Actuate Corporation v. Aon Corporation et al

Filing 176

ORDER RE ATTORNEY'S FEES AND COSTS re 175 Order on Motion for Attorney Fees. Signed by Judge Alsup on August 21, 2012. (whalc1, COURT STAFF) (Filed on 8/21/2012)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 ACTUATE CORPORATION, 11 For the Northern District of California United States District Court 10 12 13 Plaintiff, No. C 10-5750 WHA v. TWG WARRANTY GROUP, 14 ORDER RE ATTORNEY'S FEES AND COSTS Defendant. / 15 16 1. As recently held, defendant is entitled to recover attorney’s fees and costs. 17 2. The following procedure will be used to determine the amount of an award 18 19 herein. It will be structured to allow meaningful evaluation of the time expended. 3. No later than AUGUST 31 AT NOON, defendant’s attorneys must file and serve a 20 detailed declaration, organized by discrete projects, breaking down all attorney and paralegal 21 time sought to be recovered. For each project, there must be a detailed description of the work, 22 giving the date, hours expended, attorney name, and task for each work entry, in chronological 23 order. A “project” means a deposition, a motion, a witness interview, and so forth. It does not 24 mean generalized statements like “trial preparation” or “attended trial.” It includes discrete 25 items like “prepare supplemental trial brief on issue X.” The following is an example of time 26 collected by a project. 27 28 1 2 PROJECT: ABC DEPOSITION (2 DAYS IN FRESNO) Date Timekeeper Description Hours x Rate = Fee 01-08-01 XYZ Assemble and photocopy exhibits for use in deposition. 2.0 $100 $200 01-09-01 RST Review evidence and prepare to examine ABC at deposition. 4.5 $200 $900 7 01-10-01 XYZ Research issue of work-product privilege asserted by deponent. 1.5 $100 $150 8 01-11-01 RST Prepare for and take deposition. 8.5 $200 $1700 9 01-12-01 RST Prepare for and take deposition. 7.0 $200 $1400 3 4 5 6 11 For the Northern District of California United States District Court 10 Project Total: 4. 23.5 $4350 All entries for a given project must be presented chronologically one after the 12 other, i.e., uninterrupted by other projects, so that the timeline for each project can be readily 13 grasped. Entries can be rounded to the nearest quarter-hour and should be net of write-down for 14 inefficiency or other cause. Please show the sub-totals for hours and fees per project, as in the 15 example above, and show grand totals for all projects combined at the end. Include only entries 16 for which compensation is sought, i.e., after application of “billing judgment.” For each 17 project, the declaration must further state, in percentage terms, the proportion of the project 18 directed at issues for which fees are awardable and must justify the percentage. This percentage 19 should then be applied against the project total to isolate the recoverable portion (a step not 20 shown in the example above). 21 5. A separate summary chart of total time and fees sought per individual 22 timekeeper (not broken down by project) should also be shown at the end of the declaration. 23 This cross-tabulation will help illuminate all timekeepers’ respective workloads and roles in the 24 overall case. 25 6. The declaration must also set forth (a) the qualifications, experience and role of 26 each attorney or paralegal for whom fees are sought; (b) the normal rate ordinarily charged for 27 each in the relevant time period; (c) how the rates were comparable to prevailing rates in the 28 community for like-skilled professionals; and (d) proof that “billing judgment” was exercised. 2 1 On the latter point, as before, the declaration should describe adjustments made to eliminate 2 duplication, excess, associate-turnover expense, and so forth. These adjustments need not be 3 itemized but totals for the amount deleted per timekeeper should be stated. The declaration 4 must identify the records used to compile the entries and, specifically, state whether and the 5 extent to which the records were contemporaneous versus retroactively prepared. It must state 6 the extent to which any entries include estimates (and what any estimates were based on). 7 Estimates and/or use of retroactively-made records may or may not be allowed, depending on 8 the facts and circumstances. 9 7. Ordinarily, no more than one attorney and one paralegal need be present at a deposition; more will normally be deemed excessive. Ordinarily, no more than one attorney 11 For the Northern District of California United States District Court 10 need attend a law-and-motion hearing; more will normally be deemed excessive. To allow for 12 symmetry, however, the award will take into account the staffing used by the opposing party. 13 8. If the opposing party doubts the accuracy of the declaration, then the moving 14 party must immediately produce the original underlying time records for inspection upon 15 request. The opposing party must then file and serve any opposition. In this case, the 16 opposition will be due FOURTEEN CALENDAR DAYS after defendant’s detailed declaration is 17 filed. If the opposing party contends that any item or project was excessive, then the opposition 18 must explain why and provide a declaration setting forth completely all time expended by the 19 opposing party on the same and on similar projects, in the same format described above, so that 20 symmetry may be considered, making available the underlying records for inspection if 21 requested. If any billing rates are challenged, then the opposition must state the billing rates 22 charged to the opposing party for all professionals representing the opposing party in the case 23 and their experience levels. The opposing declaration must also state, as to each project, the 24 percentage of the project the opposition contends was directed at issues on which fees are 25 awardable, stating reasons for the percentage. This percentage should then be applied against 26 the project total to isolate the recoverable portion. 27 28 9. The opposing submissions may not simply attack the numbers in the application. It must also set forth a counter-analysis. The counter-analysis should be in the same format 3 1 required of the applicant, arriving at a final number. The opposition must clearly identify each 2 line item in the application challenged as excessive, improper or otherwise unrecoverable and 3 explain why. The opposition, for example, may annotate (legible handwriting will be 4 acceptable) the applicant’s declaration to isolate the precise numbers at issue. 5 10. With the benefit of both sides’ filings, representatives of the parties with final 6 decision authority shall meet in person and confer to try to resolve all differences as to the 7 amount. If no agreement is reached, the moving party must file and serve a declaration showing 8 full compliance with this paragraph, explaining when, where and who met, their decision 9 authority, how long they met, what documents were reviewed together, and the principal points of disagreement. This must be done within 28 CALENDAR DAYS of the filing of movant’s 11 For the Northern District of California United States District Court 10 detailed declaration. 12 11. If no agreement is reached, a special master shall be appointed. If the parties 13 cannot agree on a special master, then the Court shall select a special master. The parties must 14 so advise the Court on this within 28 CALENDAR DAYS of the filing of movant’s detailed 15 declaration. 16 12. The special master shall have all the powers set forth in FRCP 53(c) and 17 FRCP 54(d)(2)(D). The parties shall provide the special master with copies of all motion 18 papers and other documents relevant to this dispute. The special master shall review the briefs 19 and declarations by the parties on the pending motion, hear argument, and then determine a 20 reasonable amount to award, including any fees on fees. The special master shall also 21 determine the extent to which any discovery should be permitted — with the caution that further 22 discovery should be the exception and not the rule. The special master shall then prepare and 23 file a report on recommended findings and amount. 24 13. Absent any supplementation allowed by the special master, the foregoing 25 submissions (together with the briefs already filed) shall be the entire record for the motion. 26 There will be no replies unless allowed later by the special master. Any further submissions for 27 the special master’s use should not be filed with the Court. If objections are later made to the 28 4 1 special master’s report, the objecting party must file a declaration submitting to the Court a 2 complete appendix of relevant communications with the special master. 3 14. The Court will allocate the fees of the special master in a fair and reasonable 4 manner, taking into account the reasonableness of the parties’ respective positions and the 5 special master’s recommendation in this regard. If the movant must pay, then the special 6 master’s compensation shall be deducted from the attorney’s fee award. If the opposing party 7 must pay the special master, then it shall pay the special master and pay the award. The Court 8 will, however, reserve final judgment on allocation of the expense of the special master until a 9 final determination of the fee issue. A final award shall then be entered. 15. Costs will be determined in strict compliance with the local rules. If a review is 11 For the Northern District of California United States District Court 10 sought regarding taxable costs, then the issue may also be referred to a special master (or may 12 not). 13 14 IT IS SO ORDERED. 15 16 17 Dated: August 21, 2012. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 5

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