In re Telescopes Antitrust Litig.

1

IN RE TELESCOPES ANTITRUST LITIGATION

No. 20-cv-03642-EJD (VKD)

United States District Court, N.D. California, San Jose Division

August 2, 2023

ORDER GRANTING IN PART AND DENYING IN PART DPPS' APPLICATION FOR ATTORNEYS' FEES AND COSTS RE: DKT. NO 422

VIRGINIA K. DEMARCHI United States Magistrate Judge.

On June 12, 2023, the Court issued an order finding that defendants did not fully comply with the Court's discovery orders regarding the production of transactional data, and concluding that monetary sanctions are appropriate. Dkt. No 418. DPPs ask for an award of sanctions in the amount of $167,489. Dkt. No. 422. Defendants object that this amount is unreasonable and inconsistent with the Court's June 12 2023 order. Dkt. No. 428. The Court finds this matter suitable for decision without oral argument. Civil L.R. 7-1(b).

For the reasons explained below, the Court awards DPPs attorneys' fees and expert fees in the amount of $71,652.50, pursuant to Rule 37(b)(2)(C).

I. BACKGROUND

In its prior order, the Court concluded that defendants failed to timely complete production of their transactional data, as required by the Court's prior discovery orders, and that they had been “careless in their representations to the Court about the available sources of transactional data and the completeness of their productions.” Dkt. No. 418 at 6. Observing that “DPPs should not have had to file a motion to compel in order to obtain meaningful information about defendants' sources of transactional data or the production of responsive transactional data in usable form,” the Court found that “DPPs are entitled to recover their reasonable attorneys' fees and expenses associated with the filing of the motion and supporting materials, the preparation of the reply (with the exception of [expert Christopher] Groves's reply declaration), and preparation for and participation in the April 4, 2023 hearing on the motion,” under Rule 37(b)(2)(C). Id. at 7; see Id. at 5.

At the Court's direction, DPPs filed an application for an award of attorneys' fees and expert fees for time spent preparing DPPs' motion to compel, opposing defendants' request to have the motion taken off calendar, preparing DPPs' reply in support of the motion to compel, and preparing for and participating in the hearing on DPPs' motion. Dkt. No. 422 at 3-5; see also Dkt. Nos. 422-2, 422-3. In their application, DPPs also ask for an award of fees for time “associated with meet and confer efforts” over the course of nine months preceding the filing of their motion to compel. Dkt. No. 422 at 6; see also Dkt. Nos. 422-4, 422-5. DPPs do not seek fees for time their expert spent preparing his reply declaration or for time associated with conferences of counsel after the April 4, 2023 motion hearing. Dkt. No. 422 at 6.

Defendants do not object to the rates DPPs use to calculate the attorneys' fees at issue, nor do they object that the time spent for any particular task was unreasonable or excessive. However, defendants strongly object to DPPs' request for attorneys' fees associated with “meet and confer efforts” as outside the scope of the Court's June 12, 2023 order and not reasonably compensable in any event. Dkt. No. 428 at 3-5. In addition, defendants contend that DPPs' counsels' time entries are “impermissibly vague” and include block billing, making them difficult to evaluate. Id. at 6-7. As a remedy, defendants suggest a “minimum 20% reduction” of DPPs' claimed hours for work performed in connection with briefing and argument on the motion to compel. Id. at 7.

II. LEGAL STANDARD

For fees awarded pursuant to Rule 37(b)(2)(C), there must be a causal connection between a litigant's misconduct and the fees incurred by the opposing party. Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101, 108 n.5 (2017). That kind of causal connection is “appropriately framed as a but-for test”-the complaining party may recover only the portion of fees that it would not have paid but for the misconduct. Id. at 109. When assessing fees, district courts may “exercise discretion and judgment” and “take into account [their] overall sense of a suit.” Id. at 109-10 (cleaned up). Because “the essential goal in shifting fees is to do rough justice,” courts “need not, and indeed should not, become green-eyeshade accountants.” Id. at 110 (cleaned up); see also In re Personalweb Technologies, LLC Patent Litig., 18-md-02834-BLF, 5:18-cv-00767-BLF, 18-cv-05619-BLF, 2021 WL 796356, at *5 (N.D. Cal. Mar. 2, 2021) (“In examining the reasonableness of fees and in applying the ‘but for' standard, the mechanics of determination does not require a tedious, line-by-line investigation of the hours . . . expended.”) (cleaned up).

In evaluating DPPs' request for an award of attorneys' fees, the Court uses the lodestar method. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Under this method, “the number of hours reasonably expended” is multiplied by “a reasonable hourly rate” to yield a lodestar figure. Id. In determining reasonable hourly rates, the Court must consider the prevailing rates in the community for similar work performed by attorneys of comparable skill, experience and reputation during the relevant time period. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 98081 (9th Cir. 2008). In determining a reasonable number of hours, the Court must consider whether the hours claimed by the applicant are adequately documented and whether any of the hours were unnecessary, duplicative, or excessive. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986).

III. DISCUSSION

A. Scope of Attorneys' Fee Award

The Court agrees with defendants that DPPs are not entitled to recover fees for time spent engaged in “meet and confer efforts” with defendants before DPPs filed their motion to compel. Those efforts are an ordinary part of discovery, and parties are required by the Federal Rules of Civil Procedure, as well as this District's local rules, to engage in such efforts before burdening the Court with a discovery dispute. Fed. R. Civ. P 37(a)(1); Civil L.R. 37-1(a). While DPPs fault defendants for the unproductive nature of these efforts, see Dkt. No. 422 at 5-6, the Court did not (and does not) conclude that the parties' “meet and confer efforts” failed because defendants did not participate in them in good faith. See, e.g., Dkt. No. 418 at 6 (commenting on both sides' conduct). As the Court previously ordered, DPPs are entitled to recover attorneys' fees for time spent on briefing and argument associated with their motion to compel.

B. Reasonable Attorneys' Fees

Having carefully reviewed the time records submitted by DPPs and the supporting declaration of counsel,^[1] the Court finds that the claimed rates are consistent with the prevailing rates in this District for similar legal services. The Court also finds that the number of hours claimed by DPPs for this work is reasonable, and the time spent does not appear to be unnecessary, duplicative, or excessive.

1. Hourly rate

DPPs seek fees for work performed by six attorneys, with hourly rates ranging from $1,050/hour for Matthew Borden, a senior partner, to $550/hour for Gayne Kalustian-Carrier, a junior associate. Dkt. No 422-1 ¶¶ 6-11. DPPs also seek fees for performed by two paralegals at a rate of $225/hour. Id. ¶ 12.

Defendants do not dispute that DPPs' counsel's hourly rates are reasonable. See Dkt. No. 428. And the record before the Court indicates that rates between $1,050/hour and $550/hour are in line with what other courts in this District have approved for “private plaintiffs' attorneys litigating complex civil cases in the San Francisco Bay Area.” Franchek v. Workrite Ergonomics, LLC, No. 16-CV-02789-JSW (DMR), 2022 WL 3137928, at *4 (N.D. Cal. May 9, 2022) (collecting cases finding rates between $250/hour to $1,075/hour reasonable); see also In re Glumetza Antitrust Litig., No. C 19-05822 WHA, 2022 WL 327707, at *8-9 (N.D. Cal. Feb. 3, 2022) (finding rates between $275/hour and $1,105/hour reasonable); In re Apple Inc. Device Performance Litig., No. 5:18-MD-02827-EJD, 2023 WL 2090981, at *17 (N.D. Cal. Feb. 17, 2023) (finding rates between $275/hour and $1,050/hour reasonable). Likewise, the $225/hour rate for paralegals is also in line with what other courts in this District have found reasonable. See In re Glumetza Antitrust Litig., 2022 WL 327707, at *8 (finding rates between $150/hour and $350/hour reasonable for paralegals).

Accordingly, the Court finds that DPPs' claimed hourly rates are reasonable.

2. Number of hours expended

In support of their application, DPPs rely on a declaration of counsel attaching invoices for work performed on DPPs' behalf. Dkt. Nos. 422-1; 422-2 - 422-5. The invoices describe the tasks performed by date and by timekeeper, and specify the time spent on each task at the applicable hourly rate for that timekeeper. Id. DPPs claim a total of 117.5 hours for briefing and argument associated with their motion to compel, as follows:

Task

Hours

Billed Amount

Motion to Compel

69.4

$37,778.00

Opposition to Administrative Motion to Take Motion to Compel of the Calendar

4.3

$2,826.00

Reply in Support of Motion to Compel

29.8

$19,990.00

Hearing on Motion to Compel

14.0

$14,075.00

Total:

117.5

$74,669.00

Dkt. No. 422 at 4-5, Tables 1-4.

A fee application must “identif[y] the general subject matter of [] time expenditures” to be sufficient. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000) (quoting Hensley, 461 U.S. at 437 n.12). Billing records are inadequate when the court is “unable to discern how the time spent is attributable to the case at hand.” In re Volkswagen "Clean Diesel" Mktg., Sales Pracs., & Prod. Liab. Litig., MDL No 7640, 2020 WL 5371404, at *7...