Centennial Archaeology, Inc. v. Aecom, Inc.
| Decision Date | 27 July 2012 |
| Docket Number | No. 11–8000.,11–8000. |
| Parties | CENTENNIAL ARCHAEOLOGY, INC., a Colorado corporation, Plaintiff–Appellee, v. AECOM, INC., a Delaware corporation, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
OPINION TEXT STARTS HERE
Andrea Richard, The Richard Law Firm, P.C., Jackson, WY, for Defendant–Appellant.
Donald I. Schultz, Schultz & Schultz LLP, Cheyenne, WY, for Plaintiff–Appellee.
Before HARTZ, O'BRIEN, and MATHESON, Circuit Judges.
AECOM, Inc. hired Centennial Archaeology, Inc. to perform cultural-resources survey work in connection with a wind-energy project. When AECOM refused to pay Centennial for some of its work, Centennial brought suit against AECOM in the United States District Court for the District of Wyoming. Centennial prevailed on several claims and the parties ultimately settled on appeal the issues raised with respect to the merits of the litigation. This appeal concerns the parties' dispute about the district court's postjudgment order requiring AECOM to pay Centennial $58,361.51 in attorney fees for misconduct in the course of discovery.
We have jurisdiction under 28 U.S.C. § 1291 and affirm. The magistrate judge and district court reasonably found that AECOM had frustrated the discovery process and stalled the resolution of this case. And the amount of the fee award was proper. In particular, Centennial was entitled to an award under Fed.R.Civ.P. 37 even though its attorneys were working for a fixed fee.
I. BACKGROUNDA. Events Leading to Litigation
Power Company of Wyoming (PCW) hired ENSR Corporation in 2008 to prepare an environmental-impact statement for a 1000–turbine wind-energy project south of Rawlins, Wyoming. ENSR and Centennial had previously entered into a written consulting-services agreement (the Consulting Agreement). AECOM later purchased ENSR, and under the Consulting Agreement it issued Centennial a $674,900 purchase order for work relating to the environmental-impact statement. Soon after beginning work on the project, however, Centennial notified AECOM that it was experiencing higher costs than anticipated. The parties agreed that Centennialshould complete its field work before submitting a request for a change order to increase the contract price, even though the Consulting Agreement apparently required advance approval of a change order. When Centennial submitted the request, AECOM forwarded it to PCW, but PCW refused to approve it. AECOM then issued a stop-work order and informed Centennial that it would not pay expenses exceeding the purchase-order price.
Centennial sued, claiming that it was entitled to payment for all work performed and costs incurred before AECOM issued the stop-work order because AECOM had waived the change-order requirement. It later added claims for tortious interference with prospective business relationships and trade disparagement. AECOM disclaimed liability for all but the purchase-order price and counterclaimed that Centennial had breached the Consulting Agreement in various respects, although it later voluntarily dismissed the counterclaims. The case was tried to a jury, which returned a verdict in Centennial's favor on its breach-of-contract claim and on one of its tortious-interference claims.
B. Discovery Disputes
During pretrial proceedings Centennial and AECOM were repeatedly unable to resolve their discovery disputes without court intervention. Centennial filed three motions to compel discovery, two of which were followed by AECOM motions for protective orders. For the most part Centennial received its requested relief. We summarize the disputes.
Centennial's first request for production sought records of certain AECOM internal communications. AECOM produced some documents but refused to produce documents listed in a two-page privilege log as protected by the attorney-client privilege and the attorney-work-product doctrine. Centennial's counsel sent a letter dated January 8, 2010, asking AECOM's counsel for a more detailed log and for reconsideration of the assertions of privilege. AECOM's counsel revised the log but did not disclose additional documents, leading Centennial's counsel to write a second letter, dated February 16; and on March 1 Centennial filed a motion to compel AECOM to produce more than 200 emails. AECOM opposed the motion and filed a motion for a protective order and a motion to strike the motion to compel because of Centennial's failure to confer on the matter.
After reviewing in camera the withheld emails, the magistrate judge granted Centennial's motion in part in an order on April 12 (the April 12 Order). The judge ruled that no email listed as a “communication in anticipation of litigation” was protected by the work-product doctrine and ordered AECOM to produce those documents. Aplt.App., Vol. I at 426. Although the judge upheld most of AECOM's claims of attorney-client privilege, he rejected some and ordered AECOM to disclose those unprivileged emails. On April 16 AECOM produced a number of emails and filed a notice of compliance with the April 12 Order.
The parties also disagreed about the discoverability of evidence related to their previous interactions (course-of-dealing evidence) and the adequacy of AECOM's discovery responses. Centennial's initial disclosures listed nine occasions on which AECOM had paid Centennial without requiring advance approval of a change order, and a letter accompanying the disclosuresasked AECOM to provide a list of any previous occasions when AECOM had refused to pay Centennial for lack of such advance approval. When AECOM failed to respond, Centennial sought the advance-approval information in its first and second discovery requests. AECOM objected to the requests on various grounds, including relevance, and filed a motion to exclude course-of-dealing evidence from trial. The district court effectively denied the motion in a March 23, 2010, order denying Centennial's motion for summary judgment, which stated that evidence of the parties' previous dealings was relevant to whether AECOM had waived the advance-approval requirement for change orders.
On March 26 Centennial filed a motion to compel production by AECOM of course-of-dealing evidence and to impose sanctions, including exclusion of any course-of-dealing evidence offered by AECOM. At the April 19 hearing on the motion, Centennial also made an oral request for attorney fees. On April 27 the magistrate judge issued an order (the April 27 Order) that AECOM fully respond by May 11 or be precluded from offering course-of-dealing evidence. But he denied without prejudice the request to impose other sanctions or to award attorney fees, explaining (1) that evidentiary sanctions were not appropriate because postponement of the trial enabled AECOM to cure much of the prejudice to Centennial by now responding fully to discovery requests and (2) that he would not consider imposing attorney fees because AECOM had not been provided a reasonable opportunity to respond to Centennial's oral request.
AECOM appealed the magistrate judge's order shortly before its supplemental discovery responses were due. The district court affirmed, stating that the magistrate judge had “conducted a careful and thorough review of [AECOM's] discovery responses and the tortured discovery history in this case.” Id., Vol. II at 690. On May 11 AECOM filed a notice of compliance with the April 27 Order, representing that it had supplemented its responses “as directed by the Court.” Id. at 527.
After AECOM produced several internal emails in response to the April 12 Order, Centennial moved on May 14, 2010, to amend its complaint, claiming that the emails revealed for the first time that AECOM had deliberately interfered with Centennial's ability to obtain other projects and that this information supported several business-tort claims. Centennial also filed a motion for expedited discovery. AECOM opposed the amendment, arguing that Centennial had failed to offer a valid explanation for waiting until the eve of trial (trial had been rescheduled for June 22) to amend its complaint. On May 20 the magistrate judge found that AECOM had made it difficult for Centennial to obtain discovery, granted leave to amend, and ordered the parties to complete discovery on the new claims by June 15. AECOM appealed the magistrate judge's decision to the district court, but the district court affirmed.
On May 21 Centennial sought written discovery on its new claims, and proposed a deposition schedule to AECOM's counsel. But the parties could not reach agreement. On June 4 Centennial moved to compel discovery, and on June 4 and 5 AECOM filed a motion to continue the trial and five motions for protective orders opposing depositions noticed by Centennial.
On June 9 the district court granted Centennial's motion to compel and denied AECOM's motions for protective orders (the June 9 Order). On the same day, but in a separate order, the court denied AECOM's motion to continue. The June 9 Order required AECOM to cooperate in arranging depositions and to respond to Centennial's written discovery requests by June 11. It stated that AECOM and its counsel had created scheduling pressures by failing “to properly comply with discovery obligations throughout this case.” Aplee. Supp.App., Vol. II at 2048.
C. Centennial's Sanctions Motions
Centennial filed three pleadings seeking sanctions. The pleadings accused AECOM of violating both the April 12 and April 27 Orders and sought monetary and evidentiary sanctions for those violations and other discovery abuse. Of particular relevance to this appeal are Centennial's requests for attorney fees. It sought $52,870 for its counsel's work in (1) seeking “discovery by consultation and correspondence,” Aplt.App., Vol. II at 719; (2) preparing (a) its ...
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