Litigation challenging government economic regulation has become more common, as courts appear increasingly less deferential to legislative and executive action. Most of this type of litigation focuses on federal regulation, but states have also taken a more active role in business regulation, prompting more frequent challenges to state laws in federal courts.

It is not uncommon in litigation for parties to introduce testimony through depositions taken for use at trial. It is very uncommon, though, for a party to request to use their own deposition testimony as their trial testimony, rather than appearing as a live witness. A recent decision by EDVA Judge David Novak granting such a request illustrates the flexibility of the rules governing the use of deposition testimony at trial as well as the considerations counsel must consider when planning to offer deposition testimony at trial. Glass v. Metro. Wash. Airport Auth., Civil Action No. 1:23cv1449 (DJN), 2024 U.S.Dist. LEXIS 66062 (E.D.Va. April 10, 2024).

In Colonial River Wealth Advisors, LLC v. Cambridge Investment Research, Inc., No. 3:22cv717, 2024 U.S. Dist. LEXIS 3058 (E.D. Va. Jan. 5, 2024), Judge Young granted the prevailing defendant’s fee petition, awarded $227,357 in attorneys’ fees, and concluded that block billing records provided by the defendant’s counsel “sufficiently permit[ed] the Court to assess the hours expended and the nature of the work completed.” Judge Young rejected the plaintiff’s argument that the block billing practices made it impossible to determine which attorneys’ fees were reasonable. Judge Young acknowledged that, though no per se rule against block billing exists, “in some instances, block billing may inhibit a court from accurately assessing the reasonableness of a fee request,” where lumped fee entries lacked sufficient detail and obscured the amount of time actually spent on the billed-for tasks. When block billing prevents the assessment of the reasonableness of the fees, a reduction of the fee award is appropriate. But in the case of the defendant’s fee petition, Judge Young was able to assess the reasonableness of the fee request, given the level of detail in the defendant’s counsel’s time entry descriptions. Using one example, the court noted that one 8.3 hour entry encompassed 11 discrete tasks, including review of a 309-page deposition transcript, the document production of another party, documents for use in upcoming deposition, and motion to quash various subpoenas. The court found it not unreasonable for the defendant’s counsel to have spent 8.3 hours on those tasks.

On December 5, the Richmond Division of the Federal Bar Association hosted a Lunch and Learn panel for chapter members, area practitioners, and a special guest — the Honorable Robert E. Payne. The panel, titled “Procedural Pitfalls for Civil Practitioners in the Eastern District of Virginia: Insights from Senior Judge Robert E Payne,” was co-moderated by Tim St. George, a former Richmond Division chapter president and law clerk to Judge Payne, and David Anthony. Tim and David, both partners at Troutman Pepper, have special experience handling cases in the E.D. Va. and understand the unique rules, risks, and pitfalls for litigants practicing in this division.