Flowrider Surf, Ltd. et al v. Pacific Surf Designs, Inc.

SUPPLEMENTAL BRIEFING

S.D. Cal.March 24, 2017

PLAINTIFFS’ ADDITIONAL BRIEFING REGARDING REQUEST FOR SANCTIONS CASE NO. 15-cv-01879-BEN-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENBERG TRAURIG, LLP J. Rick Taché (CA Bar No. 195100) (tacher@gtlaw.com) Tyler R. Andrews (CA Bar No. 250686) (andrewst@gtlaw.com) Erikson C. Squier (CA Bar No. 275274) (squiere@gtlaw.com) Leanna C. Costantini (CA Bar No. 294028) (costantinil@gtlaw.com) 3161 Michelson Drive, Suite 1000 Irvine, CA 92612 Telephone: (949) 732-6500 Facsimile: (949) 732-6501 GREENBERG TRAURIG, LLP Sarah E. Barrows (CA Bar No. 253278) (barrowss@gtlaw.com) 4 Embarcadero Center, Suite 3000 San Francisco, CA 94111 Telephone: (415) 655-1300 Facsimile: (415) 707-2010 Attorneys for Plaintiffs: FlowRider Surf, Ltd. and Surf Waves Ltd. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA FLOWRIDER SURF, LTD., a Canadian corporation, and SURF WAVES, LTD., a company incorporated in the United Kingdom; Plaintiffs, vs. PACIFIC SURF DESIGNS, INC., a Delaware corporation; Defendant. CASE NO. 3:15-CV-01879-BEN PLAINTIFFS’ ADDITIONAL BRIEFING REGARDING REQUEST FOR SANCTIONS PURSUANT TO COURT ORDER (ECF NO. 175) Case 3:15-cv-01879-BEN-BLM Document 188 Filed 03/24/17 PageID.6373 Page 1 of 13 1 PLAINTIFFS’ ADDITIONAL BRIEFING REGARDING REQUEST FOR SANCTIONS CASE NO. 15-cv-01879-BEN-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to the Court’s March 8, 2017 Order (1) Denying Defendant’s Motion to Compel Discovery, and (2) Requiring the Parties to Submit Additional Documentation Regarding The Imposition of Sanctions (ECF No. 175), Plaintiffs FlowRider Surf, Ltd. and Surf Waves, Ltd. (collectively, “Whitewater”) hereby submit additional briefing in support of their request for sanctions pursuant to Fed. R. Civ. P. 37(a)(5)(B). I. PLAINTIFFS ARE ENTITLED TO RECOVER FEES AND COSTS IN THE AMOUNT OF $32,594.50 This brief is the culmination of Defendant Pacific Surf Design, Inc.’s (“PSD”) unjustified and untimely efforts to compel Whitewater to produce tens of thousands of pages of documents and scores of pleadings from a completely unrelated prior action between Plaintiff FlowRider Surf, Ltd. and non-party Wave Loch, LLC (the “Wave Loch arbitration”). If a motion to compel discovery is denied, a court “must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney’s fees,” unless the motion was substantially justified or other circumstances mitigate against awarding expenses. Fed. R. Civ. P. 37(a)(5)(B); see also Brown v. Hain Celestial Grp., Inc., 2013 WL 5800566, at *5 (N.D. Cal. Oct. 28, 2013) (“The party that loses the motion to compel bears the affirmative burden of demonstrating that its position was substantially justified.”). Here, the Court has already determined that PSD’s motion was not substantially justified and that the imposition of sanctions under Rule 37 was appropriate: Plaintiffs also advised Defendant that they “would seek appropriate relief from the Court from being forced to defend against [Defendant’s] baseless motion.” Costantini Decl. at 4. Defendant nevertheless filed an untimely motion to compel irrelevant, duplicative, and confidential documents, which are not proportional to the needs of this case. The Court therefore finds that Defendant’s motion to compel was not substantially justified, and that the imposition of sanctions is warranted and appropriate. Case 3:15-cv-01879-BEN-BLM Document 188 Filed 03/24/17 PageID.6374 Page 2 of 13 2 PLAINTIFFS’ ADDITIONAL BRIEFING REGARDING REQUEST FOR SANCTIONS CASE NO. 15-cv-01879-BEN-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Denying Mot. to Compel, ECF No. 175 at 16:9-14 (emphasis added). As such, Plaintiffs are entitled their reasonable expenses incurred in opposing PSD’s Motion to Compel, including attorney’s fees and costs. In addition, Plaintiffs are entitled to recover the fees and costs incurred in drafting this additional briefing and the supporting declaration. Rosenfeld v. Southern Pacific Co., 519 F.2d 527, 530 (9th Cir.1975) (allowing compensation for services rendered solely to obtain the allowance of attorney’s fees). See also Manhart v. City of Los Angeles, Dept. of Water & Power, 652 F.2d 904, 909 (9th Cir.1981), vacated on other grounds, 461 U.S. 951, (1983)) (“It would be inconsistent to dilute an award of fees by refusing to compensate an attorney for time spent to establish a reasonable fee.”). Whitewater respectfully requests reimbursement for $32,594.50 in attorneys’ fees and costs incurred in opposing PSD’s Motion to Compel and in preparing this additional briefing. As set forth below, the fees requested are reasonable. A. The Fees Requested Are Reasonable In determining what constitute “reasonable expenses,” the Supreme Court’s “lodestar” analysis provides guidance to the Court. Hensley, 461 U.S. at 433. This analysis requires the Court to calculate the number of hours reasonably spent on the matter multiplied by a reasonable hourly rate. Id. 1. The Work Performed Was Reasonable As courts have noted, “[t]hose who elect a militant defense . . . [are responsible for] the time and effort they exact from their opponents.” Perkins v. New Orleans Athletic Club, 429 F. Supp. 661, 667 (E.D. La. 1976). In other words, “one ‘cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.’” Calvo Fisher & Jacob LLP v. Lujan, 234 Cal. App. 4th 608, 627 (Cal. Ct. App. 2015) (citation omitted); Wolf v. Frank, 555 F.2d 1213, 1217 (“Obviously, the more stubborn the opposition the more time would be required . . . ”) (5th Cir. 1977). Here, Plaintiffs were required to incur fees in responding to PSD’s unsupported position prior to PSD’s motion being filed. Specifically, this Court’s chambers rules Case 3:15-cv-01879-BEN-BLM Document 188 Filed 03/24/17 PageID.6375 Page 3 of 13 3 PLAINTIFFS’ ADDITIONAL BRIEFING REGARDING REQUEST FOR SANCTIONS CASE NO. 15-cv-01879-BEN-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 require the parties to “thoroughly meet and confer” and “conduct a conference call with Chambers” before a motion is brought. Judge Major’s Chambers Rules at 3-4 (emphasis original); see also L.R. 26.1 (requiring counsel to have “met and conferred” prior to motion practice). Even though PSD’s position was wholly unsupported, these meet and confer efforts were not optional. In fact, had Plaintiffs refused to participate, the Court could have ordered Plaintiffs to pay PSD’s expenses. L.R. 26.1. Plaintiff should not have had to expend these fees at all, but did so in good faith to comply with the Court’s rules. Thus, Plaintiffs are entitled to recover their fees for these pre-motion efforts. Woodland v. Viacom, Inc., 255 F.R.D. 278, 283-84 (D.D.C. 2008) (allowing recovery of fees spent during meet and confer process with counsel and the court where “counsel doubtless engaged in these activities in order to comply with local rule[s]” and courtroom procedures); Matlink, Inc. v. Home Depot U.S.A., Inc., No. 07CV1994-DMS BLM, 2008 WL 8504767, at *5 (S.D. Cal. Oct. 27, 2008) (including meet and confer efforts in sanctions award may be justified based on losing party’s improper conduct). Once the motion was filed, Plaintiffs were required to determine the best course of action in opposing the motion, and then research and draft an opposition. Plaintiffs are entitled to recover fees for these efforts as well. See Matlink, supra, at *4-5 (awarding fees for researching, drafting, and revising discovery motion); Bowne of New York City, Inc. v. AmBase Corp., 161 F.R.D. 258, 267-68 (S.D.N.Y. 1995) (intra-firm conferences and time spent on delegation of tasks related to discovery motions are necessary and compensable). The hours incurred for each of these tasks are well documented and based on contemporaneous records for each time keeper. (Declaration of J. Rick Taché (“Taché Decl.”) ¶ 3.) The declaration by Plaintiffs’ counsel filed concurrently herewith detailing the attorneys’ fees and costs incurred in connection with PSD’s Motion to Compel is sufficient for an award of attorney’s fees. See Henry v. Gill Indus., Inc., 983 F.2d 943, 946 (9th Cir. 1993) (“[A]n award of attorney’s fees may be based on the affidavits of counsel, so long as they are ‘sufficiently detailed to enable the court to consider all the Case 3:15-cv-01879-BEN-BLM Document 188 Filed 03/24/17 PageID.6376 Page 4 of 13 4 PLAINTIFFS’ ADDITIONAL BRIEFING REGARDING REQUEST FOR SANCTIONS CASE NO. 15-cv-01879-BEN-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 factors necessary in setting the fees.’”); Shakey’s Inc. v. Covalt, 704 F.2d 426, 435 (9th Cir. 1983) (counsel’s affidavit provided “ample evidence to support the attorney’s fee award”).1 For all of the foregoing items, Plaintiffs incurred the following fees, which are broken down by professional, hours spent, and hourly rate charged: Name/Position Hours Hourly Rate Total Fees Rick Taché (shareholder) 3.4 $995 $3,383.00 Roger Scott (associate) 1.6 $645 $1,032.00 Leanna Costantini (associate) 1.6 $645 $1,032.00 Alexis Kovacs (paralegal) 32.5 $480 $15,600.00 TOTAL $23,277.00 (Tache Decl. ¶ 17.) As shown in the chart above, and detailed below, the majority of the work in opposing PSD’s improper efforts to obtain discovery regarding the Wave Loch arbitration was performed by shareholder and lead counsel, J. Rick Taché, associates Leanna C. Costantini and Roger L. Scott, and paralegal Alexis Kovacs: J. Rick Taché J. Rick Taché is the co-managing shareholder of the Orange County, California office of Greenberg Traurig, LLP and the co-chair of Greenberg Traurig’s Patent Litigation Group. (Taché Decl. ¶ 5.) Mr. Taché is a registered patent attorney and intellectual property lawyer, with an emphasis on patent, trademark, copyright, and trade secret litigation. (Id.) He has earned several degrees, including Bachelors’ degrees from the University of New Brunswick in 1984 and the University of Windsor in 1989, a Master’s degree in Ohio State University in 1985, and a Juris Doctor degree from the 1 Individual time summaries can be made available at the Court’s request, though some redactions might be necessary to protect privileged information. Case 3:15-cv-01879-BEN-BLM Document 188 Filed 03/24/17 PageID.6377 Page 5 of 13 5 PLAINTIFFS’ ADDITIONAL BRIEFING REGARDING REQUEST FOR SANCTIONS CASE NO. 15-cv-01879-BEN-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 University of Detroit Mercy School of Law in 1989. (Id.) Since graduating from law school, he has been admitted to practice in several state and federal courts across the country, including all U.S. District Courts in the state of California and the U.S. Court of Appeals for the Federal Circuit. (Id.) He has also received several awards and recognitions for my work, including by IAM magazine’s “The IAM Patent 1000” from 2012 to 2016 and Managing IP Magazine’s World IP Handbook and Survey’s “IP Stars” from 2013-2016. (Id.) Plaintiffs incurred a total of $3,383.00 for Mr. Taché’s work related to opposing PSD’s motion. (Taché Decl. ¶ 5.) Mr. Taché billed a total of 3.4 hours at his hourly billing rate of $995. (Id. ¶¶ 6-7.) That work included reviewing and analyzing PSD’s Motion to Compel and Reply brief, and supervising the associates who were primarily involved in drafting Whitewater’s Opposition to PSD’s Motion to Compel to ensure that the work-product was consistent with the client’s goals in this case. (Id.) All of his work was necessary to oppose PSD’s Motion to Compel. (Id.) Leanna C. Costantini Leanna Costantini is an intellectual property litigation associate in the Orange County, California office of Greenberg Traurig, LLP. (Taché Decl. ¶ 8.) Ms. Costantini earned her Bachelor of Arts degree from the University of California, Los Angeles in 2008, and her Juris Doctor, from University of California, Irvine School of Law in 2013. (Id.) Since graduating law school, she has represented companies and individuals in civil litigation in federal and state courts at all phases of litigation including discovery, trial, and appeal. (Id.) Ms. Costantini is admitted to practice in California and in the United States District Courts for the Central, Northern, and Southern Districts of California. (Id.) As Ms. Costantini is intimately familiar with the relevant facts and legal issues in this case, Ms. Costantini took the primary role in opposing PSD’s Motion to Compel. (Taché Decl. ¶ 9.) Plaintiffs incurred a total of $15,600 for Ms. Costantini’s work related to opposing PSD’s motion. (Taché Decl. ¶ 17.) Ms. Costantini billed a total of 32.5 Case 3:15-cv-01879-BEN-BLM Document 188 Filed 03/24/17 PageID.6378 Page 6 of 13 6 PLAINTIFFS’ ADDITIONAL BRIEFING REGARDING REQUEST FOR SANCTIONS CASE NO. 15-cv-01879-BEN-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 hours at her hourly billing rate of $480. (Id. ¶ 10.) That work included the following activities: (a) 5.4 hours – meeting and conferring with opposing counsel through written and telephonic correspondence, and preparing for and participating in a telephonic conference with Judge Major’s chambers regarding PSD’s demand for all documents and pleadings exchanged in the Wave Loch arbitration; and (b) 27.1 hours – preparing Whitewater’s Opposition, including: (i) reviewing and analyzing PSD’s Motion to Compel, (ii) researching relevant case law and statutes; (iii) reviewing dozens of discovery correspondence between Whitewater and PSD regarding the Wave Loch arbitration; (iv) drafting the opposition brief and supporting declaration; (v) drafting the motion to seal and proposed order for documents designated under the Protective Order and filed in support of the Opposition; and (v) overseeing the filing of the Opposition and supporting declarations and motion to file under seal. (Id.) All of Ms. Costantini’s work was necessary to oppose PSD’s Motion to Compel. (Taché Decl. ¶ 11.) Roger L. Scott Roger L. Scott is a litigation associate in the Orange County, California office of Greenberg Traurig, LLP. (Taché Decl. ¶ 12.) Mr. Scott has represented companies and individuals in civil litigation in federal and state courts including at trial and arbitration. (Id.) He earned his Bachelor of Arts degree from the University of California, Santa Barbara in 2002, and his Juris Doctor, cum laude, from the Catholic University of America, Columbus School of Law in 2006. (Id.) Mr. Scott is admitted to practice in California and in the United States District Courts for the Central, Eastern, Northern, and Southern Districts of California, and the United States Court of Appeals for the Ninth Circuit. (Id.) Plaintiffs incurred a total of $1,032 for Mr. Scott’s work related to opposing PSD’s motion. (Taché Decl. ¶ 17.) Mr. Scott billed a total of 1.6 hours at his hourly billing rate Case 3:15-cv-01879-BEN-BLM Document 188 Filed 03/24/17 PageID.6379 Page 7 of 13 7 PLAINTIFFS’ ADDITIONAL BRIEFING REGARDING REQUEST FOR SANCTIONS CASE NO. 15-cv-01879-BEN-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of $645. (Id. ¶ 14.) That work included drafting his own declaration regarding the Wave Loch arbitration (in which Mr. Scott directly participated) and associated confidentiality issues, and the declaration of Thomas Lochtefeld regarding his understanding and expectations of confidentiality in that arbitration. (Id.) Mr. Scott also assisted in revising Whitewater’s Opposition brief. All of Mr. Scott’s work was necessary to oppose PSD’s Motion to Compel. (Id.) Alexis Kovacs Ms. Kovacs is an intellectual property litigation paralegal in the Orange County, California office of Greenberg Traurig, LLP who has worked on this case since its inception. (Taché Decl. ¶ 15.) Ms. Kovacs has more than 19 years of experience working as a paralegal. (Id.) She received her Bachelor of Arts degree and paralegal certification from California State University, Chico. Ms. Kovacs has been part of eight trial teams in matters ranging from breach of contract to patent infringement. (Id.) Plaintiffs incurred a total of $3,262.50 for Ms. Kovacs’ work related to opposing PSD’s motion. (Taché Decl. ¶ 17.) Ms. Kovacs’ billed a total of 8.7 hours at her hourly billing rate of $375. (Id. ¶ 16.) That work included gathering, organizing and preparing exhibits in support of Whitewater’s opposition, electronically filing the opposition and exhibits through the CM/ECF system, and coordinating delivery of mandatory chambers copies for the court per local rules and the Court’s standing order. (Id.) All of Ms. Kovacs’ work was necessary to oppose PSD’s Motion to Compel. (Id.) Considering that PSD’s motion was denied both for being untimely and for seeking discovery neither relevant nor proportional to the needs of this case, the amount of attorney and paralegal time spent, and the hourly rates charged, were entirely reasonable. 2. The Rates Charged Are Reasonable A reasonable hourly billing rate is one that is “in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1110 (9th Cir. 2014) Case 3:15-cv-01879-BEN-BLM Document 188 Filed 03/24/17 PageID.6380 Page 8 of 13 8 PLAINTIFFS’ ADDITIONAL BRIEFING REGARDING REQUEST FOR SANCTIONS CASE NO. 15-cv-01879-BEN-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (citing Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008)). “Affidavits of the moving party’s attorneys and other attorneys regarding prevailing attorneys’ fees in the community are satisfactory evidence of the prevailing market rate.” See Rothrock v. Int’l Ass'n of Heat & Frost Insulators & Allied Workers, No. 15-CV-2412 DMS (JLB), 2016 WL 6395092, at *3 (S.D. Cal. Oct. 27, 2016) (citing Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1110 (9th Cir. 2014)).. The hourly rates charged by the firm in this matter were and are the same as the prevailing rates charged by comparable law firms in this community for similar services provided by attorneys of the same experience and expertise. (Taché Decl. ¶¶ 6, 9, 13.) Greenberg Traurig, LLP is an international, full-service law firm with approximately 1,750 attorneys, serving clients from 35 offices in the United States, Latin America, Europe, the Middle East and Asia. (Tache Decl. ¶ 2.) The firm has earned numerous accolades, including No. 1 in domestic presence (29 United States locations) among the Top 10 law firms on The National Law Journal’s 2012 NLJ 250, and the most overall first-tier rankings, most first-tier metropolitan rankings and most practice areas with first- tier rankings for the United States in the U.S. News Media Group and Best Lawyers® “Best Law Firms” rankings for 2011-2012. (Id.) The reasonableness of these Greenberg Traurig attorneys’ rates is confirmed by an independent analysis from PriceWaterhouse Cooper. The PriceWaterhouse 2015 “Billing Rate and Associate Salary Survey” for comparable firms in Los Angeles2 indicates that the median hourly rates of equity partners with 21 to 25 years of intellectual property litigation experience is $950 per hour and $1,025 for equity partners with 31-35 intellectual property litigation experience.3 (Taché Decl. ¶¶ 6.) That same Survey 2 The data from Los Angeles firms is used here as that data contained a sample size nearly four times that for the Orange County data, and, therefore, represents a more comprehensive data set for the comparable firms’ billing rates. 3 There is no data in the Survey for equity partners with 26-30 years of intellectual property litigation experience. Case 3:15-cv-01879-BEN-BLM Document 188 Filed 03/24/17 PageID.6381 Page 9 of 13 9 PLAINTIFFS’ ADDITIONAL BRIEFING REGARDING REQUEST FOR SANCTIONS CASE NO. 15-cv-01879-BEN-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 indicates that the median hourly rate of intellectual property litigation associates who graduated from law school in 2013 is $493 per hour, while the rates for litigation associates who graduated in 2006 range from $546 to $704, with a median rate of $628 per hour. (Id. ¶¶ 9, 13.) Those rates are fully consistent with the rates charged to Plaintiffs. (See id. ¶¶ 6, 9, 13.) 3. Plaintiffs Are Also Entitled To Recover Costs Incurred In Opposing PSD’s Motion Messenger service fees are compensable in a fee award. See, e.g. Harris v. Marhoefer, 24 F.3d 16, 19-20 (9th Cir.1994) (finding that messenger fees may be recovered); see also Sure Safe Indus. Inc. v. C&R Pier Mfg., 152 F.R.D. 625, 626 (S.D. Cal. 1993) (holding that an award of attorneys' fees under Rule 37 properly includes out- of-pocket expenses including mailing, copying and travel). Plaintiffs incurred $63.50 in messenger fees delivering courtesy copies of Plaintiffs’ opposition to the Court. (Taché Decl. ¶ 19.) Thus, Plaintiffs are entitled to recover that $63.50 from PSD. 4. Plaintiffs Are Also Entitled To Recover Fees and Costs Incurred In Preparing This Briefing Plaintiffs are entitled to recover the fees incurred in drafting this additional briefing and the supporting declaration. Rosenfeld, 519 F.2d at 530 (allowing compensation for services rendered solely to obtain the allowance of attorney’s fees); Manhart, 652 F.2d at 909 (9th Cir.1981), vacated on other grounds, 461 U.S. 951, (1983)) (“It would be inconsistent to dilute an award of fees by refusing to compensate an attorney for time spent to establish a reasonable fee.”). Whitewater will also incur an additional $9,254 in fees in connection with the preparing and filing of Whitewater’s additional briefing and this declaration, including: (i) analyzing the Court’s Order regarding PSD’s Motion to Compel, (ii) researching and drafting additional briefing for sanctions, and (iii) reviewing and summarizing billing records. Those fees broken down by professional, hours spent, and hourly rate charged are as follows: Case 3:15-cv-01879-BEN-BLM Document 188 Filed 03/24/17 PageID.6382 Page 10 of 13 10 PLAINTIFFS’ ADDITIONAL BRIEFING REGARDING REQUEST FOR SANCTIONS CASE NO. 15-cv-01879-BEN-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Name/Position Hours Hourly Rate Total Fees Rick Taché (shareholder) .5 $995 $475.50 Roger Scott (associate) 10.6 $645 $6,837.00 Leanna Costantini (associate) 4 $480 $1,920.00 TOTAL $9,254.00 II. CONCLUSION The work performed by Plaintiffs’ resulted directly from PSD’s unjustified efforts to improperly compel production of documents, and Plaintiffs prevailed completely in their opposition to PSD’s motion. The fees Plaintiffs’ incurred are reasonable both in terms of the hours worked and the applicable hourly rates. Accordingly, the Court should award Plaintiffs $32,594.50 in attorneys’ fees and costs, without reduction. DATED: March 24, 2017 GREENBERG TRAURIG, LLP By _____/s/ J. Rick Taché J. Rick Taché Case 3:15-cv-01879-BEN-BLM Document 188 Filed 03/24/17 PageID.6383 Page 11 of 13 1 PLAINTIFFS’ ADDITIONAL BRIEFING REGARDING REQUEST FOR SANCTIONS CASE NO. 15-cv-01879-BEN-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE: I am employed in the aforesaid county, State of California; I am over the age of 18 years and not a party to the within action; my business address is 3161 Michelson Drive, Suite 1000, Irvine, CA 92612. On March 24, 2017, I caused to be electronically filed the following documents, described as: PLAINTIFFS’ ADDITIONAL BRIEFING REGARDING REQUEST FOR SANCTIONS PURSUANT TO COURT ORDER (ECF NO. 175) with the Clerk of the United States District Court of the Southern District of California, using the CM/ECF System. The Court’s CM/ECF System will send an e-mail notification of the foregoing filing to the following parties and counsel of record who are registered with the Court’s CM/ECF system: Justin M. Barnes TROUTMAN SANDERS, LLP 11682 El Camino Real, Suite 400 San Diego, CA 92130 Tel. (858) 509-6000 Fax (858) 509-6040 justin.barnes@troutmansanders.com Anup M. Shah TROUTMAN SANDERS, LLP 301 S. College Street, Suite 3400 Charlotte, NC 28202 Tel. (704) 998-4089 Fax (704) 998-4051 anup.shah@troutmansanders.com Charanjit Brahma Mark C. Mao TROUTMAN SANDERS, LLP 580 California Street, 11th Floor San Francisco, CA 94104 Tel. (415) 477-5724 Fax (415) 477-5710 charanjit.brahma@troutmansanders.com mark.mao@troutmansanders.com (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the above is true and correct. Executed on March 24, 2017, at Irvine, California. /s/ J. Rick Taché J. Rick Taché Case 3:15-cv-01879-BEN-BLM Document 188 Filed 03/24/17 PageID.6384 Page 12 of 13 2 PLAINTIFFS’ ADDITIONAL BRIEFING REGARDING REQUEST FOR SANCTIONS CASE NO. 15-cv-01879-BEN-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:15-cv-01879-BEN-BLM Document 188 Filed 03/24/17 PageID.6385 Page 13 of 13 DECLARATION OF J. RICK TACHÉ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENBERG TRAURIG, LLP J. Rick Taché (CA Bar No. 195100) (tacher@gtlaw.com) Tyler R. Andrews (CA Bar No. 250686) (andrewst@gtlaw.com) Erikson C. Squier (CA Bar No. 275274) (squiere@gtlaw.com) Leanna C. Costantini (CA Bar No. 294028) (costantinil@gtlaw.com) 3161 Michelson Drive, Suite 1000 Irvine, CA 92612 Telephone: (949) 732-6500 Facsimile: (949) 732-6501 GREENBERG TRAURIG, LLP Sarah E. Barrows (CA Bar No. 253278) (barrowss@gtlaw.com) 4 Embarcadero Center, Suite 3000 San Francisco, CA 94111 Telephone: (415) 655-1300 Facsimile: (415) 707-2010 Attorneys for Plaintiffs: FlowRider Surf, Ltd. and Surf Waves Ltd. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA FLOWRIDER SURF, LTD., a Canadian corporation, and SURF WAVES, LTD., a company incorporated in the United Kingdom; Plaintiffs, vs. PACIFIC SURF DESIGNS, INC., a Delaware corporation; Defendant. CASE NO. 3:15-CV-01879-BEN DECLARATION OF J. RICK TACHE IN SUPPORT OF PLAINTIFFS’ ADDITIONAL BRIEFING REGARDING REQUEST FOR SANCTIONS PURSUANT TO COURT ORDER (ECF NO. 175) Case 3:15-cv-01879-BEN-BLM Document 188-1 Filed 03/24/17 PageID.6386 Page 1 of 8 2 DECLARATION OF J. RICK TACHÉ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF J. RICK TACHE I, J. Rick Taché, declare as follows: 1. I am an attorney duly licensed to practice law in the State of California. I am a Co-Managing Shareholder of the Greenberg Traurig’s Orange County office and Co-Chair of Greenberg Traurig’s Patent Litigation Group. I am the principal outside counsel for Plaintiffs FlowRider Surf, Ltd. and Surf Waves, Ltd. (collectively, “Whitewater”). The facts stated herein are within my personal knowledge and if called upon to testify I can truthfully and competently do so as to all matters herein. 2. Greenberg Traurig is an international, full service law firm with approximately 1,900 attorneys serving clients from 38 offices in the United States, Latin America, Europe, Asia, and the Middle East. The firm was No. 1 on the 2015 Law360 Most Charitable Firms list, third largest in the U.S. on the 2015 Law360 400, Top 20 on the 2015 Am Law Global 100, and among the 2015 BTI Brand Elite. The firm was among the Top 10 law firms on The National Law Journal’s 2012 NLJ 250, and the most overall first-tier rankings, most first-tier metropolitan rankings and most practice areas with first-tier rankings for the United States in the U.S. News Media Group and Best Lawyers® “Best Law Firms” rankings for 2011-2012. 3. I have reviewed the detailed billing records in this matter for the months of January 2017 and February 2017. Based on my review of the those billing records in this matter, Whitewater incurred attorneys’ fees and costs principally in connection with the following activities: (i) meeting and conferring regarding PSD’s demand for all documents and pleadings exchanged in an unrelated arbitration between Plaintiff FlowRider Surf, Ltd. and non-party Wave Loch, LLC (the “Wave Loch arbitration”) and participating in a call with Judge Major’s chambers regarding PSD’s motion to compel the same; (ii) opposing PSD’s Motion to compel all documents and pleadings exchanged in the Wave Loch arbitration. The hours incurred for each of these tasks are well documented and based on contemporaneous records for each time keeper. Case 3:15-cv-01879-BEN-BLM Document 188-1 Filed 03/24/17 PageID.6387 Page 2 of 8 3 DECLARATION OF J. RICK TACHÉ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. The detailed billing records indicate that the below-listed individuals were the primary time keepers involved in tasks related to PSD’s Motion to Compel all documents and pleadings exchanged in an unrelated arbitration between Plaintiff FlowRider Surf, Ltd. and non-party Wave Loch, LLC (ECF No. 139): J. Rick Taché 5. I am Co-Managing Shareholder of the Greenberg Traurig’s Orange County office and Co-Chair of Greenberg Traurig’s Patent Litigation Group. I am a registered patent attorney and intellectual property lawyer, with an emphasis on patent, trademark, copyright, and trade secret litigation. I have earned several degrees, including Bachelors’ degrees from the University of New Brunswick in 1984 and the University of Windsor in 1989, a Master’s degree in Ohio State University in 1985, and a Juris Doctor degree from the University of Detroit Mercy School of Law in 1989. Since graduating from law school, I have been admitted to practice in several state and federal courts across the country, including all U.S. District Courts in the state of California and the U.S. Court of Appeals for the Federal Circuit. I have also received several awards and recognitions for my work, including by IAM magazine’s “The IAM Patent 1000” from 2012 to 2016 and Managing IP Magazine’s World IP Handbook and Survey’s “IP Stars” from 2013-2016. 6. My billing rate is $995 an hour. My hourly rate is reasonable, as confirmed by an independent analysis from PriceWaterhouse Coopers.1 PriceWaterhouse’s 2015 “Billing Rate and Associate Salary Survey” (the “PWC Survey”) for comparable firms in Los Angeles2 indicates that the median hourly rates of 1 The Survey is subject to a confidentiality agreement and therefore has not been filed with the Court. If requested by the Court, the Survey can be provided for in camera inspection. 2 The data from Los Angeles firms is used here as that data contained a sample size nearly four times that for the Orange County data, and, therefore, represents a more comprehensive data set for the comparable firms’ billing rates. Case 3:15-cv-01879-BEN-BLM Document 188-1 Filed 03/24/17 PageID.6388 Page 3 of 8 4 DECLARATION OF J. RICK TACHÉ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 equity partners with 21 to 25 years of intellectual property litigation experience is $950 per hour and $1,025 for equity partners with 31-35 intellectual property litigation experience.3 Further, I am familiar with the prevailing market rate in the community, and my rate is in line with the rate of other lawyers of reasonably comparable skill, experience, and reputation in the community. 7. I billed a total of 3.4 hours for work in connection with PSD’s Motion to Compel at my hourly billing rate of $995. That work included reviewing and analyzing PSD’s Motion to Compel and Reply brief. I also supervised the associates who were primarily involved in drafting Whitewater’s Opposition to PSD’s Motion to Compel by reviewing and revising the brief and supporting declarations to ensure that the work- product was consistent with the client’s goals in this case. All of my work was necessary to oppose PSD’s Motion to Compel. Leanna C. Costantini 8. Ms. Costantini is an intellectual property litigation associate in the Orange County, California office of Greenberg Traurig, LLP. Ms. Costantini earned her Bachelor of Arts degree from the University of California, Los Angeles in 2008, and her Juris Doctor, from University of California, Irvine School of Law in 2013. Since graduating law school, she has represented companies and individuals in civil litigation in federal and state courts at all phases of litigation including discovery, trial, and appeal. Ms. Costantini is admitted to practice in California and in the United States District Courts for the Central, Northern, and Southern Districts of California. 9. Ms. Costantini is the lead associate involved in this case, and is intimately familiar with the relevant facts and legal issues. Her billing rate is $480. The 2015 PWC Survey confirms the reasonableness of Ms. Costantini’s rate. That Survey 3 There is no data in the Survey for equity partners with 26-30 years of intellectual property litigation experience. Case 3:15-cv-01879-BEN-BLM Document 188-1 Filed 03/24/17 PageID.6389 Page 4 of 8 5 DECLARATION OF J. RICK TACHÉ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 indicates that the median hourly rate of intellectual property litigation associates who graduated from law school in 2013 is $493 per hour. Thus, Ms. Costantini’s billing rate falls below the median for someone of her seniority at comparable firms. Further, Ms. Costantini’s rate is in line with the rate of other lawyers of reasonably comparable skill, experience, and reputation in the community. 10. Ms. Costantini billed a total of 32.5 hours for work in connection with PSD’s Motion to Compel at hourly billing rate of $480. That work included the following activities: a. 5.4 hours – Meeting and conferring with opposing counsel through written and telephonic correspondence, and preparing for and participating in a telephonic conference with Judge Major’s chambers regarding PSD’s demand for all documents and pleadings exchanged in the Wave Loch arbitration. b. 27.1 hours – Preparing Whitewater’s Opposition, including: (i) reviewing and analyzing PSD’s Motion to Compel, (ii) researching relevant case law and statutes; (iii) reviewing dozens of discovery correspondence between Whitewater and PSD regarding the Wave Loch arbitration; (iv) drafting the opposition brief and supporting declaration; (v) drafting the motion to seal and proposed order for documents designated under the Protective Order and filed in support of the Opposition; and (v) overseeing the filing of the Opposition and supporting declarations and motion to file under seal. 11. All of Ms. Costantini’s work was necessary to oppose PSD’s Motion to Compel. Roger L. Scott 12. Mr. Scott is a litigation associate in the Orange County, California office of Greenberg Traurig, LLP. Mr. Scott has represented companies and individuals in civil litigation in federal and state courts including at trial and arbitration. He earned his Bachelor of Arts degree from the University of California, Santa Barbara in 2002, Case 3:15-cv-01879-BEN-BLM Document 188-1 Filed 03/24/17 PageID.6390 Page 5 of 8 6 DECLARATION OF J. RICK TACHÉ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and his Juris Doctor, cum laude, from the Catholic University of America, Columbus School of Law in 2006. Mr. Scott is admitted to practice in California and in the United States District Courts for the Central, Eastern, Northern, and Southern Districts of California, and the United States Court of Appeals for the Ninth Circuit. 13. Mr. Scott’s billing rate is $645. The PWC Survey confirms the reasonableness of Mr. Scott’s rate. That report indicates that the hourly rate of litigation associates who graduated in 2006 range from $546 to $704, with a median rate of $628 per hour. Thus, Mr. Scott’s billing rate falls within the range of rates for someone of his seniority at comparable firms. Further, Mr. Scott’s rate is in line with the rate of other lawyers of reasonably comparable skill, experience, and reputation in the community. 14. Mr. Scott billed a total of 1.6 hours for work in connection with PSD’s Motion to Compel at his hourly billing rate of $645. That work included drafting his own declaration regarding the Wave Loch arbitration (in which Mr. Scott directly participated) and associated confidentiality issues, and the declaration of Thomas Lochtefeld regarding his understanding and expectations of confidentiality in that arbitration. Mr. Scott also assisted in revising Whitewater’s Opposition brief. All of Mr. Scott’s work was necessary to oppose PSD’s Motion to Compel. Alexis L. Kovacs 15. Ms. Kovacs is an intellectual property litigation paralegal in the Orange County, California office of Greenberg Traurig, LLP who has worked on this case since its inception. Ms. Kovacs has more than 19 years of experience working as a paralegal. She received her Bachelor of Arts degree and paralegal certification from California State University, Chico. Ms. Kovacs has been part of eight trial teams in matters ranging from breach of contract to patent infringement. 16. Ms. Kovacs’ billing rate is $375. Ms. Kovacs’ rate is consistent with the prevailing market rate in the community. She billed a total of 8.7 hours for work in Case 3:15-cv-01879-BEN-BLM Document 188-1 Filed 03/24/17 PageID.6391 Page 6 of 8 7 DECLARATION OF J. RICK TACHÉ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 connection with PSD’s Motion to Compel at her $375 hourly billing rate. That work included gathering, organizing and preparing exhibits in support of Whitewater’s opposition, electronically filing the opposition and exhibits through the CM/ECF system, and coordinating delivery of mandatory chambers copies for the court per local rules and the Court’s standing order. All of Ms. Kovacs’ work was necessary to oppose PSD’s Motion to Compel. 17. For all of the foregoing items, Whitewater incurred the following fees, which are broken down by professional, hours spent, and hourly rate charged: Name/Position Hours Hourly Rate Total Fees Rick Taché (shareholder) 3.4 $995 $3,383.00 Roger Scott (associate) 1.6 $645 $1,032.00 Leanna Costantini (associate) 32.5 $480 $15,600.00 Alexis Kovacs (paralegal) 8.7 $375 $3,262.50 TOTAL $23,277.00 18. In addition to the above, Whitewater incurred fees in connection with several other time keeper’s work including: (i) $845 for work performed by Shaun Hoting (former Greenberg Traurig associate), who was also involved in the meet and confer process regarding PSD’s demand for documents related to the Wave Loch arbitration; (ii) $455 for work performed by Tyler Andrews (Greenberg Traurig shareholder), who also assisted in reviewing and revising Whitewater’s Opposition; and (iii) $1,520 for work performed by Thaddeus Houston (Greenberg Traurig associate), who also conducted research related to Whitewater’s Opposition. While all of the tasks performed by the additional timekeepers were necessary for the case, they have not been included in the total amount requested, as I recognize that there are certain Case 3:15-cv-01879-BEN-BLM Document 188-1 Filed 03/24/17 PageID.6392 Page 7 of 8 8 DECLARATION OF J. RICK TACHÉ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 inefficiencies that can exist by having multiple shareholders and associates staffed on a matter. 19. Whitewater also incurred $63.50 in attorney services fees for preparing courtesy copies for the Court. 20. Whitewater will also incur an additional $9,254 in fees in connection with the preparing and filing of Whitewater’s additional briefing and this declaration, including: (i) analyzing the Court’s Order regarding PSD’s Motion to Compel, (ii) researching and drafting additional briefing for sanctions, and (iii) reviewing and summarizing billing records. Those fees broken down by professional, hours spent, and hourly rate charged are as follows: Name/Position Hours Hourly Rate Total Fees Rick Taché (shareholder) .5 $995 $497.50 Roger Scott (associate) 10.6 $645 $6,837.00 Leanna Costantini (associate) 4 $480 $1,920.00 TOTAL $9,254.00 21. In total, Whitewater requests reimbursement for $32,594.50 in attorneys’ fees and costs. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: March 24, 2017 _____/s/ J. Rick Taché_____________ J. Rick Taché Case 3:15-cv-01879-BEN-BLM Document 188-1 Filed 03/24/17 PageID.6393 Page 8 of 8