The Authors Guild, Inc. et al v. Hathitrust et al

Filing 162

DECLARATION of Joseph Petersen in Support re: 158 MOTION for Attorney Fees.. Document filed by Hathitrust. (Attachments: # 1 Exhibit A, # 2 Errata B, # 3 Exhibit C (Part 1 of 4), # 4 Exhibit C (Part 2 of 4), # 5 Exhibit C (Part 3 of 4), # 6 Exhibit C (Part 4 of 4))(Petersen, Joseph)

KILPATRICK TOWNSEND & STOCKTON LLP Joseph Petersen (JP 9071) Robert Potter (RP 5757) 1114 Avenue of the Americas New York, NY 10036 Telephone: (212) 775-8700 Facsimile: (212) 775-8800 Email: Joseph M. Beck (admitted pro hac vice) W. Andrew Pequignot (admitted pro hac vice) Allison Scott Roach (admitted pro hac vice) 1100 Peachtree Street, Suite 2800 Atlanta, Georgia 30309-4530 Telephone: (404) 815-6500 Facsimile: (404) 815-6555 Email: Attorneys for Defendants UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK THE AUTHORS GUILD, INC., ET AL., Case No. 11 Civ. 6351 (HB) Plaintiffs, v. HATHITRUST, ET AL., Defendants. DECLARATION OF JOSEPH PETERSEN IN SUPPORT OF DEFENDANTS’ MOTION FOR COSTS AND ATTORNEYS’ FEES I, Joseph Petersen, make the following Declaration: 1. I am a member of the Bar of this Court and am a partner at the law firm of Kilpatrick Townsend & LLP (“Kilpatrick Townsend”), attorneys for the Defendants in the above-captioned action (the “Libraries”). I submit this Declaration in support of the Libraries’ motion for costs and attorneys’ fees. Unless otherwise noted, I make this declaration based upon my own personal knowledge. 2. Throughout this case, counsel for the Libraries efficiently represented all five of the Libraries and sought to avoid unnecessary discovery costs where possible. Although Southern District of New York rules limit the number and subject matter for interrogatories, in an effort to minimize the expenses of discovery, the Libraries proposed at the status conference broader and more extensive use of interrogatories, thereafter secured a stipulation from the Plaintiffs, and the Court thereafter approved such use. See Nov. 18, 2011 Stipulation, “So Ordered” by the Court on November 22, 2011 (Dkt. No. 19). Utilizing the broader scope of interrogatories permitted by the Court, the Libraries served three sets of interrogatories and took only four depositions, even though they were sued by twenty Plaintiffs. 3. In addition, while other attorneys and several paralegals at Kilpatrick Townsend were involved at various levels in the case, the Libraries seek an award of fees based only on the reasonable hours charged by myself, partner and co-lead Joseph M. Beck, and associates Robert N. Potter, W. Andrew Pequignot, and Allison Scott Roach. 4. Attached hereto as Exhibit A are true and correct copies of the attorney biographies for the attorneys listed above, as printed from Kilpatrick Townsend’s website at at my direction on October 23, 2012. 5. The current hourly rates charged for each attorney’s time are as follows: Attorney Joseph M. Beck Joseph Petersen Robert N. Potter W. Andrew Pequignot Allison Scott Roach Billed Rate $656.25 $481.25 $393.75 $345.63 $328.13 Exact billing rates varied over the course of the case, but the overall blended rate for each attorney did not exceed the rates identified above, and indeed, for time billed in 2011, each attorney’s rate was lower. In addition, these rates include a discount on each attorney’s standard billable rate, which was provided by Kilpatrick Townsend because of the Libraries’ nonprofit status, and which resulted in fee amounts that were lower than would otherwise have been charged for the same services. 6. Attached hereto as Exhibit B are true and correct copies of the first page and pages I-34 and I-52 from Appendix A of the American Intellectual Property Law Association’s 2011 Report of the Economic Survey, which provides survey information regarding the prevailing rates charged by Intellectual Property counsel. The relevant information from the attached pages is also reproduced below. From the 2011 AIPLA Report of the Economic Survey Location: NYC CMSA Private Firm, Partner Average hourly billing rate in 2010 First Number of Mean Quartile Media individuals (Average) 25% (Midpoint) 43 $557 $400 $590 Third Quartile 75% $675 Location: NYC CMSA Private Firm, Associate Average hourly billing rate in 2010 First Number of Mean Quartile Media individuals (Average) 25% (Midpoint) 31 $433 $300 $410 Third Quartile 75% $545 This information shows that my rate and Mr. Beck’s rate are both within the range of private firm partners’ billing rates in New York City (Consolidated Metropolitan Statistical Area), and that Mr. Potter’s, Mr. Pequignot, and Ms. Roach’s rates are within the range of private firm associates’ billing rates in New York City (Consolidated Metropolitan Statistical Area), and indeed, are below the mean (average) rate for such associates. 7. Attached hereto as Exhibit C are true and correct copies of invoices which, based on Kilpatrick Townsend’s policies regarding time entries, I understand are derived from contemporaneous time records. The invoices itemize fees and other related charges from October 3, 2011 through the date of oral argument on the parties’ summary judgment motions on August 6, 2012. To reduce the length of the exhibit, the invoices included in Exhibit C are the invoices sent to the University of Michigan, and I understand them to be substantially similar to the invoices prepared for and sent to Cornell University, the University of California, Indiana University, and the University of Wisconsin for the same billing periods. (The remittance pages of the invoices sent to these other schools are also included in Exhibit C.) These invoices have been billed and paid, or are expected to be paid, by Defendants. Based on an agreement among the Libraries, each was charged a certain percentage of the total invoice each month, with some adjustment based on projects that were completed at the specific request of one or more Libraries. 8. The invoices upon which the Libraries base their request for attorneys’ fees do not represent all of the work performed by the Libraries’ counsel in this case, as Kilpatrick Townsend has exercised its discretion in several instances not to charge the Libraries for certain time worked on the case. 9. We have redacted the invoices included in Exhibit C to preserve attorney-client confidential privileged information and attorney work product confidential privileged information. At the Court’s request, we would be pleased to submit unredacted copies of our invoices for the Court’s in camera inspection. 10. As discussed above, the Libraries are only seeking a portion of the attorneys’ fees incurred in defending against Plaintiffs’ claims. The chart below summarizes the rates charged and hours billed for each of the attorneys for which the Libraries are seeking fees. October 2011 – November 2011 Attorney Joseph M. Beck Joseph Petersen Robert N. Potter Andrew Pequignot Allison Scott Roach Oct. 2011 – Nov. 2011 TOTAL Billed Rate $652.50 $472.50 $382.50 $337.50 $297.00 Hours Billed 144.5 84 79.6 128 187.4 623.5 Invoiced Total $94,286.25 $39,690.00 $30,447.00 $43,200.00 $55,657.80 $263,281.05 Billed Rate $634.38 $459.38 $371.88 $328.13 $288.75 Hours Billed 61.5 29.1 8.3 24.4 81.7 205 Invoiced Total $39,014.37 $13,367.96 $3,086.60 $8,006.37 $23,590.88 $87,066.18 Hours Billed 565.9 658 533.2 620.4 781.2 Subtotal $371,371.88 $316,662.50 $209,947.50 $214,428.85 $256,335.16 Invoiced Total (With Further Discounts) $370,590.63 $316,662.50 $207,601.87 $214,428.85 $256,335.16 3,158.7 $1,368,745.88 $1,365,619.00 December 2011 Attorney Joseph M. Beck Joseph Petersen Robert N. Potter Andrew Pequignot Allison Scott Roach Dec. 2011 TOTAL January 2012 – August 6, 2012 Attorney Joseph M. Beck Joseph Petersen Robert N. Potter Andrew Pequignot Allison Scott Roach Jan. 2012 – Aug. 6, 2012 TOTAL Billed Rate $656.25 $481.25 $393.75 $345.63 $328.13 TOTAL: $1,715,966.23 11. The Libraries also seek costs, but only the costs of document reproduction, PACER online document retrieval services, Federal Express and courier services, court reporting services and deposition transcripts, as shown below and itemized in the invoices included in Exhibit C. The Libraries do not seek recovery of travel expenses or expenses of online legal research.