Singer v. Office of Navajo and Hopi Indian Relocation ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Bernaleen Singer, No. CV-19-08171-PCT-DLR 10 Plaintiff, ORDER 11 v. 12 Office of Navajo and Hopi Indian Relocation, 13 Defendant. 14 15 16 Before the Court is the Office of Navajo and Hopi Indian Relocation’s (“ONHIR”) 17 motion for leave to conduct limited discovery for fees and for an extension of time to 18 respond to Plaintiff’s motion for attorney fees, which is fully briefed. (Docs. 54, 55, 56.) 19 ONHIR requested that counsel produce their retention agreement and billing receipts in 20 this matter, but counsel has declined to produce them, broadly citing the attorney-client 21 privilege. Without access to the retention agreement and billing receipts, ONHIR asserts 22 that it has been unable to verify whether the Navajo Nation, rather than Ms. Singer, is the 23 real party in interest relevant to the Equal Access to Justice Act (“EAJA”) fee request. 24 ONHIR argues that, if the Navajo Nation is indeed the real party in interest, the fee petition 25 is invalid.Fee-related discovery requests are “committed to the sound discretion of the trial 26 court.” Sablan v. Dep’t of Fin. Of Com. Of N. Mariana Islands, 856 F.2d 1317, 1321 (9th 27 Cir. 1988). The Court will grant ONHIR’s motion. 28 1 “The attorney-client privilege ordinarily protects neither a client’s identity nor 2 information regarding the fee arrangements reached with that client.” Reiserer v. U.S., 479 3 F.3d 1160, 1165 (9th Cir. 2007) (quoting United States v. Horn, 976 F.2d 1314, 1317 (9th 4 Cir. 1992)). However, “the privilege may be invoked to protect fee arrangements if 5 disclosure would ‘convey [] information which ordinarily would be conceded to be part of 6 the usual privileged communication between attorney and client.’” Nelson v. Millenium 7 Lab., Inc., Case No. 2:12-cv-01301-SLH, 2013 WL 11687684, at *5 (D. Ariz. May 17, 8 2013). Plaintiff has not demonstrated that this narrow exception applies. Instead, she 9 contends that the discovery is inappropriate because ONHIR legally cannot be a party in 10 interest and Ms. Singer is entitled to recover fees under the EAJA, regardless of the nature 11 of the fee agreement and the actual payments made. While the parties disagree as to the 12 merits of these issues, the Court prefers to examine them on the facts of this case, rather 13 than in the abstract. 14 Accordingly, ONHIR is granted leave to serve no more than ten requests for 15 production on Plaintiff’s counsel by no later than December 4, 2020 to obtain the fee 16 agreement and billing receipts. Plaintiff must produce the responsive documents to 17 ONHIR no later than December 7, 2020. If Ms. Singer believes that specific billing entries 18 are privileged, she may redact that material, provided that she includes a privilege log to 19 enable ONHIR to challenge assertions of privilege. ONHIR must file a response to 20 Plaintiff’s motion for fees (Doc. 53) by no later than December 21, 2020. Plaintiff’s reply 21 is due no later than January 4, 2021. 22 Finally, Plaintiff’s request that she be granted “equal discovery on ONHIR” is 23 denied. It is unclear what materials Plaintiff seeks to discover or how those documents are 24 relevant to the instant inquiry. 25 / / / 26 / / / 27 / / / 28 1 IT IS ORDERED that ONHIR’s motion for leave to conduct limited discovery for 2|| fees and for an extension of time to respond to Plaintiff's motion for attorney fees (Doc. 54) is GRANTED. 4 Dated this 2nd day of December, 2020. 5 6 ‘Loe tha 9 Upied States Dictria Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _3-