Case 3:17-cv-05659-WHA Document 649 Filed 01/09/21 Page 1 of 4
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`FINJAN, INC.,
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`Plaintiff,
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`v.
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`JUNIPER NETWORK, INC., et al.,
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`Defendants.
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`No. C 17-05659 WHA
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`ORDER RE ATTORNEY’S
`FEES AND COSTS AND
`APPOINTMENT OF SPECIAL
`MASTER
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`A companion order found Juniper entitled to attorney’s fees for Finjan’s assertion of U.S.
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`Patent Nos. 8,677,494 and 6,804,780. Given the parties already disputed Juniper’s initial
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`calculation of fees, and anticipating further dispute regarding the fee amount to which Juniper
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`is entitled, this order concludes this dispute is suitable for referral to a special master per Rule
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`53, using the following procedure:
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`1. The Court is inclined to appoint MATT BORDEN of BraunHagey & Borden LLP,
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`one of the undersigned’s former law clerks, as the special master for this dispute. By special
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`accommodation of the Court, Attorney Borden has agreed to provide this service at the
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`reduced rate of $300 per hour. By JANUARY 28 AT NOON, each side shall submit a statement
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`with any objection to the appointment, including any suggestions for alternative candidates or
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`other request to be heard. If neither side objects, then the Court will proceed with the
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`appointment described herein.
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`Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 649 Filed 01/09/21 Page 2 of 4
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`2. Defense counsel shall provide the special master with an itemized accounting for
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`unreimbursed expenses listed as “Travel” and “Expert Witness Fees.” Travel must be broken
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`down into at least the following categories: air transportation, ground travel, meals, and
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`lodging. Counsel may include additional categories, if necessary. Within each category, each
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`expense must be listed, including date, description, and cost. Professional fees may be broken
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`down into separate categories if counsel deems appropriate. The date, description, and cost
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`for each expense incurred, such as the fee paid to an expert to produce an expert report on a
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`specific issue, must be listed for all professional fees.
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`3.
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`Counsel must also provide the special master a detailed declaration, organized by
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`discrete projects, breaking down all attorney and paralegal time sought to be recovered. For
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`each project, there must be a detailed description of the work, giving the date, hours expended,
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`attorney name, and task for each work entry, in chronological order. A “project” means a
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`deposition, a motion, a witness interview, and so forth. It does not mean generalized
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`statements like “trial preparation” or “attended trial.” It includes discrete items like “prepare
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`supplemental trial brief on issue X.” The following is an example of time collected by a
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`project.
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`PROJECT: ABC DEPOSITION (2 DAYS IN FRESNO)
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`Date
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`Time-keeper
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`01-08-20
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`XYZ
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`01-09-20
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`RST
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`01-10-20
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`XYZ
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`01-11-20
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`RST
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`01-12-20
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`RST
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`Project Total:
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`Description
`Assemble and photocopy
`exhibits for use in
`deposition.
`Review evidence and
`prepare to examine ABC
`at deposition.
`Research issue of work-
`product privilege asserted
`by deponent.
`Prepare for and take
`deposition.
`Prepare for and take
`deposition.
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`Hours x
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`Rate =
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`Fee
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`2.0
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`$100
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`$200
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`4.5
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`$200
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`$900
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`1.5
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`$100
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`$150
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`8.5
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`7.0
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`23.5
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`$100
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`$1,700
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`$200
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`$1,400
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`$4,350
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`4.
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`All entries for a given project must be presented chronologically one after the
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`other, i.e., uninterrupted by other projects, so that the timeline for each project can be readily
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`Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 649 Filed 01/09/21 Page 3 of 4
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`grasped. Entries can be rounded to the nearest quarter-hour and should be net of write-down
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`for inefficiency or other cause. Please show the sub-totals for hours and fees per project, as in
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`the example above, and show grand totals for all projects combined at the end. Include only
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`entries for which compensation is sought, i.e., after application of “billing judgment.” For each
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`project, the declaration must further state, in percentage terms, the proportion of the project
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`directed at issues for which fees are awardable and must justify the percentage. This
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`percentage should then be applied against the project total to isolate the recoverable portion
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`(a step not shown in the example above).
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`5.
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`A separate summary chart of total time and fees sought per individual
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`timekeeper (not broken down by project) should also be shown at the end of the declaration.
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`This cross-tabulation will help illuminate all timekeepers’ respective workloads and roles in the
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`overall case.
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`6.
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`The declaration must also set forth (a) the qualifications, experience and role of
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`each attorney or paralegal for whom fees are sought; (b) the normal rate ordinarily charged for
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`each in the relevant time period; (c) how the rates were comparable to prevailing rates in the
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`community for like-skilled professionals; and (d) proof that “billing judgment” was exercised.
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`On the latter point, as before, the declaration should describe adjustments made to eliminate
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`duplication, excess, associate-turnover expense, and so forth. These adjustments need not be
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`itemized but totals for the amount deleted per timekeeper should be stated. The declaration
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`must identify the records used to compile the entries and, specifically, state whether and the
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`extent to which the records were contemporaneous versus retroactively prepared. It must state
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`the extent to which any entries include estimates (and what any estimates were based on).
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`Estimates and/or use of retroactively-made records may or may not be allowed, depending on
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`the facts and circumstances.
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`7.
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`Ordinarily, no more than one attorney and one paralegal need be present at a
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`deposition; more will normally be deemed excessive. Ordinarily, no more than one attorney
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`need attend a law-and-motion hearing; more will normally be deemed excessive. To allow for
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`symmetry, however, the award will take into account the staffing used by the opposing party.
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`Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 649 Filed 01/09/21 Page 4 of 4
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`8.
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`The special master shall review the briefs and declarations by the parties, hear
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`argument, and then determine a reasonable amount to award, including any fees on fees. The
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`special master shall also determine the extent to which any discovery should be permitted —
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`with the caution that further discovery should be the exception and not the rule. The special
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`master shall then prepare and file a report on recommended findings and amount.
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`9.
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`Except for any supplementation allowed by the special master, the foregoing
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`submissions shall be the entire record for this dispute. There will be no further briefing unless
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`allowed by the special master. After the special master’s appointment, any further submissions
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`solely for the special master’s use should not be filed with the Court. If objections are later
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`made to the special master’s report, then the objecting party must file a declaration submitting
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`to the Court a complete appendix of relevant communications with the special master.
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`10.
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`The special master shall include in his report a recommendation for allocating his
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`fees among the parties, taking into account the equities and merits of both sides’ respective
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`positions in this dispute.
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`11.
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`The special master shall identify each item requested that bears little or no
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`relation to the conduct found exceptional herein, that being the assertion of the ’494 and ’780
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`patents.
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`IT IS SO ORDERED.
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`Dated: January 9, 2021.
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`WILLIAM ALSUP
`UNITED STATES DISTRICT JUDGE
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`Northern District of California
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`United States District Court
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