Ceglia v. Zuckerberg et al

Filing 599

MOTION for Fee Application In Connection With Their Eighth Motion To Compel by Facebook, Inc., Mark Elliot Zuckerberg. (Snyder, Orin) Modified on 11/20/2012 (DLC).

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’ FEE APPLICATION IN CONNECTION WITH THEIR
EIGHTH MOTION TO COMPEL

Thomas H. Dupree, Jr.
Erik R. Zimmerman
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]
November 19, 2012

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]

INTRODUCTION
Defendants submit this fee application in response to the Court’s Decision and Order
directing them to submit an application reflecting the fees incurred in connection with the portion
of Defendants’ Eighth Motion to Compel requesting production of the March 30 Capsicum
Communication. See Doc. No. 584 (“D&O”).
Defendants respectfully request that this Fee Application be granted in full and that the
Court award $3,747.68, to be paid within fourteen days of the Court’s order granting
Defendants’ Fee Application.
STATEMENT OF FACTS
This Fee Application follows this Court’s granting in part Defendants’ eighth and ninth
motions to compel necessitated by Ceglia’s refusal to comply with this Court’s discovery orders.
See Doc. Nos. 95, 129, 155, 245, 295, 382, 461.
As the Court is aware, Ceglia produced the April 13 Kasowitz Letter—in which Ceglia’s
former attorneys at Kasowitz advised their former co-counsel DLA Piper and Lippes Mathias
that they “immediately withdrew” upon “establish[ing]” that the Work for Hire Document “is
fabricated”—only after this Court rejected Ceglia’s attempt to conceal it and after numerous
motions to compel by Defendants. See Doc. No. 589-18 at 2; Doc. No. 478 at 2.
And it was only after reviewing the April 13 Kasowitz Letter that Defendants discovered
the existence of three additional non-privileged communications involving the Kasowitz firm
that appeared responsive to the Court’s expedited discovery orders and should have been
produced months ago. See Doc. No. 512 at 1. Defendants therefore discussed, prepared, and
filed their Eighth Motion to Compel, seeking those three communications and seeking to
overrule Ceglia’s improper designation of the April 13 Kasowitz Letter as confidential. See
Southwell Decl. ¶ 6; Doc. No. 512.

After reviewing the three communications in camera, the Court agreed that one of these
communications—the March 30, 2011 email to the Kasowitz firm from its digital forensics firm,
the Capsicum Group—was required to be produced long ago under this Court’s expedited
discovery orders. See D&O at 12-13. The Court ordered the March 30 Capsicum
Communication produced, and directed Defendants to provide affidavits of costs and attorneys’
fees incurred in connection with the portion of Defendants’ Eighth Motion to Compel requesting
production of that communication. D&O at 21. The Court also overruled Ceglia’s improper
confidentiality designation of the April 13 Kasowitz Letter as confidential, though attorneys’
fees were not awarded for that part of Defendants’ successful motion. Id.
Defendants’ counsel reviewed the Court’s Decision and Order, discussed its effects,
considered the content of the affidavits requested by the Court, and reviewed and analyzed bills
for the applicable entries. See Declaration of Alexander H. Southwell in Support of Defendants’
Fee Application in Connection with Their Eighth Motion to Compel (“Southwell Decl.”) ¶¶ 8-9.
Defendants’ counsel then drafted, discussed, revised, finalized, and filed the instant Fee
Application and supporting declaration of Alexander H. Southwell. See Southwell Decl. Ex. A.
DEFENDANTS’ LAWYERS AND THEIR EFFORTS TO SECURE
CEGLIA’S COMPLIANCE
Defendants’ counsel from the law firm Gibson, Dunn & Crutcher LLP (“Gibson Dunn”)
who devoted substantial time providing legal services relevant to the instant Fee Application are
Thomas Dupree, Alexander Southwell, Matthew Benjamin, and Amanda Aycock. Biographies
for each of these attorneys were previously filed as part of Defendants’ Fee Application filed
January 20, 2012 (Doc. No. 285). See Doc. No. 285 at 6-9 (briefly outlining the experience of
each of the above-referenced attorneys).

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Mr. Dupree, a partner in Gibson Dunn’s Washington, D.C. office, is an experienced trial
and appellate advocate whose 2012 billing rate is $900. Mr. Dupree’s role relevant to this Fee
Application was primarily in revising Defendants’ memoranda of law. Defendants claim only
0.26 hours of Mr. Dupree’s time in this Fee Application. See Southwell Decl. Ex. A.
Mr. Southwell, a partner in Gibson Dunn’s New York office, is a former federal
prosecutor specializing in complex civil litigation whose 2012 billing rate is $910. Mr.
Southwell’s role relevant to this Fee Application was primarily in revising Defendants’
memoranda of law and reviewing supporting declarations. Defendants claim 0.75 hours of Mr.
Southwell’s time in this Fee Application. See Southwell Decl. Ex. A.
Mr. Benjamin is a seventh-year associate in Gibson Dunn’s New York office whose
practice focuses on white-collar criminal defense and complex commercial litigation and whose
2012 billing rate is $720. Mr. Benjamin’s role relevant to this Fee Application was primarily in
developing strategy, drafting, reviewing, and revising the memoranda in support of Defendants’
Eighth Motion to Compel, drafting declarations, and coordinating filings. Defendants claim 4.43
hours of Mr. Benjamin’s time in this Fee Application. See Southwell Decl. Ex. A.
Ms. Aycock is a third-year associate in Gibson Dunn’s New York office whose practice
focuses on complex commercial litigation and whose 2012 billing rate is $560. Ms. Aycock’s
role relevant to this Fee Application was primarily in drafting portions of Defendants’
memoranda and supporting declarations, and coordinating all filings. Defendants claim 1.58
hours of Ms. Aycock’s time in this Fee Application. See Southwell Decl. Ex. A.
As directed by the D&O, the instant Fee Application includes only legal services
rendered in connection with the portion of Defendants’ Eighth Motion to Compel requesting
production of the March 30 Capsicum Communication. It does not include legal services

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rendered in connection with the portion of Defendants’ Eighth Motion to Compel requesting
production of the April 12 Kasowitz Letter or the April 12 Kasowitz Letter. It also does not
include legal services rendered in connection with the portion of Defendants’ Eighth Motion to
Compel moving to overrule Ceglia’s improper confidentiality designation of the April 13
Kasowitz Letter.
In order to calculate the time and fees associated with only the legal services related to
the March 30 Capsicum Communication, Defendants divided their Eighth Motion to Compel
into two issues: (1) the three unproduced Kasowitz communications, and (2) Ceglia’s improper
confidentiality designation of the April 13 Kasowitz Letter. Defendants then calculated the total
amount of time each attorney expended on the Eighth Motion to Compel, and divided each
attorney’s time in half, in order to best reflect the amount of time dedicated to each of the two
issues. Then, because the March 30 Capsicum Communication was only one of three
communications sought, Defendants further divided each attorney’s time by three, in order to
reflect the amount of time dedicated only to the single March 30 Capsicum Communication. See
Southwell Decl. ¶ 10.
Defendants also seek reimbursement for fees for the time reasonably spent preparing
this Application and accompanying affidavit, including those incurred in connection with any
reply memorandum, oral argument, or enforcement of a fee award. Information concerning
those additional fees will be fully submitted once briefing and argument (at this Court’s
discretion) occur.
The time spent on legal services covered by the Court’s order granting Defendants’
Seventh Motion to Compel that Defendants claim herein, totaling $3,747.68 and which is fully

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detailed in the Southwell Declaration and accompanying narrative descriptions, is presented in
the chart below:
Total
Hours
0.26
0.75
4.43
1.59
7.03

Attorney
Thomas H. Dupree
Alexander Southwell
Matthew Benjamin
Amanda Aycock
TOTAL

Claimed
Rate
$675.00
$682.50
$540.00
$420.00

Total Fees
$174.38
$511.50
$2,394.00
$667.80
$3,747.68

ARGUMENT
In Defendants’ first Fee Application (Doc. No. 285), which this Court granted, see Doc.
No. 292, and in subsequent fee applications, Defendants have not sought full reimbursement for
all fees they incurred. Rather, to avoid any dispute as to the reasonableness of the fee request,
Defendants have declined to seek reimbursement for several timekeepers and voluntarily
discounted their standard hourly rates by 25%—rates which this Court expressly approved in
Defendants’ first Fee Application. See Doc. No. 292 at 26–31. Defendants have applied the
same principles in this Fee Application as well: they have instituted an across-the-board 25% cut
to their standard hourly rates and have declined to seek reimbursement for several timekeepers,
including senior partner Orin Snyder and several associate attorneys, whose excluded total fees
related to the March 30 Capsicum Communication exceeded $1,400.
The already-discounted fees sought in this Application are reasonable. Defendants now
seek reimbursement for a little over seven hours of legal services for this work over eleven days,
using the same lodestar formula expressly approved by this Court in its grant of Defendants’ first
Fee Application. See Doc. No. 292 at 34. The time and rates Defendants seek in this
Application were reasonably expended to advance and defend the portion of the Eighth Motion

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to Compel related to the March 30 Capsicum Communication and respond to Ceglia’s
opposition.
After discovering the existence of the March 30 Capsicum Communication, Defendants
researched, drafted, revised, and finalized their Eighth Motion to Compel and prepared the
accompanying declarations and exhibits. Then, during the six days following Ceglia’s filing of
his opposition, Defendants reviewed, analyzed, and discussed Ceglia’s opposition, and
researched, drafted, revised, and finalized their reply in support of their Eighth Motion to
Compel. These tasks were discharged efficiently, with only one associate primarily responsible
in each phase of preparing the motion.
The Court should therefore grant Defendants’ narrowly tailored and reasonable Fee
Application in Connection with their Eighth Motion to Compel in full.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that this Court order Ceglia to
pay Defendants’ attorneys’ fees in the total amount of $3,747.68 within fourteen days of this
Court’s Order granting Defendants’ Fee Application,1 or submit documentation demonstrating
why such payment is not possible, in accordance with the Court’s May 3, 2012 Decision and
Order on Defendants’ Supplemental Fee Application. See Doc. No. 370 at 13-14.

1

See, e.g., Sheehy v. Wehlage, 02CV592A, 2007 U.S. Dist. LEXIS 11722, at *27
(W.D.N.Y. Feb. 20, 2007) (requiring plaintiffs to pay defendants’ 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. Apr. 5, 2010) (same); Citizens State Bank v. Dixie Cnty.,
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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Dated:

New York, New York
November 19, 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.
Erik R. Zimmerman
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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