Waverley View Investors, LLC v. United States ( 2019 )

In the United States Court of Federal Claims
No. 15-371L
(Filed: September 20, 2019)
)
WAVERLEY VIEW INVESTORS, LLC, Dispute over disclosure of compilation of
) billing rates; entitlement to confidentiality
Plaintiff, ) and protection under RCFC 26(c)(1)(G)
)
)
v. )
)
UNITED STATES, )
)
Defendant. )
)
R. Timothy McCrum, Crowell & Moring LLP, Washington, D.C., for plaintiff. With him
on the briefs was Clifford J. Zatz, Crowell & Moring LLP, Washington, D.C.
Jessica M. Held, Attorney, Natural Resources Section, Environment & Natural Resources
Division, United States Department of Justice, Washington, D.C. for defendant. With her on the
brief were Lawrence A. Vandyke, Deputy Assistant Attorney General, Environment & Natural
Resource Division, and Lucinda J. Bach, Attorney, Natural Resources Section, Environment &
Natural Resources Division, United States Department of Justice, Washington, D.C.
OPINION AND ORDER
Pending before the court is plaintiff Waverly View Investors, LLC’s (“Waverly’s”)
motion for leave to submit an exhibit to its motion for recovery of attorneys’ fees under seal,
filed August 8, 2019 (“Pl.’s Mot.”), ECF No. 124. The government has filed an opposition to
plaintiff’s motion, see United States’ Resp. to Pl.’s Mot. to File under Seal (“Def.’s Opp’n”),
ECF No. 129, and Waverly has filed a reply, see [Pl.’s] Reply in Support of its Mot. for Leave to
File Exhibit . . . under Seal (“Pl.’s Reply”), ECF No. 130. A hearing was held on September 18,
2019.
For the reasons stated, Waverly’s motion is granted and the exhibit shall be filed, held,
and maintained under seal.
BACKGROUND
The exhibit at issue reportedly sets out hourly billing rates for firms in the Washington
D.C. legal market. Pl.’s Mot. at 1.1 The exhibit is relevant to the request for attorneys’ fees filed
1
The exhibit is accompanied by the Declaration of Cory Wayne Branden, a representative
of Thomson Reuters, which provides the context in which the compilation of billing rates at issue
by Waverly after it prevailed on its claim of a taking in the underlying case involving the
continuous presence of an Army-installed gravel access road and pollution monitoring wells after
expiration of the parties’ right-of-entry agreement. See Waverly View Investors, LLC v. United
States, 136 Fed. Cl. 593 (2018), aff’d, 767 Fed. Appx. 996 (Fed. Cir. 2019).
The hourly billing rates were compiled by Thomson Reuters and made available to
Waverly on a contractual basis. Waverly contends that the compilation is confidential property
of Thomson Reuters and that it seeks to maintain that confidentiality by filing the exhibit under
seal. Pl.’s Reply at 2. Waverly represents that
Thomson Reuters contracts with law firms for the collection of myriad
financial data and metrics, including billing rates. It then packages and sells
the information it has collected to other law firms, who must themselves agree
to provide Thomson Reuters their own financial data. Other law firms that
agree to provide Thomson Reuters with their financial information can access
Thomson Reuters’ data concerning other law firm rates.
Id. In this instance, the Thomson Reuters data reflects billing rates from six peer law firms:
Crowell & Moring, Akin Grump, Arent Fox, Arnold & Porter Kaye Scholer, Pillsbury Winthrop
Shaw Pittman, and Steptoe & Johnson. Branden Decl. ¶ 5. Mr. Branden states that “[t]hese law
firms were identified as Crowell & Moring’s peers because, like Crowell [&] Moring, they are
D.C.-based, AMLaw 100 firms.” Id. ¶ 6. The table of rates separates attorneys by partner or
associate and lists the rates by 25th percentile, median, and 75th percentile. Hr’g Tr. 26:10-13.
STANDARDS FOR DECISION
Rule 26(c) of the Rules of the Court of Federal Claims (“RCFC”) governs protective
orders. A strong presumption favors public access to court proceedings. See In re Violation of
Rule 28(d), 635 F.3d 1352, 1356 (Fed. Cir. 2011). “This presumption applies to materials
submitted to the court in all civil adjudicatory proceedings.” AmerGen Energy Co., LLC by and
through Exelon Generation Co., LLC v. United States, 115 Fed. Cl. 132, 136 (2014) (citing
Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 121 (2d Cir. 2006); Rushford v. New York
Magazine, 846 F.2d 249, 252 (4th Cir. 1988); Republic of Philippines v. Westinghouse Elec.
was developed. See Decl. of Cory Wayne Branden (Aug. 2, 2019) (“Branden Decl.”), ECF No.
123-7.
The compilation of rates has not actually been filed with the court, pending resolution of
the motion for leave to file the compilation under seal. Hr’g Tr. 10:18 to 11:12 (Sept. 18, 2019)
(the date will be omitted from further citations to the hearing transcript). A copy of the
compilation had been provided to government counsel, see Hr’g Tr. 10:18-21, 27:1-2, and it was
examined by the court in camera at the hearing, see Hr’g Tr. 26:20-25, 27:3-7.
2
Corp., 949 F.2d 653, 661 (3d Cir. 1991); Pratt & Whitney Canada, Inc. v. United States, 14 Cl.
Ct. 268, 273-74 (1988)). Even so, under RCFC 26(c)(1)(G), the court may “require[] that a trade
secret or other confidential research, development, or commercial information not be revealed or
be revealed only in a specified way.”2 The burden of proof for a protective order under RCFC
26(c)(1) is on the moving party. See In re Violation of Rule 28(d), 635 F.3d at 1357. In ruling
on confidentiality, “the court must balance the public’s interest in access against any putative
private interest in maintaining the confidentiality of the information in question.” AmerGen
Energy, 115 Fed. Cl. at 137; see also Lockheed Martin Corp. v. United States, No. 15-1536C,
2016 WL 462865 (Fed. Cl. Feb. 5, 2016).
ANALYSIS
Waverly contends that the compilation of billing rates constitutes confidential
commercial information entitled to protection against disclosure under RCFC 26(c)(1)(G). Pl.’s
Mot. at 1-2. The government’s opposition emphasizes the strong presumption of public access to
court proceedings, see Def.’s Opp’n at 4 (citing In re Violation of Rule 28(d), 635 F.3d at 1356),
and contends that Waverly has not met its burden of proof under RCFC 26(c)(1), id. In the
government’s view, “[b]illable rate comparisons or surveys . . . are not properly classified as
confidential business information or trade secrets.” Id. The government contends that Thomson
Reuter’s compilation consists of “law firms’ self-reported data, and is available for purchase by
anyone willing to pay the price—including competitor law firms.” Id. at 5.
In further support, the government cites Baker v. United States, 136 Fed. Cl. 162 (2018),
where the court rejected an effort by plaintiffs to file under seal an exhibit to their motion for
attorneys’ fees that contained “billing rates that various firms, including plaintiffs’ counsel’s firm
. . . reported to the National Law Journal and Pricewaterhouse Coopers voluntarily.” Id. at 163.
The court in Baker concluded that the rate compilation in that case was not confidential but
rather set out only “self-reported billing rates . . . easily obtained from public sources.” Id. The
court also concluded that no harm to the law firm would arise from disclosing the data on rates
“in the public record.” Id. at 164. Thus, there was no private harm through disclosure that
would overcome the presumption that weighs in favor of public access. Id.
Waverly responds that Baker is distinguishable because the billing information in that
case was “easily obtained from public sources” including the National Law Journal. Pl.’s Reply
at 3 (quoting Baker, 136 Fed. Cl. at 163). In contrast, Waverly asserts that “[o]nly law firms that
participate in–and pay for–Thomson Reuters’ platform can access the[ir] data.” Id. In that
respect, Waverly contends that there is no public source for the Thomson Reuters data because it
is collected “directly from law firms’ billing systems,” id. at 4, “unlike the self-reported data
provided to the National Law Journal in Baker,” id. (internal quotation marks omitted). Waverly
2
RCFC 26(c)(1)(G) is identical to Fed. R. Cir. P. 26(c)(1)(G), and both rules should be
construed in pari materia.
3
represents that Thomson Reuters’ compilation “is uniquely valuable because it provides an
unvarnished look at the rates law firms actually billed.” Id.3
The government avers that a ruling on the issue presented in this action “will provide
guidance in future cases,” Def.’s Opp’n at 3, noting that “[t]he selection of hourly rates to be
used in determining a reasonable fee award is a recurring issue in Fifth Amendment takings
cases,” id.
The issue in this dispute is a close one because the public’s right to access to court
records is strong. See In re Violation of Rule 28(d), 635 F.3d at 1357; see also Sikorsky Aircraft
Corp. v. United States, 112 Fed. Cl. 313, 316 (2013). Nonetheless, the court finds that the
Thomson Reuters’ compilation to be provided by Waverly in connection with the present claim
for attorneys’ fees constitutes proprietary and confidential commercial information that is
deserving of protection under RCFC 26(c)(1)(G). See Carpenter v. United States, 484 U.S. 19,
26 (1987) (“Confidential information acquired or compiled by a corporation in the course and
conduct of its business is a species of property to which the corporation has the exclusive right
and benefit.”). The factor distinguishing this case from Baker is the nature of the rate
information Thomson Reuters uses in its compilation. Rather than gathering firm-reported
billing rates that might be publicly available, Thomson Reuters appears to have direct access to
law firms’ billing systems and relies on actual rates charged to clients. The compilation is also
subject to a contractual pledge of confidentiality. Hr’g Tr. 27:14-23. The court is therefore
satisfied that the resulting data Thomson Reuters compiles are not in the public domain and are
available only under a commercial contract that requires confidentiality. Waverly has met its
burden of proof to justify a protective order in accord with RCFC 26(c)(1)(G).
CONCLUSION
Waverly’s motion for leave to file exhibit to motion for recovery of attorneys’ fees is
GRANTED, and the exhibit shall be filed, held, and maintained under seal.
It is so ORDERED.
s/Charles F. Lettow
Charles F. Lettow
Senior Judge
3
For access to the data, Crowell & Moring pays “a substantial annual fee [to Thomson
Reuters] and all the other firms do as well.” Hr’g Tr. 28:2-3. Thomson Reuters installs software
on the law firm’s billing systems, and the resulting compilation reflects “pricing information
directly from law firms’ billing systems,” Hr’g Tr. 25:9-10 (quoting Branden Decl. ¶ 4),
“without any redaction,” Hr’g Tr. 25:13.
4