No. 11-2582 ______________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ______________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellant, v. PEOPLEMARK, INC., Defendant/Appellee. ____________________________________________________ On Appeal from the United States District Court for the Western District of Michigan No. 08-00907 ____________________________________________________ OPENING BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________________ P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel DONNA J. BRUSOSKI Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 113 M Street, N.E. Washington, D.C. 20507 (202) 663-7049 donna.brusoski@eeoc.gov ORAL ARGUMENT REQUESTED STATEMENT REGARDING ORAL ARGUMENT The EEOC believes that further exploration of the issues at oral argument would assist this Court in properly resolving this appeal. See Fed. R. App. P. 34(a); 6 Cir. R. 28(d); 6 Cir. R. 34(a). Case: 11-2582 Document: 006111164392 Filed: 12/21/2011 Page: 1 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Disclosure of Corporate Affiliationsand Financial Interest Sixth Circuit EEOC v. Peoplemark, Inc. Case Number: 11-2582 Case Name: Name of counsel: Donna J. Brusoski Pursuant to 6th Cir. R. 26.1, the Equal Employment Opportunity Commission Name of Party makes the following disclosure: 1 Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below theidentity of the parent corporation or affiliate and the relationship between it and the named party: NA 2 Is there a publicly owned corporation, not a party to the appeal, that has a financial interestin the outcome? If yes, list the identity of such corporation and the nature of the financial interest: NA CERTIFICATE OF SERVICE I certify that on ___________________________December 21, 2011__________ the foregoing document was served on allparties or their counsel of record through the CM/ECF system if they are registered users or, if they are not,by placing a true and correct copy in the United States mail, postage prepaid, to their address of record. s/ Donna J. Brusoski Case: 11-2582 Document: 006111164392 Filed: 12/21/2011 Page: 2 6th Cir. R. 26.1 DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST (a) Parties Required to Make Disclosure. With the exception of the United Statesgovernment or agencies thereof or a state government or agencies or political subdivisions thereof,all parties and amici curiae to a civil or bankruptcy case, agency review proceeding, or originalproceedings, and all corporate defendants in a criminal case shall file a corporate affiliate/financialinterest disclosure statement. A negative report is required except in the case of individual criminal defendants. (b) Financial Interest to Be Disclosed. (1) Whenever a corporation that is a party to an appeal, or which appears as amicuscuriae, is a subsidiary or affiliate of any publicly owned corporation not named in the appeal, counselfor the corporation that is a party or amicus shall advise the clerk in the manner provided bysubdivision (c) of this rule of the identity of the parent corporation or affiliate and the relationshipbetween it and the corporation that is a party or amicus to the appeal. A corporation shall beconsidered an affiliate of a publicly owned corporation for purposes of this rule if it controls, iscontrolled by, or is under common control with a publicly owned corporation. (2) Whenever, by reason of insurance, a franchise agreement, or indemnity agreement,a publicly owned corporation or its affiliate, not a party to the appeal, nor an amicus, has a substantialfinancial interest in the outcome of litigation, counsel for the party or amicus whose interest is alignedwith that of the publicly owned corporation or its affiliate shall advise the clerk in the manner providedby subdivision (c) of this rule of the identity of the publicly owned corporation and the nature of its orits affiliate's substantial financial interest in the outcome of the litigation. (c) Form and Time of Disclosure. The disclosure statement shall be made on a form provided by the clerk and filed with the brief of a party or amicus or upon filing a motion, response,petition, or answer in this Court, whichever first occurs. 6CA-1 8/08 Page 2 of 2 TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . .ii CORPORATE DISCLOSURE FORM . . . . . . . . . . . . . . . . . . . . . . . . . . . iii TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Magistrate's Decision . . . . . . . . . . . . . . . . . . . . . . . . . . 18 C. District Court’s Decision . . . . . . . . . . . . . . . . . . . . . . . . 20 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 I. THE DISTRICT COURT ABUSED ITS DISCRETION IN AWARDING ATTORNEY'S AND EXPERT WITNESS FEES BECAUSE THE COMMISSION'S ACTION WAS NOT FRIVOLOUS, UNREASONABLE, OR WITHOUT FOUNDATION.. . . . . . . . . . . . . . . . . . . 26 A. Attorney's fees were not warranted under Christiansburg . . . . . . . 26 B. Expert witness fees were not warranted under Christiansburg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 II. EVEN IF FEES WERE WARRANTED AT SOME POINT DURING THIS LITIGATION, THE DISTRICT COURT ABUSED ITS DISCRETION IN AWARDING EXCESSIVE FEES. . . . . . . . . . . . . . . . . . . 43 A. Fees were excessive to the extent the court determined the Commission's case lacked foundation as of October 1, 2009 . . . . . . . . 43 B. Even if fees were warranted, the amount of expert fees awarded was excessive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 1. The district court abused its discretion by awarding expert witness fees that accrued before the attorney's fees award, covering only the period after October 2009 . . . . . . . . . . . . . . . . . . . .44 2. Expert witness fees that are not adequately documented to allow the court to assess their reasonableness cannot be part of a reasonable attorney's fee award under Christiansburg . . . . . . . . . . .46 3. Expert witness fees that are excessive cannot be part of a reasonable attorney's fee under Christiansburg . . . . . . . . . . . . . . 49 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS TABLE OF AUTHORITIES CASES Anderson v. Yarp Rest., Inc., 1997 WL 47785 (S.D.N.Y. Feb. 7, 1997) . . . . . .42,46 Ashcroft v. Iqbal, 556 U.S. 662 (2009) . . . . . . . . . . . . . . . . . . . . . 9 Bell Atlantic v. Twombly, 550 U.S. 554 (2007) . . . . . . . . . . . . . . . . . . 9 Bjornson v. Dave Smith Mot./Frontier Leasing & Sales, 578 F.Supp.2d 1269 (D. Idaho 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47,50 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) . . . . . . . . . . .passim Der v. Connolly, 2011 WL 31498 (D. Minn. Jan. 5, 2011) . . . . . . . . . . . . . .42 EEOC et al. v. Cintas Corp., 2011 WL 3359622 (E.D. Mich. Aug. 4, 2011) . . . . . .35 EEOC et al. v. CRST, 2010 WL 520564 (N.D. Iowa, February 9, 2010) . . . . . . .34,45 EEOC et al. v. CRST, 670 F.3d 897 (8th Cir. 2012) . . . . . . . . . . . . . . . . 34 EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984) . . . . . . . . . . . .7,35 EEOC v. Tarrant Distributors, Inc., 750 F.2d 1249 (5th Cir. 1984) . . . . . . . . 34 Gratz v. Bollinger, 353 F.Supp.2d 929 (E.D. Mich. 2005) . . . . . . . . . . . . . 48 Goss International Corp. v. Tokyo Kikai Seisakusho, Ltd., 2004 WL 1234130 (N.D. Iowa June 2, 2004) . . . . . . . . . . . . . . . . . . . 45 Green v. Missouri Pac. R.R. Co., 523 F.2d 1290 (8th Cir. 1975) . . . . . . . . 29,32 Hensley v. Eckerhart, 461 U.S. 424 (1983) . . . . . . . . . . . . . . . . . . 42,47 H.J. Inc. v. Flygt Corp., 925 F.2d 257 (8th Cir. 1991) . . . . . . . . . . . . . .47 Howard v. Sec’y of Heath and Human Services, 932 F.2d 505 (6th Cir. 1991) . . . 36 Johnson v. U.S. Dept. of Health and Human Servs., 30 F.3d 45 (6th Cir.1994) . . . 28 L&W Supply Corp. v. Acuity, 475 F.3d 737 (6th Cir. 2007) . . . . . . . . . . . . .41 Paschal v. Flagstar Bank, 297 F.3d 431 (6th Cir. 2002) . . . . . . . . . . . . 2,46 Pinkham v. Camex, Inc., 84 F.3d 292 (8th Cir. 1996) . . . . . . . . . . . . . . . 45 Richard v. Oak Tree Group, Inc., 2009 WL 3234159 (W.D. Mich. Sept. 30, 2009) . . .48 Riddle v. Egensperger, 266 F.3d 542 (6th Cir. 2001) . . . . . . . . . . . . . .28,38 Robinson v. Metro North Commuter R. R. Co., 267 F.3d 147 (2nd Cir. 2002) . . . . .32 Scales v. J.C. Bradford & Co., 925 F.2d 901 (6th Cir. 1991) . . . . . . . . . .29,33 Teamsters v. U.S., 431 U.S. 324 (1977) . . . . . . . . . . . . . . . . . . . . . 33 Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) . . . . . . . . . . . . . . 29 Wennek v. Polygram Group Dist., Inc., 304 F.3d 123 (1st Cir. 2002) . . . . . . . .49 Wilcox v. Stratton Lumber, 921 F. Supp. 837 (D. Maine 1996) . . . . . . . . . 48,49 Zeffiro v. First Pennsylvania Bank, N.A., 574 F. Supp. 443 (E.D. Pa. 1983) . . . 47 EEOC et al. v. CRST, Nos. 09-3764, 09-3765, 10-1682 (8th Circuit, petition for rehearing filed April 9, 2012) . . . . . . . . . 35 EEOC at al. v. Cintas Corp., No. 10-2629, 11-2057 (6th Circuit, awaiting decision) . . . . . . . . . . . . . . . . . . . . . . . . 35 STATUTES & REGULATIONS 17 U.S.C. § 505 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1821 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 28 U.S.C. § 1920 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. . . . . . . 2 42 U.S.C. § 2000e-2(k)(1)(A)(i) . . . . . . . . . . . . . . . . . . . . .29 42 U.S.C. § 2000e-5(f)(1) . . . . . . . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 2000e-5(f)(3) . . . . . . . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 2000e-5(k) . . . . . . . . . . . . . . . . . . . . . . . .passim EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1982) (2/4/87), available at http://www.eeoc.gov/policy/docs/convict1.html . . . . . . . . . . . . . . . . . .29 EEOC Policy Statement on the Use of Statistics in Charges Involving the Exclusion of Individuals with Conviction Records from Employment (7/29/87), available at http://www.eeoc.gov/policy/docs/convict2.html . . . . . . . . . . . . . . . . . .30 RULES Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. Civ. P. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,10 Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 Fed. R. Civ. P. 12(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Fed. R. Civ. P. 15(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31,35 Commentary on 2009 Amendments to Rule 15 . . . . . . . . . . . . . . . . . . 31 Fed. R. App. P. 34(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Fed. R. Civ. P. 37(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 6 Cir. R. 28(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii 6 Cir. R. 34(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii No. 11-2582 ______________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ______________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellant, v. PEOPLEMARK, INC., Defendant/Appellee. ____________________________________________________ On Appeal from the United States District Court for the Western District of Michigan No. 08-00907 ____________________________________________________ OPENING BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ JURISDICTIONAL STATEMENT The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1345, and 42 U.S.C. § 2000e-5(f)(1), (3). The court issued final judgment on October 17, 2011. RE #148.<1> The Commission filed a timely notice of appeal on December 13, 2011 (RE #152). Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction pursuant to 28 U.S.C. § 1291. STATEMENT OF ISSUES 1. Whether the district court abused its discretion in awarding attorney’s fees and expert witness fees where the Commission’s action was not frivolous, unreasonable, or without foundation. 2. Whether, even if fees became warranted at some point in this litigation, the district court abused its discretion in awarding excessive fees. STATEMENT OF THE CASE The Commission filed this suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., on September 29, 2008, in the Western District of Michigan. RE #1. The complaint alleged that defendant Peoplemark maintains a policy that denies hiring or employment of any person with a criminal record (RE #1 at ¶ 7), and this policy has a disparate impact on African American applicants (id. at ¶ 8). The suit covered all of Peoplemark’s facilities from May 2005 to the present. Id. at ¶ 7. In its answer, Peoplemark denied the allegations in the complaint. RE #2. On July 6, 2009, Peoplemark filed a motion to dismiss (RE #40), which the court denied the next day. See July 7, 2009, Non-document order. Peoplemark filed a motion for summary judgment on February 25, 2010. RE #111. The EEOC and Peoplemark filed a joint motion for voluntary dismissal with prejudice on March 24, 2010. RE #117. The court held in abeyance both the joint motion to dismiss and the deadline for filing EEOC’s response to Peoplemark’s summary judgment motion. See March 25, 2010, Non-document notice. On March 29, 2010, the district court granted the parties’ motion to dismiss. RE #120. Peoplemark moved for fees, costs, and sanctions on April 30, 2010. RE #122. On March 31, 2011, the magistrate issued an order granting in part and denying in part Peoplemark’s motion. RE #137. The Commission objected to the magistrate’s order. RE #140. On October 17, 2011, the district court affirmed the magistrate’s order (RE #147) and entered final judgment in favor of Peoplemark (RE #148). The Commission filed this appeal on December 13, 2011. RE #152. A. Statement of Facts Peoplemark is a temporary employment placement agency that refers individuals for placement with client-employers doing jobs involving light industrial work in packaging, warehousing, assembly, and machine operations, and in clerical and receptionist positions. RE #126-3 at 3 (Exh. A, EEOC’s response to Peoplemark’s motion for fees). It has offices in four states: Michigan, Tennessee, Kentucky, and Florida. RE #24 (EEOC’s response to Peoplemark’s motion to compel) at 2; RE #140 (EEOC’s objections to magistrate’s order on fees) at 4. In May 2005, Sherri Scott filed a charge with the Commission, alleging that Peoplemark’s Grand Rapids, Michigan office refused to refer her for employment because of her race and her felony conviction record. RE #140-3 (Exh. 2, EEOC’s objections to magistrate’s order granting fees)(charge). During the Commission’s investigation, Judd F. Osten, Peoplemark’s Vice President and Associate General Counsel, repeatedly represented that Peoplemark operates under a broad company-wide policy of rejecting any applicants with felony conviction records. RE #126-3 at 4; 126-4 at 2; 126-5 at 2; 126-6 at 2, 3 (Exhs. A, B, C, & D, EEOC’s response to Peoplemark’s motion for fees)(correspondence from Judd Osten to EEOC). The investigation revealed that Peoplemark asks all applicants if they have a felony record, and it conducts criminal background searches on all applicants to determine if an applicant has such a record. RE #126-3 at 4 (Exh. A). Osten asserted that the reason for Peoplemark’s no-felony policy was concern about safety and security. RE #126-3 at 3-5; 126-4 at 2 (Exhs. A & B). Osten also stated that Peoplemark did not independently inquire of its client companies whether they would accept personnel with felony conviction records, but its clients were aware that it conducts criminal background checks. RE #126-5 at 2 (Exh. C). Osten identified four Grand Rapids clients that had orally advised Peoplemark not to refer personnel with felony convictions. RE #126-5 at 2 (Exh. C). And Osten estimated that Peoplemark rejects 20 applicants per month at its Grand Rapids facility because of their felony convictions. RE #126-3 at 4 (Exh. A). The Commission also obtained documentary evidence, including employment applications and initial “information sheets,” from Peoplemark’s offices during the investigation. RE #126-4 at 2 (Exh. B). In addition, the Commission relied on statistical evidence including, among other things, DOJ’s Bureau of Justice Statistics Bulletins showing that the conviction rate for blacks is 3-4 times greater than the representation of blacks in the adult population or the civilian labor force nationally, and Census workforce data from the 2000 Census showing the percentage of the workforce that is black in counties/cities where Peoplemark has facilities, by EEO-1 job category. RE #83 at 3-6 (second amended privilege log, listing documents and data provided to Peoplemark). Using this data, and relying on Peoplemark’s representations about its no-felony policy, the Commission identified almost 300 black applicants with felony convictions whom it believed Peoplemark had not referred for employment due to its no-felony policy. RE #24 (EEOC’s response to Peoplemark’s motion to compel) at 2-6; RE #137 (magistrate’s fee order) at 5. A “cause” Letter of Determination (LOD) was issued on September 10, 2007, on behalf of charging party and similarly situated black applicants. RE #22-4 (Exh. 2, Peoplemark’s motion to compel). Attempts to conciliate this claim were unsuccessful. RE #22-2 (Peoplemark’s memorandum in support of motion to compel) at 2; RE #24 (EEOC’s response to Peoplemark’s motion to compel) at 2. The Commission filed this suit on September 29, 2008. RE #1 (complaint). The complaint alleged that Peoplemark maintains a policy that denies hiring or employment of any person with a criminal record (id. at ¶ 7), and such policy has a disparate impact on African American applicants (id. at ¶ 8); the suit covered all of defendant’s offices (in Michigan, Kentucky, Tennessee, and Florida) during the period from May 2005 to the present. Id. at ¶ 7. Peoplemark’s answer denied the allegations in the complaint. RE #2 (answer). Discovery was extensive and contentious. Once the court issued its case management order (CMO) on January 9, 2009,<2> disputes arose almost immediately over the parties’ responses to each others’ discovery requests. For example, Peoplemark took the position that the Commission propounded too many interrogatories (RE #45 (EEOC’s motion and memorandum for extension of time) at 4-5 & exhibits referenced therein), and as a result, the Commission received incomplete interrogatory responses as well as incomplete responses to requests for production of documents and electronic data (because the production requests were tied to interrogatories Peoplemark refused to answer). RE #45 at 4-8 & exhibits referenced therein. Likewise, Peoplemark objected to the Commission’s response to defendant’s first interrogatory, arguing that the response was incomplete because the Commission named only the charging party as a potential victim and explained that it was premature to identify other potential victims before the Commission received and analyzed the employment-related data it sought from Peoplemark in discovery. RE #22-2 (Peoplemark’s memorandum in support of motion to compel) at 6-7; RE #24 (EEOC’s response to Peoplemark’s motion to compel) at 2-6 & exhibits referenced therein; RE #45-2 (Exh. A, EEOC’s motion for extension of time) at 22-23.<3> Many of the discovery disputes resulted in the filing of discovery motions. All of this, in turn, delayed the Commission’s ability to obtain Peoplemark’s documents and records, which the Commission’s primary expert witness, Dr. Madden, needed to analyze to prepare her expert report regarding the adverse impact of Peoplemark’s practice of disqualifying felons. RE #45 (EEOC’s memorandum in support of motion for extension) at 8-10; RE #54 (EEOC’s memorandum in support of motion to compel) at 4-7; RE #58 (EEOC’s supplemental brief in support of motion to compel) at 2-5; RE #81 (EEOC’s supplemental brief in support of motion to extend expert report deadline) at 2-3. The Commission did not receive complete workforce documents and usable electronic data from Peoplemark until mid-September 2009. RE #81 (EEOC’s supplemental brief) at 3 n.2. As a result of these delays, and an unanticipated volume of discovery records (compare RE #45-12 (Exh. K, EEOC’s motion to extend expert report deadline)(Declaration of Joseph Donovan) at 4 ¶ 9 (anticipating 50,000 pages of information) with RE #72-2 at ¶¶ 4, 5, 6, 7, & 12 (Exh. A, EEOC’s motion for extension to complete expert report)(Declaration of Sandra Serkes of Valora)(stating that Peoplemark produced 178,000 pages of information)), the Commission sought several extensions of the deadlines for producing its expert reports.<4> On April 3, 2009, the Commission filed a motion to bifurcate the trial and discovery (RE #25), which the district court granted on April 20, 2009. RE #31 (order). On July 6, 2009, Peoplemark filed a motion to dismiss (RE #40), which the court denied the next day. The court’s ruling stated: Peoplemark does not state whether it is attempting to rely on Rule 12(b)(6) or Rule 12(c). To the extent it is invoking Rule 12(b)(6), the motion is too late. Motions under Rule 12(b) ‘must be made before pleading if a responsive pleading is allowed.’ To the extent Peoplemark is attempting to invoke Rule 12(c) based on an alleged Rule 8 pleading defect in the EEOC Complaint, Peoplemark has waived the opportunity for separate pretrial consideration of the issue through its course of litigation conduct in the case. The time for a proper Rule 8 challenge under the [Bell Atlantic v.] Twombly[, 550 U.S. 554 (2007),] and Ashcroft [v. Iqbal, 556 U.S. 662 (2009),] standards is early in the case, before the parties and the Court have set a plenary litigation schedule and expended significant resources in reliance on it. … In the Court’s view, it is too late for Peoplemark to invoke Twombly for the first time now. Moreover, even if Peoplemark had timely raised the Rule 8 issue, Twombly and Ashcroft would not compel dismissal. The EEOC theory of relief is no mystery, and its Complaint lays it out in plain and simple terms as required by Rule 8. July 7, 2009, Non-document order (additional citations omitted). During discovery, in April 2009, Peoplemark specifically informed the Commission for the first time that it denied having a blanket no-felony policy. RE #126-18 at 5-6 (Exh. Q, EEOC’s response to Peoplemark’s motion for fees). The Commission also received the first version of Peoplemark’s electronic database (Empact) in July 2009,<5> and upon review, discovered that some individuals with criminal records were hired in some of Peoplemark’s offices. RE #81 (EEOC’s supplemental brief in support of motion to extend expert report deadline) at 3. In addition, the Commission learned that some of Peoplemark’s offices referred some ex-felons for employment, although on a limited basis. In depositions taken between December 15, 2009 and January 12, 2010, Peoplemark’s managers revealed that much of the felony-screening is driven by client preferences, as a result of which some offices do not hire felons and some offices do. RE #126-9, -10, -11, & -12 (Exhs. G, H, I, & J, EEOC’s response to Peoplemark’s motion for fees).<6> Specifically, one manager testified that when she was hired in 1994, she received verbal instructions that Peoplemark does not hire ex-felons, she follows those instructions in the Memphis office, and she has no clients who would accept ex-felons. RE #126-10 at 20-22 (Exh. H)(Patterson deposition transcript).<7> She and another manager (for Michigan) testified that their offices deny employment referral to individuals with felony convictions because they had no clients who would accept applicants with felony convictions. RE #126-9 at 15, 20-22, 29-32, 42 (Exh. G)(Duff deposition transcript). In another office (Kentucky), applicants (including ex-felons) are sometimes hired and placed before background checks are done; if the background check reveals a felony, the client is informed and the client makes the decision about continued employment of that individual (unless a violent felony conviction is found or multiple convictions are found, in which case Peoplemark itself removes the employee). RE #126-11 at 18-19- 23-24, 26-29 (Exh. I)(Taylor deposition transcript). And one manager (in Florida) accepts applications from ex-felons and engages in a client-driven screening process on a case-by-case basis when considering whether to place an ex-felon in a particular job; there is some evidence that ex-felons in that office typically are referred for shorter assignments and for more limited types of jobs than applicants with no felony record. RE #126-12 at 10-18, 23-24, 28, 41-43 (Exh. J)(Cady deposition transcript). Additionally, two former employees testified in depositions, taken on December 17, 2009, that they were hired even though they had felony records and informed Peoplemark of such. RE #122-9 (Exh. F, Peoplemark’s motion for fees) at 27-31, 42-43 (Brown deposition testimony), 44 (Thomas deposition testimony). However, in contrast, company VP and Associate General Counsel Judd Osten testified in his deposition, on December 16, 2009, that he knew (and it was generally known throughout the company) that Peoplemark’s general practice was not to hire felons because its clients would not want to employ felons. RE #126-8 at 51-52, 55-56 (Exh. F, EEOC’s response to Peoplemark’s motion for fees)(Osten deposition testimony). After learning that some ex-felons were referred for employment by some managers, the Commission continued seeking to obtain applications and workplace documents and records from Peoplemark. On October 23, 2009, the Commission specifically stated that “[it] no longer contends that defendant’s application of its practice is ‘categorical’ as originally represented [to the Commission] by Peoplemark.” RE #81 (EEOC supplemental brief in support of motion to extend expert report deadline) at 3. The Commission clarified that “there is still a need to review data from all … Peoplemark locations, including applicant flow data and current work force data, and [to] conduct an adverse impact analysis to determine whether the manner in which convictions are used at each facility has a disparate impact on [black] applicants.” Id. at 3. The Commission explained that, for example, even if criminal convictions only disqualify former felons from certain positions, if this practice has a disparate impact on blacks, Peoplemark would have to show that its practice is job related and consistent with business necessity. Id. at 3-4. Thus, the documents and records the Commission sought were necessary to determine to what extent Peoplemark used applicants’ felony conviction records in making employment decisions, and for expert witness analysis of whether Peoplemark’s practice regarding felony convictions had a disparate impact on blacks. The Commission identified sociological expert witness, Dr. Devah Pager, and she produced her expert report on September 30, 2009, in a timely manner. RE #101 (magistrate’s order granting in part EEOC’s motion for extension of time) at 11. Pager demonstrated that felony conviction rates for blacks are far higher than those for whites nationally. RE #126-13 at 4-5 (Exh. K, EEOC’s response to Peoplemark’s motion for fees)(Pager’s expert report). Pager also found similar racial disparities in the counties where Peoplemark has facilities and draws its applicants in Michigan, Kentucky, Tennessee, and Florida. Id. at 7-8. Thus, the Commission had Census-based evidence that a practice denying employment to most applicants with felony records would disproportionately exclude black applicants. The Commission also planned to rely on labor economist expert witness, Dr. Janice Madden, to establish the existence of a disparate impact and causation based on applicant flow data; that is, that the practice in effect in Peoplemark’s facilities – the use of felony convictions as a selection criterion – had a statistically significant disparate impact on blacks in Peoplemark’s workplace based upon actual applicants. RE #72-3 (Exh. B, EEOC’s motion for extension of time for expert reports)(Declaration of Dr. Madden) at ¶¶ 2, 6; RE #81-6 (Exh. E, EEOC’s supplemental brief in support of motion to extend expert report deadline)(Second declaration of Dr. Madden) at ¶¶ 1-12. The Commission identified Dr. Madden in a timely manner (RE #147 at 4), but her report (which was due on September 30, 2009) was delayed. The delays were attributable to, among other things, the fact that the Commission did not finally receive Peoplemark’s documents and usable electronic records until August and September 2009 (supra at 7-8, 10 n.5), and the fact that discovery resulted in a much larger volume of documentary evidence than anticipated (supra at 8), which had to be converted by Valora, an outside document management vendor, into an electronic information database before Madden could begin her analysis. RE #72-2 at ¶¶ 4, 5, 6, 7, & 12 (Exh. A, EEOC’s motion for extension to complete expert report)(Declaration of Sandra Serkes of Valora).<8> Therefore, the Commission sought extensions of the deadlines to produce Madden’s report. Supra at 8 n.4. On December 21, 2009, the magistrate granted in part, and denied in part, the Commission’s final request for an extension, giving the Commission until December 31st to produce Madden’s report. RE #101 (magistrate’s December 21, 2009, order granting EEOC an extension from September 30 to December 31, 2009, and rejecting EEOC’s request for a February 11, 2010 deadline). And on January 29, 2010, the district court affirmed (RE #108, affirming RE #101), thereby denying the Commission’s final request for an extension seeking until February 2010 to produce Dr. Madden’s crucial report. After the district court’s January 29th order, the Commission re- evaluated its case. RE #126 (EEOC’s response to Peoplemark’s motion for fees) at 8-9. The Commission considered alternative ways to prove disparate impact, including relying on Pager’s report (supra at 13), Census data (RE #160 at 43-44 (June 23, 2010, hearing transcript)), and evidence showing that temporary workers are nearly twice as likely as traditional workers to be black (RE #126-20 at 33 (Exh. S, EEOC’s response to Peoplemark’s motion for fees)). However, the Commission concluded that it was unlikely to prevail without Dr. Madden’s analysis of the evidence. RE #126 (EEOC’s response to Peoplemark’s motion for fees) at 9; RE #160 at 43-44 (June 23, 2010, hearing transcript). Therefore, the Commission began considering settlement options. RE #126 (EEOC’s response to Peoplemark’s motion for fees) at 8-10 & exhibits cited therein. On February 25, 2010, Peoplemark moved for summary judgment (RE #111). Peoplemark acknowledged that the Commission had retreated from its complaint’s position that defendant has a policy that denies hiring of any person with a felony conviction and, it asserted, now the basis of the Commission’s challenge is “that Peoplemark has a policy in which felony convictions are considered during the applicant phase, but individuals are not ‘categorically’ excluded from hire solely on the felony conviction.” RE #112 (memorandum in support of summary judgment) at 2, citing RE #81 (EEOC’s supplemental brief in support of motion to extend the expert report deadline) at 2-3. Peoplemark’s summary judgment memorandum presented the following arguments: the Commission has not identified a specific employment policy or practice (RE #112 at 5-8); it cannot prove through relevant statistical analysis that whatever policy it is challenging has an adverse impact on blacks (id. at 8-10); there is no adverse impact on black applicants with felony convictions, based on defense expert Dr. Cohen’s report (id. at 12-14);<9> and Cohen’s analysis of EEOC expert Dr. Pager’s report reveals that the Commission failed to meet its burden of setting forth evidence of adverse impact (id. at 14-15). Finally, Peoplemark argued that the Commission’s complaint should be dismissed and defendant awarded fees and expenses as a sanction under Fed. R. Civ. P. 37(b)(2) (id. at 17-18). Unable to present key expert evidence from labor economist Dr. Madden in support of its prima facie case, or to counter Peoplemark’s expert’s report finding that there was no disparate impact, the Commission contacted Peoplemark and attempted to settle this action. RE #126 (EEOC’s response to Peoplemark’s motion for fees) at 8-10 & exhibits cited therein. These efforts were unsuccessful. Id. at 9-10. On March 24, 2010, the Commission and Peoplemark jointly moved to voluntarily dismiss this case with prejudice. RE #117.<10> The proposed dismissal provided that Peoplemark would be treated as the prevailing party for purposes of determining its entitlement to fees under § 706(k) of Title VII, 42 U.S.C. § 2000e-5(k). Id. The district court granted the joint motion and dismissed this action on March 29, 2010. RE #120. Peoplemark moved for attorney’s fees, expert witness fees, sanctions, and costs in excess of $1.3 million. RE #122-2 at 8 (Peoplemark’s memorandum in support)(seeking reimbursement for attorney’s fees incurred during the Commission’s administrative investigation).<11> On March 31, 2011, the magistrate granted Peoplemark an award in the amount of $751,942.48 (RE #137), and on October 17, 2011, the district court approved the magistrate’s order (RE #147), and entered judgment against the Commission. RE #148. B. Magistrate’s Decision The Magistrate Judge (“magistrate”) awarded Peoplemark $219,350.70 in attorney’s fees, $526,172.00 in expert witness fees, and $6,419.78 in other expenses. RE #137 (magistrate’s order) at 22. The magistrate stated that “[t]his is one of those cases where the complaint turned out to be without foundation from the beginning.” RE #137 at 5. For attorney’s fees purposes, the magistrate said, the question was “when the EEOC should have realized its claim of a blanket policy by Peoplemark had no foundation.” RE #137 at 5. Observing that Peoplemark’s expert found 22% of the Commission’s “286 so-called victims” were hired despite having felony records, and the Commission had these 286 names during its investigation, the magistrate concluded that the Commission could have realized its case was groundless before the lawsuit was even filed. Id. at 5. The magistrate rejected the Commission’s argument that the existence of a blanket no-felony policy was not crucial to its case. RE #137 at 8. The magistrate stated a blanket policy is “the very gravamen” of the Commission’s claim. Id. at 9. The magistrate concluded that: this was a case where, regardless of the merits, it was unreasonable for the EEOC to continue to litigate (and drive up defendant’s costs) once it knew it could not produce an expert and thus could not prove its case. On this basis, plaintiff should have folded its tent no later than the end of 2009. Id. at 9. Thus, the magistrate found, attorney’s fees were appropriate “because of the unnecessary burden imposed on defendant.” Id. at 10. The magistrate noted that Peoplemark sought $749,598.00 in attorney’s fees. It decided that “Peoplemark is entitled to an award of its fees and costs incurred from October 1, 2009 [the date by which Peoplemark had produced its applicant and personnel documents and electronic data to the Commission] until the dismissal of the action on March 29, 2010.” Id. at 11. Combining the hourly rates of and time billed by attorneys, paralegals, and a litigation support specialist, the magistrate stated that Peoplemark sought $253,620.50 in attorney’s fees for the October 1, 2009 through March 29, 2010 time period. Id. at 14. The magistrate awarded $219,350.70 (id. at 19), accepting several of the Commission objections based on excessive billing, duplicative billing, and billing at paralegal rates for work that could have been performed by litigation support staff (id. at 15-18), and making a 10% reduction because of billing discrepancies. Id. at 18. Peoplemark also sought $526,172.00 for work performed by its expert witness Dr. Cohen. Id. at 19. The magistrate stated that “[r]easonable expert witness fees are the kind of out-of-pocket expenses normally charged to clients by attorneys which are recoverable as part of the statutory award of attorneys’ fees under Title VII” (id.), and noted that Peoplemark had already paid Dr. Cohen’s fees. Id. The magistrate awarded the full amount Peoplemark sought in expert witness fees. Id. at 21. The magistrate also awarded $6,419.78 in expenses to be included as part of an award of attorney’s fees if not recoverable as costs. Id. at 22. C. District Court’s Decision The district court affirmed and adopted the magistrate order. RE #147 at 1. The court rejected the Commission’s argument that even without a blanket, company-wide policy prohibiting the hire of ex-felons, other evidence provided a foundation for its disparate impact case. It also rejected the Commission’s argument that even if an attorney’s fee award is appropriate, the time frame should be limited to the period after January 29, 2010, when the district court denied the Commission’s final request for an extension of time to produce its expert report. Id. at 2. First, the court noted that in its complaint, the Commission “unequivocally based its case on Peoplemark’s alleged categorical prohibition against the ‘hiring of any person with a criminal record’” (id. at 2, citation omitted), which prohibition the Commission alleged “had a disparate impact on [black] applicants.” Id. at 3. However, the evidence in discovery showed that Peoplemark had no blanket prohibition against hiring applicants with criminal records. While the court agreed with the Commission that “a disparate impact claim can exist absent a blanket hiring policy,” that, the court emphasized, “is not how the EEOC either pled or pursued this case.” Id. Because Peoplemark’s discovery disclosures revealed the lack of a blanket policy by October 1, 2009, the court found the magistrate correctly concluded that the Commission “should have been aware of the fatal flaw in its case no later than October 1, 2009,” and at that point it became unreasonable for the Commission to continue to maintain this action. Id. The district court found an award of attorney’s was appropriate as of that date. Id. at 3, citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). Turning to the amount of attorney’s fees awarded by the magistrate ($219,350.70), the district court found it was reasonable. Id. at 5. The district court also found, over the Commission’s objections, that the magistrate’s expert witness fee award ($526,172.00) for fees accrued throughout this litigation was appropriate and the fees accrued were reasonable. Id. at 6. The total amount of attorney’s and expert witness fees and expenses awarded against the Commission was $751,942.48. Id. at 8. SUMMARY OF ARGUMENT The district court abused its discretion in awarding Peoplemark attorney’s fees and expert witness fees in this case. Attorney’s fees may be awarded against a Title VII plaintiff, including the EEOC, only if its claim was frivolous, unreasonable, or without foundation. This standard is set high so that fees are awarded only in the rare, “egregious” case. This is not such a case. The Commission had a reasonable basis for bringing this Title VII disparate impact suit challenging Peoplemark’s admitted companywide, or “blanket,” use of felony convictions as an exclusionary selection criterion in hiring. The fact that discovery revealed that Peoplemark did not exclude all ex-felons was not a “fatal flaw” in the Commission’s case, as the district court believed. The Commission’s case was based on whether Peoplemark’s use of felony convictions in employee selections had a disparate impact on black applicants, not on whether some ex-felons were hired. Thus, it was reasonable for the Commission to continue to maintain this lawsuit after learning that Peoplemark referred some ex-felons for employment. In a disparate impact case, expert testimony and statistical evidence are needed to establish the existence of an impact and causation. When it became clear that the Commission could not prevail because it would be unable to rely on its crucial labor economist expert’s testimony – after the Commission’s final motion for an extension of time to produce this expert’s report was denied on January 29, 2010 – the Commission acted reasonably by agreeing, jointly with Peoplemark, to voluntarily dismiss this suit with prejudice, within six weeks of the court’s order denying the extension. Under the proper legal standard, an award of attorney’s fees is inappropriate under these circumstances. The district court also abused its discretion by justifying a fee award to Peoplemark “regardless of the merits” of the Commission’s case, on the basis that the Commission was unable to produce the necessary expert report within the court’s deadlines. The court clearly erred as a factual matter when it found that Madden’s report could have been completed within the deadlines but for delays by the Commission in retaining Madden. In fact, the Commission retained Madden before Peoplemark had completed its document and data production, which Madden needed to analyze for her report. Thus, the Commission’s inability to meet the deadlines resulted from Peoplemark’s delays in document and data production, as well the production of an unexpected number of records during discovery. In addition, the court clearly erred by relying on anticipated time-line projections of a witness without considering that the volume of material produced in discovery was three times the amount he had expected and upon which he based his projections. Taking these discovery developments into account, the Commission acted reasonably in seeking deadline extensions for production of its crucial expert report. Because the Commission’s suit was not without foundation until January 29, 2010, and the Commission acted reasonably in dismissing its suit with prejudice by March 2010, the court abused its discretion in awarding attorney’s fees to Peoplemark. Likewise, because expert witness fees are recoverable under Title VII only as a part of an attorney’s fee award, the district court abused its discretion in awarding Peoplemark full expert fees for the same reason. If this Court concludes that fees were warranted at some point in this litigation, the amount of fees awarded was excessive and must be reduced. Even under the district court’s finding that the Commission’s failure to produce its expert report supported a fee award, the Commission’s suit was well-founded until January 29, 2010, when the district court denied the Commission’s motion for an extension of time to file the report. No fees, attorney’s or expert witness, should be awarded before that date. Even if attorney’s fees were warranted from the October date the court selected, the amount of expert witness fees was excessive. First, to the extent the district court found the Commission’s case lacked foundation as of October 1, 2009, but awarded expert witness fees accruing earlier than that date, the court abused its discretion. Under the proper legal standard, no expert witness fees can be awarded for work done prior to October 2009. Second, expert witness fees must be adequately documented to allow a court to assess their reasonableness. Peoplemark’s expert’s billing statements were wholly inadequate for this purpose, and the district court made no finding that the fees contained in the billing statements themselves were reasonable. Third, the amount of Peoplemark’s expert witness fees was excessive, and expert witness fees that are excessive cannot be part of a reasonable attorney’s fee award. Therefore, under the proper legal standard, the expert witness fee award should be reduced. ARGUMENT I. THE DISTRICT COURT ABUSED ITS DISCRETION IN AWARDING ATTORNEY’S AND EXPERT WITNESS FEES BECAUSE THE COMMISSION’S ACTION WAS NOT FRIVOLOUS, UNREASONABLE, OR WITHOUT FOUNDATION. This Court reviews a district court’s award of attorney’s fees for an abuse of discretion. Geier v. Sundquist, 372 F.3d 784, 789 (6th Cir. 2004), citing Perotti v. Seiter, 935 F.2d 761, 763 (6th Cir. 1991). “An abuse of discretion exists when the district court applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.” First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641, 647 (6th Cir. 1993). A. Attorney’s fees were not warranted under Christiansburg. In Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978), the Supreme Court set out the standard for an award of attorney’s fees to a prevailing defendant under Title VII. The Court held that: a district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith. Id. at 421-22; see also id. at 422 (“a plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable or groundless, or that the plaintiff continued to litigate after it clearly became so”). The Christiansburg Court also issued the following caution: In applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one’s belief that he has been the victim of discrimination, no matter how meritorious one’s claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. 434 U.S. at 422 (emphasis in original). The Supreme Court’s rationale for invoking a high standard for imposing fees on a losing Title VII plaintiff is grounded in the role plaintiffs play in Title VII enforcement. Christiansburg, 434 U.S. at 418. That the plaintiff here is the EEOC, and not a private party, does not alter the standard, for the Christiansburg Court held that EEOC is entitled to the same high standard as a private party before incurring fees under Title VII. 434 U.S. at 422 n.20. Moreover, this Court has stated that an award of attorney’s fees to a prevailing defendant “is an extreme sanction.” Riddle v. Egensperger, 266 F.3d 542, 547 (6th Cir. 2001).<12> Under this standard, the Commission’s Title VII disparate impact hiring claim was not frivolous, unreasonable, or without foundation when this suit was filed or at any later point, and the district court abused its discretion in ruling to the contrary. The district court stated that its fee award was based on the Commission’s “unreasonable conduct” in continuing this litigation once it knew it could not produce an expert report, and that the award was justified “regardless of the merits” of the case (RE #147 at 3-4). Nevertheless, the court’s dim, and legally flawed, view of the merits of the case clearly influenced the award of fees, so the Commission first addresses the court’s error in concluding that the impact claim was fatally flawed because the felony policy was not a blanket exclusion. RE #147 at 3. To establish a prima facie disparate impact claim, the plaintiff must: (1) identify a specific employment practice to be challenged; and (2) through relevant statistical analysis, prove that the challenged practice has an adverse impact on a protected group. Johnson v. U.S. Dept. of Health and Human Servs., 30 F.3d 45, 48 (6th Cir. 1994), citing Scales v. J.C. Bradford & Co., 925 F.2d 901, 907-08 (6th Cir. 1991). There must be a causal connection between the disparate impact and the challenged employment practice, and statistical evidence is used to show the causal link. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 655-58 (1989). Once the plaintiff establishes its prima facie case, the defendant must come forward with evidence demonstrating “that the challenged practice is job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). There should be no dispute that the Commission had a reasonable basis for bringing this disparate impact suit challenging Peoplemark’s admitted “blanket” use of felony convictions as an exclusionary selection criterion in hiring. As the district court noted, the Commission’s complaint based its case on “Peoplemark’s alleged categorical prohibition against the ‘hiring of any person with a criminal record’” (RE #147 at 2, citation omitted), which the Commission alleged “had a disparate impact on [black] applicants.” RE #147 at 3. See Green v. Missouri Pac. R.R. Co., 523 F.2d 1290 (8th Cir. 1975) (plaintiff established prima facie case of discrimination through statistics establishing that employment practice – rejection of applicants with criminal convictions – acted to disqualify black applicants at substantially higher rate than whites). See also EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1982) (2/4/87), available at http://www.eeoc.gov/policy/docs/convict1.html; and EEOC Policy Statement on the Use of Statistics in Charges Involving the Exclusion of Individuals with Conviction Records from Employment (7/29/87), available at http://www.eeoc.gov/policy/docs/convict2.html. However, over the course of many months of discovery, evidence came to light showing that Peoplemark did not exclude all applicants with criminal records. The district court treated this evidence as a “fatal flaw” in the Commission’s disparate impact case, and ruled that because Peoplemark’s discovery disclosures revealed the lack of a blanket policy by October 1, 2009, the Commission should have been aware of this flaw in its case no later than that date. RE #147 at 3. At that point, the district court concluded, it became unreasonable for the Commission to continue to maintain this action (id. at 3), and an award of attorney’s fees was appropriate as of that date under Christiansburg. Id. The district court erred in several ways. First, although the district court agreed with the Commission that “a disparate impact claim can exist absent a blanket hiring policy” (RE #147 at 3), the court said that “is not how the EEOC either pled or pursued this case. To prove [its] disparate impact theory as pleaded, the EEOC was required to show such a blanket policy existed.” Id. at 3. However, while the court correctly noted that the Commission pled a blanket policy, it incorrectly stated that the Commission did not pursue its case as a challenge to a less than absolute exclusionary policy. The Commission did, in fact, change its pursuit of this case after evidence obtained in discovery indicated that some felons were hired. In its supplemental brief in support of its motion to extend the expert report deadline for Dr. Madden, filed on October 23, 2009, the Commission specifically stated that: [it] no longer contends that defendant’s application of its practice is ‘categorical’ as originally represented [to the Commission] by Peoplemark. Regardless, there is still a need to review data from all … Peoplemark locations, including applicant flow data and current work force data, and [to] conduct an adverse impact analysis to determine whether the manner in which convictions are used at each facility has a disparate impact on African American applicants. RE #81 at 3 (emphasis added). The Commission explained that, for example, even if criminal convictions only disqualify former felons from certain positions, if this practice has a disparate impact on blacks, Peoplemark would have to show that its practice is job related and consistent with business necessity. RE #81 at 3-4. Given that a motion for leave to amend can be brought at or after trial under Fed. R. Civ. P. 15(b) (see Commentary on 2009 Amendments to Rule 15), it is difficult to understand why the district court gave such weight to the phrasing of the Commission’s complaint, especially when it was Peoplemark’s representations to the Commission that led the Commission to plead a blanket no-felony policy in the first place. Moreover, there is no evidence that Peoplemark was prejudiced in any way by any pleading defect; in its February 2010 summary judgment memorandum, defendant recognized the nature of the Commission’s claim. See supra at 16 (Peoplemark’s summary judgment memorandum acknowledging that the Commission had retreated from its complaint’s position that Peoplemark has a policy that excludes hiring of any person with a felony conviction and now asserts “that Peoplemark has a policy in which felony convictions are considered during the applicant phase, but individuals are not ‘categorically’ excluded from hire solely [based] on the felony conviction.” (RE #112 at 2, citing RE #81 at 2-3)). Further, there has never been any dispute that Peoplemark disqualified some applicants from employment because of felony convictions (whether under a blanket policy or otherwise), and there is compelling evidence that employment practices that disqualify applicants because of felony convictions have a disparate impact on black applicants. Under these circumstances, the district court erred in ruling that it became unreasonable for the Commission to maintain this lawsuit after it learned that Peoplemark referred some felons for employment. Second, it was reasonable for the Commission to continue to maintain this lawsuit. The Commission’s case was not based on whether some ex- felons were hired; it was based on whether Peoplemark’s practice of using felony convictions in employee selections had a disparate impact on black applicants. Cf. Green, 523 F.2d at 1293 n.6 (the occasional hiring of felons was deviation from defendant’s policy and not significant). To establish the existence of a disparate impact, the Commission needed to rely on expert testimony and statistics. Robinson v. Metro North Commuter R. R. Co., 267 F.3d 147, 160 (2nd Cir. 2002) (expert testimony and “statistical proof almost always occup[y] center stage in a prima facie showing of a disparate impact claim”); Scales, 925 F.2d at 908. The evidence in this case included sociological expert Dr. Pager’s report finding that felony conviction rates for blacks are far higher than for whites nationwide and in the counties in Michigan, Kentucky, Tennessee, and Florida where Peoplemark’s facilities are located. Supra at 13 (RE #126-13 at 4-5, 7-8 (Exh. K, EEOC’s response to Peoplemark’s motion for fees)(Pager’s report). There also was evidence that such disparities may be greater among applicants for temporary placement. Supra at 16 (RE #126-20 at 33 (Exh. S)(Monthly Labor Review article)). That fact suggested that blacks make up a larger proportion of Peoplemark’s applicant pool than Census data reflect. Because population statistics were likely to understate blacks’ availability, and because applicant flow is the preferred method of proof in a hiring case, to establish its claim, the Commission needed its primary expert, labor economist, Dr. Madden, to perform a complete (or close to complete) applicant flow analysis. Teamsters v. U.S., 431 U.S. 324, 342 n.23 (1977) (recognizing the superiority, as a general rule, of actual applicant flow data). Dr. Madden’s report would have tied Pager’s evidence of impact to Peoplemark’s hiring practices, that is, it would have established whether Peoplemark’s use of felony convictions as a hiring criterion had an adverse impact on black applicants. It was therefore reasonable for the Commission to continue to litigate even after learning the felony policy was not uniformly applied. When it became clear that the Commission could not prevail because it would be unable to rely on Madden’s expert testimony, the Commission acted reasonably in deciding to dismiss its case within six weeks of the court’s January 29, 2010, decision denying EEOC’s extension motion for Madden’s report. And Peoplemark did not oppose the motion; instead, it joined in the Commission’s motion to dismiss. Supra at 17-18 (RE #117 (joint motion to voluntarily dismiss)). Accordingly, the Commission’s actions in voluntarily dismissing this suit provide no basis for attorney’s fees. As the Fifth Circuit explained in a similar situation denying defendant’s request for attorney’s fees after the Commission voluntarily dismissed its suit, “we must be careful to avoid providing a disincentive to the EEOC’s dismissal of a case which was reasonably based when filed but which discovery later disclosed to be inadequately supported by available evidence. The EEOC should be permitted to dismiss those cases subsequently determined to be marginal without risking assessment of the penalty of attorney’s fees when the EEOC has otherwise acted reasonably.” EEOC v. Tarrant Distributors, Inc., 750 F.2d 1249, 1251 (5th Cir. 1984). The district court erred to the extent it relied on EEOC et al. v. CRST, 2010 WL 520564 (N.D. Iowa Feb. 9, 2010), aff’d, 670 F.3d 897 (8th Cir. 2012), and EEOC et al. v. Cintas Corp., 2011 WL 3359622 (E.D. Mich. Aug. 4, 2011), as support for its conclusion that attorney’s fees were warranted under Christiansburg. RE #147 at 3.<13> While the court’s parenthetical explanations of the holdings in those cases suggest it may have believed attorney’s fees can be justified based on shortcomings in the Commission’s investigations (RE #147 at 3), the district court did not justify its fee award on that basis in this case. Instead, here, the district court based its attorney’s fee award on what was, in essence, a pleading defect, which could have been corrected under Fed. R. Civ. P. 15(b). Supra at 31. Moreover, the magistrate explicitly declined to rely on the alleged inadequacy of the Commission’s investigation as a basis for fees (RE #137 at 8),<14> and the district court adopted the magistrate’s ruling. RE #147 at 1. The district court was correct to reject this basis for the fee award because this Court has held that in a de novo trial on the merits of a Title VII claim, the conduct or sufficiency of the Commission’s pre-suit investigation is irrelevant. EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100-02 (6th Cir. 1984) (reversing district court’s dismissal of class claim and holding that EEOC had investigated, found cause, and conciliated class allegations, and district court erred in examining sufficiency of EEOC’s investigation and conciliation). Moreover, Peoplemark did not object to the magistrate’s ruling in any way. Therefore, Peoplemark has waived this argument on appeal. Howard v. Sec’y of Heath and Human Services, 932 F.2d 505, 508 (6th Cir. 1991) (failure to object to a magistrate’s recommendation constitutes a waiver). The district court also found that “regardless of the merits” (RE #147 at 3), the Commission’s failure to produce a statistical expert report from Dr. Madden provided further support for a fee award. RE #147 at 5. The district court abused its discretion in justifying its decision to award Peoplemark attorney’s fees on the basis that the Commission was unable to produce a necessary report from its expert labor economist within the court’s deadlines. Madden started the work necessary for her analysis, but did not complete it because, on January 29, 2010, the court ruled that her report had to be produced by December 31, 2009 (RE #108), a date that had already passed and a deadline which she had been unable to meet due to factors beyond her control, discussed below. Although the court acknowledged that the Commission timely identified its experts by the July 31, 2009, deadline (RE #147 at 4), the court and the magistrate criticized the Commission for delays in procuring a labor economist expert. RE #147 at 4, RE #137 at 10. However, the Commission’s inability to meet the district court’s expert report deadlines for Madden’s report resulted from Peoplemark’s delays in document and data production, and from the unanticipated volume of records produced, not from delays in retaining Dr. Madden. The Commission timely identified Madden as one of its experts on July 31, 2009, and Madden was under contract with the Commission by August 17, 2009. RE #102-4 (Exh. C)(August 17, 2009, email confirming retention of Madden’s company). But the Commission was still awaiting Peoplemark’s full document production, which was not complete until mid- September 2009.<15> In addition, before Madden could begin her analysis, an information database had to be created from Peoplemark’s documents. The Commission hired document management vendor Valora, which coded the documents as EEOC received them, completing the information database on November 6, 2009. RE #72-2 (Exh. A, EEOC’s motion and memorandum for extension of time for expert report)(Sandra Serkes’ declaration); RE #126-23 (Exh. V, EEOC’s response to Peoplemark’s fee motion)(Valora invoices). Madden needed approximately 12 weeks to prepare and complete her expert report after receiving the database prepared by Valora. RE #72-3 at ¶¶ 4, 8 (Exh. B)(Declaration of Madden); RE #81-6 at ¶ 12 (Exh. E)(Second declaration of Madden). Thus, even if Madden had been retained earlier, she would have been unable to produce her report by the December 31st deadline, due to Peoplemark’s delayed document production (Riddle, 266 F.3d at 557 (prevailing defendant’s actions are also at issue)), and document volume in excess of anticipation. Supra at 7-8 (while EEOC anticipated receiving 50,000 pages of documents in discovery, Peoplemark produced 178,000 pages). Moreover, the district court criticized the Commission’s motions for extensions of time to produce Madden’s report. RE #147 at 4-5. The court was simply wrong in reaching the conclusion that Dr. Madden should have been able to prepare a report by the December 31st extended deadline because the Commission’s “own in-house expert, Mr. Donovan, stated that such a report reasonably could have been prepared in a three-month time frame.” RE #147 at 4-5. First, Donovan’s declaration provided only that “it might be possible to construct … a database or databases and prepare an expert report within a three month timeframe.” RE #45-12 (Exh. K, EEOC’s motion and memorandum to extend expert report deadline)(Donovan declaration) at 6 ¶ 13 (emphasis added). In addition, Donovan’s conclusion was based on a number of assumptions, which turned out not to be true as discovery continued in this case, including that data management work would begin after all the documents were received by the EEOC. RE #45-12 at ¶¶ 9, 10, 12. Here, Peoplemark’s document and data production were delayed and the Commission received them in a piecemeal fashion throughout August and September 2009, and the Commission’s data management vendor Valora had to process the documents over time, as they were received. Moreover, Donovan estimated “an ambitious” two week goal for indexing and scanning all documents, based on the projection that there may be approximately 50,000 pages of information (RE #45-12 at 4 ¶ 9). However, Peoplemark produced 178,000 pages of information, which necessarily increased the amount of time required to complete this task by three fold. Donovan also anticipated another “month or so” for data entry and coding of information fields (RE #45-12 at 4-5 ¶ 10); he identified an issue with the documentation of an electronic database (Empact), which he thought could be addressed such that “the data can be analyzed and interpreted relatively quickly” (RE #45-12 at 5 ¶ 11);<16> and he estimated that it would take at least seven or eight weeks to construct one or more databases linking all the data together in a meaningful way “for the experts to use as one of the bases for their opinion.” RE #45-12 at 5-6 ¶ 12.<17> The court failed to expand Donovan’s three month estimate to account, in particular, for the additional 128,000 documents. These documents alone required an additional five weeks for indexing and scanning. See RE #45-12 at 4 ¶ 9 (two weeks estimated for 50,000 documents), which translates into five weeks for the additional 128,000 documents, and a total of seven weeks to perform those tasks for 178,000 documents. Thus, the court’s conclusion, in reliance on Donovan’s summary, that an expert report could be completed within three months, failed to take into account additional developments in discovery, after Donovan’s declaration was submitted and of which he could not have known when he gave his summary estimate.<18> Accordingly, the Commission acted responsibly in seeking extensions for submission of its crucial labor economist’s report. Therefore, it was an abuse of discretion for the court to award attorney’s fees on this basis. Christiansburg, 434 U.S. at 422 (“no matter how meritorious one’s claim may appear at the outset, the course of litigation is rarely predictable”). Moreover, after the court’s January 29, 2010, order, denying the Commission’s last request for extension of the expert deadline, attorney’s fees are unwarranted because within six weeks of the court’s order, the Commission acted responsibly by agreeing to voluntarily dismiss its case with prejudice, filing a motion to dismiss in which Peoplemark joined. Because the Commission’s action was not without foundation until the January 29, 2010, order, and the Commission acted reasonably in dismissing its suit with prejudice by March 2010, an award of attorney’s fees to Peoplemark as a prevailing defendant was not warranted under the Christiansburg standard. B. Expert witness fees were not warranted under Christiansburg. Expert fees are recoverable under Title VII only as part of an award of attorney’s fees. Section 706(k) provides that “in any [Title VII] action … the court, in its discretion, may allow the prevailing party … a reasonable attorney’s fee (including expert fees).” 42 U.S.C. § 2000e-5(k). See L&W Supply Corp. v. Acuity, 475 F.3d 737, 739-41 (6th Cir. 2007) (under clear Supreme Court precedent, absent express statutory authority expert fees are not recoverable as costs); Paschal v. Flagstar Bank, 297 F.3d 431, 437 (6th Cir. 2002) (§ 1988) (expert witness fees are part of attorney’s fees);<19> Der v. Connolly, 2011 WL 31498 at * 5-*6 (D. Minn. Jan. 5, 2011) (court declined to award prevailing defendant attorney’s fees under § 1988 and it would not award expert witness fees under § 1988(c) where they could not be part of an attorney’s fee award); Anderson v. Yarp Rest., Inc., 1997 WL 47785 at *5 (S.D.N.Y. Feb. 7, 1997) (Title VII) (statutory construction mandated analysis of “expert fees as a subset of attorney’s fees, not as a cost separate and apart from attorney’s fees”). Thus, the express statutory language of Title VII makes plain that expert fees are included in “a reasonable attorney’s fee.” 42 U.S.C. § 2000e-5(k). Consequently, the same legal standard for determining whether Title VII attorney’s fees are warranted governs Title VII awards of expert witness fees. Expert witness fees should not be awarded where an award of attorney’s fees is inappropriate. Der v. Connolly, 2011 WL 31498 at *6 (court would not award expert witness fees under § 1988(c) where they could not be part of an attorney’s fee award). If this Court finds that the Commission’s case was not without foundation and the Commission acted reasonably in promptly dismissing this suit, then Peoplemark is not entitled to attorney’s fees and also is not entitled to shift any of its expert witness fees to the Commission as a part of attorney’s fees under Christiansburg. Accordingly, the district court abused its discretion in awarding Peoplemark its requested expert witness fees in full. RE #147 at 6-7. II. EVEN IF FEES WERE WARRANTED AT SOME POINT DURING THIS LITIGATION, THE DISTRICT COURT ABUSED ITS DISCRETION IN AWARDING EXCESSIVE FEES. A. Fees were excessive to the extent the court determined the Commission’s case lacked foundation as of October 1, 2009. Even if this Court concludes that fees became warranted under Christiansburg at some point during this litigation, the district court’s determination that the Commission’s suit lacked foundation as of October 1, 2009, rests on faulty legal and factual foundations. Specifically, the district court found that the Commission’s failure to produce a statistical expert report from Dr. Madden provided support for a fee award. RE #147 at 5. This reasoning could justify a finding that the Commission’s suit lacked foundation after January 29, 2010, the date of the district court’s order denying the Commission’s motion for an extension of time for filing Dr. Madden’s crucial expert report (RE #108), which could provide a basis for awarding fees accrued after that date. Christiansburg, 434 U.S. at 422 (“a plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable or groundless, or that the plaintiff continued to litigate after it clearly became so”). As discussed above, evidence in support of the Commission’s claim rested in large part on anticipated expert witness Madden. Because the Commission reasonably believed its suit had foundation until reliance on Madden’s testimony became impossible, it was not unreasonable for the Commission to continue to prosecute this action before January 29, 2010. Under Christiansburg, no fees – attorney’s or expert witness – should have been awarded before that date.<20> B. Even if fees were warranted, the amount of expert fees awarded was excessive. 1. The district court abused its discretion by awarding expert witness fees that accrued before the attorney’s fees award, covering only the period after October 2009. The district court’s fee award order is internally inconsistent to the extent that it grants expert witness fees in full (RE #147 at 6-7) while only awarding attorney’s fees incurred as of October 2009. RE #147 at 2-3. Expert witness fees are awarded as a part of an attorney’s fee award under Section 706(k) of Title VII, 42 U.S.C. § 2000e-5(k) (“a reasonable attorney’s fee (including expert fees)”), and the same Christiansburg standard applies to both. Supra at 41-42. Thus, inasmuch as expert witness fees are awarded on the same basis as attorney’s fees, the expert fees cannot begin accruing before the attorney’s fees. In other words, only expert fees incurred after October 1, 2009, are recoverable even under the district court’s attorney’s fee rationale that this case was without foundation as of that date.<21> The district court rejected the Commission’s argument on this point, quoting from the magistrate’s order stating that “reasonable expert fees are the sort of out-of-pocket expenses normally charged to clients by attorneys which are recoverable as part of a statutory award of attorneys’ fees under 42 U.S.C. § 2000e-5(k).” RE #147 at 6, quoting RE #137 at 19 (citing EEOC v. CRST, 2010 WL 520564 (N.D. Iowa Feb. 9, 2010), and cases cited therein).<22> This is not the correct legal standard. As discussed above, the language of Section 706(k) makes plain that Title VII defines an attorney’s fee to include expert fees. Paschal v. Flagstar Bank, 297 F.3d at 437 (expert witness fees are part of attorney’s fees). The district court erred in concluding that expert witness fees should be treated as out-of-pocket expenses that can include expert fees incurred throughout the entire course of this litigation, before attorney’s fees were warranted. Anderson v. Yarp Rest., Inc., 1997 WL 47785 at *5 (statutory construction mandates analysis of “expert fees as a subset of attorney’s fees, not as a cost separate and apart from attorney’s fees”). The expert fee award should be reduced accordingly. 2. Expert witness fees that are not adequately documented to allow the court to assess their reasonableness cannot be part of a reasonable attorney’s fee award under Christiansburg. The district court also abused its discretion by rejecting the Commission’s argument that the defense expert’s billing statements lacked sufficient specificity to ascertain what work was done compared to the fees requested. RE #147 at 6-7. The court identified some of the work Dr. Cohen did – “analyzing over 200,000 pages of documents, preparing a report, preparing a rebuttal report to the EEOC’s expert sociologist’s position, and anticipating arguments that would be made if the EEOC’s statistical expert ever actually submitted a report” – and found that the “expert witness fees directly related to the disparate impact theory the EEOC argued throughout this litigation[] and were an integral part of Peoplemark’s defense,” and, on this basis, the court concluded that the fees were reasonable. RE #147 at 6-7. As discussed above, expert witness fees are evaluated under the same standard as attorney’s fees. “The fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Zeffiro v. First Pennsylvania Bank, N.A., 574 F. Supp. 443 (E.D. Pa. 1983) (burden is on counsel seeking fees to file adequately documented applications for fees, detailing time spent for each task). Where documentation is inadequate, the court may reduce the fees accordingly. Hensley v. Eckerhart, 461 U.S. at 433, 438. Expert witness fees, like attorney’s fees, must be “reasonable” to be recoverable under Title VII. Bjornson v. Dave Smith Mot./Frontier Leasing & Sales, 578 F.Supp.2d 1269, 1289-90 (D. Idaho 2008) (court reviewed Title VII’s attorney’s fees provision and interpreted it to mean that expert fees must be reasonable). Fees cannot be awarded for billings that are so inadequately documented and vague that a court cannot assess them for their reasonableness. See, e.g., H.J. Inc. v. Flygt Corp., 925 F.2d 257, 260 (8th Cir. 1991) (award reduced by 20% where “counsel’s billing records included numerous entries such as ‘legal research’ or ‘trial prep’ or ‘met w/ client,’” and “[s]ome entries were so vague that the district court could not determine with certainty whether they were related to this litigation”); Richard v. Oak Tree Group, Inc., 2009 WL 3234159 at *3 (W.D. Mich. Sept. 30, 2009) (where “the cryptic and nearly unintelligible nature of itemized statement [made] it difficult for the court to meaningfully ascertain [the] work done in regard to each of the various charges, or assess the same,” the court reduced the requested fees accordingly); Gratz v. Bollinger, 353 F.Supp.2d 929, 939 (E.D. Mich. 2005) (10% reduction where numerous billing entries were imprecise or incomplete, e.g., “office conference,” “telephone conference,” “review article,” “review correspondence”). Dr. Cohen’s billings were wholly inadequate for purposes of assessing the reasonableness of the requested amount. Throughout Cohen’s billing statements, he identified, most commonly, the following types of tasks: “data management,” “analysis,” “research,” “meeting,” “telephone conference.” RE #122-20 at 5-29 (Exh. I, Peoplemark’s motion for fees). These entries fail to provide sufficient details of the particular work performed and are so generic as to be almost entirely uninformative in assessing the reasonableness of the charges for tasks performed.<23> Without adequate documentation of work performed, a court cannot assess the “reasonableness” of a fee request. In Wilcox v. Stratton Lumber, the court substantially reduced claimed expert fees where the expert’s billing lacked the detail and specificity that would allow the court to engage in a meaningful review. Wilcox, 921 F. Supp. 837, 849 (D. Maine 1996) (“In the absence of detailed accounting, the [c]ourt cannot determine the reasonableness of hours spent on any given task, or the fees charged for those tasks.”). Although it may have been reasonable for the district court here to conclude that the Cohen expert’s work was “directly related to” the Commission’s disparate impact theory and was “an integral part of Peoplemark’s defense” (RE #147 at 6-7), the expert’s billing entries provide no basis for evaluating the reasonableness of the fees themselves, and the court made no finding that they did so. Wennek v. Polygram Group Dist., Inc., 304 F.3d 123, 134-35 (1st Cir. 2002) (“conclusory statements [by lower court] concerning reasonableness are insufficient to withstand appellate review;” remanding case because district court's decision “was not illuminating in its reasoning on the grant of the fee award.”) (emphasis in original). For these reasons, the district court abused it discretion in awarding expert witness fees in full on this record. Accordingly, the expert fee award should be substantially reduced. 3. Expert witness fees that are excessive cannot be part of a reasonable attorney’s fee under Christiansburg. The district court did not address the Commission’s argument that the amount of defense expert witness fees was excessive. However, the magistrate rejected the Commission’s argument on this point (RE #137 at 20-21), and the court adopted the magistrate’s order in full. RE #147 at 1. The Commission argued below that Dr. Cohen’s expert witness fee of $526,000.00 was unreasonable because it was excessive. RE #126 (EEOC’s response to Peoplemark’s motion for fees) at 20-22. To be recoverable under Title VII as part of a reasonable attorney’s fee, expert witness fees must be “reasonable.” Bjornson, 578 F.Supp.2d at 1289-90. The Commission asked its labor economist Dr. Madden to review Dr. Cohen’s report (RE #126-19, Exh. R) and affidavit in support of fees and billing statements (RE #122-20 (Exh. I, Peoplemark’s motion for fees). And Madden concluded that Cohen’s fees were “astounding.” RE #126-22 at ¶ 3 (Exh. U)(Madden’s declaration). Based on her own familiarity with the databases and electronic documents produced by Peoplemark, Madden could not “understand how expenses of this magnitude could have occurred.” Id. at ¶ 3. Madden also stated that her review of Cohen’s billing statements was complicated by the fact that his descriptions of work were so vague and, as a result, she could not readily discern what work had actually been done. Id. at ¶ 4-5. In addition, based on a review of Cohen’s expert report and affidavit, Madden conducted a comparison of the same tasks performed by herself (and her company) with those performed by Cohen (and his firm). Madden concluded: “The result is that tasks for which [her company] Econsult charged $155,944.60 (a figure that included $97,790 paid to Valora for data entry), [Cohen’s firm] Employment Research Corporation charged $473,247.80, including Dr. Cohen’s fees for reviewing six depositions.” RE #126-22, Exh. U (Madden declaration) at ¶ 6; see also RE #126-22, Exh. U (Madden’s firm’s invoices); RE #126-23, Exh. V (Valora’s invoices); and RE #126-23, Exh. W (Pager’s invoice). The magistrate stated that “comparing the work of the two experts is somewhat like comparing apples and oranges.” RE #137 at 20. The magistrate identified numerous factors that distinguished Cohen and Madden, most importantly to the magistrate, that Cohen completed an expert report while Madden did not. Id. at 20-21. However, a flaw in the magistrate’s reasoning can be seen from the following example: the magistrate noted that Madden hired Valora for almost $100,000 to do her data entry, while Cohen did all of his work in-house. Id. at 20. While that might be a meaningful difference in another context, here the magistrate failed to appreciate the point of the Commission’s argument -- Madden compared the same work that she and her company performed, and for which they billed $155,944.60,<24> to the same work that Cohen and his firm performed, and for which they billed $473,247.80. Thus, regardless of whether Madden was able to complete an expert report within the court’s deadlines as Cohen did, Cohen charged over $300,000 more than Madden for doing the same work as Madden, her company, and Valora. This excessive charge does not meet the standard that fees must be reasonable to be shifted to a plaintiff under Title VII. The district court abused its discretion in making this award against the Commission, and the amount of expert witness fees should be reduced accordingly. CONCLUSION For the foregoing reasons, the Commission urges this Court to reverse the judgment of the district court. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel /s/ Donna J. Brusoski ______________________________ DONNA J. BRUSOSKI Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 113 M Street, N.E. Washington, D.C. 20507 (202) 663-7049 donna.brusoski@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitations of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 12,587 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. /s/ Donna J. Brusoski ___________________________ Donna J. Brusoski Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 113 M Street, N.E. Washington, D.C. 20507 (202) 663-7049 donna.brusoski@eeoc.gov Dated: April 13, 2012 CERTIFICATE OF SERVICE I hereby certify that on April 13, 2012, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Sixth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by e-mail sent by the appellate CM/ECF system. /s/ Donna J. Brusoski _______________________________ _ Donna J. Brusoski Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-7049 donna.brusoski@eeoc.gov ADDENDUM DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS APPEAL, CLOSED, VFM United States District Court Western District of Michigan (Southern Division (1)) CIVIL DOCKET FOR CASE #: 1:08-cv-00907-RJJ Equal Employment Opportunity Commission v. Peoplemark, Inc. Assigned to: Judge Robert J. Jonker Case in other court: the Sixth Circuit, 11-02582 Cause: 28:1343 Violation of Civil Rights Date Filed: 09/29/2008 Date Terminated: 03/29/2010 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff plaintiff --------- Equal Employment Opportunity Commission represented by Dale Price U.S. Equal Employment Opportunity Commission (MI) Patrick V. McNamara Bldg. 477 Michigan Ave., Rm. 865 Detroit, MI 48226 (313) 226-7808 Email: dale.price@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Deborah M. Barno U.S. Equal Employment Opportunity Commission (MI) Patrick V. McNamara Bldg. 477 Michigan Ave., Rm. 865 Detroit, MI 48226 (313) 226-5274 Email: Deborah.Barno@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Laurie Young U.S. Equal Employment Opportunity Commission (IN) 101 W Ohio St., Rm. 1900 Indianapolis, IN 46204 (317) 226-7202 Email: laurie.young@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Omar Weaver U.S. Equal Employment Opportunity Commission (MI) Patrick V. McNamara Bldg. 477 Michigan Ave., Rm. 865 Detroit, MI 48226 (313) 226-3407 Email: omar.weaver@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED V. defendant --------- Peoplemark, Inc. represented by Eugene Driker Barris, Sott, Denn & Driker 211 W Fort St., 15th Fl Detroit, MI 48226-3281 (313) 596-9300 Email: edriker@bsdd.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Carolyn W. Schott Baker Donelson Bearman Caldwell & Berkowitz (Nashville) 211 Commerce St., Ste. 1000 Nashville, TN 37201 (615) 726-7312 Email: cschott@bakerdonelson.com TERMINATED: 12/01/2008 ATTORNEY TO BE NOTICED Edward R. Young Baker Donelson Bearman Caldwell & Berkowitz (Memphis) 165 Madison Ave., Ste. 2000 Memphis, TN 38103 (901) 577-2341 Email: eyoung@bakerdonelson.com ATTORNEY TO BE NOTICED William P. Dougherty Baker Donelson Bearman Caldwell & Berkowitz (Memphis) 165 Madison Ave., Ste. 2000 Memphis, TN 38103 (901) 577-2340 Email: wpdougherty@bakerdonelson.com TERMINATED: 03/20/2009 ATTORNEY TO BE NOTICED mediator -------- Facilitative Mediator represented by Jon G. March Miller Johnson PLC (Grand Rapids) 250 Monroe Ave., NW, Ste. 800 P.O. Box 306 Grand Rapids, MI 49501-0306 (616) 831-1729 Fax: (616) 988-1729 Email: marchj@millerjohnson.com LEAD ATTORNEY Date Filed # Docket Text 09/29/2008 1 COMPLAINT against Peoplemark, Inc. filed by Equal Employment Opportunity Commission (Attachments: # 1 Civil Cover Sheet)(rmw) (Entered: 09/30/2008) 09/29/2008 SUMMONS ISSUED as to defendant Peoplemark, Inc. (rmw) (Entered: 09/30/2008) 11/13/2008 2 ANSWER to Complaint 1 by Peoplemark, Inc.(Schott, Carolyn) (Entered: 11/13/2008) 11/19/2008 3 ORDER setting Rule 16 scheduling conference: Rule 16 scheduling conference is set for 12/17/2008 at 2:00 PM at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker; status report due by 12/12/2008; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 11/19/2008) 11/24/2008 4 NOTICE rescheduling hearing that was previously set for 12/17/08; Rule 16 scheduling conference is set for 12/30/2008 at 11:00 AM (The Joint Status Report is due no later than 12/23/08), at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker;(Judge Robert J. Jonker, mil) (Entered: 11/24/2008) 12/01/2008 5 MOTION to withdraw as attorney and proposed order submitted by defendant Peoplemark, Inc.; (Young, Edward) (Entered: 12/01/2008) 12/01/2008 6 NOTICE re 5 of Appearance of Edward R. Young by defendant Peoplemark, Inc. (Young, Edward) (Entered: 12/01/2008) 12/01/2008 7 PROPOSED ORDER regarding Motion to Withdraw by defendant Peoplemark, Inc. (Young, Edward) (Entered: 12/01/2008) 12/01/2008 Remark: attorney for defendant Peoplemark, Inc.'s motion to withdraw as attorney is terminated; attorney Carolyn W. Schott termed; no order necessary (elc) (Entered: 12/15/2008) 12/08/2008 8 NOTICE of Appearance of William P. Dougherty by defendant Peoplemark, Inc. (Dougherty, William) (Entered: 12/08/2008) 12/10/2008 9 MOTION for order to Participate in Status Conference by Telephone by defendant Peoplemark, Inc.; (Dougherty, William) (Entered: 12/10/2008) 12/11/2008 10 NOTICE rescheduling hearing that was previously set for 12/30/08 at 11:00; Rule 16 scheduling conference is set for 1/7/2009 at 11:00 AM at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker;(Judge Robert J. Jonker, mil) (Entered: 12/11/2008) 12/18/2008 ORDER denying 9 motion for order to participate by telephone conference. Counsel shall attend the Rule 16 Scheduling Conference set for 1/7/09 at 11:00 a.m. in person ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil) (Entered: 12/18/2008) 12/30/2008 11 JOINT STATUS REPORT (Weaver, Omar) (Entered: 12/30/2008) 01/07/2009 12 MINUTES of scheduling conference held before Judge Robert J. Jonker (Court Reporter: Glenda Trexler) (Judge Robert J. Jonker, mil) (Entered: 01/07/2009) 01/07/2009 13 NOTICE of telephone status conference set for 4/13/2009 at 02:00 PM. Counsel for plaintiff shall initiate the call, getting all parties on the telephone line and calling into chambers at 616.456.2551, before Judge Robert J. Jonker;(Judge Robert J. Jonker, mil) (Entered: 01/07/2009) 01/09/2009 14 CASE MANAGEMENT ORDER: final pretrial conference set for 6/21/2010 at 3:00 PM at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker; bench trial set for 7/16/2010 at 8:30 AM at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 01/09/2009) 01/30/2009 15 DISCLOSURE STATEMENT Defendant's Rule 26 Initial Disclosures and proof of service by defendant Peoplemark, Inc. (Young, Edward) (Entered: 01/30/2009) 02/04/2009 16 CERTIFICATE OF SERVICE by defendant Peoplemark, Inc. re: Defendant's First Set of Interrogatories (Young, Edward) (Entered: 02/04/2009) 02/17/2009 17 NOTICE by plaintiff Equal Employment Opportunity Commission, defendant Peoplemark, Inc. that the preferred method of ADR is Voluntary Facilitative Mediation (Young, Edward) (Entered: 02/17/2009) 02/19/2009 18 ORDER that this matter shall be submitted to Facilitative Mediation; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 02/19/2009) 03/02/2009 19 SELECTION of Jon G. March as facilitative mediator by plaintiff Equal Employment Opportunity Commission(Weaver, Omar) (Entered: 03/02/2009) 03/06/2009 20 MOTION to withdraw as attorney by defendant Peoplemark, Inc.; (Dougherty, William) (Entered: 03/06/2009) 03/10/2009 (NON-DOCUMENT) ORDER re 20 directing any party opposing the motion of attorney William Dougherty for leave to withdraw to file objections not later than 3/13/2009; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 03/10/2009) 03/12/2009 21 NOTICE of appointment of Facilitative Mediator Jon G. March; plaintiff VFM fee to be submitted by 3/26/2009 and defendant VFM fee to be submitted by 3/26/2009(mkc) (Entered: 03/12/2009) 03/19/2009 VFM FEE RECEIVED in the amount of $25.00, check number 459316 as to defendant Peoplemark, Inc.(mkc) (Entered: 03/25/2009) 03/20/2009 ORDER (non-document) granting 20 leave for Attorney William Dougherty to withdraw for good cause shown and based on lack of opposition ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil) (Entered: 03/20/2009) 03/20/2009 22 MOTION to compel Disclosure and Response to Interrogatory and for Sanctions by defendant Peoplemark, Inc.; (Attachments: # 1 Exhibit Memorandum of Law In Support, # 2 Exhibit Exhibit 1 EEOC Charge, # 3 Exhibit Exhibit 2 Determination, # 4 Exhibit Exhibit 3 EEOC's Initial Disclosures, # 5 Exhibit Exhibit 4 Defendant's First Set of Interrogatories, # 6 Exhibit Exhibit 5 February 6, 2009 Letter, # 7 Exhibit Exhibit 6 Plaintiff's Answer to Defendant's First Set of Interrogatories, # 8 Exhibit Exhibit 7 EEOC's March 19, 2009 Letter to Defense Counsel, # 9 Exhibit Exhibit 8 Certificate of Consultation, # 10 Exhibit Exhibit 9 March 11, 2009 letter to EEOC, # 11 Exhibit Exhibit 10 Defense counsel's March 19, 2009 email to EEOC)(Young, Edward) (Entered: 03/20/2009) 03/23/2009 (NON-DOCUMENT) ORDER REFERRING MOTION to compel Disclosure and Response to Interrogatory and for Sanctions 22 to Magistrate Judge Hugh W. Brenneman, Jr pursuant to 28 U.S.C. 636(b)(1)(A)(Judge Robert J. Jonker, mil) (Entered: 03/23/2009) 03/25/2009 23 NOTICE OF MOTION HEARING regarding document number 22 defendant's motion to compel disclosure, compel discovery and for sanctions: responses due by 4/3/2009; motion hearing is set for 4/21/2009 at 02:00 PM at 584 Federal Building, Grand Rapids, MI before Magistrate Judge Hugh W. Brenneman Jr.; (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 03/25/2009) 04/03/2009 24 RESPONSE TO MOTION to compel Disclosure and Response to Interrogatory and for Sanctions 22 filed by Equal Employment Opportunity Commission (Weaver, Omar) (Entered: 04/03/2009) 04/03/2009 25 MOTION to bifurcate trial and discovery with brief in support by plaintiff Equal Employment Opportunity Commission; (Weaver, Omar) Modified on 4/6/2009 to add text (elc). (Entered: 04/03/2009) 04/09/2009 26 NOTICE regarding VFM fees that were due 03/26/09 pursuant to Notice of Appointment of Facilitative Mediator 21 plaintiff VFM fee to be submitted by 4/23/2009(mkc) (Entered: 04/09/2009) 04/13/2009 27 MINUTES of telephone status conference held before Judge Robert J. Jonker (Court Reporter: Glenda Trexler) (Judge Robert J. Jonker, ymc) (Entered: 04/13/2009) 04/13/2009 28 NOTICE of telephone status conference set for 7/16/2009 at 4:00 PM at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker;(Judge Robert J. Jonker, ymc) (Entered: 04/13/2009) 04/13/2009 VFM FEE RECEIVED in the amount of $25.00, check number 137 as to plaintiff Equal Employment Opportunity Commission(mkc) Modified date filed on 4/15/2009 (mkc). (Entered: 04/15/2009) 04/16/2009 29 RESPONSE in support of MOTION to bifurcate trial and discovery 25 and Brief in Support of Response filed by Peoplemark, Inc. (Attachments: # 1 Brief in Support of Peoplemark's Response to and Support of EEOC's Motion to Bifurcate Trial and Discovery)(Young, Edward) (Entered: 04/16/2009) 04/20/2009 30 REPLY to response to motion 22 for Protective Order enclosed in EEOC's response to Motion to Compel filed by Peoplemark, Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Young, Edward) (Entered: 04/20/2009) 04/20/2009 31 ORDER granting 25 motion to bifurcate; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 04/20/2009) 04/21/2009 32 MINUTES of motion hearing re 22 MOTION to compel Disclosure and Response to Interrogatory and for Sanctions filed by defendant Peoplemark, Inc. held before Magistrate Judge Hugh W. Brenneman, Jr; oral argument heard; order to issue (Proceedings Digitally Recorded) (Magistrate Judge Hugh W. Brenneman, Jr., ddk) (Entered: 04/21/2009) 04/21/2009 33 ORDER granting 22 motion to compel; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 04/21/2009) 05/05/2009 34 JOINT MOTION for extension of time to be Allowed Under Order Granting Motion to Compel by plaintiff Equal Employment Opportunity Commission, defendant Peoplemark, Inc.; (Attachments: # 1 Attachment Memorandum in Support of Joint Motion to Extend Time Allowed Under Order Granting Motion to Compel, # 2 Attachment Certificate of Consultation, # 3 Proposed Order Order Extending Time)(Young, Edward) (Entered: 05/05/2009) 05/11/2009 (NON-DOCUMENT) ORDER REFERRING JOINT MOTION for extension of time to be Allowed Under Order Granting Motion to Compel 34 to Magistrate Judge Hugh W. Brenneman, Jr pursuant to 28 U.S.C. 636(b)(1)(A)(Judge Robert J. Jonker, mil) (Entered: 05/11/2009) 05/12/2009 35 JOINT MOTION to withdraw 34 Joint Motion to Extend Time Allowed Under Order Granting Motion to Compel by plaintiff Equal Employment Opportunity Commission, defendant Peoplemark, Inc.; (Attachments: # 1 Attachment Memorandum in Support of Motion to Withdraw Joint Motion to Extend Tim Allowed Under Order Granting Motion to Compel, # 2 Attachment Certificate of Consultation)(Young, Edward) (Entered: 05/12/2009) 05/22/2009 36 (WITHDRAWN) MOTION and memorandum of law in support to compel Production of Documents by plaintiff Equal Employment Opportunity Commission; (Attachments: # 1 Exhibit A--Commission Discovery Requests, # 2 Exhibit B--Defendant's First Discovery Responses, # 3 Exhibit C--Defendant's Answer to Requests for Production, # 4 Exhibit D--Commission Discovery Dispute Letter, # 5 Exhibit E--Defendant's Supplemental Discovery Response, # 6 Exhibit F-- 5/19/09 E-mail, # 7 Exhibit G--5/21/09 Email)(Price, Dale) Added text on 5/26/2009 (elc). Modified on 6/8/2009; per notice 38 (gjf). (Entered: 05/22/2009) 05/26/2009 (NON-DOCUMENT) ORDER REFERRING MOTION to compel Production of Documents 36 to Magistrate Judge Hugh W. Brenneman, Jr pursuant to 28 U.S.C. 636(b)(1)(A)(Judge Robert J. Jonker, mil) (Entered: 05/26/2009) 05/29/2009 37 NOTICE OF MOTION HEARING regarding document number 36 plaintiff's motion to compel: responses due by 6/5/2009; motion hearing is set for 6/22/2009 at 09:00 AM at 584 Federal Building, Grand Rapids, MI before Magistrate Judge Hugh W. Brenneman Jr.; (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 05/29/2009) 06/05/2009 38 NOTICE re 36 Withdrawal of Motion to Compel Production of Documents by plaintiff Equal Employment Opportunity Commission (Price, Dale) (Entered: 06/05/2009) 06/29/2009 39 MOTION for extension of time to complete discovery name experts and submit expert reports with memorandum in support by plaintiff Equal Employment Opportunity Commission; (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Weaver, Omar) Added text on 6/30/2009 (elc). (Entered: 06/30/2009) 07/06/2009 40 MOTION to dismiss by defendant Peoplemark, Inc.; (Attachments: # 1 Attachment Memorandum in Support of Motion to Dismiss, # 2 Attachment Certification of Consultation)(Young, Edward) (Entered: 07/06/2009) 07/07/2009 ORDER (non-document): All responses to the motion for extension of time to complete discovery (docket #39) shall be filed by 2:00 p.m. (EDT) on July 9, 2009. ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil) (Entered: 07/07/2009) 07/07/2009 ORDER (non-document) denying Peoplemark's Motion to Dismiss (docket # 40). Peoplemark does not state whether it is attempting to rely on Rule 12(b)(6) or Rule 12(c). To the extent it is invoking Rule 12(b)(6), the motion is too late. Motions under Rule 12(b) "must be made before pleading if a responsive pleading is allowed." To the extent Peoplemark is attempting to invoke Rule 12(c) based on an alleged Rule 8 pleading defect in the EEOC Complaint, Peoplemark has waived the opportunity for separate pretrial consideration of the issue through its course of litigation conduct in the case. The time for a proper Rule 8 challenge under the Twombly and Ashcroft standards is early in the case, before the parties and the Court have set a plenary litigation schedule and expended significant resources in reliance on it. Here, the EEOC filed its complaint on September 29, 2008, and Peoplemark answered the complaint on November 13, 2008. Peoplemark did not bring a preliminary Rule 12(b) motion. Nor did it move for a more definite statement under Rule 12(e). Peoplemark chose to answer the EEOC complaint without invoking Twombly or otherwise mentioning any objection under Rule 8. Peoplemark then participated in at least two separate Rule 16 status conferences with the Court, again without mentioning any Rule 8 issue. The results of those status conferences have included Case Management Orders establishing disclosure, discovery, trial and other procedural mechanisms for the plenary litigation of this case. The parties have actively participated in discovery and other litigation matters in reliance on these case management orders. Peoplemark has even invoked the Court's discovery assistance with a motion to compel. In the Court's view, it is too late for Peoplemark to invoke Twombly for the first time now. Moreover, even if Peoplemark had timely raised the Rule 8 issue, Twombly and Ashcroft would not compel dismissal. The EEOC theory of relief is no mystery, and its Complaint lays it out in plain and simple terms as required by Rule 8. See E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850 (6th Cir. 2001) (reversing a district court's Rule 12(c) dismissal of an agency complaint under the ADA, and emphasizing the limited demands of Rule 8). Cf. Fed. R. Civ. P. 84; Appendix of Forms, Forms 10-15 (providing sample complaints that satisfy the Rules and "illustrate the simplicity and brevity that these rules contemplate") ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil) (Entered: 07/07/2009) 07/09/2009 41 RESPONSE TO MOTION for extension of time to complete discovery name experts and submit expert reports 39 filed by Peoplemark, Inc. (Attachments: # 1Exhibit 1, # 2Exhibit 2, # 3Exhibit 3, # 4 Exhibit 4, # 5Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11Exhibit 11, # 12 Exhbit 12, # 13 Attachment Declaration of Edward R. Young)(Young, Edward) Modified text on 7/10/2009 (mkc). (Entered: 07/09/2009) 07/09/2009 42 CERTIFICATE OF SERVICE by defendant Peoplemark, Inc. re 41 Response to Plaintiff's Motion for Extension of Time (Young, Edward) (Entered: 07/09/2009) 07/16/2009 43 MINUTES of status conference by telephone held before Judge Robert J. Jonker (Judge Robert J. Jonker, mil) (Entered: 07/16/2009) 07/16/2009 44 ORDER extending Case Management Order deadlines based on 39 motion to amend the Case Management Order, Defendant's response 41 all other matters of record and the discussion with counsel during an informal telephone status conference on 7/16/2009; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 07/16/2009) 07/23/2009 45 MOTION and memorandum in support for extension of time to Renewed Motion to Extend Dates by plaintiff Equal Employment Opportunity Commission; (Attachments: # 1 Exhibit A--Commission's Discovery Requests, # 2 Exhibit B--Defendant's First Discovery Response, # 3 Exhibit C--Defendant's First Response to Requests for Production, # 4 Exhibit D--Commission Letter re Discovery Dispute, # 5 Exhibit E--Declaration of Dale Price, # 6 Exhibit F--Defendant's First Revised Discovery Responses, # 7 Exhibit G--Defendant's 5-19-09 Email, # 8 Exhibit H--Email Sequence for 5-20 and 5-21-09, # 9 Exhibit I--Defendant's Correspondence 5-29-09, # 10 Exhibit J-- Defendant's Second Revised Responses to Requests for Production, # 11 Exhibit K--Declaration of Joseph Donovan)(Price, Dale) Modified to add text on 7/24/2009 (elc). (Entered: 07/23/2009) 07/28/2009 ORDER (non-document) directing responses to Plaintiff's Renewed Motion to Amend Case Management Order and Extending the Court's July 16, 2009, Order Extending Dates (docket #45)no later than August 3, 2009 ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil) (Entered: 07/28/2009) 07/28/2009 46 NOTICE OF MOTION HEARING regarding document number 45 : motion hearing is set for 8/6/2009 at 11:00 AM at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker;(Judge Robert J. Jonker, mil) (Entered: 07/28/2009) 08/03/2009 47 RESPONSE in opposition to MOTION for extension of time to Renewed Motion to Extend Dates 45 filed by Peoplemark, Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Young, Edward) Modified text on 8/4/2009 (mrs). (Entered: 08/03/2009) 08/03/2009 48 CERTIFICATE OF SERVICE by defendant Peoplemark, Inc. re 47 (Young, Edward) (Entered: 08/03/2009) 08/06/2009 49 MINUTES of motion hearing re 45 MOTION for extension of time to Renewed Motion to Extend Dates filed by Equal Employment Opportunity Commission held before Judge Robert J. Jonker (Court Reporter: Glenda Trexler) (Judge Robert J. Jonker, ymc) Modified filed date on 8/7/2009 per chambers (elc). (Entered: 08/07/2009) 08/07/2009 50 ORDER denying 45 motion for extension of time; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 08/07/2009) 08/12/2009 51 TRANSCRIPT of Motion to Amend Case Management Order Deadlines held 08-06-09 before Judge Robert J. Jonker; NOTE: this transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the release of transcript restriction date; after that date it may be obtained through PACER; under the Policy Regarding Transcripts the parties have 10 days within which to file a Notice of Intent to redact, and 21 days within which to file a Redaction Request; if no Transcript Redaction Request is filed, the court will assume redaction of personal identifiers is not necessary and this transcript will be made available via PACER after the release of transcript restriction set for 11/10/2009 ; redaction request due 9/2/2009 (Court Reporter: Trexler, Glenda 517-819-0396) (Entered: 08/12/2009) 08/20/2009 52 MOTION to compel Responses to Defendant's Second Set of Interrogatories and First Request for Production of Documents by defendant Peoplemark, Inc.; (Attachments: # 1 Attachment Memorandum of Law in Support of Defendant Peoplemark Inc.'s Motion to Compel Responses to Defendant's Second Set of Interrogatories and First Request for Production of Documents, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 9)(Young, Edward) (Entered: 08/20/2009) 08/20/2009 53 CERTIFICATE OF SERVICE by defendant Peoplemark, Inc. re 52 Defendant Peoplemark Inc.'s Motion to Compel Responses to Defendant's Second Set of Interrogatories and First Request for Production of Documents (Young, Edward) (Entered: 08/20/2009) 08/25/2009 (NON-DOCUMENT) ORDER REFERRING MOTION to compel Responses to Defendant's Second Set of Interrogatories and First Request for Production of Documents 52 to Magistrate Judge Hugh W. Brenneman, Jr pursuant to 28 U.S.C. 636(b)(1)(A)(Judge Robert J. Jonker, mil) (Entered: 08/25/2009) 08/25/2009 54 MOTION and memorandum in support to compel Discovery by plaintiff Equal Employment Opportunity Commission; (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Weaver, Omar) Modified to add text on 8/26/2009 (elc). (Entered: 08/25/2009) 08/26/2009 55 NOTICE OF MOTION HEARING regarding document number 52 defendant's motion to compel: responses due by 9/3/2009; motion hearing is set for 9/18/2009 at 10:00 AM at 584 Federal Building, Grand Rapids, MI before Magistrate Judge Hugh W. Brenneman Jr.;(Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 08/26/2009) 08/26/2009 56 MOTION and memorandum in support for order Allowing Plaintiff to Engage in Ex Parte Contact by plaintiff Equal Employment Opportunity Commission; (Attachments: # 1 Exhibit 1)(Weaver, Omar) Modified to add text on 8/27/2009 (elc). (Entered: 08/26/2009) 08/28/2009 (NON-DOCUMENT) ORDER REFERRING MOTION to compel Discovery 54 , MOTION for order Allowing Plaintiff to Engage in Ex Parte Contact 56 to Magistrate Judge Hugh W. Brenneman, Jr pursuant to 28 U.S.C. 636(b)(1)(A)(Judge Robert J. Jonker, mil) (Entered: 08/28/2009) 09/01/2009 57 NOTICE OF MOTION HEARINGS regarding document number 54 plaintiff's motion for discovery, 56 plaintiff's motion for order allowing ex parte contact: responses due by 9/9/2009; motion hearings set for 9/18/2009 at 10:00 AM at 584 Federal Building, Grand Rapids, MI before Magistrate Judge Hugh W. Brenneman Jr.;(Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 09/01/2009) 09/03/2009 58 SUPPLEMENT re 54 Motion to Compel by plaintiff Equal Employment Opportunity Commission (Attachments: # 1 Exhibit 7, # 2 Exhibit 8, # 3 Exhibit 9, # 4 Exhibit 10, # 5 Exhibit 11)(Weaver, Omar) (Entered: 09/03/2009) 09/03/2009 59 RESPONSE TO MOTION to compel Responses to Defendant's Second Set of Interrogatories and First Request for Production of Documents 52 with memorandum in support filed by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit A--Declaration of the Acting Chairman, # 2 Exhibit B--Order in EEOC v. Healthcare, # 3 Exhibit C--Order on Motion to Dismiss)(Price, Dale) Modified to add text on 9/4/2009 (elc). (Entered: 09/03/2009) 09/08/2009 60 RESPONSE TO MOTION for order Allowing Plaintiff to Engage in Ex Parte Contact 56 filed by Peoplemark, Inc. (Young, Edward) (Entered: 09/08/2009) 09/08/2009 61 RESPONSE TO MOTION to compel Discovery 54 filed by Peoplemark, Inc. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10, # 11 Exhibit Exhibit 11, # 12 Exhibit Exhibit 12, # 13 Exhibit Exhibit 13, # 14 Exhibit Exhibit 14, # 15 Exhibit Exhibit 15)(Young, Edward) (Entered: 09/08/2009) 09/08/2009 62 CERTIFICATE OF SERVICE by defendant Peoplemark, Inc. re 61 Defendant Peoplemark Inc.'s Response to Plaintiff, EEOC's Motion to Compel Discovery (Young, Edward) (Entered: 09/08/2009) 09/11/2009 63 MOTION and memorandum in support for extension of time to Extend Mediation Deadline by plaintiff Equal Employment Opportunity Commission; (Attachments: # 1 Exhibit A--Notice of Appointment of Facilitative Mediator, # 2 Exhibit B--E-mail from March, # 3 Exhibit C--E-mail from Defense Counsel, # 4 Exhibit D--E- mail Hobson to March, # 5 Exhibit E--Email from Hobson to Thoits, # 6 Exhibit F--Email from Thoits, # 7 Exhibit G--Email re September 22)(Price, Dale) Modified to add text on 9/14/2009 (elc). (Entered: 09/11/2009) 09/11/2009 64 AFFIDAVIT in opposition to MOTION to compel Responses to Defendant's Second Set of Interrogatories and First Request for Production of Documents 52 Signed Declaration (Exh. A to Response to Motion) of EEOC Acting Chairman Stuart J. Ishimaru filed by Equal Employment Opportunity Commission (Price, Dale) (Entered: 09/11/2009) 09/14/2009 65 RESPONSE TO MOTION for extension of time to Extend Mediation Deadline 63 filed by Peoplemark, Inc. (Attachments: # 1 Exhibit Exhibit A)(Young, Edward) (Entered: 09/14/2009) 09/17/2009 66 RESPONSE TO MOTION to compel Discovery 54 Addendum filed by Peoplemark, Inc. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Young, Edward) (Entered: 09/17/2009) 09/17/2009 67 ORDER granting 63 motion extending the facilitative mediation date to 9/22/2009; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 09/17/2009) 09/18/2009 68 MINUTES of motion hearing re 56 MOTION for order Allowing Plaintiff to Engage in Ex Parte Contact filed by Equal Employment Opportunity Commission, 52 MOTION to compel Responses to Defendant's Second Set of Interrogatories and First Request for Production of Documents filed by Peoplemark, Inc., and 54 MOTION to compel Discovery filed by Equal Employment Opportunity Commission held before Magistrate Judge Hugh W. Brenneman, Jr; Order to issue by the court (Proceedings Digitally Recorded) (Magistrate Judge Hugh W. Brenneman, Jr., ddk) (Entered: 09/22/2009) 09/22/2009 69 REPORT of facilitative mediation held 9/22/09; mediation is continuing; next hearing to be held 11/19/09(March, Jon) (Entered: 09/22/2009) 09/23/2009 70 ORDER granting 56 motion for ex parte contact; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 09/23/2009) 09/23/2009 71 ORDER granting in part and denying in part 54 motion to compel; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 09/23/2009) 09/24/2009 72 MOTION and memorandum in support for extension of time to Complete Expert Reports by plaintiff Equal Employment Opportunity Commission; (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Weaver, Omar) Modified to add text on 9/25/2009 (elc). (Entered: 09/24/2009) 10/07/2009 73 RESPONSE TO MOTION for extension of time to Complete Expert Reports 72 filed by Peoplemark, Inc. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Young, Edward) (Entered: 10/07/2009) 10/07/2009 74 CERTIFICATE OF SERVICE by defendant Peoplemark, Inc. re 73 Defendant's Memorandum in Support of its Response to EEOC's Motion to Extend Expert Report Deadline (Young, Edward) (Entered: 10/07/2009) 10/08/2009 (NON-DOCUMENT) ORDER REFERRING MOTION for extension of time to Complete Expert Reports 72 to Magistrate Judge Hugh W. Brenneman, Jr pursuant to 28 U.S.C. 636(b)(1)(A)(Judge Robert J. Jonker, mil) (Entered: 10/08/2009) 10/08/2009 75 NOTICE OF MOTION HEARING regarding document number 72 plaintiff's motion to extend expert report deadline: motion hearing is set for 10/14/2009 at 10:00 AM at 584 Federal Building, Grand Rapids, MI before Magistrate Judge Hugh W. Brenneman Jr.;(Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 10/08/2009) 10/09/2009 76 SUPPLEMENT to Response to Motion 73 for extension of time to Complete Expert Reports 72 filed by Peoplemark, Inc. (Attachments: # 1 Exhibit 1)(Young, Edward) Modified text and relationship on 10/13/2009 (mkc). (Entered: 10/09/2009) 10/09/2009 77 BRIEF by defendant Peoplemark, Inc. Response to EEOC's Amended Privilege Log (Attachments: # 1Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Young, Edward) Modified text on 10/13/2009 (mkc). (Entered: 10/09/2009) 10/09/2009 78 CERTIFICATE OF SERVICE by defendant Peoplemark, Inc. re 77 to EEOC's Amended Privilege Log (Young, Edward) (Entered: 10/09/2009) 10/14/2009 79 MINUTES of motion hearing re 72 MOTION for extension of time to extend expert report deadline filed by Equal Employment Opportunity Commission held before Magistrate Judge Hugh W. Brenneman, Jr; oral argument heard; matter taken under advisement by the court (Proceedings Digitally Recorded) (Magistrate Judge Hugh W. Brenneman, Jr., ddk) (Entered: 10/14/2009) 10/16/2009 80 ORDER re 72 plaintiff's motion to amend expert report deadline; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 10/16/2009) 10/23/2009 81 SUPPLEMENT re 72 Motion to Extend Expert Report Deadline by plaintiff Equal Employment Opportunity Commission (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Weaver, Omar) (Entered: 10/23/2009) 10/26/2009 82 RESPONSE in opposition to MOTION to compel Responses to Defendant's Second Set of Interrogatories and First Request for Production of Documents 52 Supplemental Brief filed by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit A--Commission Answers to Defendant's First Request for Production of Documents)(Price, Dale) (Entered: 10/26/2009) 10/26/2009 83 SECOND AMENDED Privilege Log filed by Equal Employment Opportunity Commission (Price, Dale) Modified text on 10/27/2009 (elc). (Entered: 10/26/2009) 10/29/2009 84 RESPONSE TO 81 Equal Employment Opportunity Commission's Supplemental Brief Regarding the Expert Report of Labor Economist Janice F. Madden, Ph.D. filed by defendant Peoplemark, Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Young, Edward) (Entered: 10/29/2009) 10/29/2009 85 CERTIFICATE OF SERVICE by defendant Peoplemark, Inc. re 84 Defendant's Response to Equal Employment Opportunity Commission's Supplemental Brief Regarding the Expert Report of Labor Economist Janice F. Madden, Ph.D. (Young, Edward) (Entered: 10/29/2009) 11/03/2009 86 REPLY to response to motion 52 Plaintiff Equal Employment Opportunity Commission's Supplemental Brief in Response to Defendant's Motion to Compel Discovery filed by Peoplemark, Inc. (Attachments: # 1 Exhibit Exhibit A)(Young, Edward) (Entered: 11/03/2009) 11/03/2009 87 CERTIFICATE OF SERVICE by defendant Peoplemark, Inc. re 86 Defendant's Response to Plaintiff, Equal Employment Opportunity Commission's Supplemental Brief in Response to Defendant's Motion to Compel Discovery (Young, Edward) (Entered: 11/03/2009) 11/06/2009 88 MOTION for leave to file a Reply Brief by plaintiff Equal Employment Opportunity Commission; (Price, Dale) (Entered: 11/06/2009) 11/10/2009 89 RESPONSE TO MOTION for leave to file a Reply Brief 88 filed by Peoplemark, Inc. (Young, Edward) (Entered: 11/10/2009) 11/10/2009 90 CERTIFICATE OF SERVICE by defendant Peoplemark, Inc. re 89 Defendant Peoplemark Inc.'s Response to Plaintiff EEOC's Motion for Leave to File a Reply Brief (Young, Edward) (Entered: 11/10/2009) 11/16/2009 91 MOTION for extension of time to file Expert Report by defendant Peoplemark, Inc.; (Young, Edward) (Entered: 11/16/2009) 11/16/2009 92 MEMORANDUM in support of Motion for Extension of Time to File 91 Expert Report filed by Peoplemark, Inc.(Young, Edward) (Entered: 11/16/2009) 11/16/2009 93 EXHIBIT re 91 Certificate of Consultation by defendant Peoplemark, Inc. (Young, Edward) (Entered: 11/16/2009) 11/17/2009 (NON-DOCUMENT) ORDER REFERRING MOTION for extension of time to file Expert Report 91 to Magistrate Judge Hugh W. Brenneman, Jr pursuant to 28 U.S.C. 636(b)(1)(A)(Judge Robert J. Jonker, mil) (Entered: 11/17/2009) 11/18/2009 94 ORDER denying 88 motion for leave to file reply brief; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 11/18/2009) 11/20/2009 95 REPORT of facilitative mediation held 11/19/09; mediation is continuing; (March, Jon) (Entered: 11/20/2009) 11/24/2009 96 MOTION for sanctions by defendant Peoplemark, Inc.; (Attachments: # 1 Attachment Certificate of Consultation)(Young, Edward) (Entered: 11/24/2009) 11/24/2009 97 MEMORANDUM in support of Motion for Sanctions 96 filed by Peoplemark, Inc. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4)(Young, Edward) (Entered: 11/24/2009) 11/25/2009 (NON-DOCUMENT) ORDER REFERRING MOTION for sanctions 96 to Magistrate Judge Hugh W. Brenneman, Jr pursuant to 28 U.S.C. 636(b)(1)(A)(Judge Robert J. Jonker, mil) (Entered: 11/25/2009) 11/30/2009 98 RESPONSE TO MOTION for extension of time to file Expert Report 91 filed by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Weaver, Omar) (Entered: 11/30/2009) 12/03/2009 99 ORDER granting 91 defendant's motion for extension of time to file expert report; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 12/03/2009) 12/08/2009 100 RESPONSE TO MOTION for sanctions with brief in support 96 filed by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit A--Case Management Order, # 2 Exhibit B--Cohen CV, # 3 Exhibit C-- Order Granting Motion to Quash, # 4 Exhibit Declaration of Omar Weaver)(Price, Dale) Modified to add text on 12/9/2009 (elc). (Entered: 12/08/2009) 12/21/2009 101 ORDER granting in part 72 motion for extension of time; deadline for report of plaintiff's expert, Dr. Madden, is extended to 12/31/2009; order amending case management order to issue; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 12/21/2009) 12/30/2009 102 NOTICE OF APPEAL TO DISTRICT JUDGE by plaintiff Equal Employment Opportunity Commission regarding Magistrate Judge order number 101 (Attachments: # 1 Exhibit A--CD Enclosure Letters, # 2 Exhibit B--5/19/09 Madden Statement of Approach, # 3 Exhibit C--8/17/09 Email Confirming Retention, # 4 Exhibit D--8/13/09 Emails re Statement of Approach)(Price, Dale) (Entered: 12/30/2009) 12/30/2009 103 AFFIDAVIT in support of Notice of Appeal of Magistrate Judge Decision to District Judge, 102 12-30-09 Declaration of Joseph R. Donovan filed by Equal Employment Opportunity Commission(Price, Dale) (Entered: 12/30/2009) 01/07/2010 104 ATTORNEY APPEARANCE of Eugene Driker on behalf of defendant Peoplemark, Inc. (elc) (Entered: 01/07/2010) 01/07/2010 105 CERTIFICATE OF SERVICE by defendant Peoplemark, Inc. re Attorney Appearance 104 (elc) (Entered: 01/07/2010) 01/11/2010 106 RESPONSE in opposition to NOTICE OF APPEAL TO DISTRICT JUDGE by plaintiff Equal Employment Opportunity Commission regarding Magistrate Judge order number 101 NOTICE OF APPEAL TO DISTRICT JUDGE by plaintiff Equal Employment Opportunity Commission regarding Magistrate Judge order number 101 102 filed by Peoplemark, Inc. (Attachments: # 1 Exhibit 1)(Young, Edward) Modified text on 1/12/2010 (elc). (Entered: 01/11/2010) 01/11/2010 107 CERTIFICATE OF SERVICE by defendant Peoplemark, Inc. re Response in Opposition, 106 to EEOC's Appeal of and Objections to the Magistrate Judge's December 21, 2009 Order Granting in Part and Denying in Part Motion to Extend Expert Report Dates (Young, Edward) (Entered: 01/11/2010) 01/29/2010 108 ORDER re 102 affirming the Magistrate Judge's 12/21/2009 Order 101 ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 01/29/2010) 02/08/2010 109 MOTION to strike The EEOC's Expert Dr. Pager as a Witness; In the Alternative to Stay the Time for Deposing Dr. Pager and the Filing of Peoplemarl's Expert Report by defendant Peoplemark, Inc.; (Attachments: # 1 Attachment Memorandum In Support of Motion to Strike The EEOC's Expert Dr. Pager as a Witness; In the Alternative to Stay the Time for Deposing Dr. Pager and the Filing of Peoplemark's Expert Report, # 2 Attachment Certificate of Consultation)(Young, Edward) (Entered: 02/08/2010) 02/08/2010 MOTION to stay the time for deposing Dr. Pager and the filing of Peoplemart's expert report (see entry 109 to view document) by defendant Peoplemark, Inc.; (elc) (Entered: 02/09/2010) 02/10/2010 110 ORDER denying 109 motion to stay disclosure of expert report deadlines and denying motion to strike Dr. Pager as an expert. The Court will open the window for deposition of experts for 28 days following the date Defendant discloses its expert report; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 02/10/2010) 02/25/2010 111 FIRST MOTION for summary judgment by defendant Peoplemark, Inc.; (Young, Edward) (Entered: 02/25/2010) 02/25/2010 112 MEMORANDUM in support of Motion for Summary Judgment 111 filed by Peoplemark, Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Young, Edward) (Entered: 02/25/2010) 02/25/2010 113 CERTIFICATE OF CONSULTATION by defendant Peoplemark, Inc. (Young, Edward) Modified text on 2/26/2010 (elc). (Entered: 02/25/2010) 02/26/2010 114 ORDER granting 52 defendant's motion to compel; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 02/26/2010) 03/05/2010 115 NOTICE OF MOTION HEARING regarding document number 111 : motion hearing is set for 5/17/2010 at 11:00 AM at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker;(Judge Robert J. Jonker, mil) (Entered: 03/05/2010) 03/12/2010 116 NOTICE OF APPEAL TO DISTRICT JUDGE by plaintiff Equal Employment Opportunity Commission regarding Magistrate Judge order number 114 (Price, Dale) (Entered: 03/12/2010) 03/24/2010 117 JOINT MOTION and memorandum of law in support to dismiss by plaintiff Equal Employment Opportunity Commission; (Weaver, Omar) Modified to add text on 3/25/2010 (elc). (Entered: 03/24/2010) 03/24/2010 118 PROPOSED ORDER regarding Dismissal by plaintiff Equal Employment Opportunity Commission (Weaver, Omar) (Entered: 03/24/2010) 03/25/2010 (NON-DOCUMENT) NOTICE from chambers: The Joint Motion to Dismiss (docket #117) is held in abeyance. The deadline for filing responses to the pending Motion for Summary Judgment is held in abeyance; (Judge Robert J. Jonker, mil) (Entered: 03/25/2010) 03/25/2010 119 RESPONSE in opposition to Notice of Appeal to District Judge by plaintiff Equal Employment Opportunity Commission regarding Magistrate Judge order number 114 116 Granting Defendant's Motion to Compel Discovery filed by Peoplemark, Inc. (Attachments: # 1 Exhibit)(Young, Edward) Modified to edit capitalization on 3/26/2010 (elc). (Entered: 03/25/2010) 03/29/2010 120 ORDER granting 117 motion to dismiss. The prevailing party shall file a motion for attorney fees under Rule 54(d)(2) not later than April 30, 2010. ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil) (Entered: 03/29/2010) 04/26/2010 121 REPORT of facilitative mediation held 4/23/2010; mediation is continuing; (March, Jon) (Entered: 04/26/2010) 04/30/2010 122 MOTION for attorney fees Costs and Sanctions by defendant Peoplemark, Inc.; (Attachments: # 1 Attachment Memorandum in Support of Peoplemark's Motion for Fees, Costs and Sanctions, # 2 Attachment Certificate of Consultation, # 3 Exhibit Exhibit A, # 4 Exhibit Exhibit B, # 5 Exhibit Exhibit C, # 6 Exhibit Exhibit D, # 7 Exhibit Exhibit E, # 8 Exhibit Exhibit F, # 9 Exhibit Exhibit G, # 10 Exhibit Exhibit 1 to Exhibit G, # 11 Exhibit Exhibit 2 Part 1 to Exhibit G, # 12 Exhibit Exhibit 2 Part 2 to Exhibit G, # 13 Exhibit Exhibit 2 Part 3 to Exhibit G, # 14 Exhibit Exhibit 2 Part 4 to Exhibit G, # 15 Exhibit Exhibit 2 Part 5 to Exhibit G, # 16 Exhibit Exhibit 3 to Exhibit G, # 17 Exhibit Exhibit 4 to Exhibit G, # 18 Exhibit Exhibit H, # 19 Exhibit Exhibit I, # 20 Exhibit Exhibit J, # 21 Proposed Order Proposed Order Granting Peoplemark's Motion for Fees, Costs and Sanctions)(Young, Edward) (Entered: 04/30/2010) 04/30/2010 123 CERTIFICATE OF SERVICE by defendant Peoplemark, Inc. re MOTION for attorney fees Costs and Sanctions 122 (Young, Edward) (Entered: 04/30/2010) 05/10/2010 (NON-DOCUMENT) ORDER REFERRING MOTION for attorney fees Costs and Sanctions 122 to Magistrate Judge Hugh W. Brenneman, Jr pursuant to 28 U.S.C. 636(b)(1)(A)(Judge Robert J. Jonker, mil) (Entered: 05/10/2010) 05/11/2010 124 NOTICE OF MOTION HEARING regarding document number 122 defendant's motion for fees, costs and sanctions: responses due by 5/14/2010; motion hearing is set for 6/23/2010 at 09:00 AM at 584 Federal Building, Grand Rapids, MI before Magistrate Judge Hugh W. Brenneman Jr.;(Magistrate Judge Hugh W. Brenneman, Jr., fhw) Modified text on 5/11/2010 (elc). (Entered: 05/11/2010) 05/14/2010 125 MOTION for leave to file a Brief in Excess of Ten Pages by plaintiff Equal Employment Opportunity Commission; (Attachments: # 1 Exhibit A--Brief in Opposition to Defendant's Motion for Attorney Fees, Costs and Sanctions)(Price, Dale) (Entered: 05/14/2010) 05/14/2010 126 RESPONSE TO MOTION for attorney fees Costs and Sanctions 122 filed by Equal Employment Opportunity Commission (Attachments: # 1 Index of Exhibits, # 2 Exhibit A--Defendant's Position Statement, # 3 Exhibit B--Defendant's 10-31-05 Letter, # 4 Exhibit C--Defendant's 6- 12-06 Letter, # 5 Exhibit D--Defendant's 12-1-06 Letter, # 6 Exhibit E- -Defendant's 8-12-09 Letter, # 7 Exhibit F--Osten Deposition, # 8 Exhibit G--Duff Deposition, # 9 Exhibit H--Patterson Deposition, # 10 Exhibit I--Taylor Deposition, # 11 Exhibit J--Cady Deposition, # 12 Exhibit K--Pager Expert Report, # 13 Exhibit L--Commission 2-26-10 Letter, # 14 Exhibit M--Commission 3-8-10 E-mail, # 15 Exhibit N-- Defendant's 3-11-10 Letter, # 16 Exhibit O--Commission's 3-11-10 E- Mail and Stipulation, # 17 Exhibit Q--Defendant's Answer to Requests for Admission, # 18 Exhibit R--Cohen Expert Report, # 19 Exhibit S-- Characteristics report, # 20 Exhibit T--Objections to Baker Donelson Attorney Fees, # 21 Exhibit U--Declaration of Janice Madden-- Econsult Invoices, # 22 Exhibit V--Valora Invoices, # 23 Exhibit W-- Pager Invoice, # 24 Exhibit X--Objection to Baker Donelson Costs/Expenses)(Price, Dale) (Entered: 05/14/2010) 06/01/2010 127 ORDER granting 125 motion for leave to file enlarged brief; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 06/01/2010) 06/01/2010 128 (DISREGARD) RESPONSE in opposition to MOTION for attorney fees Costs and Sanctions 122 filed by Equal Employment Opportunity Commission (elc) Modified on 6/2/2010: filed in error (elc). Modified entry relationship on 6/17/2010 (mla) (Entered: 06/02/2010) 06/15/2010 129 MOTION and supporting memorandum for leave to file Reply to Plaintiff's Opposition to Peoplemark's Motion for Fees, Costs and Sanctions by defendant Peoplemark, Inc.; (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Young, Edward) Modified to add text on 6/16/2010 (elc). Modified text on 4/1/2011 (elc). (Entered: 06/15/2010) 06/15/2010 130 CERTIFICATE OF SERVICE by defendant Peoplemark, Inc. re MOTION for leave to file Reply to Plaintiff's Opposition to Peoplemark's Motion for Fees, Costs and Sanctions 129 (Young, Edward) (Entered: 06/15/2010) 06/15/2010 131 PROPOSED ORDER regarding Motion for Leave to File Reply to Plaintiff's Opposition to Peoplemark's Motion for Fees, Costs and Sanctions by defendant Peoplemark, Inc. (Young, Edward) (Entered: 06/15/2010) 06/17/2010 132 RESPONSE in opposition to MOTION for leave to file Reply to Plaintiff's Opposition to Peoplemark's Motion for Fees, Costs and Sanctions 129 filed by Equal Employment Opportunity Commission (Price, Dale) (Entered: 06/17/2010) 06/18/2010 133 MOTION for leave to file Reply to Plaintiff's Response 132 to Defendant's Motion for Leave to File a Reply Brief Regarding Defendant's Motion for Attorneys' Fees and Costs 129 by defendant Peoplemark, Inc.; (Attachments: # 1Exhibit 1, # 2 Attachment Certificate of Consultation, # 3Proposed Order)(Young, Edward) Modified text on 6/21/2010 (mkc). (Entered: 06/18/2010) 06/21/2010 134 RESPONSE in opposition to MOTION for leave to file Reply to Plaintiff's Response to Defendant's Motion for Leave to File a Reply Brief Regarding Defendant's Motion for Attorneys' Fees and Costs 133 filed by Equal Employment Opportunity Commission (Price, Dale) (Entered: 06/21/2010) 06/23/2010 135 MINUTES of motion hearing re 122 MOTION for attorney fees Costs and Sanctions filed by Peoplemark, Inc. held before Magistrate Judge Hugh W. Brenneman, Jr.; Oral argument heard; Order to Issue (Proceedings Digitally Recorded) (Magistrate Judge Hugh W. Brenneman, Jr., lba) (Entered: 06/23/2010) 03/31/2011 136 ORDER granting 129 motion for leave to file reply brief; granting 133 motion for leave to file reply brief; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 03/31/2011) 03/31/2011 137 ORDER granting in part and denying in part 122 motion for attorney fees; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 03/31/2011) 03/31/2011 138 REPLY to response to motion 122 for fees, costs and sanctions filed by Peoplemark, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 C)(elc) (Entered: 04/01/2011) 03/31/2011 139 REPLY to response to motion 129 filed by Peoplemark, Inc. (Attachments: # 1 Attachment 1)(elc) (Entered: 04/01/2011) 04/18/2011 140 OBJECTION re 137 Objections to Magistrate Order Granting Attorney Fees by plaintiff Equal Employment Opportunity Commission (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1--6/11/09 Answers to Defendant's Second Interrogatories, # 3 Exhibit 2--Charge of Discrimination, # 4 Exhibit 3--Deposition of Shaun Cady)(Price, Dale) (Entered: 04/18/2011) 05/02/2011 141 RESPONSE TO 140 Equal Employment Opportunity Commission's Objections to Magistrate Judge's Order Granting Motion for Attorney's Fees filed by defendant Peoplemark, Inc. (Young, Edward) (Entered: 05/02/2011) 05/19/2011 142 RESPONSE TO 141 Defendant's Response to Commission Objections to Magistrate Order Granting Attorney Fees filed by plaintiff Equal Employment Opportunity Commission (Price, Dale) (Entered: 05/19/2011) 09/29/2011 143 MOTION for leave to file Newly Decided Legal Authority by defendant Peoplemark, Inc.; (Attachments: # 1 Exhibit 1, # 2 Certificate of Consultation, # 3 Proposed Order Granting Peoplemark, Inc.'s Motion for Leave to File Newly Decided Legal Authority)(Young, Edward) Modified duplicate text on 9/30/2011 (elc). (Entered: 09/29/2011) 10/05/2011 144 ORDER re 143 ; if any party wishes to address 143 in writing such party may do so in a supplemental brief of up to 5 pages not later than 10/14/2011; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 10/05/2011) 10/14/2011 145 NOTICE re 144 Of Filing Legal Authority by defendant Peoplemark, Inc. (Attachments: # 1 Exhibit EEOC v. Cintas Corp., 2011 WL 3359622 (E.D. Mich. 2011))(Young, Edward) (Entered: 10/14/2011) 10/14/2011 146 RESPONSE TO MOTION for leave to file Newly Decided Legal Authority 143 Supplemental Brief In Response To Defendant Peoplemark Inc.s Filing Of Newly-Decided Legal Authority filed by Equal Employment Opportunity Commission (Price, Dale) (Entered: 10/14/2011) 10/17/2011 147 ORDER approving 137 Order Granting Motion for Attorney Fees of the Magistrate Judge; Peoplemark's Motion for Fees, Costs and Sanctions 122 is granted in part and denied in part consistent with the Magistrate Judge's Order; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 10/17/2011) 10/17/2011 148 FINAL JUDGMENT in favor of Defendant Peoplemark, Inc against Plaintiff EEOC ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 10/17/2011) 11/10/2011 149 BILL OF COSTS (PROPOSED) by defendant Peoplemark, Inc. (Attachments: # 1 Attachment Certificate of Consultation)(Young, Edward) (Entered: 11/10/2011) 11/23/2011 150 STIPULATION and PROPOSED ORDER Concerning Defendant's Bill of Costs by defendant Peoplemark, Inc. (Attachments: # 1 Certificate of Consultation)(Young, Edward) (Entered: 11/23/2011) 11/23/2011 151 PROPOSED ORDER regarding Defendant's Bill of Costs by defendant Peoplemark, Inc. (Young, Edward) (Entered: 11/23/2011) 12/13/2011 152 NOTICE OF APPEAL re 148 by plaintiff Equal Employment Opportunity Commission (Price, Dale) (Entered: 12/13/2011) 12/14/2011 153 ORDER granting STIPULATION 150 ; granting PROPOSED ORDER 151 ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 12/14/2011) 12/22/2011 CASE NUMBER 11-2582 assigned by the Sixth Circuit to appeal 152 (mkc) (Entered: 12/22/2011) 12/27/2011 ACKNOWLEDGMENT of appeal transcript order from Dale Price received 12/22/2011 re appeal 152 filed by Equal Employment Opportunity Commission, ; transcript is estimated at 456 pages with an estimated completion date of 02/05/2012; arrangements for payment made on 12/22/2011 (Court Reporter: Trexler, Glenda (517)819-0396) (Entered: 12/27/2011) 01/06/2012 154 MOTION to stay re 148 Execution of Judgment Pending Appeal with memorandum in support by plaintiff Equal Employment Opportunity Commission; (Price, Dale) Modified text on 1/9/2012 (mkc). (Entered: 01/06/2012) 01/12/2012 155 APPEAL TRANSCRIPT of Rule 16 Scheduling Conference held 01/07/2009 before Judge Robert J. Jonker; re appeal 152 ; NOTE: this transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the release of transcript restriction date; after that date it may be obtained through PACER; under the Policy Regarding Transcripts the parties have 14 days within which to file a Notice of Intent to redact, and 21 days within which to file a Redaction Request; if no Transcript Redaction Request is filed, the court will assume redaction of personal identifiers is not necessary and this transcript will be made available via PACER after the release of transcript restriction set for 4/11/2012 ; redaction request due 2/2/2012 (Court Reporter: Trexler, Glenda (517)819-0396) (Entered: 01/12/2012) 01/12/2012 156 APPEAL TRANSCRIPT of Telephone Status Conference held 04/13/2009 before Judge Robert J. Jonker; re appeal 152 ; NOTE: this transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the release of transcript restriction date; after that date it may be obtained through PACER; under the Policy Regarding Transcripts the parties have 14 days within which to file a Notice of Intent to redact, and 21 days within which to file a Redaction Request; if no Transcript Redaction Request is filed, the court will assume redaction of personal identifiers is not necessary and this transcript will be made available via PACER after the release of transcript restriction set for 4/11/2012 ; redaction request due 2/2/2012 (Court Reporter: Trexler, Glenda (517)819-0396) (Entered: 01/12/2012) 01/12/2012 157 APPEAL TRANSCRIPT of Defendant's Motion to Compel Disclosures held 04/21/2009 before Magistrate Judge Hugh W. Brenneman, Jr.; re appeal 152 ; NOTE: this transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the release of transcript restriction date; after that date it may be obtained through PACER; under the Policy Regarding Transcripts the parties have 14 days within which to file a Notice of Intent to redact, and 21 days within which to file a Redaction Request; if no Transcript Redaction Request is filed, the court will assume redaction of personal identifiers is not necessary and this transcript will be made available via PACER after the release of transcript restriction set for 4/11/2012 ; redaction request due 2/2/2012 (Court Reporter: Trexler, Glenda (517)819-0396) (Entered: 01/12/2012) 01/16/2012 158 APPEAL TRANSCRIPT of Motion Hearing held 09/18/2009 before Magistrate Judge Hugh W. Brenneman, Jr.; re appeal 152 ; NOTE: this transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the release of transcript restriction date; after that date it may be obtained through PACER; under the Policy Regarding Transcripts the parties have 14 days within which to file a Notice of Intent to redact, and 21 days within which to file a Redaction Request; if no Transcript Redaction Request is filed, the court will assume redaction of personal identifiers is not necessary and this transcript will be made available via PACER after the release of transcript restriction set for 4/16/2012 ; redaction request due 2/6/2012 (Court Reporter: Trexler, Glenda (517)819-0396) (Entered: 01/16/2012) 01/16/2012 159 APPEAL TRANSCRIPT of Motion Hearing held 10/14/2009 before Magistrate Judge Hugh W. Brenneman, Jr.; re appeal 152 ; NOTE: this transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the release of transcript restriction date; after that date it may be obtained through PACER; under the Policy Regarding Transcripts the parties have 14 days within which to file a Notice of Intent to redact, and 21 days within which to file a Redaction Request; if no Transcript Redaction Request is filed, the court will assume redaction of personal identifiers is not necessary and this transcript will be made available via PACER after the release of transcript restriction set for 4/16/2012 ; redaction request due 2/6/2012 (Court Reporter: Trexler, Glenda (517)819-0396) (Entered: 01/16/2012) 01/20/2012 160 APPEAL TRANSCRIPT of Defendant's Motion for Fees, Costs, and Sanctions held 06/23/2010 before Magistrate Judge Hugh W. Brenneman, Jr.; re appeal 152 ; NOTE: this transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the release of transcript restriction date; after that date it may be obtained through PACER; under the Policy Regarding Transcripts the parties have 14 days within which to file a Notice of Intent to redact, and 21 days within which to file a Redaction Request; if no Transcript Redaction Request is filed, the court will assume redaction of personal identifiers is not necessary and this transcript will be made available via PACER after the release of transcript restriction set for 4/19/2012 ; redaction request due 2/10/2012 (Court Reporter: Trexler, Glenda (517)819-0396) (Entered: 01/20/2012) 02/01/2012 161 PROPOSED STIPULATION and ORDER Regarding Specific Amount in Fees and Costs Defendant Shall Recover for Bringing Motion to Compel by plaintiff Equal Employment Opportunity Commission (Weaver, Omar) (Entered: 02/01/2012) 02/09/2012 162 ORDER granting 154 motion to stay; granting STIPULATION 161 ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 02/09/2012) ********************************************************************************** <> <1> “RE #*” refers to the record entry number on the district court’s docket sheet. “RE #* at [page]” refers to specific pages in the record using the district court’s system of pagination imprinted across the top of each document, unless otherwise noted. The district court docket sheet, designating relevant documents (in bold), is included as an addendum to this brief. <2> The CMO set out the following deadlines for the Commission’s prosecution: June 30, 2009, identify experts; August 31, 2009, disclosure of expert reports; December 31, 2009, close of discovery; and a six day bench trial scheduled for July 16, 2010. RE #14 (CMO). Peoplemark’s expert deadlines were: August 31, 2009, for identifying experts; and October 30, 2009, for disclosure of expert reports. Id. <3> A recurring theme in the discovery disputes was the scope of the Commission’s investigation and what the Commission knew before filing suit, which may have influenced the fee award decisions. See RE #137 (magistrate’s order) at 5-7; RE #147 (court’s order) at 3. The Commission took the position that information regarding the investigation was not relevant in a suit on the merits and was privileged. RE #59 (EEOC’s response to Peoplemark’s motion to compel) at 9 (“The Sixth Circuit has definitively held that the conduct of the Commission’s investigation is not relevant to the litigation of a Title VII lawsuit.”)(citing EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984)). <4> The motions to extend the expert deadlines, and the orders thereon, were as follows: The first motion (RE #39, filed June 29, 2009) was granted by the court on July 16, 2009. RE #44 (order extending deadlines: EEOC expert identity, 7-31-09; EEOC expert report, 9-30-09; close of discovery, 1-15-10). The second motion (RE #45, filed July 23, 2009) was denied on August 7, 2009. RE #50. The third motion (RE #72, filed September 24, 2009) was granted in part, extending the Commission’s deadline for producing Dr. Madden’s expert report until December 31, 2009, but denied in part, denying the Commission’s request for an extension until February 11, 2010. RE #101 (December 21, 2009 magistrate order); RE #108 (January 29, 2010 court order affirming magistrate’s order). Peoplemark also moved for an extension, or stay, of the time to file its expert witness report (RE #98, filed November 16, 2009), which was granted on December 3, 2009. RE #99 (magistrate order granting a stay of defendant’s deadline for submitting its expert’s rebuttal report to no later than 60 days following the latter of plaintiff’s two expert reports (i.e., Madden’s), or 30 days after date of order resolving plaintiff’s motion to extend expert report deadline (pending RE #72, EEOC’s request for extension for Madden’s report)). In addition, the Commission sought an extension for the mediation deadline due to paperwork delays by the mediator and third-party contract approval obligations (RE #63, filed September 11, 2009); the court granted a short extension to September 22, 2009. RE #67 (September 17, 2009 court order). <5> A supplemental, more complete and electronically readable, version of Empact was not produced by defendant and received by the Commission until September 16, 2009. RE #81 (EEOC’s supplemental brief in support of motion to extend expert report deadline) at 3 n.2. <6> Page citations to deposition testimony refer to internal deposition pages. <7> However, Cady, who now runs the Florida offices, testified that when he worked in the Memphis office he referred hundreds of ex-felons, but he did not think the Memphis manager, Patterson, knew of these referrals. RE #140-4 at 48-49, 58 (Exh. 3, EEOC’s objections to magistrate order granting fees)(Cady deposition transcript). <8> The Commission hired document management vendor Valora, which coded Peoplemark’s documents as EEOC received them, from August 2009 through September 2009. RE #72-2 at ¶ 4 (Exh. A, EEOC’s motion for extension) (Declaration of Sandra Serkes). Valora completed a factual “information” database on November 6, 2009. RE #126-23 at 2-6 (Exh. V, EEOC’s response to Peoplemark’s motion for fees)(Valora invoices); RE #72- 2 at ¶ 12 (Declaration of Sandra Serkes). After receiving the database prepared by Valora, Madden needed approximately 12 weeks to work with the data and complete her expert report. RE #72-3 at ¶¶ 4-8 (Exh. B, EEOC’s motion for extension)(Declaration of Dr. Madden); RE #81-6 at ¶ 12 (Exh. E, EEOC’s supplemental brief in support of motion to extend expert report deadline)(Second Declaration of Dr. Madden). <9> Defendant’s expert’s report was attached to Peoplemark’s summary judgment memorandum. RE #112-2 (Exh. 1, Cohen’s expert report). Cohen’s report confined its focus to successful applicants and Census workforce availability data for blacks; however, Cohen did not analyze rejected applicants, or applicant flow generally. See RE #112-2 at 3, 8, 11-13. <10> The district court held in abeyance both the EEOC’s deadline for filing a response to Peoplemark’s summary judgment motion and the joint motion to dismiss. See March 25, 2010, Non-document notice. <11> At the hearing on its motion, Peoplemark withdrew the portion of its attorney’s fee request covering attorney time billed during the Commission’s investigation. RE #160 (June 23, 2010, hearing transcript) at 56; see also RE #126 (EEOC’s response to Peoplemark’s motion for fees) at 2 n.1. <12> The concurring opinion in Riddle emphasized that the conduct of the prevailing party must also be considered in assessing fees under Christiansburg. Riddle, 266 F.3d at 557 (“It is not only Riddle’s actions leading to the filing of this lawsuit that are at issue; rather, it is also Defendant’s actions that are at issue and whether Plaintiff could have reasonably believed that these actions provided a foundation for relief.”). <13> The Commission believes that both cases were wrongly decided and has appealed in Cintas and petitioned for rehearing en banc in CRST. See EEOC et al. v. CRST, Nos. 09-3764, 09-3765, 10-1682 (8th Circuit), petition for rehearing filed April 9, 2012; and EEOC at al. v. Cintas Corp., No. 10-2629, 11-2057 (6th Circuit), awaiting decision. <14> As the magistrate correctly stated (RE #137 at 8), this case was dismissed on a joint motion to dismiss filed by the parties, rather than for lack of a proper investigation. <15> In its fee application, Peoplemark conceded that it did not produce substantially complete and crucial applicant flow information until August 25, 2009, nearly five months after the Commission’s initial requests on March 4, 2009. RE #122-2 (Peoplemark’s memorandum in support of fees) at 3. And the Commission did not receive Peoplemark’s final data production until September 16, 2009, which was only 13 days before the Commission’s September 30th expert report deadline. RE #140 (EEOC’s objections to magistrate’s order granting fees) at 11. See also supra at 10 n.5. <16> The Commission did not receive an electronically usable version of the Empact database until mid-September 2009. Supra at 37 n.15; see also supra at 10 n.5. <17> The Commission acknowledges that there is an internal inconsistency in Donovan’s declaration, between the conclusion that “it might be possible to construct … a database or databases and prepare an expert report within a three month timeframe” (RE #45-12 at 6 ¶ 13), and the specific time periods for data preparation and analysis identified in the other paragraphs of his declaration, which added together come to 13 to 14 weeks without including time for writing an expert report. RE #45 ¶¶ 9, 10, 11, 12, set out in text above. <18> The district court further criticized the Commission for failing to begin constructing its database until September 2009. RE #147 at 7. As explained above, construction of the EEOC’s database was delayed by Peoplemark’s delays in producing documents and records necessary to create the database. However, as a factual matter, Valora did begin construction of the Commission’s database as documents were received from Peoplemark throughout the month of August and continuing into September 2009. Supra at 15 n.8, 37 (RE #72-2 (Exh. A); RE #126-23, Exh. V). <19> The same legal standard applies to Section 706(k) and 42 U.S.C. § 1988. See Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983). <20> The January 29, 2010 date would reduce the expert fee award by approximately $476,000 and the attorney’s fees by an estimated $130,000. RE #122-10, -20 (Exhs. G & I, Peoplemark’s motion for fees)(Young’s affidavit, & Cohen’s declaration and billing statements); RE #122-12 to -17 (attorney billing statements). <21> Using the October 1, 2009 date would reduce the expert fee award by close to $200,000. RE #122-20 (defendant began incurring expert witness fees during June 2009). <22> Neither CRST nor the referenced cases support the court’s decision to award expert witness fees before attorney’s fees arguably were warranted in October 2009. In CRST, the court awarded expert fees and attorney’s fees for the same time period. See 2010 WL 520654 at *13 & *17. And in both cases cited in CRST (2010 WL 520564 at *15), the experts were paid only the statutory per diem rate and reimbursed for reasonable travel expenses as allowed under 28 U.S.C. § 1821. See Pinkham v. Camex, Inc., 84 F.3d 292, 295 (8th Cir. 1996) (“we conclude costs under 17 U.S.C. § 505 are limited to the costs expressly identified in 28 U.S.C. § 1920, and that expert witness fees in excess of the 28 U.S.C. § 1821(b) $40 limit are not recoverable”); Goss International Corp. v. Tokyo Kikai Seisakusho, Ltd., 2004 WL 1234130 at *10 (N.D. Iowa June 2, 2004) (“the court finds the 1916 Act provides no explicit authorization for an award of expert witness fees and Goss has not alleged any contractual duty on the part of TKS to pay expert witness fees above and beyond those allowed under 28 U.S.C. §§ 1821 and 1920. Accordingly, the court declines to award to Goss the fees and expenses it incurred in connection with its expert witnesses except as set forth below [under § 1821].”). <23> The Commission argued below that only $41,876.00 (out of $526,000 billed) in expert fees were reasonable in light of the documentation provided. RE #126 at 22. <24>Madden explained in her declaration that the $155,944.60 figure included $97,790 paid to Valora. RE #126-22 (Exh. U) at ¶ 6.