Under what is called the American Rule, winning litigants normally pay their own attorneys’ fees. But in some situations, they can seek recovery of those fees from the losing adversary. Not surprisingly, such efforts implicate several issues.

In Gilead Sciences, Inc. v. United States, 171 Fed. Cl. 202 (Fed Cl. 2024), plaintiff Gilead won a breach of contract case against the United States, and claimed as a measure of damages fees it paid to Wilmer Hale. The government sought “to compel the unredacted legal invoices and billing records upon which [Gilead] relied in support of its damages contentions.” Id. at 204. After assessing several theories under which Gilead waived its work product protection by seeking attorneys’ fees, the court acknowledged Gilead’s “reasonableness requirement with respect to attorneys’ fees and costs” — quoting an earlier case in understandably concluding that the government ” ‘is not required to blindly accept that the claimed dollar amount is reasonable.’ ” Id. at *210 (citation omitted). The court ordered Gilead to produce 35,000 unredacted time entries, even if “unredacted legal invoices and billing records . . . may reveal some level of strategy detail.” Id. at *211.

A California state court adopted the same analysis in ordering disclosure of fee-related documents by a plaintiff who had successfully sued homeowners insurer USAA seeking fees as an element of damages. Byers v. Superior Court, 320 Cal. Rptr. 3d 748 (Cal. Ct. App. May 7, 2024). Neither of these opinions addressed a more basic issue or adopted a common-sense solution. Next week’s Privilege Point deals with these issues.