After prevailing on an anti-SLAPP motion, counsel will file often file a separate motion for attorney’s fees and costs. In order to obtain a recovery, counsel has the burden to substantiate the fees and costs. While invoices are not required, courts often prefer them (or other detailed time entries).
One issue that comes up often is whether to redact attorney-client confidences in certain time entries. If too many entries are redacted, opposing counsel will complain, arguing that they cannot challenge the entries without knowing what they are. But on the other hand, you have a duty to protect client confidences. So what do you do? Unfortunately, there is not a lot of authority on this subject in the anti-SLAPP context. In Lafayette Morehouse, Inc. v. Chronicle Publ’g Co. (1995) 39 Cal.App.4th 1379, 1382, superseded by statute or other grounds, as stated in Metabolife Int’l, Inc., 213 F. Supp. 2d 1220 (S.D. Cal. 2002), the court did suggest that defendant should not be required to waive the attorney-client privilege or attorney work product protections in order to recover fees–but the discussion was minimal–in a footnote. Consequently, I believe the best practice is to redact entries and argue that defendant should not be forced to waive the attorney-client privilege in order to recover fees, particularly where plaintiff has filed a notice of appeal or a motion for reconsideration. Further, defendant should offer to submit sealed invoices for the court’s in camera review.
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