Ceglia v. Zuckerberg et al

Filing 299

REPLY/RESPONSE to re 292 Decision and Order,, in Support of Supplemental Fee Application filed by Facebook, Inc., Mark Elliot Zuckerberg. (Snyder, Orin)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
-----------------------------------PAUL D. CEGLIA,
Plaintiff,
v.
MARK ELLIOT ZUCKERBERG and
FACEBOOK, INC.,
Defendants.
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Civil Action No. 1:10-cv-00569RJA

DEFENDANTS’ SUPPLEMENTAL FEE APPLICATION

Thomas H. Dupree, Jr.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
[phone]
Terrance P. Flynn
HARRIS BEACH PLLC
726 Exchange Street
Suite 1000
Buffalo, NY 14210
[phone]
February 24, 2012

Orin Snyder
Alexander H. Southwell
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
[phone]

DEFENDANTS’ SUPPLEMENTAL FEE APPLICATION
INTRODUCTION
Defendants submit this Supplemental Fee Application in response to the Court’s order
directing them to submit a supplemental application reflecting the fees incurred in preparing and
defending their initial fee application. Defendants respectfully request that this application be
granted in full and that the Court award $42,460.31, to be paid, along with the $75,776.70
already ordered, within fourteen days of this Court’s order granting Defendants’ initial Fee
Application.1
STATEMENT OF FACTS
On January 10, 2012, the Court granted Defendants’ motion for sanctions, finding that
Ceglia had “continually failed to comply with the August 18, 2011 Order,” “chose to knowingly
ignore the unambiguous orders of the court,” and demonstrated “a plain lack of respect for the
court’s order which cannot be countenanced.” Decision and Order (“D&O”) (Doc. No. 283) at
22-23, 27. The Court imposed a $5,000 civil contempt fine and ordered that Ceglia pay “the
expenses, including attorney’s fees, Defendants have incurred in attempting to obtain Plaintiff’s
email account information as directed by ¶5 of the August 18, 2011 Order.” D&O at 30. The
Court further directed Defendants to submit affidavits of costs and attorneys’ fees. Id. at 30. No
objections were filed. On January 20, Defendants filed their initial Fee Application, detailing the
requested attorneys’ fees related to ensuring Ceglia’s compliance with this Court’s discovery
orders. Doc. No. 285. On February 14, the Court awarded $75,776.70 in attorneys’ fees. Doc.

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As this Court acknowledged, Ceglia did not object to Defendants’ request that he be ordered to pay the
awarded attorneys’ fees within fourteen days of the filing of the Court’s February 14 Order. See Doc. No. 292.
Therefore, Ceglia should be ordered to pay the full awarded attorneys’ fees in connection with the Supplemental
Application within that fourteen-day period, or by February 28, 2012, as well.

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No. 292. The Court further held that Defendants were “entitled to recover attorneys’ fees and
costs incurred in connection with preparation and defense of their attorneys’ fees award” and
directed Defendants to submit a supplemental application. Id. at 36.
Defendants now request $42,460.31 in fees they incurred in preparing and defending their
initial application. This time is detailed in the accompanying Southwell Declaration (“Southwell
Dec.”) and calculated in accordance with the Court’s decision on Defendants’ Fee Application.
Total
Hours
3.00
8.00
23.25
26.50
22.25
83.00

Attorney
Orin Snyder
Thomas H. Dupree, Jr.
Alexander H. Southwell
Matthew J. Benjamin
Amanda M. Aycock
TOTAL
TOTAL with 10% add’l discount

Claimed
Rate
$716.25
$637.50
$618.75
$502.50
$337.50

Total Fees
$2,148.75
$5,100.00
$14,385.94
$13,316.25
$7,509.37
$42,460.31
$38,214.27

ARGUMENT
The fees sought in this supplemental application are warranted to properly prepare and
defend the Fee Application and should be awarded in full. In its February 14 Order, this Court
granted Defendants’ Fee Application and directed Defendants to submit affidavits to recover
costs and fees incurred in the preparation and defense of the Application. Doc. No. 292 at 34,
36. Defendants now seek reimbursement for 83.00 hours of legal services for this work over a
twenty-day period, following the same approach for calculating hours expended in providing
legal services as that used by Defendants in their Fee Application and expressly approved by the
Court. Doc. No. 286 at ¶ 3; Doc. No. 292 at 34; see also Southwell Dec., ¶¶ 7–8.
The time and rates sought were reasonably expended to defend the Fee Application and
respond to Ceglia’s opposition. In the three days before Defendants filed their Fee Application,

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Defendants revised and finalized their Fee Application and the Declaration of Alexander H.
Southwell in support of Defendants’ Fee Application, as well as the supporting exhibits. Then,
during a three-day period, between January 30 and February 1, 2012, Defendants reviewed,
analyzed, and discussed Ceglia’s opposition, performed discrete research tasks, and drafted and
filed their Reply and an accompanying supplemental declaration of Alexander H. Southwell.
As they did in their original Fee Application, Defendants have continued to exclude the
same categories of legal services that might otherwise be included, in an effort to conservatively
estimate the hours incurred. See Doc. No. 285 at 13. Moreover, Defendants also excluded the
same categories of costs as they did in their original Fee Application, even though this Court
expressly stated they were entitled to reimbursement for those costs. See id.; Doc. No. 292 at 36.
In a further effort to present this Court with only the most conservative estimate of attorneys’
fees incurred, Defendants have applied the same discount of 25% as their original Fee
Application to this Supplemental Fee Application. See Doc. No. 286 at ¶ 3. In addition, and for
this Court’s convenience, Defendants show the requested award with an additional 10%
discount, following the discount applied by the Court in its February 14 Order granting
Defendants’ Fee Application. See Doc. No. 292 at 34. The Court should therefore grant
Defendants’ narrowly tailored and reasonable Supplemental Fee Application in full.

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CONCLUSION
For the foregoing reasons, Defendants respectfully request that this Court order Ceglia to
pay Defendants’ attorneys’ fees in the total amount of $42,460.31 within fourteen days of this
Court’s February 14 Order granting Defendants’ Supplemental Fee Application.2
Dated:

New York, New York
February 24, 2012
Respectfully submitted,
/s/ Orin Snyder
Orin Snyder
Alexander H. Southwell
Matthew J. Benjamin
Amanda M. Aycock
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
[phone]

Thomas H. Dupree, Jr.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
[phone]
Terrance P. Flynn
HARRIS BEACH PLLC
726 Exchange Street
Suite 1000
Buffalo, NY 14210
[phone]

Attorneys for Defendants Mark Zuckerberg and Facebook, Inc.

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See, e.g., Sheehy v. Wehlage, 02CV592A, 2007 U.S. Dist. LEXIS 11722, at *27 (W.D.N.Y. Feb. 20, 2007)
(requiring plaintiff to pay defendant’s attorneys’ fees for discovery abuse within fourteen days); Ng v. HSBC Mortg.
Corp., 07-CV-5434 (RRM) (VVP), 2010 U.S. Dist. LEXIS 33486, at *6 (E.D.N.Y. April 5, 2010) (same); Citizens
State Bank v. Dixie County, 1:10-cv-224-SPM-GRJ, 2011 U.S. Dist. LEXIS 113752, at *9 (N.D. Fla. Oct. 3, 2011)
(requiring plaintiff to pay defendant’s attorneys’ fees for discovery abuse within ten days).

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