Plaintiff's statement of attorney fees and costs kroger

JUt 02 2012

FOR THE COUNTY OF MARION5

6 MARK LONG,

7 Plaintiff,

8 vs.

9 JOHN KROGER, in his official capacityas Attorney General for the State of

10 Oregon,

11 Defendant.

12

13 UTCR 5.050

Case No. l1C14422Honorable Thomas M. Hart

PLAINTIFF'S STATEMENT OFATTORNEY FEES AND COSTS

(ORAL ARGUMENTCONDITIONALL YREQUESTED)

14 If defendant files no objection to plaintiffs Statement of Attorney Fees and Costs,

15 plaintiff does not request oral argument. If defendant does file objections pursuant to

16 ORCP 68 C(4)(b), plaintiff requests oral argument pursuant to ORCP 68 C(4)(c),

17 estimates 60 minutes for oral argument, and requests official court reporting services.

18 STATEMENT OF ATTORNEY FEES AND COSTS

19 Plaintiff has incurred attorney fees in the amount of $430,944.50 through June 25,

20 2012 (the "lodestar amount"), as well as overhead costs of$6,667.16 and court costs (in

21 the form of filing and reporting fees) of$2,462.00. For the reasons described below,

22 plaintiff requests that the court award enhanced attorney fees by applying a multiplier of

23 two to the lodestar amount. Plaintiff therefore petitions the court for an award of attorney

24 fees in the amount of $868,556.16 and for an award of costs in the amount of $2,462.00

25 against defendant. Plaintiff relies on ORCP 68, the points and authorities that follow, the

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Hp,RRANG LONG GARY

RUDNICK PC.360 East 10th Avenue

Suite 300Eugene. OR 97401·3273Phone (541) 485·0220F'ax (541) 686-6564

Page 1 - PLAINTIFF'S STATEMENT OF ATTORNEY FEES AND COSTS

HARRANG LONG GARY

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1 records and files in this matter, and the Declarations of Sharon A. Rudnick and Randolph

2 Geller filed herewith. 1

3 POINTS AND AUTHORITIES

4 In January, 2011 plaintiff requested that defendant provide him with public

5 records pursuant to ORS 192.410 through ORS 192.505. Plaintiff sought access to these

6 records in order to respond to the State's five-month investigation into plaintiffs

7 conduct, which put his government employment significantly at risk. As this court found,

8 defendant did not produce the records requested until the State's investigation was

9 complete and plaintiffs ability to use them to defend himself had passed. Nevertheless,

10 defendant continued to vigorously defend his actions, even as he continued to produce

11 additional responsive records up to and during trial. For the next 18 months, plaintiff

12 withstood the onslaught of resources that defendant committed to fighting this case, and

13 as a result, incurred $430,944.50 in attorney fees. Because of plaintiffs limited financial

14 resources, his legal counsel agreed to defer (but not to waive) payment of attorney fees.

15 In direct retaliation for its representation of plaintiff in this case, defendant

16 "blackballed" plaintiff s law firm from representation of government entities, prevented

17 the law firm from being engaged in at least three significant litigation matters by the

18 University of Oregon, and ended a decades-long history of the law firm's lawyers serving

19 as Special Assistant Attorneys General and as conflict counsel for the Oregon

20 Department of Justice.

21 II

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231 Plaintiffs have separately accounted for overhead costs (billed directly to the client and

24 recoverable as part of attorney fee awards) and court costs (those recoverable underORCP 68). See Willamette Production Credit Ass'n v. Borg-Warner, 75 Or App 154, 706

25 P2d 577 (1985) ("Courts should recognize the reality of modem legal business practicesand include expenses specially billed to the client in the attorney fees award when they

26 are properly documented and are reasonable. "); see also Declaration of Sharon A.Rudnick in Support of Plaintiff's Statement of Fees and Costs, at ~24 and Ex's. 2-3.Plaintiffs calculation applies the "multiplier" to attorney fees only, and not to costs ineither form.


Plaintiff ultimately prevailed in this case and the court has ruled that plaintiff is

2 entitled to recover his reasonable attorney fees pursuant to ORS 192.490(3). As

3 described in detail below and in the Declaration of Sharon A. Rudnick, the hourly rates

4 charged by plaintiff's lawyers are reasonable and the time they expended in this matter

5 was reasonable and necessary in light of the Attorney General's litigation tactics.

6 However, in the unusual and troubling circumstances of this case, the reasonable hourly

7 rates charged, multiplied by the reasonable time spent on the case, does not yield a

8 reasonable attorney fee. Applying the governing criteria ofORS 20.075, and accounting

9 for the way that the Attorney General conducted this litigation and blatantly and

10 effectively interfered with the business interests of plaintiff's counsel, the fees awarded in

11 this case should be multiplied by a factor oftwo.

12 Plaintiff makes this statement pursuant to ORCP 68 and seeks an enhanced award

13 of attorney fees and costs related to the judgment in plaintiffs favor entered on June 18,

14 2012. Plaintiffs entitlement to an enhanced award of attorney fees and costs arises from

15 ORS 192.490, ORS 20.075, and this court's prior rulings.

16 A. Legal Basis for Award of Attorney Fees

17 This court has expressly determined that "Plaintiff is the prevailing party in this

18 matter." Findings of Fact and Conclusions of Law (May 23,2012) at 6. Accordingly, the

19 court concluded that "Plaintiff is entitled to recover his costs, disbursements, and

20 reasonable attorney fees pursuant to ORCP 68." Id; see also ORS 192.490(3) ("If a

21 person seeking the right to inspect or to receive a copy of a public records prevails in the

22 suit, the person shall be awarded costs and disbursements and reasonable attorney fees at

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23 trial and on appeal.") (Emphasis supplied).

B. Reasonableness of Attorney Fees

25 The "lodestar amount" of attorney fees is typically determined by multiplying the

26 hours reasonably expended times a reasonable hourly rate. Strawn v. Farmers Ins. Co. of

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1 Oregon, 233 Or App 401,407,226 P3d 86 (2010), aff'd in part, rev 'd in part on other

2 grounds, 350 Or 336,258 P3d 1199 (2011). The attached declaration of Sharon A.

3 Rudnick in Support of Plaintiff's Statement of Fees and Costs ("Rudnick Decl.")

4 demonstrates that both the hours and the hourly rates claimed are reasonable.

1. Hourly Rates

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The hourly rates claimed for the attorneys in this case range from a high of $550

per hour for Dave Frohnmayer to a low of $220 per hour for Kate L. Grado. Rudnick

Decl. at ,-r7-13. Paralegal time was billed at $125 per hour, and Litigation Assistant time

was billed at $75 per hour. Id. at ,-r14-16. The hourly rates claimed are the rates actually

charged to plaintiff and the same rates charged to other clients for similar work. Id. at

,-r17. They are comparable to rates charged by other attorneys with similar experience in

the Willamette Valley and Portland. Id.

Both the Oregon Supreme Court and the Lane County Circuit Court recently

awarded attorney fees to clients represented by plaintiff's counsel based upon the hourly

rates claimed here. Last year, in Stuart v. Pittman, 350 Or 410,255 P3d 482 (2011), the

Oregon Supreme Court awarded the plaintiff, who was represented by plaintiff's counsel

in this case, the full amount of fees requested based upon the same hourly rate structure

applied here. Id. at ,-r25. And in Fraser et al v. Valley Energy Investment Fund U'S; L.P,

et "I Lane County Circuit Court l-.Tr. 1h()Q26841 (2()1 ()\ JurlITA Karsten Rasmussent. y,I-, .L~\,.I \..U...L '-'.J...l.\,..i ••. '-"v l'v. J.vvv J. V.1.vJ, '-.&.6'" .1. ••."" '-- ••...•.oJoJ'-'.1.

awarded defendants more than $2 million in attorney fees while rejecting plaintiff's

challenges to the hourly rates charged by defendants' counsel, which included plaintiff's

counsel in this case. Id.

2. Time Expended

24 The hours expended by plaintiff's counsel in this case are fully documented in

25 detailed contemporaneous time records. Rudnick Decl., Ex. 1. The reasonableness of

26 that time is readily apparent by a review of those records. The vast majority of the time


360 East 10th AvenueSuite 300

Eugene, OR 97401-3273Phone (541) 485-0220Fax (541) 686-6564

1 plaintiff s counsel spent in this case was in direct response to the motions, arguments, and

2 tactics presented by defendant. Defendant's approach to this case dictated plaintiffs

3 response:

4 • When the complaint was filed in this case, the Attorney General immediately filed

5 a motion for summary judgment claiming that all responsive records had been

6 produced, requiring plaintiff to demonstrate to defendant that the factual basis for

7 his motion was false.

8 • Even after plaintiff demonstrated that all responsive records had not been

9 produced, the Attorney General refused to withdraw his motion until plaintiff was

10 forced draft and file a memorandum in opposition.

11 • Defendant thereafter briefed and argued that all documents had been produced at

12 least seven more times, further requiring plaintiff to respond every time.

13 Ultimately, defendant's claims were followed by defendant's disclosures of

14 additional documents.

15 • Defendant argued that plaintiff was not entitled to any discovery in this case,

16 forcing plaintiff to seek the intervention of the court to obtain documents and

17 conduct a limited number of depositions. Each of the deponents ultimately

18 testified at trial for defendant, demonstrating that the discovery plaintiff sought

19 was both reasonable and necessary.

20 • Defendant originally estimated that the trial of this case would take two days. He

21 rejected plaintiff s offer to submit depositions in lieu of live testimony. Defendant

22 then called 18 witnesses in six days of trial over the course of five weeks.

23 Plaintiff called no witnesses.

24 In short, defendant's strategy in this case dramatically increased the time and

25 expense plaintiff was required to incur in order to prevail. Defendant cannot credibly

26 challenge the amount of time plaintiff s counsel spent when it was he who dictated the

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1 course of the case.

3. Enhanced Fee

The "lodestar amount" described above provides a baseline for arriving at a

reasonable attorney fee, but it is not the end of the inquiry. It is well-established under

Oregon law that, where a prevailing party is entitled to an award of "reasonable attorney

fees," a trial court has the discretion in appropriate circumstances to use a "multiplier" or

other fee enhancement to award an amount beyond the lodestar amount. Whether such

an enhanced fee is appropriate is determined by examining the criteria set forth in ORS

20.075. The Oregon Court of Appeals recently revisited that principle in Strawn v.

Farmers Insurance Co. of Oregon, 233 Or App 401, 226 P3d 86 (2010), aff'd in part,

revd in part on other grounds, 350 Or 336, 258 P3d 1199 (2011), explaining:

"[A]n award of 'reasonable' attorney fees does not precludethe use of a multiplier or other fee enhancement .... Suchan enhancement may be applied at the beginning of thecalculation process by increasing counsel's standard orbasic hourly rate to a "reasonable hourly rate" for the workdone given the nature of the case, .... or the enhancementmay be applied later in the calculation process byincreasing a lodestar amount of fees .... Regardless of thearithmetic used, what remains constant are the factors that acourt will consider in determining whether a feeenhancement should be applied in calculating a reasonablefee award. Those criteria are set out [in] ORS 20.075(2)."

Id. at 416. The court in Strawn agreed that the plaintiffs were entitled to an enhanced fee

award based on several factors, including the defendant's lack of attempt to settle the

dispute and the presence of particularly "novel and difficult questions" in the litigation.

Id. at 416-17. After a review of the facts, the court found that "the ORS 20.075(2) factors

in this case [indicate that] an enhancement factor of 1.6 is appropriate," and allowed

plaintiffs an enhanced fee award. Id. at 417-18.

II

1 The court's conclusion followed a detailed review of the last 25 years of Oregon

2 Supreme Court case law concerning such enhanced awards, all of which supported their

3 use. See, e.g., Strunk v. PERB, 343 Or 226,246, 169 P3d 1242 (2007) ("[F]actors such as

4 the difficulty and complexity of the issues involved in this case, the value of the interests

5 at stake, as well as the skill and professional standing of lawyers involved also support an

6 enhancement of fees. Consequently, this court will allow the fee awards in this case to be

7 enhanced by applying the respective multipliers [of 1.5 and 2.0] requested by petitioners'

8 lawyers."); see also Griffin v. Tri-County Metropolitan Transportation District of

9 Oregon, 112 Or App 575, 831 P2d 42 (1991) (upholding trial court's award of fees "at

10 twice counsel's standard rate," particularly in light of evidence that, in such difficult and

11 high-risk actions as plaintiff's, "there are only a limited number of attorneys willing and

12 able to take on" such cases, that "plaintiffs generally experience difficulty in obtaining

13 qualified counsel" willing to pursue them, and that "counsel who successfully undertake

14 [such] cases for a contingency fee are generally compensated at rates greatly exceeding

15 standard billing rates for general legal services").

16 As explained by the court in Strawn, "the factors that a court will consider in

17 determining whether a fee enhancement should be applied" are the factors "set out in

18 ORS 20.075(2)." Strawn, 233 Or App 416. Those are the same factors that a court is

19 directed to consider "in any case in which an award of attorney fees is authorized or

20 required by statute," and they include, by reference, the factors set out in ORS 20.075(1).

21 See ORS 20.075(2) ("A court shall consider the factors specified in subsection (1) of this

22 section in determining the amount of an award of attorney fees in any case in which an

23 award of attorney fees is authorized or required by statute"). An examination ofthe

24 statutory criteria, as applied to this case, demonstrates that an enhanced fee is appropriate.

25 II

26 II

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c. Application of ORS 20.075 Factors

2 1. The conduct of the parties in the transactions or occurrencesthat gave rise to the litigation, including any conduct of a partythat was reckless, willful, malicious, in bad faith or illegal.ORS 20.075(1)(a).

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The conduct that gave rise to this action is by now well established. Plaintiff, in

an effort to defend himself, his job, and his reputation, requested public records from

defendant, the holder of the records and the same office that had investigated him

criminally and then had sought to have him fired. In response, the Attorney General

flouted its responsibilities under the law, "did not make reasonable efforts" to properly

respond to plaintiffs request, made what this court called a "deliberate choice not to

produce documents," and engaged in a lengthy pattern of delay and inattention that this

court concluded was "unreasonable." Tr. 1114-17. In short, until plaintiff filed suit, the

Attorney General all but ignored his public records request.

Defendant's conduct not only showed a deliberate lack of concern for plaintiff's

rights, but also a general disregard for the obligations of the Attorney General and the

Department of Justice (DOJ) to the citizens of Oregon under the Public Records Law.

Defendant's unreasonable and unlawful conduct in this case supports an enhanced award

of attorney fees.

2. The objective reasonableness of the parties' claims anddefenses. ORS 20.075(1)(b).

20 Had the Attorney General's defense of this case been reasonable, the case could

21 have looked vastly different than it did. It could have been resolved sooner, could have

22 been far less arduous and hostile, and could have been dramatically less expensive for all

23 involved. Indeed, had the Attorney General's defense of this case been reasonable, the

24 parties almost certainly would not have needed to take the case to trial. But the Attorney

25 General decided to take a different approach, instead adopting a win-at-all-costs strategy

26 that entailed making any and every attempt, no matter how far-fetched or unprecedented,



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1 to ensure plaintiff did not prevail.

2 The Attorney General's principal defense against plaintiffs claim -- that it had

3 already provided to plaintiff all public records responsive to his request, and that

4 plaintiffs suit was therefore moot -- was not only legally unsound, but was also

5 objectively unreasonable because it was not ever supported by the facts. The Attorney

6 General continued to produce responsive documents even after the trial was completed

7 and the court had rendered its decision, all the while insisting that the case was moot.

8 The Attorney General first interposed this defense in a motion for summary judgment

9 filed immediately after plaintiffs complaint was filed. He clung to the defense even after

10 plaintiff demonstrated that it was based on false testimony, refusing to withdraw his

11 motion and forcing plaintiff to expend further time and effort preparing and filing a

12 response. Then, although the Attorney General eventually relented and withdrew that

13 motion -- at which point this case should have been over -- he still refused to concede the

14 point. Instead, defendant persisted, reasserting the same argument no fewer than eight

15 times over the course of nearly a year, all the while continuing to produce new documents

16 responsive to plaintiffs request at almost every turn.

17 When plaintiff then asked for discovery by noticing four depositions and serving

18 routine requests for production of documents in order to determine whether there

19 remained additional documents yet to be produced and to investigate the scope of the

20 admitted fact that responsive documents had been destroyed, the Attorney General took

21 the hard-line position that no discovery should occur. After responding to plaintiffs

22 discovery requests with blanket refusals to answer, he filed a motion seeking to foreclose

23 discovery altogether on the bases that "the taking of depositions is inappropriate in this

24 case" and "discovery regarding whether additional documents exist is also

25 inappropriate." Defendant's Response to Motion to Compel and Memorandum in

26 Support of Cross-Motions for Protective Order and to Quash Notices of Deposition



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(Docket No. 37), at 10,29. Not only was that position legally unsound (and

appropriately rejected by this court), it was wholly unreasonable. Many of the documents

obtained through discovery became defense exhibits -- documents that defendant

determined were necessary to present his own case at trial. And each of the four

individuals that plaintiff deposed was called as a witness at trial by the Attorney General.

As this case wore on, defendant's defenses became less reasonable still: several

days into trial, the Attorney General filed a motion for judgment of dismissal premised on

the theory that the documents plaintiff sought were not in the Attorney General's own

office, but were instead "located about a few miles from the Attorney General's office.

Thus,ORS 192.465(2) does not apply." Defendant's Motion for Judgment of Dismissal

(Docket No. 133), at 2. Defendant made the unfounded and unprecedented claim that the

Attorney General is not actually in charge ofDOJ and its divisions, but only of his own

personal office -- and that the divisions ofDOJ are akin to independent state agencies

outside his control. That the Attorney General's argument lacked merit was clear and

this court properly rejected it.

The Attorney General's scorched-earth approach to defending this case was

objectively unreasonable, and is the predominant reason this case became as difficult and

costly as it did. That is regrettable in its own right and is precisely what attorney fee

awards exist to remedy. But such tactics are even more deeply troubling when mounted

by the government in response to a citizen's good-faith attempt to obtain the very

documents that the government used against him. Under the circumstances of this case,

an enhanced attorney fee award is particularly appropriate, and will deter such tactics in

the future.

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3. The extent to which the award would deter others fromasserting good faith claims or defenses in similar cases, and theextent to which the award would deter others from assertingmeritless claims or defenses. ORS 20.075(1)(c)-(d).

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defense on defendant's part. In contrast, as described above, a substantial portion of the

time and effort plaintiffs attorneys expended in this case is directly attributable to the

Attorney General's assertion oflegally and factually meritless defenses. Given the

particular visibility of this case within DOJ and throughout state and local government,

there is a substantial likelihood that an enhanced award of attorney fees in this case will

discourage public bodies from asserting the kinds of meritless defenses relied on by the

Attorney General in this case, as well as discourage public bodies from dealing with

public records requests with the disregard that gave rise to this litigation in the first place.

An award of plaintiff s attorney fees would therefore have no deterrent effect on any

good faith defense in a similar case. Correspondingly, an award of attorney fees will

encourage citizens to pursue valid claims and enforce their rights under the Oregon

Public Records Law.

4. The objective reasonableness of the parties and the diligence ofthe parties and their attorneys during the proceedings and inpursuing settlement of the dispute. ORS 20.075(1)(e)-(f).

As described above, the Attorney General's defense of this case was objectively

unreasonable in several respects. In contrast, plaintiffs diligent pursuit of his claims and

his conduct during the proceedings were wholly reasonable. There has been no finding in

this case to the contrary.

The same is true ofthe parties' efforts at settlement. As described in plaintiffs

May 17,2012 Response to Defendant's Motion to Dismiss and to Defendant's Objections

(Docket No. 158), once the Attorney General appeared finally to have conducted a

reasonably diligent search for documents responsive to plaintiffs January 2011 public

1 records request, plaintiff attempted to settle the case for no more than the fees he had

2 reasonably incurred to that point. Had the Attorney General agreed, the parties could

3 have proceeded to a review of time records to cooperatively resolve any concerns over

4 the reasonableness of plaintiff's fees. The Attorney General refused, insisting that

5 plaintiff's case was moot, and suggesting a settlement for the mere nuisance value of

6 25% of plaintiff's then-incurred fees. Had defendant agreed to resolve the case at that

7 point, plaintiff's entire attorney fees claim would have been approximately $60,000.z

8 Instead, the Attorney General communicated that he did not take seriously any possibility

9 that plaintiff would ultimately be awarded his attorney fees by this court, and made clear

10 that he would never value the case in a way that would allow the parties to reach

11 settlement. Once plaintiff recognized that there was no realistic chance of settling the

12 case, plaintiff began preparing the case for resolution at trial. See Declarations of

13 William F. Gary and Jeffery J. Matthews in Support of Plaintiff's Response to

14 Defendant's Motion to Dismiss and to Objections to Proposed Findings, Conclusions,

15 and Proposed Judgment (Docket Nos. 159-160).

16 The Attorney General had every opportunity to settle this case at an early date, at

17 a reasonable cost, and on mutually agreeable terms. His refusal to do so weighs further in

18 favor of an enhanced award.

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The amount that the court has awarded as a prevailing partyfee. ORS 20.075(1)(g).

Pursuant to ORS 20. 190(2)(a)(B), plaintiff is entitled to recover $550 as the

prevailing party in this court. Plaintiff is not seeking an enhanced prevailing party fee.

This factor does not playa significant role in the court's calculus.

II

II

2 At the time of the parties' Aug. 4, 2011 settlement conference, plaintiff's accrued feestotaled approximately $60,000. See Rudnick Decl., Ex. 1, at p.I-7.


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6. The time and labor required in the proceeding, the novelty anddifficulty of the questions involved in the proceeding and theskill needed to properly perform the legal services. ORS20.075(2)(a).

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difficulty and novelty of the issues in this case. The Attorney General's aggressive

defense of plaintiffs claims required plaintiff to respond to a litany of motions involving

complex and uncommon questions of law, including the breadth of a plaintiff s right to

discovery in public records litigation, the mechanics of enforcement of Oregon's public

records law, the nature and scope of the remedies available in such litigation, the nature

of the Attorney General's relationship to the Criminal Justice Division of the Department

of Justice, and multifaceted questions of mootness and justiciability. Responding to those

motions, and effectively addressing the novel legal theories they raised, required a great

deal of time and legal skill on the part of plaintiff's counsel.

7. The likelihood, if apparent to the client, that the acceptance ofthe particular employment by the attorney would preclude theattorney from taking other cases. ORS 20.075(2)(b).

There was not merely a likelihood that pursuing this litigation could have

precluded plaintiffs attorneys from taking on other cases -- there is a certainty that it did.

Defendant made certain that plaintiff's counsel was deprived ofthe opportunity to handle

several significant litigation matters for the University of Oregon.

In 2011, the Oregon Legislature passed Senate Bill 242, a bill that authorized the

Oregon University System (OUS) and its member universities to have greater authority

and independence in the management of their affairs. A key feature of this legislation

provided that, after January 1,2012, the Department of Justice would not longer represent

OUS or the state's public universities. In preparation for the transition oflegal services,

the University of Oregon issued to numerous law firms a "Procurement Notice for Legal

Services," a document by which law firms would be evaluated to potentially provide




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legal services for the University. Harrang Long Gary Rudnick P.C. submitted a response.

Declaration of Randolph Geller in Support of Plaintiffs Statement of Attorney Fees and

Costs ("Geller Decl.") at ~1-4.

After passage of Senate Bill 242, the Attorney General informed OUS and the

universities that DOJ would not represent them in lawsuits filed before the end of2011.

Instead, he told OUS and the universities that they would be authorized to engage counsel

of their choice and the Attorney General would designate the selected counsel as Special

Assistant Attorneys General until January 1,2012. ld. at ~5.8

9 The University of Oregon's General Counsel, Randolph Geller, selected Harrang

Long Gary Rudnick P.C. to handle a lawsuit called Appleby v. University of Oregon

based on the firm's response to the Procurement Notice and Mr. Geller's familiarity with

the firm's qualifications. ld. at ~6. DOJ, however, refused to authorize the engagement.

ld. at ~7. DOJ claimed that the firm had a conflict apparently due to this case. Mr. Geller

pointed out that the University was not a party to this case and therefore there was no

conflict, and he communicated that in any event, the University would waive any such

conflict. Defendant still refused to appoint this firm as special counsel and the University

engaged other counsel. Id. The University ultimately engaged another law firm to handle

the matter.

In January, 2012, the University of Oregon asked to engage Harrang Long Gary

Rudnick P.C. in the case of Mossberg v. University of Oregon Id. at ~8. Between January

1,2012, and July 1,2012, the Attorney General no longer represented the University, but

defense of tort litigation was subject to the approval of the Department of Administrative

Services - Risk Management. Geller Decl. at ~9. The University'S request to engage this

firm was again denied on the same basis-a conflict because of the firm's representation

of Mark Long. That case was ultimately assigned to Miller Nash, LLP. Id.

II

1 In March, 2012, the Ninth Circuit Court of Appeals issued its decision in Emeldi

2 v. University of Oregon, a case of nationwide importance involving claims of sex

3 discrimination under Title IX. The University decided that it should file a petition for

4 reconsideration and also seek en bane review. Because the deadlines were short, the

5 University did not seek to hire this firm because its General Counsel concluded that

6 pursuing the firm's hire with Risk Management would be time consuming and futile.

7 The case was assigned to Miller Nash, LLP. Geller Decl. at 10.

8 Notably, Miller Nash, LLP, was approved as counsel for the University even

9 though it also was involved in litigation against the State of Oregon, having filed a high-

10 profile class action against Governor John Kitzhaber and several other state officials on

11 January 25, 2012. Rudnick Decl. at ~22.

12 The impact of this litigation on the business interests of plaintiff's counsel has

13 been substantial. Harrang Long Gary Rudnick P.c. has a very substantial and

14 longstanding practice representing state and local governments. Attorneys in the firm

15 have represented various state instrumentalities, both as Special Assistant Attorneys

16 General and as conflict counsel, under every attorney general for at least 35 years.

17 Rudnick Decl. at ~21. Defendant stopped that practice because the firm challenged the

18 Attorney General's actions in this case. The lost opportunities to plaintiff s counsel as a

19 result of this case are real, not speculative. They are appropriately considered in setting a

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20 reasonable attorney fee. ORS 20.075(2)(b).

8. The amount involved in the controversy and the resultsobtained. ORS 20.075(2)(d).

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HARRANG LONG GARY


Suite 300Eugene, OR 97401-3273Phone (541) 485-0220Fax (541 ) 686-6564

Plaintiff in this case brought a single claim to enforce his rights under the Public

Records Law. Specifically, plaintiff alleged that the Attorney General had failed to

respond properly to plaintiffs request, had failed properly to produce documents in

response to that request, and had failed to produce documents deleted by Mr. Riddell. By


1 the end of trial, this court agreed with plaintiff concerning each and every substantive

2 allegation plaintiff made, and declared unequivocally that plaintiff prevailed in the case.

3 The only respect in which plaintiff could arguably be said not to have succeeded in this

4 case is with respect to the court's decision not to issue declaratory judgment. However,

5 plaintiff s request for a declaration was not a distinct claim. It was one type ofrelief that

6 plaintiff sought in connection with the one claim he made and on which he prevailed.

7 Moreover, the court's decision not to issue a declaratory judgment was not based on any

8 failure on plaintiffs part to show that the Attorney General in fact violated the law.

9 Indeed, the court's Findings of Fact and Conclusions oflaw include the very

lO determinations that plaintiff asked the court to declare. The decision was purely an

11 exercise of the court's discretion. Overall, plaintiff proved precisely what he set out to

12 prove, and achieved precisely the result he sought to achieve.

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9. The time limitations imposed by the client or the circumstancesof the case. ORS 20.075(2)( e).

As the Attorney General has long been aware, and as this court clearly

understood, both this case and the records request on which it was based were grave and

time-sensitive matters. This court expressly recognized that plaintiffs purpose in these

proceedings was to defend himself, his career, and his relationship with Oregon's state

government. Accordingly, and as this court found, plaintiff filed a request for public

records "which [he] was entitled to have in a reasonable time, the time when it was most

important to defend his interests," Tr. 1114, not months later. The point and the purpose

of everyone of plaintiff s actions related to this case was to seek out and obtain the

public information necessary to defend himself against state action because, as this court

recognized, "[i]t's very hard to defend one's self when you don't have the information

that you need. And if the holder ofthat information is your government, that's a

problem." Id. The gravity and time-sensitive nature of these proceedings, and


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1 defendant's "deliberate choice not to produce documents," further weigh in favor of an

2 enhanced award of attorney fees.

10. The nature and length of the attorney's professionalrelationship with the client. ORS 20.075(2)(1).

4This firm and its lawyers have an excellent professional relationship with

plaintiff, having represented plaintiff in this matter since mid-201 0 and in other matters in

the past, and having represented members of plaintiffs family and family owned

business entities for more than 25 years. Rudnick Dec!. at ~19.

11. The experience, reputation and ability of the attorneyperforming the services, and the fee customarily charged in thelocality for similar legal services. ORS 20.075(2)(g); ORS20.075(2)( c).

11 Harrang Long Gary Rudnick P.C. is a regional law firm with offices in Portland,

12 Eugene, and Salem. The firm has a substantial government and public law practice that

13 few other law firms in the state can match. All attorneys who performed services for

14 which fees were charged have the experience, reputations, and abilities, and possess the

15 skills necessary to effectively perform the legal services provided. All are members in

16 good standing of the Oregon State Bar. Id. at ~18.

HARRANG LONG GARY


Suite 300Eugene. OR 97401-3273Phone (541) 485-0220Fax (541) 686-6564

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12. Whether the fee of the attorney is fixed or contingent. ORS20.075(2)(h).

Plaintiff is personally responsible for the attorney fees incurred in this case and is

being charged on a time and expense basis at the hourly rates reported herein. However,

because plaintiff lacks the resources to pay the fees and expenses as they have accrued,

his counsel have agreed that he need not pay the fees until they are recovered from

defendant or until his civil claim against defendant and others is resolved. His counsel

has also agreed to waive all late charges. Rudnick Decl. at ~20. Thus, plaintiffs counsel

has not been paid for its work in this matter in the 18 months since it was commenced.

This factor also weighs in favor of an enhanced attorney fee award. See, e.g.,



Eugene. OR 97401-3273Phone (541) 485-0220Fax (541) 686-<3564

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1 Wattenberger v. Boise Cascade Corp., 301 Or 12, 16, 717 P2d 1175 (1986) (noting that

2 trial courts may award "a fee exceeding the attorney's usual hourly rate" where, among

3 other circumstances, there is a significant "risk that the services will go uncompensated").

4 CONCLUSION

5 Based on the declaration and the other evidence and argument presented, the court

6 should award plaintiff attorney fees and costs in the amounts sought.

7 DATED this 2nd day of July, 2012.

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Page 1 - CERTIFICATE OF SERVICE

1 CERTIFICATE OF SERVICE

2 I certify that on July 2,2012, I served or caused to be served a true and complete

3 copy of the foregoing PLAINTIFF'S STATEMENT OF ATTORNEY FEES AND

4 COSTS on the party or parties listed below as follows:

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Via First Class Mail, Postage PrepaidVia FacsimileVia Personal Delivery

John 1. Dunbar, OSB No. 842100Jolm.Dunbar(@,doj.state.or.usAttorney in ChargeSarah Weston, OSB No. 085083Sarah. [email protected] Attorney GeneralDepartment of Justice1515 SW Fifth Avenue, Suite 410Portland, OR 97201Telephone: 971-673-1880Fax: 971-673-5000

Of Attorneys for Defendant

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HARRANGL

Of Attorneys for Plaintiff

Plaintiff's statement of attorney fees and costs kroger

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attorney fees award

statementof attorney

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plaintiffs lawyers

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