3D Systems, Inc. v. Wynne et al

Filing 638

ORDER Granting in Part Plaintiff's Motion for Attorneys' Fees and Costs re (Dkt. No. 614 ). Signed by Magistrate Judge David D. Leshner on 01/07/2025. (mef)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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3D SYSTEMS, INC.,
Plaintiff,

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v.

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BEN WYNNE, et al.,

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Case No.: 21-cv-1141-AGS-DDL
ORDER GRANTING IN PART
PLAINTIFF’S MOTION FOR
ATTORNEYS’ FEES AND COSTS

Defendants.

[Dkt. No. 614]

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I.

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INTRODUCTION

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On August 21, 2024, the Court issued an Order granting in part plaintiff 3D Systems

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Inc.’s motion for sanctions under Federal Rule of Civil Procedure 37(e). Dkt. No. 607. In

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relevant part, the Court found that defendants Ben Wynne and Chris Tanner spoliated

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evidence, that 3D Systems was prejudiced and that sanctions were warranted under Rule

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37(e)(1). The Court further held that Wynne and Tanner must pay 3D Systems’s attorneys’

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fees and costs incurred in bringing the motion for sanctions and ordered further briefing on

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the appropriate amount of fees and costs. Id. at 18.

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3D Systems seeks $432,269.07 in attorneys’ fees and costs “for 588.4 hours incurred

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in relation to its Motion.” Dkt. No. 614 at 15. Wynne and Tanner do not challenge 3D
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Systems’s entitlement to recover fees and costs but contend the amounts sought are not

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reasonable. Dkt. No. 615. As set forth below, the Court finds the hourly rates for 3D

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Systems’s counsel are reasonable but that not all the time expended by each of the attorneys

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handling this matter for 3D Systems should be included in the lodestar calculation. The

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Court further concludes that only a portion of the costs incurred by 3D Systems are properly

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recoverable.

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II.

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BACKGROUND

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The Court assumes familiarity with the August 21 Order granting in part 3D

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Systems’s motion for sanctions. In sum, the August 21 Order found that Wynne and

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Tanner spoliated evidence by deleting “documents” and “elements” from an online

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platform called OnShape and that sanctions were warranted under Rule 37(e)(1), but that

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a jury should determine whether Wynne and Tanner deleted the OnShape documents and

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elements with the intent to deprive 3D Systems of this information.

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Given the finding that Wynne and Tanner should be sanctioned under Rule 37(e)(1),

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the Court concluded that 3D Systems “is entitled to an award of reasonable attorneys’ fees

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and costs that [it] incurred in preparing and arguing the sanctions motion only.” Porter v.

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City & Cnty. of San Francisco, No. 16-CV-03771-CW(DMR), 2018 WL 4215602, at *5

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(N.D. Cal. Sept. 5, 2018).1 The parties submitted briefing regarding an appropriate fee

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award. Dkt. Nos. 614, 615, 620-1.

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III.

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DISCUSSION

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A.

Legal Standards

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An award of attorneys’ fees must be reasonable. Hensley v. Eckerhart, 461 U.S.

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424, 433 (1983). “Federal courts employ the ‘lodestar’ method to determine a reasonable

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All citations and internal quotation marks are omitted, and emphasis and alterations
added, unless otherwise noted.
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attorney’s fees award . . . .” Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016). This

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is a “two-step process.” Id. “First, a court calculates the lodestar figure by multiplying the

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number of hours reasonably expended on a case by a reasonable hourly rate.” Id. “Second,

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the court determines whether to modify the lodestar figure, upward or downward, based on

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factors not subsumed in the lodestar figure.” Id. In determining whether to adjust the

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lodestar figure, the Court considers the following:

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(1) the time and labor required, (2) the novelty and difficulty of the questions
involved, (3) the skill requisite to perform the legal service properly, (4) the
preclusion of other employment by the attorney due to acceptance of the case,
(5) the customary fee, (6) whether the fee is fixed or contingent, (7) time
limitations imposed by the client or the circumstances, (8) the amount
involved and the results obtained, (9) the experience, reputation, and ability
of the attorneys, (10) the “undesirability” of the case, (11) the nature and
length of the professional relationship with the client, and (12) awards in
similar cases.

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Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975).

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In conducting the loadstar analysis and considering the Kerr factors, the Court is

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mindful that “the determination of fees should not result in a second major litigation.” Fox

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v. Vice, 563 U.S. 826, 838 (2011). District courts “need not, and indeed should not, become

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green-eyeshade accountants.” Id. “The essential goal in shifting fees (to either party) is to

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do rough justice, not to achieve auditing perfection.” Id.

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B.

Reasonable Rates

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1.

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“Fee applicants have the burden of producing evidence that their requested fees are

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in line with those prevailing in the community for similar services by lawyers of reasonably

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comparable skill, experience and reputation.” Chaudhry v. City of Los Angeles, 751 F.3d

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1096, 1110 (9th Cir. 2014). “[T]he relevant community is the forum in which the district

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court sits.” Id. “Affidavits of the plaintiffs’ attorneys and other attorneys regarding

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prevailing fees in the community . . . are satisfactory evidence of the prevailing market

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rate.” Id. “Once a fee applicant presents such evidence, the opposing party has a burden

Legal Requirements

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of rebuttal that requires submission of evidence . . . challenging the accuracy and

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reasonableness of the . . . facts asserted by the prevailing party in its submitted affidavits.”

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Id. at 1110-11.

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2.

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3D Systems submits a declaration from its lead counsel, Emily Burkhardt Vicente,

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describing the qualifications and experience of each attorney and paralegal who worked on

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the sanctions motion and stating that their hourly rates “are commensurate with each

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attorney’s seniority and experience and well within the range of the rates charged by

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similarly qualified and experienced attorneys in other large firms in Southern California,

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including San Diego.” Dkt. No. 614-1 at 4. Those current rates are 2:

Analysis

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Name

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Emily Burkhardt Vicente

Partner

$830

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Roland Juarez

Partner

$830

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D. Andrew Quigley

Counsel

$685

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Richard Cortez, Jr.

Associate

$505

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Michael A. Pearlson

Associate

$475

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Jesse D. Borja

Associate

$475

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Brian Moon

Paralegal

$315

Position

Hourly Rate

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3D Systems further argues that its rates are within the range of reasonable fees under the

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“Laffey Matrix” utilized in the District of Columbia. Id. Defendants respond that

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counsel’s hourly rates are not reasonable in the Southern District of California and that the

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Laffey Matrix applies specifically to the District of Columbia and is disfavored elsewhere.

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Dkt. No. 615 at 6-11.

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The hourly rates for certain attorneys changed over time. Dkt. No. 614 at 9 n.1.
Although the Court assesses the reasonableness of the current hourly rates, fees will be
awarded at the rates in effect at the time the relevant work was performed.
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“Affidavits of the plaintiffs’ attorneys and other attorneys regarding prevailing fees

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in the community are satisfactory evidence of the prevailing market rate.” Chaudhry,

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751 F.3d at 1110. Here, counsel’s declaration states that her firm’s hourly rates are “within

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the range” of rates “in Southern California, including San Diego.” Dkt. No. 614-1 at 4.

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However, the declaration offers no specific evidence to support this assertion. Compare

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Chaudhry, 751 F.3d at 1111 (plaintiffs “carried their initial burden” through expert

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affidavits that “described plaintiffs’ counsel’s experience and skill, provided concrete

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numbers for billing rates at numerous Los Angeles law firms, and compared those rates to

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plaintiffs’ counsel’s rates”); United States v. $28,000.00 in U.S. Currency, 802 F.3d 1100,

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1106 (9th Cir. 2015) (fee applicant “submitted five declarations from practicing attorneys

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in support of his $500 per hour fee request”). Moreover, the general reference to rates in

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“Southern California” is not particularly helpful given that Southern California includes

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both Los Angeles and San Diego, but the lodestar analysis must be based on reasonable

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rates in San Diego, i.e., “the forum in which the district court sits.” Chaudhry, 751 F.3d at

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1110.

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6382460, at *14 (S.D. Cal. Sept. 28, 2023) (court “assigned reduced weight” to declarations

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from “Los Angeles-based litigators” and “a partner at a Washington, D.C. firm” in

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determining “the prevailing rate in the San Diego community”).

See also Erhart v. BofI Fed. Bank, No. 15-CV-02287-BAS-NLS, 2023 WL

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Nor is the Court persuaded that the Laffey Matrix provides an appropriate basis for

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determining reasonable rates in San Diego. “[T]he Laffey matrix is an inflation-adjusted

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grid of hourly rates for lawyers of varying levels of experience in Washington, D.C.”

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Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010). “But just

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because the Laffey matrix has been accepted in the District of Columbia does not mean

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that it is a sound basis for determining rates elsewhere, let alone in a legal market 3,000

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miles away.” Id. (finding the Northern District of California court acted within its

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discretion in declining to rely on Laffey Matrix to calculate reasonable fees).

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It would have been more helpful for 3D Systems to provide evidence of reasonable

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attorneys’ fees in San Diego through, for example, the Real Rate Report, “a national
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publication that provides statistical data on attorneys’ fees by location and practice areas”

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and that “has been cited with approval by courts inside and outside this district.” Erhart,

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2023 WL 6382460, at *14 (collecting cases). According to the 2023 Real Rate Report, the

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median hourly rate for a litigation partner across all matter types in San Diego is $475, with

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the first and third quartiles ranging from $325 to $885. The median hourly rate for a

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litigation associate is $285, with the first and third quartiles ranging from $224 to $410.

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See L.A. Int’l Corp. v. Prestige Brands Holdings, Inc., No. 18-cv-06809-MWF-MRW,

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2024 WL 3839401, Dkt. No. 377-12 at 43 (C.D. Cal. Aug. 2, 2024).

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In addition to the Real Rate Report, “the court may rely on its own familiarity with

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the legal market to determine the reasonable rates of [counsel].” Fitzgerald v. Pollard, No.

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20CV848 JM(MSB), 2024 WL 4596401, at *11 (S.D. Cal. Oct. 28, 2024) (in civil rights

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class action, approving hourly rates of $825 for partner with 31 years’ experience, $775 for

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senior associate, and $525 for 4-year attorney as “within the range normally charged within

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this legal community”). “[C]ourts in this District have awarded hourly rates for work

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performed in civil cases by attorneys with significant experience anywhere in the range of

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$550 per hour to more than $1000 per hour.” Soler v. Cnty. of San Diego, No. 14cv2470-

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MMA (RBB), 2021 WL 2515236, at *5 (S.D. Cal. June 18, 2021) (finding $650 per hour

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reasonable for experienced civil rights trial attorney with 25 years’ experience and

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collecting cases); see also Buchannon v. Associated Credit Servs., Inc., No. 3:20-cv-02245-

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BEN-LL, 2021 WL 5360971, at *16 (S.D. Cal. Nov. 17, 2021) (noting that “[t]he Southern

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District of California has found hourly rates of $550.00 per hour or higher reasonable for

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attorneys with partner level experience,” and collecting cases); Flowrider Surf, Ltd. v. Pac.

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Surf Designs, Inc., No. 15CV1879-BEN (BLM), 2017 WL 2212029, at *3 (S.D. Cal.

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May 18, 2017) (finding hourly rates of $750 for an intellectual property partner with 25

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years of experience, $550 for an intellectual property associate with 10 years of experience,

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$350 for an intellectual property associate with 4 years of experience, and $150 for an

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intellectual property paraprofessional with 19 years of experience reasonable).

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///
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Considering the experience of 3D Systems’s counsel, the Real Rate Report’s

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analysis of hourly rates in San Diego, and the hourly rates approved in the Southern District

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of California, the Court concludes the hourly rates of 3D Systems’s counsel are “in line

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with those prevailing in the community for similar services by lawyers of reasonably

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comparable skill, experience and reputation.” Chaudhry, 751 F.3d at 1110. Accordingly,

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the Court will utilize those rates in the lodestar analysis.

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“Generally, reasonable rates for paralegals in this district have ranged from $125 to

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$250.” Fitzgerald, 2024 WL 4596401, at *12 (collecting cases). 3D Systems does not

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provide evidence justifying a $315 hourly rate for Mr. Moon. Accordingly, the Court

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concludes that an hourly rate of $200, which is slightly higher than the midpoint, is

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appropriate for Mr. Moon.

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C.

Reasonable Hours

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1.

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Litigants seeking fees have the “initial burden of production,” under which they

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“must produce satisfactory evidence establishing the reasonableness of the requested fee.”

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$28,000.00 in U.S. Currency, 802 F.3d at 1105. Thus, the applicant must “document[] the

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appropriate hours expended in the litigation and must submit evidence in support of those

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hours worked.” Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). The fee award

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“may be based on the affidavits of counsel, so long as they are sufficiently detailed to

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enable the court to consider all the factors necessary in setting the fees.” Henry v. Gill

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Indus., Inc., 983 F.2d 943, 946 (9th Cir. 1993). “The party opposing the fee application

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has a burden of rebuttal that requires submission of evidence to the district court

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challenging the accuracy and reasonableness of the hours charged or the facts asserted by

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the prevailing party in its submitted affidavits.” Gates, 987 F.2d at 1397-98.

Legal requirements

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Billing records submitted by the party seeking fees “may contain entries for hours

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that are excessive, redundant, or otherwise unnecessary.” Gonzalez v. City of Maywood,

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729 F.3d 1196, 1203 (9th Cir. 2013). “Because a reasonable attorney’s fee would not

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include compensation for such hours,” the court may “conduct an hour-by-hour analysis of
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the fee request, and exclude those hours for which it would be unreasonable to compensate

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the prevailing party.” Id. Alternatively, “when faced with a massive fee application the

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district court has the authority to make across-the-board percentage cuts either in the

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number of hours claimed or in the final lodestar figure as a practical means of excluding

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non-compensable hours from a fee application.” Id.

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2.

Analysis
a.

OnShape deposition

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3D Systems seeks to recover $10,572.00 in attorneys’ fees for the September 2023

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deposition of PTC, Inc., regarding its OnShape platform. 3D Systems explains that it took

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this deposition after reviewing documents produced by PTC showing that Wynne and

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Tanner deleted OnShape documents and elements and that 3D Systems “would not have

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taken this deposition had it not needed to do so to establish [defendants’] misconduct and

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spoliation of evidence.” Dkt. No. 614 at 16. Defendants point out that the sanctions order

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was limited to fees and costs “incurred in preparing and arguing the sanctions motion only.”

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Dkt. No. 607 at 18.

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Defendants are correct that the August 21 Order did not award fees incurred prior to

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preparing the sanctions motion. However, the record indicates that 3D Systems sought to

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depose PTC only after reviewing documents produced by PTC and discovering that Wynne

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and Tanner deleted documents. Compare Youngevity Int'l v. Smith, No. 3:16-CV-704-

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BTM-JLB, 2021 WL 2559456, at *3 (S.D. Cal. May 19, 2021) (declining to award fees

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incurred in investigation because “[t]his is a routine review that Youngevity would likely

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have conducted even if the Defendants’ production was satisfactory”). Given that 3D

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Systems did not intend to depose PTC and did so only after learning that defendants deleted

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OnShape documents and elements, reasonable fees incurred by 3D Systems in taking the

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deposition are within the August 21 Order’s scope.

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Reasonable fees include the 12.4 hours spent by Mr. Quigley preparing for and

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taking the deposition as “the most qualified of 3DS’s attorneys” to do so. Dkt. No. 614-1

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at 9. However, the Court declines to award fees for time expended by Ms. Vicente in
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revising Mr. Quigley’s deposition outline and “conferring” with him given the inadequate

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showing of why that review and conferral was warranted. See Kelly v. Fashion Nova, Inc.,

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No. CV 23-02360-JAK (RAOX), 2024 WL 3550387, at *5 (C.D. Cal. May 1, 2024) (“an

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award for time spent on the same task by two or more attorneys is proper as long as it

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reflects the distinct contribution of each attorney to the case and the customary practice of

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multiple-lawyer litigation”).

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The Court awards $7,750.00 in fees for the PTC deposition:

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Reasonable Hours – Deposition

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Name

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Hours

D. Andrew Quigley

12.4

Rate
$625

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b.

Drafting sanctions motion

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Mr. Pearlson, an associate, spent 17.8 hours researching and drafting the motion for

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sanctions. Ms. Vicente, Mr. Juarez, and Mr. Quigley spent a total of 72.3 hours revising

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the motion. Defendants do not challenge the time spent by Mr. Pearlson, but they contend

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the 72.3 hours spent revising the motion was excessive.

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“Hours not reasonably expended are those that are excessive, redundant, or

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otherwise unnecessary.” $28,000.00 in U.S. Currency, 802 F.3d at 1107-1108. The work

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of multiple attorneys on the same litigation activity may be reasonable if it “reflects the

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distinct contribution of each attorney to the case.” Kelly, 2024 WL 3550387, at *5. But

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“[a] reduction in allowable hours for the claims of multiple attorneys is warranted if the

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attorneys are unreasonably doing the same work.” Bobrick Washroom Equip., Inc. v. Am.

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Specialties, Inc., No. CV 10-6938 SVW (PLA), 2013 WL 12129368, at *8 (C.D. Cal. Feb.

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20, 2013).

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Mr. Pearlson reasonably spent 17.8 hours drafting the motion. However, the 72.3

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hours spent by Mr. Quigley, Mr. Juarez, and Ms. Vicente (the senior attorneys) revising

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the motion were excessive. Between August 29 and September 12, 2023, Mr. Pearlson

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spent 11 hours researching and drafting the motion. Dkt. No. 614-4 at 2. Between
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September 4 and 16, 2023, the senior attorneys spent 7.7 hours reviewing and revising the

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motion. Id. Thereafter, between September 18 and 21, 2023, Mr. Pearlson spent an

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additional 6.8 hours drafting the motion. Id. The senior attorneys then spent approximately

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58 hours revising the motion between September 22 and October 6, 2023, with no apparent

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involvement by Mr. Pearlson. Id. at 2-3. In addition, Mr. Quigley spent 6.2 hours drafting

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a motion to seal, and Mr. Borja spent 1 hour “analyz[ing] OnShape documents in

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preparation for revising motion for spoliation.” Id.

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3D Systems contends “[t]he input of Mr. Quigley was essential to the Motion

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because of his familiarity with the OnShape issues and the deposition of PTC, Inc., as well

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as his review of additional documents produced by Defendants and the responses necessary

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in light of those documents in the briefing.” Dkt. No. 614. This is consistent with the

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Court’s observations of Mr. Quigley at multiple discovery conferences and motion

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hearings wherein he demonstrated a deep familiarity with the facts and legal issues in the

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case generally, and the OnShape technology in particular. However, even accepting Mr.

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Quigley’s knowledge of the facts and legal issues, the Court cannot conclude that a ratio

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of 4 hours spent revising by the senior attorneys for every 1 hour spent drafting by Mr.

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Pearlson was reasonable.

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The Court finds that 17.8 hours reviewing and revising by Mr. Quigley (i.e., a 1:1

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ratio of drafting to reviewing) is reasonable, plus 2 hours of review by both Ms. Vicente

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and Mr. Juarez. The Court declines to award fees for time spent by Mr. Borja “analyzing”

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documents and “strategizing” in connection with the motion, as those descriptions do not

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adequately describe the nature of his work in drafting the motion and reply brief or

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preparing for the evidentiary hearing. Skyline Advanced Tech. Servs. v. Shafer, No.

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18CV06641CRBRMI, 2020 WL 7025081, at *2 (N.D. Cal. Nov. 30, 2020) (“billing

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records will be unacceptably vague when they characterize the claimed work – such as

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labeling a time entry as a ‘conference,’ or ‘review’ – without venturing to describe the

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subject of the conference, or the nature of the review”).

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///
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The Court awards $21,645.00 in fees for drafting the sanctions motion:

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Reasonable Hours – Drafting Motion

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Name

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Emily Burkhardt Vicente

2

$830

5

Roland Juarez

2

$830

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D. Andrew Quigley

17.8

$625

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Michael A. Pearlson

17.8

$400

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Jesse D. Borja

0

9

Brian Moon

0.4

Hours

Hourly Rate

$200

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Drafting sanctions reply

c.

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3D Systems’s billing records reflect that Mr. Pearlson had no involvement in

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drafting the reply brief. Dkt. No. 614-5. Instead, Mr. Cortez spent 20.2 hours drafting the

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reply brief, and the senior attorneys spent 20.4 hours reviewing and revising it. The Court

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agrees with Defendants that a reduction in the number of hours is warranted given that the

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drafting of the reply brief could have been accomplished more efficiently by the attorney

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who drafted the motion. The hours incurred by Mr. Quigley in reviewing the reply are

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reasonable, but the hours incurred by Ms. Vicente and Mr. Juarez are reduced to two hours

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each consistent with the drafting of the motion. See $28,000.00 in U.S. Currency, 802 F.3d

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at 1107-1108; Kelly, 2024 WL 3550387, at *5; Bobrick Washroom Equip., Inc., 2013 WL

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12129368, at *8.

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The Court awards $15,517.50 in fees for drafting the reply brief:
Reasonable Hours – Drafting Reply
Name

Hours

Hourly Rate

Emily Burkhardt Vicente

2

$830

Roland Juarez

2

$830

D. Andrew Quigley

9.7

$625

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Reasonable Hours – Drafting Reply

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Name

Hours

Hourly Rate

3

Richard Cortez, Jr.

13.5

$450

4

Brian Moon

0.3

$200

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d.

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January 11 motion hearing

The motion hearing on January 11, 2024, lasted approximately 3 hours and
encompassed multiple discovery-related issues. The parties agree that approximately one
hour was spent on the sanctions motion. 3D Systems elected to have Mr. Juarez argue the
sanctions motion notwithstanding that he “required significant assistance from Mr. Quigley

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on the technical issues.” Dkt. No. 614 at 20. In total, Mr. Juarez spent 19.3 hours preparing

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for the motion hearing. Dkt. No. 614-6. This is in addition to 3.7 hours spent by Mr.

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Quigley “assisting” Mr. Juarez “with OnShape documents” for the hearing and 3.2 hours
spent by Mr. Pearlson conducting legal research and summarizing a case for Mr. Juarez.
Id. 3D Systems does not seek to recover fees for time spent by Ms. Vicente preparing for
the hearing.
The fees sought by 3D Systems are excessive. No reason is given as to why 3D
Systems elected not to have Mr. Quigley argue the motion, notwithstanding that he was the
attorney most familiar with the OnShape technology at the heart of the sanctions motion
and who prepared an extensive declaration in support of the motion. He could have done
so efficiently and effectively, as demonstrated by the fact that Mr. Juarez consulted Mr.
Quigley on technical issues at the motion hearing. Dkt. No. 435 at 103, 117. The Court
agrees with Defendants that a reduction in the number of hours is warranted and finds that
a 1:1 ratio of time spent by Mr. Juarez to Mr. Quigley is appropriate. See $28,000.00 in
U.S. Currency, 802 F.3d at 1107-1108; Kelly, 2024 WL 3550387, at *5; Bobrick Washroom
Equip., Inc., 2013 WL 12129368, at *8. The Court does not award fees for time spent by
Mr. Borja or Mr. Pearlson for the reasons articulated by Defendants. Dkt. No. 615 at 18.
///
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The Court awards $11,965.50 in fees for the January 11 motion hearing:

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Reasonable Hours – January 11 hearing

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Name

Hours

Hourly Rate

4

Roland Juarez

8.1

$830

5

D. Andrew Quigley

8.1

$625

6

Jesse D. Borja

0

7

Michael A. Pearlson

0

8

Brian Moon

0.9

$200

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e.

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March 27 evidentiary hearing

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The evidentiary hearing on March 27, 2024, included testimony from Wynne,

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Tanner, and Scott Turner. Dkt. No. 470. Each side was allocated 2 hours of total time,

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including direct and cross-examination, and the hearing lasted approximately 5 hours. 3D

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Systems’s senior attorneys cross-examined Wynne (Ms. Vicente) and Tanner (Mr. Juarez),

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and conducted a direct examination of Turner (Mr. Quigley). In addition to attending the

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hearing, the senior attorneys spent 83.4 hours (Ms. Vicente), 31.2 hours (Mr. Juarez), and

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75.1 hours (Mr. Quigley) preparing for the hearing.

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Given the two-hour time limitation, counsel knew in advance of the hearing that the

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cross-examinations of Wynne and Tanner would each take approximately one hour (not

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accounting for any time spent by Mr. Quigley on Turner’s direct examination). The Court

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concludes that allocating two days to prepare for a one-hour cross-examination is

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reasonable, meaning the total time for Ms. Vicente and Mr. Juarez would be 21 hours (16

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hours of preparation plus 5 hours at the hearing). The Court further concludes that 21 hours

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of total time for Mr. Quigley is reasonable given that, although his direct exam of Turner

25

was shorter than the cross-examinations, he spent additional time preparing for the hearing

26

given his knowledge of the case. The Court does not award fees for time spent by Mr.

27

Borja or Mr. Pearlson for the reasons stated by Defendants. Dkt. No. 615 at 21.

28

///
13
21-cv-1141-AGS-DDL

1

The Court awards $50,765.00 in fees for the March 27 evidentiary hearing:

2

Reasonable Hours – March 27 hearing

3

Name

4

Emily Burkhardt Vicente

21

$830

5

Roland Juarez

21

$830

6

D. Andrew Quigley

21

$665

7

Jesse D. Borja

0

8

Michael A. Pearlson

0

9

Brian Moon

9.7

Hours

Hourly Rate

$200

10
f.

11

Drafting post-hearing brief

12

Mr. Quigley drafted 3D Systems’s post-hearing briefing that included a

13

memorandum and a lengthy chart addressing each OnShape document and element

14

spoliated by Wynne and Turner. The Court finds the reasonable number of hours to be 40

15

hours for Mr. Quigley to draft the brief, 2 hours each for Ms. Vicente and Mr. Juarez to

16

review the brief, and 2.9 hours for Mr. Pearlson to perform legal research. The Court does

17

not award fees for time spent by Mr. Cortez or Mr. Borja for the reasons stated by

18

Defendants. Dkt. No. 615 at 23. See $28,000.00 in U.S. Currency, 802 F.3d at 1107-1108;

19

Kelly, 2024 WL 3550387, at *5; Bobrick Washroom Equip., Inc., 2013 WL 12129368, at

20

*8.

21
22

The Court awards $31,140.00 in fees for drafting the post-hearing brief:
Reasonable Hours – Drafting Post-Hearing Brief

23

Name

Hours

Hourly Rate

24

Emily Burkhardt Vicente

2

$830

25

Roland Juarez

2

$830

26

D. Andrew Quigley

40

$665

27

Richard Cortez, Jr.

0

28
14
21-cv-1141-AGS-DDL

1

Reasonable Hours – Drafting Post-Hearing Brief

2

Name

Hours

3

Michael A. Pearlson

2.9

4

Jesse D. Borja

0

5

Brian Moon

0.3

Hourly Rate
$400
$200

6
g.

7

Drafting fee petition

8

Mr. Cortez spent 14.5 hours drafting 3D Systems’s petition for attorneys’ fees. This

9

was reasonable, and the Court finds that a total of 5 hours each for Ms. Vicente and Mr.

10

Quigley to revise the petition and review billing records is reasonable given the need for

11

counsel to review detailed billing records. The Court does not award fees for time spent

12

by Mr. Cortez or Mr. Borja for the reasons stated by Defendants. Dkt. No. 615 at 23. See

13

$28,000.00 in U.S. Currency, 802 F.3d at 1107-1108; Kelly, 2024 WL 3550387, at *5;

14

Bobrick Washroom Equip., Inc., 2013 WL 12129368, at *8.
The Court awards $14,897.50 in fees for drafting the fee petition:

15

Reasonable Hours – Drafting Fee Petition

16
17

Name

18

Emily Burkhardt Vicente

5

$830

19

D. Andrew Quigley

5

$685

20

Richard Cortez, Jr.

14.5

$505

21
22
23
24
25
26
27

D.

Hours

Hourly Rate

Reduction for Degree of Success
“The district court may reduce the amount of requested fees to reflect a party's

limited degree of success . . . .” Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 763
(9th Cir. 2015).

Defendants contend a 50% reduction in the lodestar calculation is

warranted because 3D Systems did not prevail in its request for terminating sanctions.
Dkt. No. 615 at 26-27. The Court disagrees.

28
15
21-cv-1141-AGS-DDL

1

The August 21 Order concluded that Defendants had spoliated evidence, that 3D

2

Systems was prejudiced, and that sanctions were warranted under Rule 37(e)(1). Although

3

the Court did not grant 3D Systems’s request for terminating sanctions, that does not

4

change the fact that the Court found in its favor on the key questions of whether Defendants

5

violated Rule 37. Moreover, as set forth above, the Court has analyzed the hours expended

6

by 3D Systems’s counsel in each facet of the sanctions motion and has tailored the number

7

of hours for which fees will be awarded. With these adjustments, 3D Systems “achieve[d]

8

a level of success that makes the hours reasonably expended a satisfactory basis for making

9

a fee award,” Hensley, 461 U.S. at 434, and no further reduction is warranted based on the

10

fact that terminating sanctions were not granted.

11

The remaining Kerr factors likewise do not support an adjustment to the lodestar

12

figure. See Kerr, 526 F.2d at 70. Substantial time and labor were required to draft the

13

motion, reply brief, and post-hearing brief, as well as to prepare for the motion hearing and

14

evidentiary hearing. Moreover, the Rule 37 analysis required the parties and the Court to

15

understand the OnShape CAD technology at issue in analyzing the Rule 37(e) factors, an

16

endeavor that, at times, presented challenges for counsel and the Court. No further

17

adjustment is warranted.

18

E.

Reasonable Costs

19

3D Systems seeks $32,405.57 in costs incurred relating to the motion for sanctions.

20

Defendants do not challenge an award of costs generally, but they contend the costs should

21

not include travel expenses for 3D Systems’s in-house counsel, Keith Roberson, who

22

attended the evidentiary hearing but did not participate in it. Defendants also challenge the

23

reasonableness of $17,000 in printing, document delivery and courier fees as well as the

24

different hotel rates claimed by 3D Systems’s counsel.

25

A fee award to a prevailing party “can include reimbursement for out-of-pocket

26

expenses including . . . travel, courier and copying costs.” Grove v. Wells Fargo Fin. Cal.,

27

Inc., 606 F.3d 577, 580 (9th Cir. 2010); see also Youngevity Int’l v. Smith, No. 3:16-CV-

28

704-BTM-JLB, 2021 WL 2559456, at *4 (S.D. Cal. May 19, 2021) (“An award of
16
21-cv-1141-AGS-DDL

1

attorneys’ fees under Rule 37 properly includes out-of-pocket expenses including mailing,

2

copying, and travel.”).

3

The Court finds that the following costs are reasonable in the amounts sought by 3D

4

Systems: the PTC deposition transcript, the motion hearing transcripts, meals and other

5

travel expenses for Ms. Vicente, Mr. Juarez, Mr. Quigley, and Mr. Turner (with a hotel rate

6

of $220 per night), and Westlaw charges. The Court declines to award costs for expenses

7

incurred by Roberson for his attendance at the March 27 evidentiary hearing because his

8

presence was not necessary and he did not participate in any manner. The Court further

9

concludes that $1,226.72 and $772.54 in courier fees to deliver documents to Mr. Juarez

10

and Ms. Vicente and $16,323.97 for preparation and delivery of exhibit binders are

11

excessive. No explanation is given for why 3D Systems spent a total of $1,999.26 in

12

courier fees. Additionally, although 3D Systems provided the invoice reflecting its exhibit

13

binder preparation costs (Dkt. No. 620-2), the Court finds that amount excessive given that

14

3D Systems used only a small subset of those exhibits at the March 27 hearing and moved

15

to admit only 7 exhibits. Dkt. Nos. 466, 470 at 3-4. For these reasons, the Court agrees

16

with Defendants that binder preparation costs for each side should be limited to $2,127.79,

17

the amount actually incurred by Defendants.

18

The Court has reviewed the itemization of costs submitted by 3D Systems (Dkt. No.

19

614-10) and awards costs as follows:

20

Date

Description

21
22
23
24
25

9/20/2023
1/10/2024
1/10/2024

26
27
28

1/10/2024

Costs

Costs

Requested

Awarded

Court reporter transcript for PTC 4,232.80
(OnShape) Deposition
Juarez, Roland M ? Uber for 26.32
spoliation motion hearing
Quigley, David ? Hotel room and 246.81
fees for spoliation motion hearing

4,232.80

Quigley, David ? mileage for 172.34
roundtrip drive to spoliation

172.34

26.32
220.00

17
21-cv-1141-AGS-DDL

1

Date

Description

2
3
4
5
6
7
8

1/12/2024
1/12/2024

9

1/12/2024

10

3/15/2024

11
12
13
14

3/22/2024

15
16

3/22/2024

17
18
19

3/23/2024

20
21
22

3/25/2024

23
24

3/25/2024

25
26
27
28

3/25/2024

motion hearing from Los Angeles,
CA (257.22
miles)
Court reporter fee ? James C
Pence?Aviles ? 01.11.2024 Motion
Hearing Transcript
Juarez, Roland M ? Hotel for
hearing on spoliation motion
Juarez, Roland M ? Uber for
spoliation motion hearing
Check for payment of court
reporter transcript for Hearing
Transcript for 03.14.2024 Status
Conference regarding evidentiary
hearing
Document delivery of hearing
exhibits to Roland Juarez in
connection
with
evidentiary
hearing on spoliation motion.
Courier services: print and deliver
exhibit binders for E Vicente for
use during evidentiary hearing on
spoliation motion
UPS Express Delivery of check
for hearing transcript, Ship To ?
U.S.D.Ct.of Southern California;
Attn: James C. Pence? Avila
Roberson, Keith - Airfare from
South Carolina to attend prep and
hearing on evidentiary hearing for
spoliation motion
Roberson, Keith - Breakfast in
connection
with
evidentiary
hearing for spoliation motion
Turner, Scott - Lunch in
connection with meeting to
prepare for evidentiary hearing for
spoliation motion

Costs

Costs

Requested

Awarded

743.65

743.65

219.76

219.76

45.31

45.31

180.00

180.00

1,226.72

0 (excessive)

772.54

0 (excessive)

13.28

13.28

847.71

0 (excessive)

24.00

0 (excessive)

22.43

22.43

18
21-cv-1141-AGS-DDL

1

Date

Description

2
3

3/25/2024

4
5
6

3/25/2024

7
8
9
10
11

3/25/2024
3/25/2024

12
13
14

3/25/2024

15
16
17

3/25/2024

18
19

3/25/2024

20
21
22
23

3/25/2024

24
25
26
27
28

3/26/2024

Turner, Scott - parking in
connection with meeting to
prepare for evidentiary hearing on
spoliation motion
Roberson, Keith - personal
mileage in connection with
evidentiary hearing for spoliation
motion
Quigley, David ? hotel parking in
connection
with
evidentiary
hearing on spoliation motion
Quigley, David ? hotel for
attending preparation meeting and
evidentiary hearing on spoliation
motion (2 nights 3/25/24 and
3/26/24)
Quigley, David ? mileage for
roundtrip travel to San Diego from
Los Angeles for evidentiary
hearing (260.05 miles)
Roberson, Keith - parking in
connection with meeting to
prepare for evidentiary hearing on
spoliation motion
Vicente, Emily B - mileage in
connection with travel to San
Diego for meeting to prepare for
evidentiary hearing on spoliation
motion
Courier services: print and deliver
examination binder to be used
during cross?examination of Ben
Wynne during evidentiary hearing
on spoliation motion
Juarez, Roland M ? lunch in
connection
with
evidentiary
hearing on spoliation motion

Costs

Costs

Requested

Awarded

45.00

45.00

16.75

0 (excessive)

84.00

84.00

759.61

440

174.23

174.23

10.00

0 (excessive)

92.46

92.46

584.39

0 (excessive)

8.48

8.48

19
21-cv-1141-AGS-DDL

1

Date

Description

2
3

3/26/2024

4
5

3/26/2024

6
7

3/26/2024

8
9

3/26/2024

10
11

3/26/2024

12
13

3/26/2024

14
15

3/26/2024

16
17
18

3/26/2024

19
20

3/26/2024

21
22
23
24
25
26
27

3/27/2024
3/27/2024

Quigley, David ? meal expense in
connection
with
evidentiary
hearing on spoliation motion
Roberson, Keith - dinner in
connection
with
evidentiary
hearing on spoliation motion
Vicente, Emily B - Breakfast in
connection
with
evidentiary
hearing on spoliation motion
Vicente, Emily B - meal expense
in connection with evidentiary
hearing on spoliation motion
Vicente, Emily B - dinner for
evidentiary hearing in connection
with spoliation motion
Lunch for 3DS and Hunton Teams
during
hearing
preparation
meeting on 3/26/24
Turner, Scott - hotel night on
3/25/24 in connection with
meeting to prepare for evidentiary
hearing on spoliation motion
Roberson, Keith - Breakfast in
connection
with
evidentiary
hearing for spoliation motion
Courier services: Printing of 5
copy sets of final versions of
3DS's exhibits for evidentiary
hearing on spoliation motion and
delivery
Turner, Scott - breakfast in
connection
with
evidentiary
hearing for spoliation motion
Vicente, Emily B - Breakfast in
connection
with
evidentiary
hearing on spoliation motion

Costs

Costs

Requested

Awarded

4.64

4.64

35.66

0 (excessive)

11.21

11.21

2.47

2.47

17.35

17.35

112.90

112.90

198.09

198.09

19.98

0 (excessive)

16,323.97

2,127.79
(excessive)

25.73

25.73

14.98

14.98

28
20
21-cv-1141-AGS-DDL

1

Date

Description

2
3

3/27/2024

4
5

3/27/2024

6
7
8
9

3/27/2024

10
11

3/27/2024

12
13

3/27/2024

14
15
16

3/27/2024

17
18
19

3/27/2024

20
21
22

3/27/2024

23
24
25
26
27
28

3/28/2024
3/28/2024

Vicente, Emily B - meal expense
in connection with evidentiary
hearing on spoliation motion
Juarez, Roland M ? hotel for nights
of 3/25/24 and 3/26/24 in
connection with meetings to
prepare for and attend evidentiary
hearing on spoliation motion
Roberson, Keith - parking in
connection
with
attending
evidentiary hearing on spoliation
motion
Turner, Scott - parking at hotel in
connection
with
evidentiary
hearing on spoliation motion
Turner, Scott - parking near
courthouse in connection with
evidentiary hearing on spoliation
motion
Turner, Scott - road tolls in
connection with travel to
evidentiary hearing on spoliation
motion
Vicente, Emily B - hotel in
connection with preparation
meeting and evidentiary hearing
on spoliation motion (2 nights
3/25/24 and 3/26/24)
Vicente, Emily B - roundtrip
mileage in connection with
evidentiary hearing on spoliation
motion
Roberson, Keith - rental car in
connection
with
evidentiary
hearing on spoliation motion
Fee for court reporter transcript
for 03.27.24 Evidentiary Hearing

Costs

Costs

Requested

Awarded

18.85

18.85

712.42

440

50.00

0 (excessive)

14.00

14.00

35.00

35.00

31.29

31.29

869.50

440

179.56

179.56

164.75

0 (excessive)

1,605.00

1,605.00

21
21-cv-1141-AGS-DDL

1

Date

Description

2
3

3/28/2024

4
5

3/28/2024

6
7
8
9
10
11
12
13

3/28/2024
3/28/2024
3/28/2024

14
15

3/28/2024

16
17
18

3/28/2024

19
20

4/1/2024

21
22
23

4/2/2024

24
25
26
27

4/25/2024

Roberson, Keith - gas for rental
car in connection with evidentiary
hearing on spoliation motion
Courier services: pick up and
shred two boxes of documents
prepared in connection with
evidentiary hearing on spoliation
motion
Courier services: pick up boxes
following evidentiary hearing on
spoliation motion
Roberson, Keith - Breakfast in
connection
with
evidentiary
hearing for spoliation motion
Roberson, Keith - personal
mileage in connection with
evidentiary hearing for spoliation
motion
Roberson, Keith - hotel for
preparation for and evidentiary
hearing on spoliation motion
3/25/24 - 3/28/24)
Turner, Scott - hotel in connection
with evidentiary hearing on
spoliation motion for 3/26/24
UPS Express Delivery of check
for hearing transcript, Ship To ?
U.S.D.Ct.of Southern California;
Attn: James C. Pence? Avila
UPS Express Delivery of check
for hearing transcript, Ship To ?
U.S.D.Ct.of Southern California;
Attn: James C. Pence? Avila
Westlaw charge by Richard
Cortez in connection with research
related to spoliation motion

Costs

Costs

Requested

Awarded

40.96

0 (excessive)

30.00

30.00

57.52

57.52

40.37

0 (excessive)

16.75

0 (excessive)

613.98

0 (excessive)

423.06

220

11.69

11.69

13.29

13.29

11.33

11.33

28
22
21-cv-1141-AGS-DDL

1

Date

Description

2
3

4/25/2024

4
5

Costs

Costs

Requested

Awarded

Westlaw charge by Richard 150.68
150.68
Cortez in connection with research
related to spoliation motion
Total Award 12,493.43

6
7

F.

Stay of Fee Award

8

The Court denies Defendants’ request to stay payment of the fee award pending

9

disposition of their motion for summary judgment. Defendants’ violation of Rule 37(e)

10

caused 3D Systems to incur fees and costs irrespective of the future ruling on the pending

11

summary judgment motion. “It would be inappropriate to delay the fee award and have

12

[3D Systems] or its attorneys bear the burden of carrying that added expense caused by

13

Defendants.” Youngevity Int’l, 2021 WL 2559456, at *5 (denying request to delay payment

14

of fee award under Rule 37).

15

IV.

16

CONCLUSION

17

For the foregoing reasons, the Court GRANTS IN PART 3D Systems’s motion for

18

attorneys’ fees and costs. Defendants Wynne and Tanner must pay 3D Systems a total of

19

$166,173.93 (reflecting $153,680.50 in fees and $12,493.43 in costs) jointly and severally

20

within 60 days of the date of this order.

21

IT IS SO ORDERED.

22

Dated: January 7, 2025

23
24
25

Hon. David D. Leshner
United States Magistrate Judge

26
27
28
23
21-cv-1141-AGS-DDL