for Plaintiff’s paralegal to spend 2.8 hours

preparing a declaration to authenticate exhibits. Ringel Decl. ¶ 37. Mr. Ringel misreads the time

entries at issue, which in fact include “[c]ite checking motion to compel, drafting Robertson

declaration, gathering exhibits for same” and “editing exhibits for same.” Robertson Decl. Ex. 3 at

31. Given these tasks, 2.8 hours is entirely reasonable, and Mr. Ringel offers no reason to the

contrary.

Mr. Ringel challenges Plaintiff’s time devoted to a partially-successful motion to compel

responses to requests for admission. Ringel Decl. ¶ 40. As explained in Plaintiff’s Fee Motion,

Plaintiff was attempting to establish several basic facts: that Mr. Scott was substantially limited in

the major life activity of hearing; and the dates on which the City provided interpreters. Defendant

continued to play word games with its responses, despite the fact that its experts were telling it

that Mr. Scott was indeed profoundly deaf. Fee Motion at 14-15; Robertson Decl. ¶¶ 80-83.

Even time spent on unsuccessful motions is compensable if it was “‘reasonably expended in pursuit

of the ultimate result.’” Clawson v. Mountain Coal Co., 2007 WL 4225578, at *10 (D. Colo.

Nov. 28, 2007) (quoting Bruno v. W. Elec. Co., 618 F. Supp. 398, 404 (D. Colo. 1985)). The

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time spent on this partially-successful motion was central to the ultimate result: demonstrating that

Mr. Scott was an individual with a disability, and that the City had failed to provide effective

communication. Mr. Ringel’s objections to time spent opposing the City’s partially-successful

motion to compel, Ringel Decl. ¶ 41, fail for the same reason.

Mr. Ringel challenges the time spent preparing to depose Brenda Schick, the City’s expert

on communications. Ringel Decl. ¶ 45. Dr. Schick conducted an IME and then wrote a 47-page

rebuttal expert report. Lucas Reply Decl. ¶ 12. In her report, and subsequent disclosures by the

City, Dr. Schick relied on hundreds of documents, including some disclosed after her deposition.

Id. ¶¶ 15, 18. It was necessary for counsel to review those documents, as well as Dr. Schick’s

referenced scholarly writings and the assessments used in her examination to prepare exhibits for

use during her deposition, as well as prepare questions for the deposition. Id. ¶¶ 13-18. Mr. Ringel

challenges the time spent having a paralegal in Dr. Schick’s deposition. Ringel Decl. ¶ 45. A

paralegal was necessary due to the nature of Ms. Lucas’s disability. Lucas Reply Decl. ¶ 19.

Mr. Ringel challenges the time spent preparing to defend the deposition of Jean Andrews,

Plaintiff’s deaf communications expert. Ringel Decl. ¶ 47. Because the City had requested

information concerning -- and was challenging -- Mr. Scott’s hearing abilities and educational

experience back to his preschool days, Plaintiff’s counsel had requested that Dr. Andrews review

and opine on a large number of records relating to these experiences. As such, preparation for her

deposition required counsel to review those documents to prepare Dr. Andrews and anticipate the

types of questions Defendant would ask in an attempt to demonstrate that Mr. Scott could hear

and understand at various times during his life. Robertson Reply Decl. ¶ 19.

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Mr. Ringel challenges the time spent preparing for Rule 702 motions and notes

“[i]mportantly, no Rule 702 motions were actually filed in this case.” Ringel Decl. ¶ 48. This

Court’s Procedures for Rule 702 Motions6 require that the parties confer to identify each opinion

that each expert will offer and each ground for objection, and then file a joint motion setting forth

this information. Id. at 1. The deadline for filing the Rule 702 motion was the dispositive motion

deadline, Trial Preparation Order - Civil, ECF 15 at 2, which was variously set at December 14,

2012, ECF 14 at 6, January 14, 2013, ECF 28 at 3, March 15, 2013, ECF 85 at 1, and May 24,

2013, ECF 118 at 1. The Offer of Judgment was not accepted until May 9, 2013, so Plaintiff’s

counsel reasonably spent time ensuring they were properly conferring with opposing counsel and

preparing their portion of the joint motion for filing on the deadline. Robertson Reply Decl. ¶ 20.

Mr. Ringel objects to reviewing this Court’s Rule 702 Procedures is something “an

experience[d] counsel should already know and understand or represent improper internal

communications between counsel.” Ringel Decl. ¶ 48. This assertion is belied by Mr. Ringel’s

own billing records, which include, for example, “[r]esearch United States District Court website

for Civil Cover Sheet, Supplemental Civil Cover Sheet, and Application for Admission forms,” and

“[r]eview local rules of the United States District Court for the District of Colorado and Local

Practice Standards for Senior Judge Zita Weinshienk regarding same.” Ringel Newmont Aff. at 5

(6/17/06); 6 (6/27/06); see also id. at 39 (“[r]eview rules on costs and attorneys fees” (9/23/08)).

It is reasonable -- indeed, good practice -- for counsel to ensure that he or she is familiar with and

complies with each judge’s individual rules of practice.

6 www.cod.uscourts.gov/Portals/0/Documents/Judges/MSK/msk_702procedures.pdf

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G. Time Devoted to the Video of Mr. Scott’s 2006 Police Interview

Mr. Ringel objects that Plaintiff’s counsel should not have taken more than 1.2 hours each

to view a slightly less than one-hour video produced by the City and that counsel “engaged in

computer analysis and work to attempt to view” the video when “[s]uch efforts should have been

conducted by information technology professionals.” Ringel Decl. ¶ 19. Plaintiff’s counsel’s time

is very reasonable given the circumstances under which the video was produced.

Mr. Scott was interviewed by the Denver Police -- with a sign language interpreter -- in

February, 2006. This interview was videotaped. The City, however, did not disclose this video

with its April, 2012, Rule 26(a)(1) disclosures nor did it produce the video in response to

Plaintiff’s March, 2012, discovery requests. Rather, it produced an unreadable copy of the video

on Monday, February 25, 2013, with Dr. Andrews scheduled to be deposed three days later.

Robertson Decl. ¶ 88. Because of the very short time frame to view the video and attempt to get it

to Dr. Andrews -- who resides in Beaumont, Texas -- before she boarded the plane to come to

Denver, Plaintiff’s counsel and their information technology consultant worked furiously to find a

program that would play the video. As Ms. Robertson reported to counsel for the City:

We tried WMP, Corel Draw, VLC and RealPlayer. Our IT person also tried the CCTVDVR viewers on this website: http://www.cctvcamerapros.com/Surveillance-DVR-Downloads-s/82.htm. In addition, hereports:

I actually tried renaming the file to .avi or .wav and didn’t seem to make adifference. We even tried running a utility against the DSF file that would normallytell us codecs needed to play the file, manufacturer of the software, etc . . and itdidn’t come back with any information at all.

Usually if this is a true media file, VLC would have been able to open and play it.VLC plays EVERYTHING! But again unfortunately not even vlc player would doanything for this file.

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There has to be some kind of proprietary software that this file was used to createit.

Robertson Reply Decl. ¶ 21 and Ex. 8. Ultimately, the City either could not or would not produce

a copy readable by any software Plaintiff’s counsel or their information technology consultant

could identify, so Ms. Robertson traveled to the City Attorney’s office on February 26 to view the

video. She was not, however, permitted to record the video off of the City Attorney’s computers

or even point a video camera at the laptop and record it. Meanwhile, the City Attorney initially

refused to reschedule the expert’s deposition. Robertson Decl. ¶¶ 88-89. Under these

circumstances, Plaintiff’s counsel’s all-hands-on-deck approach to trying to view the video and

make it available outside the City Attorney’s office was reasonable.

The video is just under one hour long in two parts, and to review it thoroughly and stop it

from time to time to go over specific passages and take notes so as to be able to prepare to defend

Dr. Andrews’s deposition and to take Dr. Schick’s deposition required slightly longer than the

actual running time. Robertson Reply Decl. ¶ 22. Mr. Ringel’s assertion that counsel’s viewing

time should have been shorter is thus unfounded.

H. Time Challenged as Duplicative.

Mr. Ringel challenges certain time entries as duplicative because more than one attorney

participated in depositions, hearings, or drafting documents. See Ringel Decl. ¶¶ 9, 13, 14, 34, 44,

45, 47. As noted in Plaintiff’s Fee Motion, the City also sent multiple attorneys to many

depositions. Fee Motion at 7; Robertson Decl. Ex. 27. In addition, Mr. Ringel’s Newmont billing

records demonstrate that it is accepted practice to bill a private client for more than one attorney to

attend, for example, a status conference, Ringel Newmont Aff. at 30 (3/10/08) and Newmont ECF

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54 (Courtroom minutes showing Mr. Ringel and his two co-counsel attending a half-hour status

conference), a mediation conference call, Ringel Newmont Aff. at 46, 49 (11/19/08; 11/4/08), and

an appellate argument at which he did not argue, id. at 70 (1/14/10). Mr. Ringel also billed for

time spent reviewing and editing motions and briefs prepared by his co-counsel. Id. at 5-6

(6/20/06), 8 (7/03/06), 10-11 (7/21/06), 15 (8/29/06), 36 (5/08/08), 60 (4/29/09), 66 (8/23/09).

As the Tenth Circuit has held, “Because utilizing more than one lawyer may be reasonable in some

situations, such as during settlement conferences or during trial, we decline to require an automatic

reduction of reported hours to adjust for multiple representation or potential duplication.” Ramos,

713 F.2d at 554.

I. Travel Time

Mr. Ringel challenges Plaintiff’s counsel’s travel time, asserting that “most clients do not

allow attorneys to bill for their travel time.” Mr. Ringel’s Newmont co-counsel billed for the time

he spent traveling from New York to Denver and back, Robertson Reply Decl. Ex. 9 at 88, and the

Littler Morreale bills show a common practice of billing for travel to and from meetings and

depositions within Denver, id. Ex. 4 at 64-68. As the City concedes, “travel costs may be

reimbursed only where Plaintiff proves that these costs are normally billed to a private

client in the local area.” Fee Response at 15 (citing Bee v. Greaves, 910 F.2d 686, 690 (10th Cir.

1990). The Newmont and Morreale bills provide such evidence.

J. Department of Justice

Mr. Ringel challenges time spent working with the Department of Justice (“DOJ”)

concerning that agency’s investigation of Mr. Scott’s claims. Ringel Decl. ¶ 49. This time was

spent conferring with the DOJ trial attorney in charge of the case both to ensure that she had the

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documents and information she needed to advance her investigation and that Mr. Scott could

benefit from the DOJ’s work and insights in the present case. Robertson Reply Decl. ¶ 24. It is

proper to award fees for time spent advancing a separate matter that has the potential to support

the claims at issue in the present case. See, e.g., Armstrong v. Davis, 318 F.3d 965, 972 (9th Cir.

2003) (holding that “the award of fees should cover ‘every item of service which, at the time

rendered, would have been undertaken by a reasonably prudent lawyer to advance or protect his

client’s interest” in the case at bar.” (Quoting Hasbrouck v. Texaco, Inc, 879 F.2d 632, 638 (9th

Cir. 1989)). The Hasbrouck court affirmed the award of fees for work on an unsuccessful amicus

brief in a separate case. Id.

K. Settlement Attempts and Mediation; Offer of Judgment

The City’s criticisms of the time spent on these boil down to complaints that counsel

conferred among themselves -- addressed in Section V(A) -- and worked with the Department of

Justice, addressed in the section immediately above. See Ringel Decl. ¶¶ 50-51.

L. Fee Motion.

The City’s chief criticism is, again, intra-firm communications, addressed in Section V(A)

above. See Ringel Decl. ¶ 52. Mr. Ringel also asserts that the accuracy of Plaintiff’s counsel’s

time is questionable given the need to reconcile the time and edit the billing records. Id. at 37-38

n.15. This process involved comparing the time recorded contemporaneously by counsel involved

in the same event and -- in the rare cases where a different amount of time was recorded --

reducing the time of the attorney who had recorded the greater amount. The “editing” process

that Mr. Ringel criticizes involved ensuring that each contemporaneously-recorded entry was clear

in describing the task accomplished and correcting typographical errors. Lucas Reply Decl. ¶ 20

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V. Costs

Plaintiff requests $21,996.49 in out-of-pocket costs through June 26, 2013, a request that

was fully documented with supporting declarations and receipts. See Robertson Decl. ¶¶ 7-8 and

Exs. 5-13; Lucas Decl. ¶ 14 and Ex. 2. The City does not object to any specific cost item, but

generally suggests that the costs should be reduced in light of what it describes as Plaintiff’s limited

success. Fee Response at 30-31. Plaintiff demonstrated above that he achieved an excellent result

on both of the claims that he brought; no reduction is appropriate on those grounds. See supra at -

--. In any event, the City does not cite any support for the proposition that documented out-of-

pocket costs can be reduced based on the result of the litigation. Plaintiff is entitled to full

reimbursement for his out-of-pocket costs.

VI. Fees and Costs Incurred After June 26, 2013

Plaintiff’s Fee Motion did not include time spent or costs incurred after June 26, 2013.

Plaintiff respectfully requests leave to file a supplemental fee motion for that period of time after

the Court rules on the present motion.

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CONCLUSION

For the reasons set forth above and in Plaintiff’s Fee Motion and based on the evidence

submitted with that Motion and attached hereto, Plaintiff respectfully request that this Court award

him $427,372.50 in fees and $21,996.49 in costs, and permit him to file a supplemental fee motion

addressing fees and costs after June 26, 2013.

Respectfully submitted,

/s/ Amy F. Robertson Amy F. RobertsonCivil Rights Education and EnforcementCenter 104 Broadway, Suite 400Denver, CO 80203303.757.7901 [email protected]

Attorneys for Plaintiff

Carrie Ann LucasThe Center for Rights of Parents withDisabilitiesP.O. Box 756Windsor, CO 80550720.363.1131 (voice)970.460.9197 (fax)[email protected]

October 4, 2013

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CERTIFICATE OF SERVICE

I hereby certify that on October 4, 2013 I served the foregoing Plaintiff’s Reply Brief inSupport of Motion for Attorneys’ Fees and Costs, the Declarations of Amy F. Robertson, CarrieAnn Lucas, Caitlin R. Anderson, and Jennifer Elstran in support of that brief via the CM/ECFsystem on:

Wendy [email protected]

Joseph M. [email protected]

Carol [email protected]@ci.denver.co.us

By: /s/ Amy F. Robertson Amy F. Robertson

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