A new panel decision from the Workers’ Compensation Appeals Board affirmed a decision to reduce the Labor Code Section 5710 fees for an applicant's attorney for work performed in response to a deposition of the applicant.
The board affirmed the reduced LC 5710 fees in its September 2022 panel decision of Cowens v. ABC Unified School District. In that case, the parties attended a videoconference deposition.
What attorney wanted in first invoice
Immediately after the deposition, the attorney issued an invoice for $950:
The defendant issued an objection to the rate of $450 per hour and said $400 was more reasonable and fair. The objection also objected to the legal staff fees. The defendant paid the applicant’s attorney $950.
A few weeks later, the applicant’s attorney produced 875 pages of documents requested by defendant at the deposition. This led the attorney to generate a second, larger invoice for LC 5710 fees.
The applicant’s attorney demanded $2,125 for:
The parties proceeded to trial on whether the attorney was owed additional LC 5710 fees.
The judge found that the applicant’s attorney was not entitled to any new money in lieu of the defendant’s payment of $950. This was based on the following allocations:
The judge did not award any LC 5710 fees for “services deemed inflated and purely clerical in nature,” which appears to be a reference to the office staff portions of the demand.
The applicant’s attorney filed a petition for reconsideration. On reconsideration, the WCAB cited LC 5710 and noted that the court can make “a reasonable allowance for attorney’s fees for the deponent, if represented by an attorney licensed by the State Bar of this state.”
When looking at the topic of deposition review, the commissioners noted that the applicant had actually reviewed his deposition on his own, at his home, after someone from the applicant’s attorney’s office emailed it to him. Applicant reviewed it and emailed it back to the applicant’s attorney, meaning no attorney actually sat with the applicant for an hour and reviewed it with the applicant.
Second, on the topic of document production, the court determined that the applicant went through his relevant documents and produced them to the applicant’s attorney after the deposition. There was no evidence that the attorney was actually involved in producing the documents, other than serving them to the defendant and signing the formal response. And there was no evidence that they were produced during the deposition, but rather were produced afterward. As such, no reimbursement was awarded for document production.
Finally, the applicant’s attorney contended that the judge should have found the rate of $450 per hour reasonable and that defendant waived its right to dispute it. However, the court determined that the record had no evidence that defendant decisively waived its objection to the rate.
With that in mind, the court affirmed the trial judge’s decision.
Analysis and conclusion
Cowens v. ABC Unified School District is notable because it provides a detailed analysis of what is a “reasonable allowance for attorney’s fees” for a videoconference deposition. While Labor Code 5710 has been around for decades, the advent of the Zoom deposition became part of attorneys’ regular practice only in response to the stay-at-home orders in March 2020.
Since then, videoconference depositions have become far more popular, as they tend to allow multiple parties to attend virtually and avoid the cost and hassle of everybody having to travel to the same location. For instance, in Southern California, it’s relatively common for a simple deposition to require six people — two attorneys, a court reporter, an applicant, an interpreter and an employer representative.
One element that the Zoom deposition has done away with is the juiciest line item of LC 5710 fees — travel, which we covered in this December 2019 blog post. I and local Bradford and Barthel colleagues have noticed that since 2020, many applicants' attorneys have started finding other ways to inflate their requests now that they are not billing two hours of travel to and from the deposition location.
Suddenly, reimbursement for “staff review time” and questionable “deposition review time” has appeared on more LC 5710 fee demands.
So the decision in Cowens is a welcome rebuke of attempts to pad LC 5710 fee demands. After all, if the applicant reviews the deposition without his attorney, and documents were not produced at the deposition, then those items should not be reimbursable.
Now, some cynics may argue that this could lead to lesser production of documents. Well, I have personally observed a razor-sharp judge contend that failure to produce relevant documents could result in an adverse inference against the party refusing to produce them.
So if a set of hypothetical documents were relevant to AOE/COE and causation, and the applicant’s attorney fails to produce them, then the defendant could find itself entitled to an adverse inference on the topic of AOE/COE and causation. As defendants, we routinely produce documentary evidence for our opponents; applicants' attorneys should be afforded no special quarter on the production of documents.
The Cowen decision is a good one for defendants and should be heeded for years to come.
John P. Kamin is a workers’ compensation defense attorney and equity partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. This entry from Bradford & Barthel's blog appears with permission.
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