Digital Reg of Texas, LLC v. Adobe Systems Incorporated et al, No. 4:2012cv01971 - Document 826 (N.D. Cal. 2015)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART 794 ADOBE'S MOTION FOR ATTORNEYS' FEES. Signed by Judge Claudia Wilken on 5/1/2015. (mklS, COURT STAFF) (Filed on 5/1/2015)
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Digital Reg of Texas, LLC v. Adobe Systems Incorporated et al Doc. 826 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 DIGITAL REG OF TEXAS, LLC No. C 12-1971 CW Plaintiff, 5 6 7 8 ORDER ON ADOBE’S MOTION FOR ATTORNEYS' FEES v. ADOBE SYSTEMS, INC., et al., (Docket No. 794) Defendants. ________________________________/ 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 On March 9, 2015, the Court awarded Adobe attorneys’ fees under 35 U.S.C. § 285 due to Digital Reg's litigation misconduct with respect to two of its fact witnesses: Patrick Patterson and Carl Venters. Docket 815. attorneys' fees insufficient and ordered Adobe to submit a supplemental declaration providing more detailed billing records. Adobe submitted its supplemental declaration on March 23, 2015. Having considered the parties' briefs and supporting documentation, the Court grants Adobe's fee request with moderate reductions. DISCUSSION 20 21 22 23 24 25 26 27 28 The Court found Adobe's itemization of Adobe seeks $90,586.12 in attorneys' fees. This figure includes the initial $45,838.43 sought in relation to the deposition and testimony of Mr. Patterson and Mr. Venters. In addition, Adobe requests $42,115.05 for fees incurred in bringing the fees motion and $2,632.64 for forensic expert fees incurred in relation to Mr. Venters' testimony. Digital Reg objects to and opposes Adobe's requested fees on a number of grounds. First, Digital Reg contends that Adobe's Dockets.Justia.com 1 time entries include block billing and generic descriptions that 2 warrant a reduction of twenty percent. 3 keeping method by which each lawyer and legal assistant enters the 4 total daily time spent working on a case, rather than itemizing 5 the time expended on specific tasks. 6 2854994, at *2 (N.D. Cal.). 7 calculating a fee award where there is sufficient detail to 8 identify precisely the task accomplished. 9 Qi, 2015 WL 224970, at *3 (N.D. Cal.) (citing Stonebrae, L.P. v. Block billing is the time- Apple v. Samsung, 2014 WL Block-billing can provide a basis for See PQ Labs, Inc. v. United States District Court For the Northern District of California 10 Toll Bros., Inc., 2011 WL 1334444 at *8 (N.D. Cal.). 11 billing entries are sufficiently detailed to identify the tasks 12 accomplished and to allow the Court to assess the reasonableness 13 of the time spent on those tasks. 14 accounts for over-inclusive billing entries. 15 Court declines to reduce the award for block-billing. 16 17 I. Adobe's Moreover, Adobe's fee request Consequently, the Fees Incurred due to Digital Reg's Litigation Misconduct Digital Reg argues that Adobe is not entitled to fees for 18 pre-trial depositions under the March 9 order. 19 Adobe "fees incurred in relation to the changed testimony and 20 resulting additional discovery and motion practice associated with 21 Mr. Patterson and Mr. Venters." 22 argues that this award should not include fees relating to pre- 23 trial depositions because Digital Reg's misconduct was only 24 associated with its behavior at trial. 25 as narrow as Digital Reg contends. 26 incurred "in relation to" Digital Reg's misconduct, not only fees 27 directly resulting from the misconduct. 28 Federal Circuit precedent, which requires that the amount of The Court awarded Docket No. 815. 2 Digital Reg However, the award is not The order granted all fees This is consistent with 1 attorneys' fees awarded bear "some relation" to the extent of 2 misconduct. Read Corp. v. Portec, Inc., 970 F.2d 816, 831 (Fed. 3 Cir. 1992). Digital Reg's misconduct undermined Adobe's efforts 4 in preparing for and taking the pre-trial depositions. 5 had Digital Reg properly prepared its witnesses and the documents 6 their testimony relied on for the pre-trial depositions, the 7 subsequent issues would not have arisen. 8 depositions are related to Digital Reg's misconduct. 9 Moreover, Thus, the pre-trial Digital Reg also argues that Adobe's requested fee amount United States District Court For the Northern District of California 10 fails to apply deductions properly for fees it split with another 11 defendant. 12 reduced fees billed under the .0008 billing number by fifty 13 percent to account for the fact that Adobe split these fees with 14 another jointly-represented defendant. 15 Supplemental Declaration reveals that the reduction has been 16 properly implemented for all lawyers except Mr. Reines. 17 Def.'s Suppl. Decl. ¶ 6, Docket No. 819. 18 $21,720.38 for work conducted by Mr. Reines. 19 account the fifty percent reduction and the 69.92% fee cap in 20 place during trial, Adobe is only entitled to $16,399.125. 21 $4,932.86 must be deducted from Adobe's fee award. 22 Adobe's Supplemental Declaration states that it has A review of Adobe's See Adobe requests However, taking into Thus, Digital Reg also challenges Adobe's inclusion of work related 23 to witnesses other than Mr. Patterson and Mr. Venters. 24 contends that it has discounted its request to address this issue. 25 A review of the Supplemental Declaration reveals that Adobe has 26 accounted for over-inclusive billing by Mr. Pradhan, Mr. Bonini, 27 and Ms. Han. 28 percentage of the total hours billed towards the fees request. Adobe For these lawyers, Adobe only applied a certain 3 1 See id. at ¶¶ 17, 23, and 25. 2 has failed to apply a similar deduction. 3 27 (including preparations for Farley and Ornstein depositions). 4 A three percent reduction in the fee award is warranted to account 5 for Adobe's failure to account for over-inclusive billing. 6 However, for other lawyers, Adobe See id. at ¶¶ 6, 11, and Thus, the Court awards $39,678.40 for all fees incurred in 7 relation to Mr. Venters and Mr. Patterson. 8 a $4,932.86 reduction to account for deductions under the .0008 9 billing code and an additional three percent reduction to account United States District Court For the Northern District of California 10 11 12 This figure represents for fees requested for unrelated work. II. Forensic Experts Fees Digital Reg opposes Adobe's inclusion of fees for forensic 13 experts employed to gather documents and verify the completeness 14 of the collection of documents from Mr. Venters. 15 include fees for forensic experts in its initial motion for 16 attorneys' fees. 17 declaration to provide more detailed billing information to 18 support its fee request. 19 fees in the declaration. 20 Adobe did not The Court ordered Adobe to submit a supplemental Adobe was not authorized to include new Even if Adobe had included expert fees in its initial 21 request, they are not recoverable under 35 U.S.C. § 285. 22 285 allows for the award of attorneys' fees only. 23 Circuit has held that § 285 does not authorize the award of expert 24 witness fees. 25 23 F.3d 374, 377 (Fed. Cir. 1994). 26 Adobe provides no authority to suggest that forensic experts 27 should be treated differently from expert witnesses under § 285. 28 Thus, Adobe's request to include forensic expert fees is DENIED. Section The Federal Amsted Indus. Inc. v. Buckeye Steel Castings Co., 4 The Court sees no reason and 1 III. 2 Attorneys' Fees for Bringing the Attorneys' Fees Motion With respect to fees incurred in bringing the attorneys' fees 3 motion, Digital Reg takes issue with the number of hours, the 4 billing rates, and the inclusion of work related to the bill of 5 costs. 6 A. 7 Number of Hours Claimed Digital Reg argues that the number of hours for which Adobe 8 requests fees is unreasonable. 9 percent of fees incurred for the 109.7 hours of work it performed Adobe seeks to recover fifty United States District Court For the Northern District of California 10 relating to its fees motion. 11 number of hours and the allocation of fifty percent. 12 Digital Reg objects both to the Attorneys' fees must be proportionate to the degree of 13 success of the prevailing party. 14 424, 432 (1983). 15 on the basis that it prevailed on half of its fees claims. 16 considered conduct surrounding Mr. Venters and Mr. Patterson as 17 two separate instances of misconduct. 18 apportionment on the grounds that a substantial portion of the 19 work in filing its fees motion was required regardless of the 20 issues raised. 21 on one of the four grounds and consequently, should only be 22 awarded twenty-five percent of its fees. 23 Hensley v. Eckerhart, 461 U.S. Adobe requests fifty percent of the total fees Adobe Adobe further supports its Digital Reg argues that Adobe was only successful Neither party correctly characterizes Adobe's fees motion. 24 Adobe requested fees for three allegedly exceptional instances of 25 conduct; it argued that Digital Reg (1) asserted baseless claims, 26 (2) relied on unreasonable expert testimony, and (3) engaged in 27 litigation misconduct. 28 Mr. Venters was included under the litigation misconduct argument. Conduct surrounding both Mr. Patterson and 5 1 Thus, Adobe was successful on one-third of its grounds for fees. 2 However, the fifty percent apportionment figure is reasonable 3 given that the litigation misconduct argument had two parts and 4 that a substantial portion of the work conducted in bringing the 5 claim would have been necessary regardless of the number of claims 6 brought. 7 Digital Reg also contends that the number of hours Adobe 8 expended on briefs for its fees motion was excessive. 9 attorneys' fee award may only include hours "reasonably expended" An United States District Court For the Northern District of California 10 on litigation. 11 5451411, at *3 (N.D. Cal.)(citing Hensley v. Eckerhart, 461 U.S. 12 424, 433 (1983)). 13 Manges (Weil), billed sixty-seven hours for briefing Adobe's fee 14 motion. 15 hours reviewing, editing, and commenting on the same briefing, and 16 paralegals spent an additional twenty hours cite-checking and 17 proofreading. 18 unreasonable, Digital Reg cites Apple v. Samsung, in which the 19 Court found it unreasonable that a partner with almost twenty-five 20 years of experience needed fifty hours to draft a fourteen-page 21 motion and to review a fifteen-page reply, when five associates 22 had billed 85.8 hours for the same motion. 23 The extreme circumstances exhibited in Apple are not found in the 24 present case. 25 B. 26 Apple, Inc. v. Samsung Electronics Co., 2012 WL Mr. Beebe, an associate at Weil, Gotshal & Mr. Reines, a partner, billed an additional twenty-two In support of its contention that these hours are 2012 WL 5451411 at *4. The Court finds the number of hours reasonable. Billing Rates Digital Reg argues that Weil's billing rates are also 27 unreasonable and warrant a reduction of Adobe's fees request. 28 is the obligation of the party seeking fees "to provide evidence 6 It 1 outside of an attorney affidavit that its counsels' hourly rates 2 are reasonable." 3 5451411, at *6 (N.D. Cal.). 4 attorneys' fee, the Court may take into account a number of 5 factors, including: (1) the novelty and complexity of the issues; 6 (2) the special skill and experience of counsel; (3) the quality 7 of representation; and (4) the results obtained. 8 Deukmejian, 987 F.2d 1392, 1402, n.12 (9th Cir. 1992). 9 reasonable rate inquiry should also be informed by reference to United States District Court For the Northern District of California 10 Apple, Inc. v. Samsung Electronics Co., 2012 WL In calculating a reasonable Gates v. the prevailing market rates in the forum district. 11 The Id. at 1405. The hourly billing rates for Adobe's attorneys who worked on 12 the fees motion range from $747 to $967.50 for partners and $499 13 to $765 for associates. 14 submits an excerpt from the 2013 American Intellectual Property 15 Law Association (AIPLA) report of the Economic Survey, showing 16 that third quartile rates in San Francisco in 2012 were $825 for 17 partners and $576 for associates. 18 are above the AIPLA third quartile rates, Adobe argues that these 19 numbers are outdated and that rates have increased since that 20 time. 21 In support of Weil's billing rates, Adobe Acknowledging that its numbers Adobe also cites recent case law from this district where, it 22 contends, courts have awarded fees "in line" with Weil's rates; 23 however, only one of these cases actually involved rates as high 24 as those of Weil. 25 *5 (N.D. Cal.)(finding rates ranging from $355 to $1,095 per hour 26 for partners and associates were within the prevailing rates). 27 the rest of the cases, the rates upheld are consistent with the 28 AIPLA third quartile rates. See Banas v. Volcano Corp., 2014 WL 7051682, at See, eg., Kilopass Tech., Inc. v. 7 In 1 Sidense Corp., 2015 WL 1065883, at *11 (N.D. Cal.)(finding rates 2 as high as $830 in line with prevailing rates in that community). 3 The AIPLA figures and bulk of the case law fail to support Adobe's 4 contention that Weil's rates are in line with the prevailing 5 market rates in the district. 6 warranted to bring the rates in line with prevailing market rates. 7 Because a fee cap was in place in trial, this reduction is only 8 required for the fees incurred in bringing the fees motion. 9 C. United States District Court For the Northern District of California 10 Consequently, a fee reduction is Fees Related to Bill of Costs Finally, Digital Reg objects to Adobe's inclusion of 0.6 11 hours of work performed by Ms. Mehta conferring with Adobe 12 regarding costs. 13 associated with its bill of costs. 14 Adobe is not entitled to recover any fees To account for Adobe's high billing rates and inclusion of 15 work performed on its bill of costs, the Court reduces Adobe's 16 requested fee amount by ten percent. 17 Adobe $37,903.55 in fees incurred in bringing the attorneys' fees 18 motion. 19 20 Therefore, the Court awards CONCLUSION Accordingly, Adobe's motion for attorneys' fees (Docket 21 No.794) is GRANTED IN PART and DENIED IN PART. 22 $77,581.95 in fees. 23 Adobe is awarded IT IS SO ORDERED. 24 25 26 Dated: May 1, 2015 CLAUDIA WILKEN United States District Judge 27 28 8
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