In Dagostino v. Computer Credit, Inc., the plaintiff brought suit under the Fair Debt Collection Practices Act (the “FDCPA”). 2017 WL 776086 (E.D.N.Y. Feb. 28, 2017). After accepting defendant’s Rule 68 Offer of Judgment, plaintiff filed a motion seeking attorneys’ fees under the FDCPA. The majority of the Court’s reductions in this case resulted from plaintiff’s counsels’ failure to contemporaneously record their time expended in this case. It became apparent that plaintiff’s counsel did not contemporaneously record their time when there were significant discrepancies between plaintiff’s draft timesheet provided to defendant and plaintiff’s final timesheet provided to the Court.
The Second Circuit requires that “[a]pplications for fee awards should generally be documented by contemporaneously created time records.” Plaintiff’s counsel initially submitted a draft timesheet to defendant in order to settle the issue of attorneys’ fees without court intervention. The draft timesheet contained a total of 30.2 hours of work. The final timesheet ultimately submitted to the Court contained a total of 35.9 hours of work. The only explanation provided by plaintiff for the 5.7 hour increase was that emails were not included on the draft timesheet. Plaintiff also assured the Court that all entries contained in the final timesheet were accurate. However, the Court did not accept plaintiff’s explanation of the additional time billed because the draft timesheet already included certain emails and correspondences leading the Court to question why plaintiff chose not to include 5.7 hours of emails in the draft timesheet. Although the Court reluctantly accepted plaintiff’s assertion that all the entries in the final timesheet were accurate, the Court reduced plaintiff’s time by 5.7 hours because the discrepancy made it apparent that plaintiff’s counsel did not contemporaneously record their time in this case.
Plaintiff’s failure to contemporaneously record their time expended also led to further reductions. Plaintiff’s draft timesheet contained a 0.8 hour entry for travel to a pre-motion conference. Defendant argued that this entry was false because the entry referenced a telephone conference that did not require travel. On the final timesheet submitted to the Court, the entry was changed to indicate that the 0.8 hours represented time spent preparing for the conference. Plaintiff simply indicated that the travel entry on the draft timesheet was an error that was corrected on the final timesheet. Plaintiff also responded to the allegations of the false entry by arguing that the draft timesheet was not intended to be a final product, and the final timesheet submitted to the Court was accurate. Even if the entry now was accurate on the final timesheet, the Court ultimately deducted this 0.8 hour entry because the plaintiff failed to provide an explanation for the error on the draft timesheet, and it was now apparent that the corrected entry on the final timesheet was not made contemporaneously with the performance of the work.
The contemporaneous recording of all work performed results in a reliable time record that is more difficult for a court, or even a client, to question. In practice, it may seem difficult or unnecessary to keep contemporaneous time records. However, this case illustrates the importance of recording time as the work is performed. The Court reduced the total time billed by nearly 20% because it was obvious that plaintiff’s counsel did not contemporaneously record their time as the work was performed. Even if the time billed on the final timesheet was accurate as stated, plaintiff’s counsel seemed to lose all credibility once the Court determined that the timesheet submitted to the Court was created long after the work was performed. Work that was otherwise billable became unbillable because contemporaneous records were not kept.
