Zynga Game Network, Inc. v. Williams et al

Filing 49

Declaration of David K. Caplan in Support of 48 MOTION for Attorney Fees ; and Memorandum of Points and Authorities filed byZynga Game Network, Inc.. (Attachments: # 1 Exhibit 1-4)(Related document(s) 48 ) (Caplan, David) (Filed on 5/20/2011)

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Larry W. McFarland (Bar No. 129668)
E-Mail: [e-mail]
Dennis Wilson (Bar No. 155407)
E-Mail: [e-mail]
David K. Caplan (Bar No. 181174)
E-Mail: [e-mail]
Tara D. Rose (Bar No. 256079)
E-Mail: [e-mail]
KEATS McFARLAND & WILSON LLP
9720 Wilshire Boulevard
Penthouse Suite
Beverly Hills, California 90212
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff
ZYNGA INC.

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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ZYNGA GAME NETWORK INC., a Delaware
Corporation,

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Plaintiff,
v.
JASON WILLIAMS, an individual, LUNA
MARTINI, an individual, WAN-WEN KUO, an
individual, and JOHN DOES 4-5 D/B/A MW
GROUP

CASE NO. CV-10:01022 JF (PSGx)
DECLARATION OF DAVID K. CAPLAN IN
SUPPORT OF ZYNGA INC.’S MOTION
FOR ATTORNEYS’ FEES
Noted For Hearing:
DATE:
June 24, 2011
TIME:
9:00 a.m.
PLACE: Courtroom 3, 5th Floor

Defendants.

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CASE NO. CV-10:01022 JF (PSGx)

DECLARATION OF DAVID K. CAPLAN

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I, David K. Caplan, declare as follows:
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I am a partner of the firm Keats McFarland & Wilson LLP (“KMW”), counsel to

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Zynga Inc. (“Zynga”) in this matter. I am over the age of eighteen and am competent to testify.

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Unless otherwise stated herein, I have personal knowledge of the facts stated in this declaration, and

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if called upon to do so, I could and would testify competently thereto.

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2.

Attached hereto as Exhibit 1 is a true and correct copy of the American Intellectual

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Property Law Association’s (“AIPLA”) Report of the Economic Survey 2009 reports data for typical

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2008 billing rates for intellectual property attorneys surveyed (the “AILPA Report”). AILPA

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conducts this survey every other year.

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3.

Together with KMW partner Dennis Wilson, I have been responsible for managing

this litigation. I have also been integrally involved in all decisions regarding litigation strategy.
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I have practiced law primarily in the field of Internet law and traditional intellectual

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property law for more than fifteen years. I was admitted to the California State Bar in 1995. A copy

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of my biography is attached hereto as Exhibit 2. My billing rate throughout this case has been $460

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per hour through the end of 2010 and $495 per hour beginning in 2011, which is consistent with the

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billing rates for attorneys with my level of experience as reported in the AILPA Report.

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5.

Throughout this case, I have regularly delegated tasks to Tara Rose, who is an

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associate at KMW with approximately three years of intellectual property experience. Ms. Rose

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assisted in researching and drafting most of the pleadings in this litigation, as well as drafting and

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assisting in the preparation and issuance of third party subpoenas. Ms. Rose’s practice is primarily

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focused on Internet law and traditional intellectual property litigation. Ms. Rose was admitted to the

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California State Bar in 2008. A copy of Ms. Rose’s biography is attached hereto as Exhibit 3. Ms.

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Rose’s billing rate throughout this case has been $230 per hour through the end of 2010 and $285

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per hour beginning in 2011, which is consistent with the billing rates for attorneys with her level of

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experience as reported in the AILPA Report.

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6.

Dennis Wilson, a founding partner of KMW, has also been involved in this case,

consulting with Zynga’s in-house attorneys and other personnel, and coordinating KMW’s efforts in

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CASE NO. CV-10:01022 JF (PSGx)
DECLARATION OF DAVID K. CAPLAN

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prosecuting this case. Mr. Wilson has more than nineteen years of intellectual property experience.

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His practice is also focused exclusively on Internet law and traditional intellectual property law. He

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was admitted to the California State Bar in 1991. A copy of Mr. Wilson’s biography is attached

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hereto as Exhibit 4. Mr. Wilson’s billing rate throughout this case has been $495 per hour through

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the end of 2010 and $530 per hour beginning in 2011, which is consistent with the billing rates for

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attorneys with his level of experience as reported in the AILPA Report. Mr. Wilson regularly

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delegated tasks to me throughout this case.

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Many of the tasks involved in this litigation – which has lasted for over a year –

required significant investments of time and effort. As Zynga documented in the motions it has filed

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in this case, Defendants concealed their identity and location, which required Zynga to conduct

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significant third party discovery to determine what name and contact information they provided to

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third parties with whom they contracted for services related to their unauthorized sale and

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advertisement of “Virtual Goods” that customers can purportedly use to progress their way through

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Zynga’s games. This created a substantial amount of work, including drafting motions for third

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party discovery; preparing and serving third party subpoenas; analyzing the information contained in

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the documents and electronic records produced in response to the subpoenas; preparing the motion to

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serve defendants by electronic mail once the available sources of information about Defendants’ true

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location had been exhausted; and finally, preparing and filing the motion for default judgment.

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Zynga’s counsel also analyzed publicly available information about the Defendants in

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order to identify potential third party witnesses, and to confirm the extent of Defendants’ “Virtual

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Goods” selling activity. This analysis was necessary to identify third parties likely to have

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information about Defendants’ identities and locations, and to confirm the extent of the Defendants’

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“Virtual Goods” selling activities.

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9.

To the maximum extent possible in light of the substantial amount of work required

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to assemble and present Zynga’s case to the Court, KMW staffed its work so as to achieve maximum

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efficiency, including by diligently delegating work to less expensive time keepers and not billing

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Zynga for some time actually worked.

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-2CASE NO. CV-10:01022 JF (PSGx)
DECLARATION OF DAVID K. CAPLAN

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KMW requires lawyers and other timekeepers to record their time so as to be

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prepared for fee petitions and to track investment in any particular matter. Consistent with KMW’s

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practice, all time related to this matter was recorded by all timekeepers, with appropriate narrative

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descriptions, on a daily basis. In preparing the instant motion, I have reviewed all of KMW’s time

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records for this matter.

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Over the course of this litigation, I spent 15.3 hours in obtaining the default judgment

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against the Defendants. At my hourly rate of $460 through the end of 2010 and $495 beginning in

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2011, Zynga was billed $7,146.50 for my time in obtaining the default judgment against the

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Defendants.

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Over the course of this litigation, Ms. Rose spent 59.2 hours in obtaining the default

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judgment against the Defendants. At her hourly rate of $230 through the end of 2010 and $285

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beginning in 2011, Zynga was billed $14,067.00 for her time in obtaining the default judgment

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against the Defendants

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13.

Over the course of this litigation, Mr. Wilson spent 2.4 hours in obtaining the default

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judgment against the Defendants. At his hourly rate of $495 through the end of 2010 and $530

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beginning in 2011, Zynga was billed $1,205.50 for his time in obtaining the default judgment against

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the Defendants.

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14.

No conference regarding Zynga’s request for an award of fees in this case was

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possible because the Defendants have failed to participate in this litigation.

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-3CASE NO. CV-10:01022 JF (PSGx)
DECLARATION OF DAVID K. CAPLAN

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15.

Pursuant to Civil Local Rule 54-5(b)(2), Zynga is prepared to submit its

contemporaneous time records for the Court’s in camera inspection, should the Court so request.

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I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.

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Executed this 20th day of May, 2011 at Natick, Massachusetts.

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/s/

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David K. Caplan
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-4CASE NO. CV-10:01022 JF (PSGx)
DECLARATION OF DAVID K. CAPLAN