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

Filing 162

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

KILPATRICK TOWNSEND & STOCKTON LLP
Joseph Petersen (JP 9071)
Robert Potter (RP 5757)
1114 Avenue of the Americas
New York, NY 10036
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Joseph M. Beck (admitted pro hac vice)
W. Andrew Pequignot (admitted pro hac vice)
Allison Scott Roach (admitted pro hac vice)
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE AUTHORS GUILD, INC., ET AL.,
Case No. 11 Civ. 6351 (HB)

Plaintiffs,
v.
HATHITRUST, ET AL.,
Defendants.

DECLARATION OF JOSEPH PETERSEN IN SUPPORT OF DEFENDANTS’
MOTION FOR COSTS AND ATTORNEYS’ FEES
I, Joseph Petersen, make the following Declaration:
1.

I am a member of the Bar of this Court and am a partner at the law firm of

Kilpatrick Townsend & LLP (“Kilpatrick Townsend”), attorneys for the Defendants in the
above-captioned action (the “Libraries”). I submit this Declaration in support of the Libraries’
motion for costs and attorneys’ fees. Unless otherwise noted, I make this declaration based upon
my own personal knowledge.

2.

Throughout this case, counsel for the Libraries efficiently represented all five of

the Libraries and sought to avoid unnecessary discovery costs where possible. Although

Southern District of New York rules limit the number and subject matter for interrogatories,
in an effort to minimize the expenses of discovery, the Libraries proposed at the status
conference broader and more extensive use of interrogatories, thereafter secured a stipulation
from the Plaintiffs, and the Court thereafter approved such use. See Nov. 18, 2011 Stipulation,
“So Ordered” by the Court on November 22, 2011 (Dkt. No. 19). Utilizing the broader scope of
interrogatories permitted by the Court, the Libraries served three sets of interrogatories and took
only four depositions, even though they were sued by twenty Plaintiffs.
3.

In addition, while other attorneys and several paralegals at Kilpatrick Townsend

were involved at various levels in the case, the Libraries seek an award of fees based only on the
reasonable hours charged by myself, partner and co-lead Joseph M. Beck, and associates Robert
N. Potter, W. Andrew Pequignot, and Allison Scott Roach.
4.

Attached hereto as Exhibit A are true and correct copies of the attorney

biographies for the attorneys listed above, as printed from Kilpatrick Townsend’s website at
www.kilpatricktownsend.com at my direction on October 23, 2012.
5.

The current hourly rates charged for each attorney’s time are as follows:
Attorney
Joseph M. Beck
Joseph Petersen
Robert N. Potter
W. Andrew Pequignot
Allison Scott Roach

Billed Rate
$656.25
$481.25
$393.75
$345.63
$328.13

Exact billing rates varied over the course of the case, but the overall blended rate for each
attorney did not exceed the rates identified above, and indeed, for time billed in 2011, each
attorney’s rate was lower. In addition, these rates include a discount on each attorney’s standard

billable rate, which was provided by Kilpatrick Townsend because of the Libraries’ nonprofit
status, and which resulted in fee amounts that were lower than would otherwise have been
charged for the same services.
6.

Attached hereto as Exhibit B are true and correct copies of the first page and

pages I-34 and I-52 from Appendix A of the American Intellectual Property Law Association’s
2011 Report of the Economic Survey, which provides survey information regarding the
prevailing rates charged by Intellectual Property counsel. The relevant information from the
attached pages is also reproduced below.
From the 2011 AIPLA Report of the Economic Survey

Location: NYC CMSA

Private Firm, Partner
Average hourly billing rate in 2010
First
Number of
Mean
Quartile
Media
individuals (Average)
25%
(Midpoint)
43
$557
$400
$590

Third
Quartile
75%
$675

Location: NYC CMSA

Private Firm, Associate
Average hourly billing rate in 2010
First
Number of
Mean
Quartile
Media
individuals (Average)
25%
(Midpoint)
31
$433
$300
$410

Third
Quartile
75%
$545

This information shows that my rate and Mr. Beck’s rate are both within the range of private
firm partners’ billing rates in New York City (Consolidated Metropolitan Statistical Area), and
that Mr. Potter’s, Mr. Pequignot, and Ms. Roach’s rates are within the range of private firm
associates’ billing rates in New York City (Consolidated Metropolitan Statistical Area), and
indeed, are below the mean (average) rate for such associates.
7.

Attached hereto as Exhibit C are true and correct copies of invoices which, based

on Kilpatrick Townsend’s policies regarding time entries, I understand are derived from

contemporaneous time records. The invoices itemize fees and other related charges from October
3, 2011 through the date of oral argument on the parties’ summary judgment motions on August
6, 2012. To reduce the length of the exhibit, the invoices included in Exhibit C are the invoices
sent to the University of Michigan, and I understand them to be substantially similar to the
invoices prepared for and sent to Cornell University, the University of California, Indiana
University, and the University of Wisconsin for the same billing periods. (The remittance pages
of the invoices sent to these other schools are also included in Exhibit C.) These invoices have
been billed and paid, or are expected to be paid, by Defendants. Based on an agreement among
the Libraries, each was charged a certain percentage of the total invoice each month, with some
adjustment based on projects that were completed at the specific request of one or more
Libraries.
8.

The invoices upon which the Libraries base their request for attorneys’ fees do not

represent all of the work performed by the Libraries’ counsel in this case, as Kilpatrick
Townsend has exercised its discretion in several instances not to charge the Libraries for certain
time worked on the case.
9.

We have redacted the invoices included in Exhibit C to preserve attorney-client

confidential privileged information and attorney work product confidential privileged
information. At the Court’s request, we would be pleased to submit unredacted copies of our
invoices for the Court’s in camera inspection.
10.

As discussed above, the Libraries are only seeking a portion of the attorneys’ fees

incurred in defending against Plaintiffs’ claims. The chart below summarizes the rates charged
and hours billed for each of the attorneys for which the Libraries are seeking fees.

October 2011 – November 2011

Attorney
Joseph M. Beck
Joseph Petersen
Robert N. Potter
Andrew Pequignot
Allison Scott Roach
Oct. 2011 – Nov. 2011 TOTAL

Billed Rate
$652.50
$472.50
$382.50
$337.50
$297.00

Hours
Billed
144.5
84
79.6
128
187.4
623.5

Invoiced Total
$94,286.25
$39,690.00
$30,447.00
$43,200.00
$55,657.80
$263,281.05

Billed Rate
$634.38
$459.38
$371.88
$328.13
$288.75

Hours
Billed
61.5
29.1
8.3
24.4
81.7
205

Invoiced Total
$39,014.37
$13,367.96
$3,086.60
$8,006.37
$23,590.88
$87,066.18

Hours
Billed
565.9
658
533.2
620.4
781.2

Subtotal
$371,371.88
$316,662.50
$209,947.50
$214,428.85
$256,335.16

Invoiced Total
(With Further
Discounts)
$370,590.63
$316,662.50
$207,601.87
$214,428.85
$256,335.16

3,158.7 $1,368,745.88

$1,365,619.00

December 2011

Attorney
Joseph M. Beck
Joseph Petersen
Robert N. Potter
Andrew Pequignot
Allison Scott Roach
Dec. 2011 TOTAL
January 2012 – August 6, 2012

Attorney
Joseph M. Beck
Joseph Petersen
Robert N. Potter
Andrew Pequignot
Allison Scott Roach
Jan. 2012 – Aug. 6, 2012
TOTAL

Billed
Rate
$656.25
$481.25
$393.75
$345.63
$328.13

TOTAL: $1,715,966.23
11.

The Libraries also seek costs, but only the costs of document reproduction,

PACER online document retrieval services, Federal Express and courier services, court reporting
services and deposition transcripts, as shown below and itemized in the invoices included in
Exhibit C. The Libraries do not seek recovery of travel expenses or expenses of online legal
research.