King & Spalding and the U.S. Justice Department are locked in a dispute in Washington over whether a trial judge has the power to order the government to destroy or return copies of billing records that the law firm submitted as part of its request for attorney fees in a public records lawsuit.

King & Spalding withdrew its request for $665,000 in legal fees after a federal judge said the firm could not keep certain records sealed on the public docket showing the billing rates of partners and others who had worked on the case. The firm has urged the judge, Amit Mehta, to order the government to destroy or return its hard copies of the disputed records.

The Justice Department said it doesn't oppose keeping the billing records sealed on the trial court's docket. But the government said Mehta has no authority to order the destruction of the records. On Friday night, King & Spalding took issue with the government's assertions and argued that the Justice Department has sought the return of documents in other Freedom of Information Act, or FOIA, cases.

"Tellingly, when the government's confidential information has been at stake, it has asked courts to order parties to return or destroy documents in FOIA cases," King & Spalding white-collar partner John Richter said in Friday's filing in the U.S. District Court for the District of Columbia. He also said the Justice Department has acknowledged in other cases that trial judges have "exercised their inherent authority to order parties (and non-parties) to return documents."

Lawyers and other advocacy groups routinely seek legal fees in Freedom of Information Act cases where a party has successfully obtained records from the U.S. government. Two elements set the King & Spalding dispute apart: the six-figure size of the fee request, which is rare, and the firm's decision to walk away from the demand after Mehta said he would unseal the hourly rates for partners and others on the matter.

King & Spalding has not commented publicly about its decision to withdraw its fee request. But the Atlanta-based firm, among the largest in the U.S. based on revenue, argued in court filings that any public disclosure of hourly rates and "other details will harm the firm's standing with respect to its competitors." The sealed material in the case showed "the attorneys, rates, tasks, time, and other costs and expenses devoted to this litigation over the course of its long history."

The law firm's FOIA complaint was filed on behalf of medical device client Abiomed Inc., and the firm obtained records showing the origin of a federal investigation involving the Massachusetts company. The Justice Department investigated claims but did not bring any action against Abiomed over the marketing of the heart pump Impella 2.5. King & Spalding said it won a "complete" victory in its push for documents, and that the government "dragged its feet, costing King & Spalding hundreds of thousands of dollars in attorneys' fees and costs."

King & Spalding said it was only willing to share its billing records with the court through its authority to seal filings. Indeed, Mehta initially did seal the billing records the firm submitted as part of its fee petition, but the judge later said his order was mistaken and announced he would unseal the records. At that point, King & Spalding withdrew its request for fees.

Amit Mehta DC Judge Amit Mehta. (Photo: Diego M. Radzinschi/ALM)

"What plaintiff fails to appreciate is that the public interest in disclosure is arguably at its zenith when the fee demand is made against the public fisc," Mehta wrote in his April 7 order. "Indeed, there is something untoward about plaintiff asking to conceal their hourly rates and the work done from public view, while demanding hundreds of thousands of dollars from the public treasury as compensation."

Richter of King & Spalding, a lead partner on the records case, told Mehta on Friday that once the firm withdrew its request for fees "any need for the records to be in the public domain evaporated."

An assistant U.S. attorney, Jeremy Simon, said in a recent court filing that the U.S. Attorney's Office for the District of Columbia will keep the King & Spalding billing records sealed within the office. The billing records are subject to the Freedom of Information Act, but Simon said prosecutors "will treat them as documents in which confidential treatment has been requested by King & Spalding."

The government told King & Spalding on April 16 there is a pending FOIA request for the billing records. "This underscores the need for the court to protect King & Spalding's confidential records," Richter wrote in a court filing.

If Mehta won't order the government to destroy or return the billing records, Richter said, "the court should order a permanent seal on the withdrawn exhibits with the associated prohibition of disclosing the exhibits to anyone other than King & Spalding and counsel for the government in this case."