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Charles Breslin, et al v. Dickinson Township

July 18, 2011

CHARLES BRESLIN, ET AL.,
PLAINTIFFS,
v.
DICKINSON TOWNSHIP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Martin C. Carlson United States Magistrate Judge

(Judge Stengel) (Magistrate Judge Carlson)

MEMORANDUM OPINION AND ORDER

I. Statement of Facts and of the Case

This case is a civil rights action brought by the plaintiffs against defendants, various local township officials, alleging constitutional First Amendment and First Amendment-retaliation claims. In their complaint, the plaintiffs seek wide-ranging relief from the defendants, including attorney's fees and damages. (Docs. 1 and 36)

Following contentious discovery proceedings, this case was referred to the undersigned on January 25, 2011, for the purpose of overseeing pre-trial discovery. (Doc. 77) The parties continue to engage in acrimonious discovery disputes as this litigation proceeds fitfully forward. The instant motion is but the latest example of a heated, but legally unnecessary, dispute in this case.

Given the plaintiffs' prayer for relief in this case, which sought among other things an award of attorney's fees, the defendants have propounded upon the plaintiffs a request for production of documents which seeks information that goes directly to this demand for attorney's fees and requests the production of:

Any and all fee agreements, representation agreements, retention agreements and/or other documents setting forth the billing arrangement between Charles Breslin, Paul Cunningham, and Phillip Thompson and Don A. Bailey, Esquire, including the hourly rate (if any) charged. (Doc. 157-2)

To avoid any legal confusion on the plaintiffs' part regarding the defendants' entitlement to this information, this request for production went on to advise the plaintiffs' counsel, in clear and precise terms, that: "Please note that, pursuant to Montgomery County v. Microvote Corporation, 175 F.3d 296 (3rd Cir. 1999), the Third Circuit expressly has held that 'The attorney-client privilege does not shield fee arrangements.'" (Id.) Despite this clear notice from the defendants that they sought discoverable information, it is represented that the plaintiffs have failed to comply with this request for production, thus forcing the defendants to move to compel production of this information. (Doc. 157) In response to the defendants' motion to compel, which recites the settled legal principle that fee agreement information is not privileged, the plaintiffs have filed a response (Doc. 168) which illustrates the legal bankruptcy of the plaintiffs' refusal to comply with this discovery demand. In this response, the plaintiffs acknowledge the settled case law approving disclosure of fee arrangements in civil discovery, but ask the Court in the face of this settled case law to deny this particular discovery request.

Since the plaintiffs cite no legal authority in opposition to this discovery request, and concede that there is ample legal authority permitting this precise form of discovery, the motion to compel will be granted.

II. Discussion

Several basic guiding principles inform our resolution of the instant discovery dispute. At the outset, Rule 37 of the Federal Rules of Civil Procedure governs motions to compel discovery, and provides that:

(a) Motion for an Order Compelling Disclosure or Discovery

(1) In General. On notice to other parties and all affected persons, a party may move for an order compelling ...


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