NAILAH K.

BYRD
CUYAHOGA COUNTY CUERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113

Court of Appeals

BRIEF IN OPPOSITION TO
February 11,2019 14:20

By: JOHN T. MCLANDRICH 0021494

Confirmation Nbr. 1622244

STATE OF OHIO, EX. REL., BRIAN J. ESSI CA 16 104659

vs.
Judge:
CITY OF LAKEWOOD, OHIO

Pages Filed: 24

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 IN THE COURT OF APPEALS
EIGHTH APPELLATE DISTRICT
CUYAHOGA COUNTY, OHIO

STATE OF OHIO, ex rel, BRIAN J. ESSI, ) CASE NO.: CA-16-104659

)
Relator, )
)
vs. ) RESPONDENT’S OPPOSITION TO
) RELATOR’S MOTION FOR
CITY OF LAKEWOOD, ) ATTORNEYS’ FEES AND STATUTORY
) DAMAGES
Respondent. )

Now comes Respondent, City of Lakewood, by and through counsel, Mazanec, Raskin &

Ryder Co., L.P.A., and hereby submits its opposition to Relator’s Motion for award of attorneys’

fees and statutory damages.

Respectfully submitted,

MAZANEC, RASKIN & RYDER CO., L.P.A.

/s/John T. McLandrich_ _ _ _ _ _ _ _ _ _ _ _ _ _
JOHN T. MCLANDRICH (0021494)
TERENCE L. WILLIAMS (0081363)
100 Franklin’s Row
34305 Solon Road
Cleveland, OH 44139
(440) 248-7906
(440) 248-8861 -Fax
Email: imclandrich@mrrlaw.com
twilliams@mrrlaw. com

Counsel for Respondent City of Lakewood

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 BRIEF IN OPPOSITION

I. RELATOR’S REQUEST FOR STATUTORY DAMAGES

Relator is not entitled to an award of statutory damages in this matter. Further, Relator’s

position with respect to the amount of statutory damages is incorrect as a matter of law, as will be

demonstrated. Relator’s request for $237,448.75 in attorney fees is unwarranted and highly in

appropriate given the extremely limited relief ordered by the Court and the history of this litigation.

The relief accorded by the Court reads as follows:

In summary, after considering the purposes of the public records law, the
importance of the requests, the nature of the requests, the 27,000 pages of records
released, and the evidence and certifications of the parties, this court is convinced
that Lakewood has fulfilled its duty to release public records and, except for the
records submitted for an in camera inspection, declines to issue a writ of mandamus
to compel Lakewood to continue its search for more records coming within the
requests.

Judgment Order of December 11, 2018 at ^[38.

With respect to the in camera inspection conducted by the Court, the Court reviewed and

made findings concerning 367 separate groups of documents which were redacted. With respect

to 87 of these separate categories of documents, the Court ordered a production of certain materials

previously redacted. In some cases the material to be produced was extremely limited. In some

cases the material to be unredacted consisted of vacation days on the Finance Director’s calendars

and other matters unrelated to the closure of the Lakewood Hospital, but which the court concluded

were nonetheless public records requiring disclosure.

Noteworthy is that the Court made no finding of bad faith by the City of Lakewood in its

redactions or with respect to its overall response to the public records request. Equally noteworthy

is that the Court made no finding that the City of Lakewood failed to satisfy its obligations under

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 ORC § 149.43(B) with respect to the promptness of its response to the public records requests or

otherwise. In fact, the Order, which is now final, finds that Lakewood complied with its obligation

to produce the public records at issue, with the exception of the limited redactions the court order

withdrawn. Those documents have now been produced without the redactions ordered removed

by the court.

Relator’s memorandum in support of its application for attorneys’ fees and statutory

damages indicates that Relator submitted 318 separate public records requests. Ninety-seven of

these requests were submitted subsequent to the initiation of this mandamus action.

In an effort to try to camouflage their overreach Relator’s application for statutory damages

characterizes Relator’s requests as follows:

At issue are three separate requests composed of more than three hundred
individually phrased document inquiries. Relator respectfully asks that this Court
order the mandatory $1,000 per request.

(Relator’s Motion for Attorneys’ Fees and Statutory Damages at p. 4.)

This statement is clearly contradicted by its prior acknowledgement that Relator submitted

318 separate public records requests, as stated on page 2 of his motion. (Relator’s Motion at p. 2.)

Regardless of whether Relator is seeking Three Hundred and Eighteen Thousand Dollars

or only Three Thousand Dollars, neither request is justified under the law. Relator’s request for

statutory damages should be rejected.

Section 149.43 provides in pertinent part as follows:

(C)(2) If a requester transmits a written request..., the requester shall be entitled to

recover the amount of statutory damages set forth in this division if a court
determines that the public office or the person responsible for public records failed
to comply with an obligation in accordance with division (B) of this section.

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 (ORC § 149.43(C)(2) (emphasis added).)

Section 149.43(C)(2) specifies that the amount of damages available is One Hundred

Dollars a day up to a maximum of One Thousand Dollars. (ORC § 149.43(C)(2).)

Said section further provides that the court may reduce an award of statutory damages or

not award statutory damages at all if the court determines that both subsections 149.43(C)(2)(a)

and (b) have been satisfied. Subsection (a) provides that based on the ordinary application of

statutory and case law, as it existed at the time of the conduct, the public office or person

responsible for producing the records that allegedly constitutes a failure to comply with an

obligation under Division (B) and that was the basis of the mandamus action, a well-informed

public office or person would believe that the conduct or threatened conduct did not constitute a

failure to comply with an obligation under Division (B) of § 149.43.

Subsection (b) provides that a well-informed public office or person would reasonably

believe that the conduct or threatened conduct of that entity or person would serve the public policy

that underlies the authority that is asserted for permitting that conduct or threatened conduct.

Significantly in the case at bar, this Honorable Court has made no finding that the City of

Lakewood or a responsible person failed to comply with Division (B) of § 149.43 which is the

required predicate for the award of statutory damages under ORC § 149.43(C)(2). Absent such a

finding any award of statutory damages is inappropriate. To the contrary, the Court’s Order finds

that Lakewood complied with its obligation to produce public records is response to Relator’s

request, subject to the limited redactions that were ordered removed. Therefore, there has been no

failure to comply to warrant an award of statutory damages.

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 Furthermore, even assuming arguendo any alleged failure by Lakewood, a review of the

Court’s Journal Order resolving this mandamus litigation, and a review of the 318 requests, many

of which the City of Lakewood continues to assert are in violation of Ohio Public Records law for

the reasons set forth in its briefs in this matter, and the redactions made by the City of Lakewood

under the authorities set forth in its briefing in this matter, reflect that the City of Lakewood and

its public officials acted in a manner that comports with the manner in which a well-informed

public office or official would believe comports with the statutory and case law applicable to this

litigation. In fact, the Court’s Journal Entry does not take issue with any legal position asserted

by the City of Lakewood, but rather disagrees with selected redactions. Lakewood asserts it has

complied with and satisfied ORC § 149.43(C)(2)(a).

Likewise, Lakewood asserts that its conduct served the public policy underlying ORC

§ 149.43. Lakewood acted in a manner consistent with the public policy underlying ORC § 149.43.

As such, Lakewood asserts it also meets the requirements of § 149.43(C)(2)(b).

Lakewood asserts that given the volume of requests, the improper nature of a great many

of the requests, the volume of materials required to be reviewed, the legal issues raised by the

requests, the responses made by Lakewood and the legal positions set forth in its briefing in this

matter, that Relator’s request for an award of statutory damages should be obviated by its

compliance with ORC § 149.43(C)(2)(a) and (b).

Should this Court find that any award of statutory damages is appropriate, which Lakewood

denies, an award cannot exceed the $1,000.00 maximum set forth in § 149.43(C)(2). This

maximum award is confirmed by the very authority relied upon by Relator in its motion in this

matter. In State ex. rel., Kesterson v. Kent State University,_ _ _ _ NE.3d_ _ _ , 218-Ohio-5110

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 (2018), the Ohio Supreme Court found that as the result of Kent State University’s failure to

adequately respond to requests numbers 1 through 5, that Relator Kesterson was entitled to an

award of statutory damages in the amount of $1,000.00. See Kesterson at ^23-27 and Tf32.

Notwithstanding the multiple requests that Kent State inadequately responded to the court only

awarded one maximum award of statutory damages; $1,000. As such, based on Kesterson the

maximum award available for statutory damages under § 149.43(C)(2) is $1,000.00.

Based on the foregoing, Respondent City of Lakewood asserts this Honorable Court should

deny Relator’s motion for statutory damages in this matter.

II. RELATOR’S REQUEST FOR ATTORNEY FEES

With respect to Relator’s request for attorneys’ fees, § 149.43(C)(c)(3) sets forth the

predicates, requirements and limitations regarding the award of attorneys’ fees.

Under ORC § 149.43(C)(3)(a)(i)(ii) court costs shall be awarded if the court orders the

public office or person responsible to comply with Division (B) of § 149.43 or makes a

determination set forth in ORC § 149.43(C)(3)(b)(iii). (ORC § 149.43(C)(3).)

Lakewood asserts these predicate acts for an award of court costs have not occurred.

Subsection 149.43(C)(3)(b)(iii) requires a determination that the public office or person

responsible acted in bad faith when it made public records available to the relator for the first time

after the relator commenced the mandamus action. There has been no such finding by this

Honorable Court and as such the predicate requirement set forth in § 149.43(C)(3)(b)(iii) has not

been met. Likewise, there has been no order by this Court to the City of Lakewood to comply with

Division (B) of § 149.43 and as such the predicate act required by § 149.43(C)(3)(a)(i) has not

been met.

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 Based on the forgoing, Respondent City of Lakewood asserts that Relator is not entitled to

recovery of court costs in matter. Lakewood recognizes the issue of court costs may be moot given

the Court’s statement in the Judgment that “Relator to pay costs.”

With respect to an award of reasonable attorneys’ fees, § 149.43(C)(3)(b) provides that

reasonable attorneys’ fees may be awarded to Relator subject to Division (C)(4) of that section.

Subsection 149.43(C)(3)(b) likewise requires, as a predicate act, an order by the court ordering the

public entity or person responsible to comply with Division (B) of § 149.43. As previously set

forth, no such order was issued and as such the predicate is not satisfied. The remaining predicate

acts set forth in § 149.43(C)(3)(b)(i)-(iii) are likewise not satisfied. There has been no finding that

the City of Lakewood or the person responsible failed to respond affirmatively or negatively to the

public record request(s) in accordance with time allowed under Division (B) of that section; there

was no promise by the City of Lakewood to allow Relator inspect or receive copies of the public

records within a specified time limit and a subsequent failure to satisfy that promise within the

specified time; nor has there been any finding of bad faith with respect to the voluntary production

of records by Lakewood subsequent to the commencement of the mandamus action. As such none

of the predicate acts required by § 149.43(C)(3)(b)(i)-(iii) have been satisfied. Therefore, Relator

is not entitled to an award of statutory reasonable attorneys’ fees.

Even assuming arguendo this Court were to find that any of the predicate acts required for

an award of reasonable attorneys’ fees have been met, Respondent City of Lakewood asserts that

the provisions of § 149.43(C)(3)(c)(i)-(ii) have been met so as to warrant a denial Relator’s motion

for attorneys’ fees in this matter.

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 Subsection 149.43(C)(3)(c) provides that attorneys’ fees shall not be awarded if both (i)

and (ii) have been met. Subsection (i) provides that based on the ordinary application of statutory

and case law as it existed at the time of the conduct, that allegedly constitutes a failure to comply

with an obligation under Division (B) and that was the basis of the mandamus action, a well-

informed public office or public person responsible for the requested public records “would

reasonably believe that the conduct or threatened conduct” ... “did not constitute a failure to

comply with an obligation in accordance with Division (B) ....” And (ii) that a well-informed

public office or person responsible for the requested public records “reasonably would believe that

the conduct” ... “would serve the public policy that underlies the authority that is asserted as

permitting that conduct or threatened conduct.” (ORC § 149.44(C)(3)(c)(i)-(ii).)

Respondent City of Lakewood asserts that as set forth in its briefing in this matter and as

reflected by the findings of the Court in its Journal Entry of December 11, 2018, based on the

statutory law and case law as it existed at the time of this matter, as fully explicated in its briefing

and the Court’s Order, a well-informed public office or a person responsible reasonably would

believe that Lakewood’s conduct in this matter did not constitute a failure to comply with an

obligation in accordance with Division (B) and that Lakewood’s conduct serves the public policy

underlying the authority asserted as permitting the conduct engaged in by the City of Lakewood,

as is required to obviate any entitlement to an award of attorneys’ fees pursuant to Subdivision

(C)(3)(c). Respondent asserts that its conduct complies with § 149.43, and that many, if not the

majority, of the requests submitted by Relator were improper and are improper, that Lakewood’s

response to those requests was both appropriate and timely, and that the Court’s findings and its

Order demonstrate Lakewood’s compliance with this Subsection obviating any entitlement to

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 attorneys’ fees. The Order finds the Lakewood complied with its obligation to produce public

records and declined to enter an order of mandamus or to order the production of further records.

Rather only limited redactions were ordered to be withdrawn.

The Court’s Order granting mandamus in part was solely to require the production of

certain redacted material constituting a limited number of entries out of27,000 pages of documents

produced by Lakewood in response to 318 layered public records requests, which by Relator’s

own admission were designed to require a complete duplication of every single record related to

the closure and sale of Lakewood Hospital. Respondent continues to assert in this matter that

Relator should not be allowed to do through a dragnet of overlapping, repetitive and redundant

requests that which he could not do by a single omnibus request, that being the complete

duplication of extremely voluminous records. Lakewood’s compliance with this Court’s orders

with respect to the submission and production of records should not be construed as a waiver of

its defenses or objections to the improper requests submitted by Relator. Many of said requests

were and continue to be improper notwithstanding any document production made by Lakewood.

With respect to the reasonableness of attorneys’ fees, a fee request of $237,448.75 is far

from a reasonable award of attorneys’ fees given the improper requests and unreasonable litigation

behavior engaged in by Relator and the limited relief accorded Relator. The affidavits offered in

support of the reasonableness of the hourly rates and time expended in this matter are completely

conclusory and without substance so as to justify the award of the hourly rate or time requested.

The affidavits do not serve to satisfy any of the requirements set forth in § 149.43(C)(4). The

affidavits do not demonstrate that the fees are remedial and not punitive. The affidavits do not

establish that the fees requested do not exceed the total reasonable fees incurred before the public

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 records were made available, and the affidavits do not establish proof of the reasonableness of the

amount of fees. To the contrary, under § 149.43(C)(4)(b) the amount of attorneys’ fees requested,

if any are to be awarded, which Lakewood denies, should be reduced given the factual

circumstances involved with these overlapping, redundant, and improper 318 public records

requests, to a reasonable figure given the alternative means that should have been pursued to more

effectively and efficiently resolve the dispute.

As demonstrated by the expert Affidavit of R. Todd Hunt, attached hereto as Exhibit 1, the

hourly rates charged by Relator counsel are excessive relative to the hourly rates that this court has

approved in actions over public records and for rates for such work in this community. (See Ex.

1, Hunt Affidavit at Tfl|14 - 20.) Lakewood asserts these excessive rates should be rejected by the

court in the event any fee is awarded.

Likewise expert Hunt properly opines that the hours expended by Relator’s counsel are not

reasonable and included charges for a number of events that are not properly recoverable as

impermissible block billing, travel time and “ill-advised fillings”. The bills reflect billing that is

inappropriate and should, therefore, be rejected. (See Ex. 1, Hunt Affidavit at Tfl|20 - 24.)

Lakewood made substantial efforts to resolve this matter with Relator both pre-litigation

and during the litigation. Not only did Lakewood engage in a court ordered mediation, but

Lakewood asked for, arranged, and paid for a private mediator in an effort to resolve these disputes.

As has been demonstrated throughout this litigation, Relator has steadfastly refused to modify its

public records requests in a manner consistent with the requirements of the law. Only upon the

urging of the court through its Order during this litigation did Relator withdraw certain limited

number of its improper, redundant, and overlapping requests. (See the Court’s June 16, 2017

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 Order granting Lakewood leave to refile its Motion for Judgment on the Pleading and Ordering

Relator to clarify what requests it had explained, narrowed or clarified and Relator’s resulting

Certification of June 30, 2017.) Instead of acting reasonably to resolve this dispute in an

appropriate fashion, Relator has sought to fight to the last man, now seeking $237,448.75 in

attorneys’ fees, and only now withdrawing its requests for $318,000.00 in statutory damages,

which it now reduces to a still unjustified request for some unknown amount of statutory damages

between $3,000.00 and $318,000.00. Lakewood has incurred very substantial litigation costs and

attorneys’ fees, as well as internal staff costs/time spent responding to these often improper public

records requests. While acknowledging the public’s right to know and to request public records,

Lakewood has already paid enough in satisfying its obligations under the public records law and

should not be required to pay Relator’s unreasonable attorney fees which bear no relationship to

the relief accorded Relator.

Should this court be inclined to award any statutory damages or attorney fees to Relator in

this matter, Lakewood requests that the court hold a hearing to take evidence and argument on the

issue surrounding any such possible award.

Respectfully submitted,

MAZANEC, RASKIN & RYDER CO., L.P.A.

/s/John T. McLandrich_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
JOHN T. MCLANDRICH (0021494)
TERENCE L. WILLIAMS (0081363)
100 Franklin’s Row
34305 Solon Road
Cleveland, OH 44139
(440) 248-7906; (440) 248-8861 - Fax
Email: imclandrich@mrrlaw.com
twilliams@mrrlaw.com
Counselfor Respondent City ofLakewood

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 CERTIFICATE OF SERVICE

A copy of the foregoing Respondent’s Opposition to Relator’s Motion for Attorneys’ Fees

and Statutory Damages was filed electronically and served February 11, 2019 to all registered

parties by operation of the Court’s electronic filing system.

/s/John T. McLandrich_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
JOHN T. MCLANDRICH (0021494)
TERENCE L. WILLIAMS (0081363)

Counsel for Respondent City of Lakewood

TRID-160233/Rspndt Opp to Essi MFAtty Fees

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 Exhibit 1

IN THE COURT OF APPEALS

EIGHTH APPELLATE DISTRICT
CUYAHOGA COUNTY, OHIO

STATE OF OHIO, ex rel. BRIAN J. ESSI, ) CASE NO. CA-16-104659

Relator, )
v. ) AFFIDAVIT OF R. TODD HUNT

CITY OF LAKEWOOD, OHIO, )

Respondent. )

R. Todd Hunt, being first duly sworn, deposes and says as follows:

1. I am an attorney licensed to practice in Ohio since May of 1984; in addition to being

licensed to practice in the courts of the State of Ohio, I am also admitted to practice in the

United States District Court for the Northern District of Ohio, the Federal Circuit Court

of Appeals for the Sixth Circuit, and the United States Supreme Court, as well as

practicing in courts pro hac vice in various parts of the United States, including most

recently the United States District Courts for the Northern District of California and the

Northern District of Illinois.

2. I was employed as an associate attorney at the Cleveland Office of the law firm of Walter

| Haverfield LLP from 1989 through 1994, became a Partner in that law firm in 1995, and

have served in that capacity since that time, being a member of the firm’s Executive

Committee and Head of its Public Law Section at various times.

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 3. I served as an Assistant Director of Law in the City of Cleveland Department of Law

(1984-1987); as an Assistant Director of Law for the City of Cleveland Heights (1987­

2004: both full and part-time); as Director of Law for the City of Richmond Heights

(1995-present: part-time); as Assistant City Solicitor (1994-2011: part-time), City

Solicitor (2011-2018: part-time) and presently Special Counsel (part-time) for the City of

Hudson; and as Assistant Law Director (2013-2015: part-time) and Law Director (2016-

present: part-time) for the Village of Gates Mills.

4. During my nearly 35 years of legal practice, I have represented, and continue to

represent, scores of local governments in Ohio, including municipalities (cities and

villages), townships, counties, and public school districts, as well as private citizens and

entities who have matters and litigation that interface with these various local

governments; I have also represented clients defending public records cases in various

courts in Ohio, including in the Ohio Supreme Court in State ex rel. Musial v. N.

Olmsted, 106 Ohio St. 3d 459 (2005).

5. Since its enactment in 2004,1 have been involved with Ohio Public Records Act issues

on almost a daily basis through advising public or private clients on the legal issues

involved, drafting public records requests and responses or objections thereto, and review

of records prior to their disclosure or of records that have been produced by public

entities.

6. I have attended several continuing legal education (“CLE”) seminars and public records

training sessions put on by the Ohio Attorney General’s Office regarding the Ohio Public

Records Law and been a speaker at continuing legal education seminars with public

- 2
-

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 records law content and performed public records law training sessions for numerous

public officials.

7. I am a past-President of the Northeast Ohio Law Directors Association, have been its

Treasurer and Program Chair for many years, and report on public records court opinions

on almost a monthly basis at Association meetings. Through my municipal law

directorships, I have also been a long-time member of the Ohio Municipal Attorneys

Association and a frequent speaker at its CLE seminars.

8. At various times during my 35 years of litigation practice, I have served as an attorney

representing parties resisting attorneys’ fees claims in various types of cases in state and

federal court.

9. In the above-captioned lawsuit, I was retained by counsel representing Respondent City

of Lakewood, Ohio (“Lakewood”) to render an opinion as to whether the attorneys’ fees

being sought by Relator Brian J. Essi in this litigation are reasonable, considering the

rates being charged by Mr. Essi’s attorneys, the volume of time spent by those attorneys

in matters related to the public records issues in the case, and the nature of the work

performed by Mr. Essi’s attorneys.

10. I have been retained by counsel for Lakewood as an independent expert witness with the

understanding that my retention is based on my lengthy experience and expertise in Ohio

public records law and my knowledge of hourly fee structures for legal work related to

various public law issues in Northeast Ohio and, more specifically, related to public

records law legal work.

-3-
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 11. My compensation for being an expert witness is not dependent on the nature of the

opinions I render and is not contingent on the outcome of the attorneys’ fees issue in this

litigation.

12. Prior to rendering opinions on the issues described above, I made the following

investigation: (1) reviewing the pleadings, motions and Court rulings in the instant

litigation; (2) reviewing Mr. Essi’s “Motion Pursuant to R.C. 149.43 (C) for Attorneys’

Fees and Statutory Damages” and the detailed time entries therewith; and (3) reviewing

cases discussing the attorney fees issues raised by this litigation. My opinions set forth

below are made on the basis of my personal knowledge of the facts obtained in that

investigation and upon my experience in the Northeast Ohio legal services market as set

forth above.

13. In light of the specific findings of fact and conclusions of law made by this Court in its

Journal Entry and Opinion of December 11, 2018, I have also relied on those findings

and conclusions in forming my opinions, and have not attempted to either repeat the

Court’s analysis in its Journal Entry and Opinion or the Relator’s arguments in his motion

for attorneys’ fees in this action. Also, I have not been asked to give an opinion as to

whether Relator Essi is even entitled to attorneys’ fees or statutory damages in this

lawsuit — that issue is being left to Lakewood’s counsel to advocate on behalf of

Lakewood.

14. For the reasons set forth below, it is my opinion that the attorneys’ fees and other legal

services fees sought by Relator Essi’s attorneys in this action of $237.448.75

($178,723.75 for the McGown & Markling law firm and $58,725.00 for the Dann Law

Firm) are not reasonable based on the hourly rates charged by those attorneys and for

-4-
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 their other legal personnel, the volume of hours spent by them on this matter, the lack of

complexity of the issues in the case, and the unnecessary motion practice by Relator,

including but not limited to matters related to discovery.

15. I emphasize that in connection with the consideration of the attorneys’ fees being sought

by Relator Essi, I have reviewed the invoices submitted by his attorneys to their client,

including the rates charged by the various attorneys and other law firm personnel whose

work is included in those invoices, the time entries themselves and the amount of time

spent on the time entries.

16. “The most useful starting point for determining the amount of a reasonable fee is the

number of hours reasonably expended on the litigation multiplied by a reasonable hourly

rate. This calculation provides an objective basis on which to make an initial estimate of

the value of a lawyer’s service.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). The

reasonable fee multiplied by the hours reasonably expended is commonly referred to as

the “lodestar.” Geir v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004). The hourly rate

charged should reflect the prevailing market rate in the relevant community for the

services performed. Glover v. Johnson, 934 F.2d 703, 716 (6th Cir. 1991). Such a rate

may be determined by proving that the rates sought are rates charged for similar services

by lawyers of comparable skill, experience, and reputation. Id. Additionally, the Court

should exclude “hours that were not reasonably expended.” Hensley, 461 U.S. at 434

(internal quotation omitted). Here, as discussed below, the hourly rates charged do not

reflect the prevailing market rate in the Northeast Ohio legal community for public

records disputes (such disputes, as here, involve non-complex legal issues), are

inconsistent with the rates charged for similar services by lawyers of comparable skill,

-5-
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 experience, and reputation as legal counsel for Relator, and there were a considerable

number of hours that were not “reasonably expended.”

17. I have reviewed the hourly rates charged by all of the legal personnel in each of the law

firms who have submitted invoices for services in this matter. The rates charged by the

legal personnel of McGown & Markling, a law firm of approximately only five (5)

lawyers with one (1) office located in Akron, Ohio, range from a low of $110/hour for

paralegal personnel to $350/hour for partner time spent from April 16, 2016 to June of

2017. The rates charged by the legal personnel of the Dann Law Firm, a firm of

approximately ten (10) attorneys, range from a low of $ 125/hour for paralegal personnel,

$250/hour for a third-year law clerk/paralegal, to $450/hour for partner time spent from

June 2017 through 2018.

18. Based on my knowledge of the rates charged by law firms of similar size and reputation

in the Northeast Ohio market where I have practiced law for nearly 35 years, it is my

opinion that during the relevant time period in this lawsuit, the hourly rates charged by

the Relator’s two law firms are not reasonable.

19. First, the rates charged are well in excess of what I understand prevailing market rate

charged for similar services by lawyers of comparable skill, experience, and reputation in

public records disputes, which are not complex matters and an area where the law is well-

settled. My opinion is consistent with reported public records case decisions from the

Eighth District Court of Appeals, which has generally found hourly rates for attorneys in

public records disputes ranging from $130.00 to $265.00 to be “reasonable.” See

Cleveland Assn of Rescue Employees/ILA Local 1975 v. City of Cleveland. 2018 Ohio

4602 (8th Dist. 2018) (hourly rates of $130 for associates and $180 for partners); State ex

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 rel. Quolke v. Strongsville City School Dist. Bd. ofEdn., 2013 Ohio 4481 (8th Dist. 2013)

(hourly rates of $135 for associates and $165 for partners); State ex rel. Braxton v.

Nichols, 2010 Ohio 3193 (8th Dist. 2010) (hourly rate of $225); and State ex rel. Mun.

Constr. Equip. Operators’ Labor Council v. Cleveland, 2010 Ohio 2108 (8th Dist. 2010)

(hourly rate of $265, but reduced by the amount of time spent by counsel filing a motion

to strike that did not “advance the merits of the case”). The attorneys in those reported

cases had a similar degree of experience as the attorneys in this case, and dealt with

similar legal issues which are not complex legal matters. Thus, I conclude that the hourly

rates charged by the attorneys and other legal personnel in this case far exceed what is

reasonable for legal services for a public records dispute. My opinion is that an hourly

rate for this legal work of even $265 per hour is on the high side but that a blended rate

range, including both associate attorneys and law firm partners, between $180 and $240

per hour is reasonable. I note that McGown & Markling provided legal services from

February 11, 2016 to March 11, 2016 at a flat fee of $2,750 (31.5 hours worked, which

corresponds to an hourly rate of $87.30/hour), and from March 12, 2016 to April 15,

2016, the firm charged Relator at a blended rate of $225/hour. These hourly rates,

assuming the services are compensable, are much more consistent with the prevailing

market rate for legal services related to a simple public records dispute like this one.

Striking, moreover, is the billing rate for one Brittany May, designated as a “third-year

law student/paralegal” which is $250/hour and who is billed for 27.1 hours of work on

this matter. Such an hourly rate is unconscionable. By way of comparison, my firm’s law

students’ legal work for clients, when billed, is $75/hour.

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 20. Second, in my opinion, the volume of legal time spent on these proceedings is overly

excessive. At the outset, I must note that a substantial majority of the time entries are

block billed - i.e., the time keepers have engaged in the practice of “lumping multiple

tasks into a single time entry.” State ex rel. Harris v. Rubino, —Ohio St.3d —, 2018 Ohio

5109 (2018) (internal quotations omitted). One of many examples of block billing can be

found in the June 9,2017 McGown & Markling invoice:

Timekeeper Narrative Description Hours workec Amount

PSV Prepare and file the memorandum in 2.5 812.50
opposition to the motion for 325.00/hr
extension of time as well as the reply
to the memorandum in opposition to
the show cause motion regarding the
same as well as the firm’s
withdrawal.
MJM Receipt of motion for extension of 8.00 2,800.00
time filed by the City of Lakewood. 350.00/hr
Interoffice conference regarding the
same. Receipt of email
correspondence from the Client
pointing out that the City of
Lakewood failed to submit an
affidavit supporting that they
complied with the court orders and
timelines. Receipt of email
correspondence from the Client
summarizing the City of Lakewood’s
position. Prepare email
correspondence to the Client
enclosing all documentation relating
to the recent filings. Prepare email
correspondence to the Client
enclosing all documentation relating
to the recent filings. Prepare email
correspondence to the Client
verifying that the Law Firm will
transition the claim over to the
former Ohio Attorney General.
Interoffice conference regarding
transition process.

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 As the Ohio Supreme Court very recently explained in Harris, 2018 Ohio 5109, at f6:

“there is simply no way * * * to assess whether the time spent on each of those tasks was

reasonable when they are lumped together.” (internal citations omitted). Accordingly,

under Harris, the Ohio Supreme Court holds “[t]his court will no longer grant attorney-

fee applications that include block-billed time entries.” The block billings should not be

paid.

21. Similarly, the invoices from both law firms reflect unnecessary duplication or inflation of

time spent on the tasks described in the invoice. For example, there are more than 500

line entries by the McGown & Markling law firm for unspecified interoffice conferences

among attorneys and telephone conferences with the client. It cannot be ascertained from

the time entries whether any of these conferences were necessary. Based on my 35 years

of experience, such a significant number of these conferences are unnecessary,

particularly when experienced counsel is involved in a relatively simple public records

dispute. Another of the many examples of the inflation in the time entries can be found in

the November 6, 2017 entry from the Dann Law Firm, where two and one-half hours

were billed at an hourly rate of $250/hour ($625.00 total) by Chelsea Lynn, a paralegal

with twelve (12) years of experience, for “Draft[ing] and Fil[ing] Notice of Deposition

Transcripts.” This is an excessive amount of time for a paralegal with twelve years of

experience to spend performing such a perfunctory filing, let alone an exorbitant hourly

rate for a paralegal.

22. Additionally, Relator’s counsel made several ill-advised filings that should not be

compensated. See State ex rel. Mun. Constr. Equip. Operators’ Labor Council, 2010

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 Ohio 2108 (reducing attorney’s fee award by amount of time spent preparing frivolous

motion). By way of example, Relator’s legal counsel spent 51.7 hours drafting the initial

March 27, 2017 Motion to Compel Discovery and another 22.9 hours drafting the Reply.

Ultimately, that Motion was summarily denied because, “The requests for production of

documents is identical to the outstanding public records request.” The hours spent

pursuing the motion to compel were not ‘reasonably expended” and cannot be

compensated under Hensley, 461 U.S. at 434 (instructing that “hours that were not

reasonably expended” should not be compensated). Similarly, Relator’s legal counsel

spent 6.7 hours drafting a simple April 3, 2017 Motion to Schedule Telephone

Conference. Also, legal counsel spent 28.7 hours drafting the initial May 23, 2017

Motion to Show Cause and for Sanctions that was summarily denied. Again, the hours

spent on these matters were not “reasonably expended” and should not be compensated.

Hensley, 461 U.S. at 434.

23. Further, I note that legal counsel block billed time pursuing litigation strategies that had

nothing to do with the public record dispute before the Court. By way of example, the

December 27, 2016 entry of “MJM” shows that legal counsel block billed four hours of

time attempting to ascertain whether Lakewood City Council President Sam O’Leary

submitted potential false testimony in another lawsuit:

Receipt of email correspondence from the Client outlining contradictions in

public records produced thus far and potential false testimony submitted by
Sam O'Leary in the Skindell lawsuit. Prepare email correspondence to
Opposing Counsel requesting a telephone call regarding settlement
demands and outstanding discovery. Prepare email correspondence to the
Client regarding changes in attorney duties in the litigation. Exchange
email correspondence with Opposing Counsel regarding scheduling a time
to discuss mediation and the protective order. Forward a copy of the email
communication with Opposing Counsel to the Client.

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 Other examples of such unnecessary litigation strategies include investigations regarding

whether City Officials were complying with Ohio public records law training

requirements (See MJM block billed time entries of 9/12/16 and 10/26/16), and whether

Securities and Exchange Commission rules applied to the litigation. See MJM and STK

block billed time entries of 9/28/16 and 11/2/16).

24. Also, I note that the submitted billing invoices contain travel time which is also block

billed. See McGown & Markling time entries from 8/30/2016 (STK and MJM, for 3.7

hours at $325/hour and 8.00 hours at $350/hour); 9/12/2016 (MJM, for 9.2 hours at

$350/hour); 4/27/17 (MJM for 9.7 hours at $350/hour); 5/11/17 (MJM for 8.00 hours at

$350/hour). Under Harris, these block billed time entries should not be paid. Moreover, it

is customary for attorney time spent traveling to be “deeply discounted,” which legal

counsel did not do here. See Woods v. Willis, 981 F. Supp. 2d 700, 703 (N.D. Ohio 2013)

(holding that time spent traveling, outside of direct travel expenses, was not

reimbursable). I also note that the narrative descriptions for some of these entries make

reference to the fact that the law firm was already paid for travel, yet the balance due is

listed as outstanding. Based on the foregoing, it is my opinion that the volume of time

being invoiced by the two law firms in this proceeding is unreasonable under the

circumstances of this case.

25. Finally, an award of reasonable attorney fee awards “shall be construed as remedial and

not punitive.” R.C. 149.43. It is my opinion that given the undisputed facts in this case

and the Court’s opinion, any award of attorneys’ fees in this case would be punitive and

not remedial.

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 26. Since the hourly rates and volume of time spent by the two law firms are not reasonable

and the legal issues in the case are not complex, it is my opinion that the attorneys’ and

other legal personnel fees being sought by Relator Essi in the amount of $237,448.75 are

not reasonable.

SWORN TO AND SUBSCRIBED IN MY PRESENCE on this^ day of February, 2019

in Cuyahoga County, Ohio.

Notary Public
T/ajA M. R ic HfT|oM&
JrATi: oF

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