Rosenthal Collins Group, LLC vs. Trading Technologies International, Inc et, al.

Filing 334

MEMORANDUM Opinion and Order. Signed by the Honorable Young B. Kim on 6/29/2010. (aac, )

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UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF ILLINOIS E A S T E R N DIVISION R O S E N T H A L COLLINS GROUP, LLC., P la in tif f , v. T R A D IN G TECHNOLOGIES IN T E R N A T IO N A L , INC., D e f e n d a n t. ) ) ) ) ) ) ) ) ) C a s e No. 05 CV 4088 M a g is tr a te Judge Young B. Kim J u n e 29, 2010 M E M O R A N D U M OPINION and ORDER B e f o re the court is the issue of whether defendant, Trading Technologies In te rn a tio n a l, Inc. ("TT"), is entitled to $375,106.75 in attorney fees and costs [244, 294]. In this patent litigation, the court sanctioned the plaintiff, Rosenthal Collins Group, LLC (" R C G " ), for attempting to mislead the court and the defendant when it represented that it h a d discovered prior art that invalidated the patents-in-suit. RCG now argues that TT spent to o much money exposing its misconduct and that TT is entitled to no more than $3,750. For th e following reasons, TT is entitled to recover $289,234.39 in fees and costs: P r o c e d u r a l History O n July 15, 2005, RCG filed this lawsuit against TT seeking a declaratory judgment th a t: (1) TT's patents for computer software used in electronic futures trading ("the `132 p a te n t" and "the `304 patent") are invalid; and (2) RCG had not infringed either of TT's p a te n ts. TT filed counterclaims and alleged that RCG had infringed the patents-in-suit. TT b ro u g h t similar patent infringement claims against other entities in five other lawsuits filed in the Northern District of Illinois. The court consolidated all of these cases for purposes of d is c o v e ry and claim construction; the lead case in the series is Trading Tech., Int'l, Inc. v. e S p e e d , Inc., No. 04-CV-5312 ("the eSpeed litigation"). RCG and the defendants in these o th e r actions engaged in discovery focused on finding evidence of prior art to show that TT's p a te n ts are invalid. O n January 23, 2006, TT filed a claim construction brief asserting that RCG's p ro d u c ts infringe on multiple claims of the `132 and `304 patents. (R. 42.) Three months la te r, on April 26, 2006, RCG moved for summary judgment asserting that the `132 and `304 p a te n ts are invalid because the Wit Capital digital stock market ("Wit DSM") is prior art that d is c lo s e d each element of the claims of TT's patents. (R. 62.) RCG's motion hinged largely o n the declaration of Walter Buist ("Buist"), the creator of Wit DSM. TT poured over the te c h n ic a l materials provided by RCG and deposed Buist and his son Christopher Buist (to g e th e r "the Buists") to investigate the validity of RCG's prior art assertion. d e p o s itio n of the Buists then triggered what has become a three-year fee battle. O n August 10, 2006, TT moved for sanctions on the basis that RCG fabricated the Wit D S M prior art in order to invalidate TT's patents. (R. 90.) TT accused RCG and its counsel o f directing Buist to materially alter the evidence by changing certain codes in its software p r o g ra m m in g to make it appear that before TT obtained its `132 and `304 patents the Wit D S M included the single-action-order entry capability TT's patents describe. In order to u n c o v e r this alleged fraud, TT asserted that its expert had to analyze millions of lines of code The 2 looking for 12 lines of altered code. TT sought, inter alia, default judgment and an award o f attorney fees and costs against RCG as relief. O n March 14, 2007, the court denied TT's motion for sanctions to the extent that TT s o u g h t default judgment. (R. 142.) The court held that default judgment was not warranted b e c a u s e TT failed to show, by clear and convincing evidence, that "Buist or RCG's counsel w illf u lly and intentionally fabricated evidence to deceive this court or the judicial system." (Id. at 10-11.) But the court agreed with TT that RCG's motion for summary judgment was " m is le a d in g ," "disingenuous," and "prematurely filed." (Id. at 9-10.) The court reasoned th a t RCG's summary judgment motion was at best premature because RCG should have k n o w n that without corroborating evidence, Buist's bare testimony was insufficient to meet its burden of proof. (Id. at 10.) The court also described RCG's conduct as "somewhat d is in g e n u o u s " because RCG neglected to inform the court that Buist had made modifications to the Wit DSM's source code. (Id. at 11.) The court found RCG's conduct sanctionable and s tru c k Buist's summary judgment declaration, denied RCG's motion for summary judgment w ith o u t prejudice, and ordered RCG to "pay the costs for TT's software programming c o n s u lta n t and costs and attorneys' fee associated with [the sanctions motion]." (Id. at 12.) S e v e n months later, on October 29, 2007, RCG moved to vacate the sanctions order a rg u in g that its conduct did not meet the standard for sanctions and that TT's request for $ 3 0 0 ,0 0 0 in fees and costs was unreasonable and punitive. (R. 183.) On July 17, 2008, the c o u rt denied RCG's motion and reemphasized that, "had RCG been forthcoming, TT would 3 not have been required to hire the consultant, depose [the Buists], or spend time drafting a m o tio n for sanctions." (R. 225 at 4.) In denying RCG's motion, the court authorized TT to re c o v e r fees and cost related to three different categories: (1) TT's programming consultant; (2 ) TT's deposition of the Buists; and (3) TT's prosecution of the sanctions motions. (Id.) Because of the amount in controversy, more than $300,000, the court ordered the parties to c o m p ly with Local Rule 54.3 and then to brief the issue of reasonableness. (Id.) T T filed its opening memorandum on October 15, 2008, in support of its fees and c o s ts . (R. 244.) The following year, on February 6, 2009, the assigned district judge referred th e matter of reasonableness of the fees and costs to this court and noted his skepticism that $ 3 0 0 ,0 0 0 could be at stake "for a single discovery dispute." (R. 262, 267.) This court o r d e r e d RCG to file a response to TT's memorandum by April 8, 2009, and TT to file its re p ly by April 29, 2009. (R. 269.) This court then held a hearing on the issue of re a s o n a b le n e s s on May 20, 2009, and heard oral arguments. (R. 292, 301.) A n a ly s is T T is entitled to recover $289,234.39 as reasonable fees and costs it incurred as a re s u lt of RCG's misconduct. On March 14, 2007, the court granted TT's motion for s a n c tio n s under Federal Rule of Civil Procedure 37(b)(2) and the inherent powers of the c o u rt to manage its cases in a fair and expeditious manner. (R. 142.) Pursuant to Rule 3 7 (b )(2 )(C ), "the court must order the disobedient party, the attorney advising that party, or b o th to pay the reasonable expenses, including attorney's fees, caused by the failure . . . ." 4 See also Bryant v. Gardner, 587 F. Supp. 2d 951, 968 (N.D. Ill. 2008). In this case, the court o rd e re d RCG to pay the necessary expenses TT incurred as a result of RCG's misconduct. A s an initial matter, the court notes that the contentiousness and obvious mutual m istru s t that the parties demonstrated during the underlying sanctions proceedings have le a c h e d into the current briefs regarding the reasonableness of TT's fees and costs stemming f ro m the sanctionable conduct. Most notably, RCG has taken the position that TT should not b e awarded any fees or costs despite Judge Moran's sanctions order because it characterizes T T 's fee petition as "bloated," "exorbitant," and "itself subject to sanctions." (R. 275 at 1.) RCG accuses TT of greediness, and urges this court to punish TT by denying the fee petition in its entirety. This court wholly disagrees with RCG's characterization of TT's fee petition, a n d for the reasons described below, finds that the bulk of the requested fees and costs are re a s o n a b le . For TT's part, it argues that RCG has waived any challenge to the re a s o n a b le n e s s TT's expenses because, it says, RCG refused to comply in good faith with L o c a l Rule 54's mandate that the parties attempt to reach an agreement regarding fees and c o s ts . But RCG raised a number of objections to TT's claimed fees before TT filed the fee p e titio n , and even though those arguments are largely meritless, this court does not consider th e m waived. T h e remaining questions before the court are how much did TT spend because of R C G 's misconduct and how much of that expenditure is reasonable? According to the July 1 7 , 2008 order, TT is entitled to recover attorney fees and costs related to three categories: 5 (1) retention of a program consultant; (2) deposition of the Buists; and (3) litigation of the s a n c tio n s motion. (R. 225.) In order to answer the remaining questions, this court reviewed th e supporting documents TT submitted and examined each page and each line item. If the c o u rt could not determine whether a line-item fee or cost was attributable to RCG's m isc o n d u c t and whether it was reasonable, the item was not included in the total amount a w a rd ed . A . Computer Expert Fees and Cost A s for the first category of expenditure, TT is entitled to recover the full $52,477.08 it spent on computer expert Evan Dygert ("Dygert"). TT paid this sum to Dygert for services re n d e re d between March 9 and October 26, 2006. RCG contends that the court should reject T T 's request for fees and costs related to Dygert because TT would have expended $ 5 2 ,4 7 7 .0 8 even if RCG had not moved for summary judgment. RCG points out that Dygert p e rf o rm e d work for and billed TT twice in March 2006 (on March 9 and 16), more than a m o n th before RCG filed its summary judgment motion. A lth o u g h RCG's argument has facial appeal, it lacks substance, primarily because J u d g e Moran could not have been more clear that TT is entitled to recover for all of its re a s o n a b le fees and costs incurred as a result of Dygert's work trying to identify and u n d e r sta n d the hidden modifications in the Wit DSM source code. The court specifically o rd e re d RCG, without identifying any limitations, "to pay the costs for TT's software p ro g ra m m in g consultant." (R. 142 at 12.) In denying RCG's motion to vacate the original 6 sanctions award, Judge Moran reiterated that with respect to Dygert, "we specifically directed R C G to pay his fees, not limiting those fees to the time it took him to locate the modifications o f the code." (R. 225 at 3-4.) Nowhere did Judge Moran suggest that the sanctions award s h o u ld be limited to costs incurred after RCG filed its disingenuous summary judgment m o tio n . In any event, TT has shown that all of Dygert's work was impacted by or resulted f ro m RCG's misconduct. The misconduct TT alleged and the court sanctioned was RCG's m isre p re s e n ta ti o n s regarding Wit DSM, which began as early as February 2006. Specifically, on February 16, 2006, RCG produced images of print outs of a version of the D S M code allegedly from 1998 and 1999, without informing TT of Buist's modifications to o th e r versions of the code. Thus Dygert spent time examining those codes in March 2006 w ith o u t knowing that RCG planned to misrepresent that other versions of the code revealed c ritic a l functionality. At a settlement meeting in April 2006, RCG ran a demonstration of the m o d if ie d source code for TT to show its supposed single-action-order entry function, again w ith o u t revealing the crucial fact that Buist modified the original codes after TT obtained the `1 0 2 and `304 patents. Because RCG took the position that the Wit DSM code included the s in g l e - a c tio n -o rd e r function before it moved for summary judgment, TT was forced to e x a m in e that theory even before the motion was filed. Thus the fact that RCG did not move f o r summary judgment until after Dygert was retained is irrelevant. 7 RCG argues in the alternative that TT is not entitled to recoup its expenses related to D yg e rt's work because some of his bills are for work done after the sanctions motion was f u lly briefed, some is charged to the eSpeed litigation, and because RCG characterizes D yg e rt's billing as insufficiently specific. First, even though Dygert performed and billed T T $9,804.94 for consultant work on October 26, 2006­which is after TT filed its motion for s a n c tio n s on August 10, 2006­the record shows that TT filed its reply in support of its s a n c tio n s motion on October 26, 2006. TT's supporting documentation shows that TT in c u rre d $9,804.94 in expert fees in connection with preparing its reply brief in support of its sanctions motion, and therefore is recoverable. As for Dygert's time charged to the e S p e e d litigation, as explained above, this case was consolidated with the eSpeed case (and o t h e r s ) for purposes of discovery. To the extent that RCG objects to bills charged to the e S p e e d litigation on the supposition that such work was somehow unrelated to this case, that s u g g e s tio n lacks credulity. The purpose of consolidating cases for discovery is to prevent d u p lic a tio n of work that is relevant to more than one matter, and Dygert's billing work under th e label eSpeed is an inconsequential administrative decision. As for RCG's complaint that D yg e rt's bills are insufficiently detailed, this court finds TT's documentation supporting its e x p e rt-re la te d expenses specific enough to demonstrate that Dygert's billed time was c o n n e c te d to work that was either hampered by, or made necessary by, RCG's sanctioned c o n d u c t. For all of these reasons, TT is entitled to recover the full amount associated with D yg e rt's fees and costs in the amount of $52,477.08. 8 B. Deposition Fees and Costs T T is entitled to recover $150,703.56 in fees and costs related to the second category o f expenditure: TT's work preparing for and deposing the Buists, including attorney fees, t r a v e l costs, and deposition expenses. In responding to what appeared to be a significant d e v e lo p m e n t in this action (RCG's new assertions regarding the 1998 & 1999 Wit DSM s o u rc e code), TT sought to obtain and review all materials connected to Buist's declaration a n d his opinion that the Wit DSM contained the single-action-entry function before TT o b ta in e d its patents. TT's legal team then traveled from Chicago to New York to depose the B u is ts on June 22 and 23, 2006. TT argues that it spent a total of $156,762.31 to investigate B u is t's assertions and to prepare for the two depositions. RCG contends that this court should reject TT's request for fees and costs related to th e Buists' depositions because, it says, TT would have deposed them notwithstanding the s u m m a ry judgment motion. But that is an issue that has already been resolved against RCG. In denying RCG's motion to vacate the sanctions order, Judge Moran found that absent R C G 's misconduct, "TT would not have been required to hire the consultant, depose M r. Buist or his son, or spend time drafting a motion for sanctions." (R. 225 at 12.) Judge M o ra n specifically stated that the costs of the Buist depositions "are properly attributable to R C G 's conduct and therefore are properly borne by RCG." (Id.) That finding constitutes the la w of the case, and the current fee petition does not give RCG a platform to rehash resolved a rg u m e n ts. 9 Turning to the reasonableness of the deposition-related expenses, according to TT, the $ 1 5 6 ,7 6 2 .3 11 it spent in fees and costs to investigate RCG's assertions and to expose RCG's m isc o n d u c t can be broken down as follows: A tto rn e y Fees P a ra le g a l Fees T ra v e l Cost C o u rt Reporter C ost T o ta l $ 9 3 , 8 5 5 .0 0 $ 2 7 , 7 9 6 .2 5 $ 1 6 , 9 3 8 .6 5 $ 1 8 , 1 7 2 .4 1 $ 1 5 6 ,7 6 2 .3 1 T T has provided documentation supporting these expenditures. (R. 285, Exs. N-D, ­E, AA.) B a se d on the nature and the complexity of the misconduct in question and the fact that th e court has already ruled that TT is entitled to recover fees and costs related to the Buists' d e p o s itio n s , the court finds that the detailed expenses are reasonable except for the following p a ra le g a l line items: D a te 0 6 /0 9 /0 6 0 6 /1 0 /0 6 0 6 /1 1 /0 6 0 6 /1 2 /0 6 0 6 /1 3 /0 6 D e s c rip tio n of Work p re p a ra tio n of Buist witness kit p re p a ra tio n of Buist witness kit p re p a ra tio n of Buist witness kit p re p a ra tio n of Buist witness kit p re p a ra tio n of Buist witness kit Amount $ 1 ,8 0 3 .7 5 $ 3 2 3 .7 5 $ 6 4 7 .5 0 $ 1 ,8 0 3 .7 5 $925 1 This amount reflects the total amount minus $108.21 TT withdrew from its request. (R. 2 8 5 at 26.) 10 06/14/06 p re p a ra tio n of Buist witness kit T o ta l $555 $ 6 ,0 5 8 .7 5 T h e court cannot determine whether the particular task the paralegal performed on various d a te s warrants an award of $6,058.75 in fees. One reasonable inference the court might draw f ro m the task description is that the paralegal prepared documents to be reviewed by TT's a tto rn e ys and/or to be used at the Buists' deposition. But because the paralegal used more d e s c rip tiv e statements when he was engaged in preparation work for the Buists' depositions o n other dates, the court cannot reasonably infer that he was engaged in similar work on the d a ys he simply noted "Buist witness kit." (R. 285, Ex. AA at 6.) Accordingly, this court o m its from the sanctions award the paralegal fees represented by the "Buist witness kit" time e n trie s . R C G argues that under Federal Rule of Civil Procedure 54, TT is not entitled to re c o v e r its expenses for its lawyers and Dygert to travel to the Buist depositions. Similarly, it argues that TT may recover court reporter expenses only in the amount of $3.30 per page o f deposition transcript.2 But as TT points out, the district court sanctioned RCG pursuant to its inherent powers to manage litigation and Rule 37, which provides for sanctions where a party does not cooperate in discovery, not Rule 54(d), which outlines the limits on fees and c o s ts available to a prevailing party post-judgment. The cases RCG cites to support its 2 RCG also nitpicks TT's deposition-related costs for airfare and accuses TT of doubleb illin g . This court has considered those arguments and finds them unsupported by the record. 11 argument that TT's travel and deposition costs should be limited all stem from Rule 54. But c o u rts in this circuit (and others) have found that attorney travel costs are fair game in the s a n c tio n s context. See, e.g., Barrett v. Brian Bemis Auto World, 230 F.R.D. 535, 537 (N.D. Ill. 2005); Brown v. Walker, 2008 WL 4809691, at **2-3 (N.D. Ind. Oct. 31, 2008); see also B io v a il Labs., Inc. v. Ahcen Pharms., Inc., 233 F.R.D. 648, 654 (C.D. Cal. 2006); Wirerope W o r k s , Inc. v. Travelers Excess & Surplus Lines Co., 2008 WL 2073375, at *4 (E.D. Pa. May 1 2 , 2008). Because the purpose of the sanctions is both to punish RCG's past conduct and to deter future misconduct, see Nat'l Hockey League v. Metropolitan Hockey Club, Inc., 427 U .S . 639, 643 (1976), this court finds it appropriate to order RCG to reimburse TT's full c o u r t reporter costs rather than to limit the award artificially by the cost-caps that apply to a w a rd s under Rule 54. C . Sanctions Motion Fees and Costs T T is entitled to recover $86,053.75 of the $103,303.75 it seeks in connection with th e third category of expenditure: fees and costs related to litigating its motion for sanctions. This court notes that RCG has lodged a number of broad complaints regarding the nature and q u a lity of TT's billing, arguing that it improperly seeks reimbursement for wholly or partially re d a c te d time entries, for "mixed-entry" or improperly categorized time entries, and for fees it characterizes as insufficiently documented. Its objection to TT's redacted time entries is p u z z lin g , given TT's representation that it supplied RCG with unredacted versions of its time s h e e ts before RCG filed its response. Moreover, RCG has not identified any of the particular 12 entries it finds objectionable. This court has carefully scrutinized the documentation s u p p o rtin g TT's claimed fees and costs, and finds that with the few exceptions described b e lo w , TT has demonstrated that its fee request is reasonable. At the outset, the court s u b tra c ts the following two line items from the total sought in connection with the sanctions m o tio n : P a ra le g a l A a ro n Purser A a ro n Purser D a te Service R e n d ere d 1 1 /1 6 /0 6 1 1 /1 7 /0 6 T o ta l A mount $ 1 ,4 8 0 $ 1 ,3 8 7 .5 0 $ 2 ,8 6 7 .5 0 T h e court subtracts $2,867.50 from the total sought because TT failed to provide sufficient in f o rm a tio n ­ a n d the description of the services rendered by the paralegal on the time sheets f a ile d to show­that these fees were directly related to preparing and filing the motion for s a n c tio n s . 1 . July 2006 to August 2006 Next, in order to properly assess whether the remaining amount sought by TT is re a s o n a b le , the court must examine TT's actual filings. The record shows that on August 10, 2 0 0 6 , TT filed what is essentially a two-page motion, titled "Motion for Sanctions Based on R C G 's Fabrication of Prior Art in Support of its Motion for Summary Judgment of In v a lid ity," and a 28-page supporting memorandum of law with 12 exhibits. The attorney tim e sheets (July 5 to August 15, 2006) provided by TT (R. 285, Ex. AA) show that TT 13 incurred attorney fees in the amount of $24,417.50 to prepare, file, and present the motion f o r sanctions on August 15, 2006. T h e time sheets show that TT first had to consider whether to move for sanctions, and th e n after it decided to pursue this option, TT's attorneys spent time compiling the relevant in f o rm a tio n and exhibits, drafting the motion and the supporting memorandum of law, and p r e s e n t i n g the motion to the court. With respect to considering the sanctions option, TT in c u rre d fees in the amount of $783.75 for 2.75 attorney hours on July 5 and 6, 2006. As to c o m p ilin g the relevant information, TT incurred fees in the amount of $3,278.75 for 12 a tto rn e y hours (July 11-12, 14, 19, 21, and 31, 2006). As to drafting the motion, TT incurred f e e s in the amount of $5,470, for 18.5 attorney hours (July 9-10, 12-14, 24, and 27, and A u g u s t 1, 4-5, 2006). As for drafting the memorandum of law and presenting the motion, T T incurred fees in the amount of $14,885 for 61.75 hours (August 3-4, 7-10, and 15, 2006). B a se d on the court's examination of the time sheets, these fees and hours are re a s o n a b le , except for the fees TT spent drafting the two-page motion (R. 90.) In order to p re p a re the actual motion for sanctions, TT asserts that its attorneys spent a total of 18.5 h o u rs and billed $5,470 in fees. Of these 18.5 hours, TT's attorneys spent 12.5 hours (July 9 , 10, 13-14, and August 5, 2006), totaling $3,787.50, to draft a simple 2-page motion. This f e e amount of $3,787.50 is excessive and unreasonable. The court recognizes that its reading o f the time sheets may be too simplistic, but TT did not offer explanations or other details to demonstrate that these charges are reasonable. The court finds that an award of $570 (two 14 attorney hours) is reasonable for the drafting of the motion. With that reduction in place, TT is entitled to $21,200 for preparing, filing and presenting its motion for sanctions against RCG. 2 . August 2006 to October 2006 T h e court must also examine the fees TT incurred to litigate and prosecute the motion f o r sanctions. The court ordered RCG to file a response to TT's sanctions motion by S e p te m b e r 14, 2006. (R. 96.) A week before its response was due, RCG moved for an e x te n s io n of time to conduct additional discovery in order to prepare its response. (R. 98.) TT opposed the motion and argued that RCG was not entitled to additional discovery and that R C G had ample time (five weeks) to file a response to the sanctions motion. (R. 99.) The c o u rt denied RCG's request to conduct additional discovery prior to filing a response, but g ra n te d RCG an extra week to file its response. (R. 101.) Three days before its response was d u e , on September 18, 2006, RCG again sought an extension of time to file a response, and T T again argued that RCG should be compelled to file its response immediately. (R. 102, 1 0 4 .) The court granted RCG until October 5, 2006, to file its response. (R. 106.) In its response to the sanctions motion, RCG went on the offensive. It accused TT of m isle a d in g the court by filing the sanctions motion and also accused TT of defrauding the U n ite d States Patent Office when it submitted its application for the patents-in-suit. (R. 107.) In support, RCG attached 71 pages of exhibits, including Buist's 10-page declaration denying th a t RCG ever instructed him to alter evidence, that he made any misleading statements, or 15 that he tried to conceal any alterations he made to the source codes in question. RCG also a tta c h e d an 8-page declaration of Dr. Stephen Lesavich, an attorney of record for RCG, d e n yin g that he ever instructed Buist to alter evidence in favor of RCG and maintaining that B u is t's Wit DSM constitutes prior art invalidating TT's patents. (Id.) In further support, R C G submitted the declaration of its lead attorney as a sealed document. (R. 108.) TT filed a 13-page reply addressing each of RCG's arguments and assertions on October 26, 2006. (R. 107, 109.) F ro m the time TT presented its sanctions motion on August 15, 2006, until the time it filed its reply on October 26, 2006, TT asserts that it incurred attorney fees in the amount o f $61,377.50 for a total of 196.75 attorney hours. Of this amount, TT spent $3,021.25 (12.5 a tto rn e y hours) responding to RCG's multiple requests for extension of time and $58,356.25 (1 8 4 .2 5 attorney hours) preparing and filing its reply brief in support of the sanctions motion. H a v in g examined the relevant time sheets, the court finds that TT is entitled to $ 5 0 ,2 1 2 .5 0 in fees in connection with its prosecution of the sanctions motion. The court s u b tra c ts the following line items because based on the description of the services rendered, th e s e items are either duplicative or unrelated to the motion for sanctions: A tto r n e y J e n n if e r Kurcs L e if Sigmond L e if Sigmond D a te Service R e n d e re d 0 9 /1 5 /0 6 1 0 /0 9 /0 6 1 0 /1 0 /0 6 A mount $385 $ 1 ,9 8 0 $ 1 ,2 1 0 16 Leif Sigmond L e if Sigmond L e if Sigmond L e if Sigmond 1 0 /1 3 /0 6 1 0 /2 0 /0 6 1 0 /2 3 /0 6 1 0 /2 4 /0 6 T o ta l $ 1 ,7 6 0 $ 2 ,6 4 0 $ 1 ,7 6 0 $ 1 ,4 3 0 $ 1 1 ,1 6 5 A ls o , the court recognizes that TT incurred $15,225 in connection with three of its a tto rn e ys revising its reply brief, on October 25 and 26, 2006, spending a total of 48.5 hours. The court will not discount the fees incurred for these revisions because the reply was s ig n if ic a n t to TT's litigation posture and it was entitled to spend the time to perfect its reply b rie f . The court also considers the fact that TT did not know whether its fees would be re im b u rs e d at a later time and would have spent what it deemed to be reasonable in order to p ro te c t its patents. 3 . October 2006 to May 2008 F in a lly, the court must examine the fees and costs TT incurred after it filed its reply b rie f on October 26, 2006, and after the court agreed with TT that it is entitled to recover c e rta in fees and costs. On November 10, 2006, RCG moved to strike TT's reply to its s a n c tio n s motion. (R. 112.) Three days later, at a cost of $997.50, TT filed a response to the m o tio n to strike, which the court denied in its order dated March 14, 2007, in which it g ra n te d in part and denied in part TT's motion for sanctions. (R. 141, 142.) More than seven months later, on October 29, 2007, RCG filed a three-page motion t o vacate the sanctions ruling and raised alarm that TT was seeking $300,000 in fees. 17 (R. 183.) From October 30, 2007, to May 21, 2008, TT incurred fees in the amount of $ 1 3 ,6 4 3 .7 5 responding to that motion. Specifically, TT incurred fees in the amount of $ 1 ,9 4 7 .5 0 for 7.75 attorney hours (October 30 and November 13, 2007) related to its 10-page re s p o n s e to the motion to vacate. (R. 186.) RCG filed an 11-page reply with 54 pages of e x h ib its on November 30, 2007. (R. 187.) Of course, this reply­more detailed and s u b s ta n tiv e than the original motion to vacate­caused TT to file a seven-page sur-reply to d e f e n d its award of fees and costs and to identify what TT deemed to be misrepresentations m a d e in RCG's reply brief. (R. 188.) To file its sur-reply TT incurred $4,008.75 for 15.75 a tto rn e y hours (December 12-14 and 17, 2007). T h e n on May 10, 2008, RCG filed a three-page response to TT's sur-reply with 20 p a g e s of exhibits, including a declaration from RCG's counsel. (R. 204.) TT then moved to file a declaration from one of its attorneys to counter RCG counsel's declaration. (R. 205.) TT incurred an additional sum of $7,687.50 for 22.75 attorney hours (May 12-15 and 21, 2 0 0 8 ) to prepare the motion and the declaration and to present the motion on May 21, 2008. Two months later, on July 17, 2008, the court denied RCG's motion to vacate. (R. 224, 225.) Based on the record as well as the time sheets offered by TT, the court finds that TT is e n title d to recover $997.50 it spent to protect its reply brief and $13,643.75 it spent to litigate R C G 's attempt to vacate the court's sanctions order. 18 Conclusion F o r the foregoing reasons, TT is entitled to recover $289,234.39 from RCG: C a te g o ry of Reimbursement E x p e rt Fees and Cost D e p o sitio n Fees and Cost S a n c tio n s Motion Fees T o ta l A mount $ 5 2 ,4 7 7 .0 8 $ 1 5 0 , 7 0 3 .5 6 $ 8 6 ,0 5 3 .7 5 $ 2 8 9 , 2 3 4 .3 9 R C G is ordered to pay this amount to TT by July 9, 2010. The parties are also ordered to appear for a status hearing on July 9, 2010, at 11:00 a.m. ENTER: _________________________________ Y o u n g B. Kim U n ite d States Magistrate Judge 19

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