United States District Court, N.D. Mississippi, Aberdeen Division
AUTO PARTS MANUFACTURING MISSISSIPPI INC., a Mississippi corporation, PLAINTIFF
KING CONSTRUCTION OF HOUSTON, LLC, a Mississippi limited liability company; NOATEX CORPORATION, a California corporation; and KOHN LAW GROUP, INC., a California corporation DEFENDANTS
OPINION GRANTING PLAINTIFF AUTO PARTS MANUFACTURING
MISSISSIPPI INC.'S MOTION TO FILE DOCUMENTS UNDER SEAL
FOR REVIEW IN CAMERA AND DENYING DEFENDANT KOHN LAW
GROUP'S MOTION TO STRIKE NEW MATTER IN APMM'S REPLY
BRIEFS, OR ALTERNATIVELY, FOR LEAVE TO SUBMIT SURREPLY
before the Court are Plaintiff Auto Parts Manufacturing
Mississippi Inc. ("APMM")'s motion to file
documents under seal for review in camera  and
Defendant Kohn Law Group, Inc. ("Kohn Law
Group")'s motion to strike new matter in APMM's
reply briefs, or alternatively, for leave to submit surreply
briefing . Both motions are opposed and fully briefed.
Upon due consideration, the Court finds that APMM's
motion to file documents under deal for review in
camera  should be granted, and Kohn Law Group's
motion to strike new matter in APMM's reply briefs, or
alternatively, for leave to submit surreply briefing 
should be denied.
has requested that sanctions be imposed against Kohn Law
Group for its contempt of Court and that the sanctions
include reimbursement to APMM of legal fees and expenses
incurred in defending Kohn Law Group's pursuit of
litigation in California in violation of this Court's
permanent injunction, as well as APMM's pursuit of
contempt in the case sub judice. On December 12,
2016, APMM filed the present motion to file documents under
seal for review in camera . APMM seeks to
submit for review in camera unredacted copies of all
monthly invoices from Baker Hosteller, LLP for legal fees and
expenses incurred in the case styled Kohn Law Group v.
Auto Parts Manufacturing Mississippi, Inc., CV
12-08063-MWF (MRWx), currently pending in the United States
District Court for the Central District of California, as
well as unredacted copies of all monthly invoices from
Mitchell, McNutt & Sams, P. A. for legal fees and
expenses incurred in the pursuit of contempt in this action.
Law Group's response in opposition to the present motion
argues, inter alia, that the motion is improper,
"because of the unfairness to Kohn Law [Group] by being
deprived access to the same materials placed before the Court
to decide the merits." Kohn Law Group's response
further argues that APMM has failed to produce the necessary
evidence showing that its lawyers' billing rates were
reasonably in line with market rates for services of this
kind. Kohn Law Group additionally states: "APMM has not
attempted to demonstrate why its fee request could not have
been supported with redacted copies of the time records,
omitting any confidential information that APMM claims to be
privileged or protected." Finally, APMM argues that
"[b]y tendering its unredacted attorney records for
in camera review, for a purpose other than deciding
the claims of privilege and work product protection-to wit,
for the avowed purpose of establishing the merits of its
claim for attorney's fees-APMM also effectively waived
the privilege and any protection for information contained in
reply in support of the present motion, APMM argues it has
already presented proof supporting the reasonableness of the
hourly rates charged by its Mississippi and California
counsel and is not required to submit declarations of
attorneys who are not involved in this litigation as to the
reasonableness of the hourly rates. See, e.g., Tollett v.
City of Kemah, Tex., 285 F.3d 357, 367 (5th Cir. 2002).
Nonetheless, APMM attaches to its reply affidavits of other
attorneys supporting the reasonableness of its attorneys'
hourly rates, specifically, declarations of Mississippi
counsel Thomas A. Wicker, Esq. regarding the reasonableness
of APMM's Mississippi attorneys' hourly rates and of
California counsel Kim Karelis regarding the reasonableness
of APMM's California attorneys' hourly rates. APMM
further replies that it has not waived any privilege to
information contained in its attorneys' billing invoices
by submitting them for in camera review in support
of its contempt motion, as no Fifth Circuit case law supports
this conclusion. Finally, APMM attaches to its reply a copy
of the redacted billing records of Mitchell, McNutt &
Sams, P. A. and Baker & Hostetler, LLP. APMM reiterates
that it requests permission to submit for in camera
review the unredacted billing records of its attorneys for
consideration in connection with its request for the
imposition of sanctions.
January 23, 2017, Kohn Law Group filed a motion to strike new
matter in APMM's reply brief, or alternatively, for leave
to submit surreply briefing , contending that the same
contains new evidence and argument directly bearing upon the
issue of sanctions. APMM has filed a response in opposition
to this motion, and Kohn Law Group has filed a reply.
Court finds as follows.
79(e) of the Local Uniform Civil Rules provides in pertinent
part that a party submitting documents for in camera
review must include a description of what is to be sealed; a
specific request that the document be sealed; a statement of
why sealing is necessary, why sealing is most appropriate,
and why another procedure would not suffice; and references
to governing case law. L. Unif. Civ. Rules 79(e). In this
case, in accordance with Local Rule 79(e), APMM has provided
a description of the documentation to be made subject of
in camera review, specifically requested that the
Court conduct an in camera review of the
documentation, stated that in camera review is
necessary due to the attorney-client privilege, and made
references to on-point case law.
a finding of contempt, the district court has broad
discretion in assessing sanctions to protect the sanctity of
its decrees and the legal process." DeStephano v.
Broadwing Commc'ns, Inc., 48 F.App'x 103, at *2
(5th Cir. 2002) (citing Am. Airlines, Inc. v. Allied
Pilots Ass'n, 228 F.3d 574, 585 (5th Cir. 2000)).
" 'The decision whether to conduct an in
camera inspection is wholly within the discretion of the
district court.' " Kean v. Jack Henry &
Assocs., Inc., 577 F.App'x 342, 348 (5th Cir. 2014)
(per curiam) (quoting Alford v. CIA, 610 F.2d 348,
349 (5th Cir. 1980)). In camera review protects an
attorney's private thoughts from "intrusion by
opposing parties and their counsel" and hence protects
those interests which lie at the heart of the attorney work
product doctrine. United States v. Nobels, 422 U.S.
225, 236-39, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975).
identity of a client is not normally within the
attorney-client privilege, nor are matters involving the
receipt of fees from a client usually privileged. In re
Grand Jury Proceedings, 517 F.2d 666, 670-71 (5th Cir.
1975); accord O'Neal v. United States, 258 F.3d
1265, 1276 (11th Cir. 2001). However, the client's
ultimate motive for litigation or for retention of an
attorney is privileged. In re Grand Jury
Proceedings, 517 F.2d at 674-75. Confidential
communications between attorney and client made in order to
obtain legal assistance are also privileged. Fisher v.
United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48
L.Ed.2d 39 (1976). It stands to reason that invoices
revealing the nature of the services provided, including the
areas of legal research, and strategy are likewise
privileged. See In re Grand Jury Witness, 695 F.2d
359, 362 (9th Cir. 1982).
discretion, the Court finds that the subject legal invoices
are relevant to APMM's motion seeking the imposition of
sanctions against Kohn Law Group and that the redacted
invoices attached to APMM's reply in support of its
motion indicate that the legal invoices contain privileged
material properly subject to in camera review.
See Redacted Legal Invoices [339-2 & 339-3].
Because APMM's request for sanctions includes the
reimbursement of the incurred attorney's fees that are
represented in the documentation, the Court finds that it is
necessary and proper to conduct an in camera review
of the billing records in toto. See generally Pillar
Panama, S.A, v. DeLape, 326 F.App'x 740, 744 n.5
(5th Cir. 2009) (per curiam) (citing La. Power &
Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir.
respect to Kohn Law Group's motion to strike new matter
in APMM's reply briefs, or alternatively, for leave to
submit surreply briefing , the matter contained in
APMM's reply briefs relating to the in camera
review of the legal invoices-which is the only issue decided
in this opinion-shall not be stricken. No surreply is
necessary to the Court's determination on this issue.
APMM's motion to file documents under seal for review
in camera  shall be GRANTED, and APMM shall
submit to the Court, under seal, unredacted copies of all
invoices identified in the motion, said copies to remain
under seal unless otherwise ordered by the Court. Kohn Law
Group's motion to strike new matter in APMM's reply
briefs, or alternatively, for leave to submit surreply
briefing  shall be DENIED.
Court shall address the sanctions issue once it has reviewed
in camera the subject documentation. The parties
have provided ample briefing on this issue. Thus, any further
briefing is unnecessary and superfluous to the Court's
determination on the ...