Winning litigation parties sometimes seek recovery of the money they spent on their lawyers — either as a damage element or under a fee-shifting legal doctrine or contract provision. Not surprisingly, the losers usually seek discovery of the winners' lawyers' billing entries that describe what work those losers are being asked to pay for.

Courts take a remarkably varied approach to such discovery: (1) allowing the winning party to rely solely on expert testimony about the reasonableness of its lawyers' fees; (2) allowing the winning party to redact portions of its lawyers' bills; (3) allowing redaction of billing entries, but denying the winner's request to recover fees for that work; (4) reviewing such lawyers' unredacted bills in camera; (5) ordering production of such lawyers' entire bills; (6) ordering production of both the bills and related communications; and (7) ordering production of some underlying work product, not just the bills. Interestingly, some courts allow the winning party's discovery into what the loser paid for its attorney's fees — presumably to judge the fairness of the winner's fee request.

The vast majority of courts take the second approach — allowing some redaction of the winner's lawyers' bills. Next week's Privilege Point will address two recent examples.