Case 3:17-cv-05659-WHA Document 658 Filed 05/20/21 Page 1 of 21
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`Matthew Borden, Esq. (SBN: 214323)
` borden@braunhagey.com
`BRAUNHAGEY & BORDEN LLP
`351 California Street, 10th Floor
`San Francisco, CA 94104
`Telephone: (415) 599-0210
`Facsimile: (415) 276-1808
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`SPECIAL MASTER
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`UNITED STATES DISTRICT COURT
`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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` Case No. 3:17-cv-05659-WHA
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`REPORT AND RECOMMENDATION
`RE ATTORNEY’S FEES AND
`EXPENSES
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`Case No. 3:17-cv-05659-WHA
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`REPORT AND RECOMMENDATION
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`Below is the Special Master’s report and recommendation regarding the attorney’s fees and
`expenses that Plaintiff Finjan, Inc. should pay to Defendant Juniper Network, Inc.
`SUMMARY OF RECOMMENDATIONS
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`This dispute over attorney’s fees arises from the Court’s finding that Plaintiff Finjan’s
`assertion of United States Patent Nos. 6,804,780 (the ’780 Patent) and 8,677,494 (the ’494 Patent)
`was exceptional (Dkt. No. 648). Defendant Juniper seeks $6,228,266.43 in legal fees for work that
`culminated in winning two summary judgment motions, defeating a summary judgment motion,
`and prevailing in a five-day jury trial. It is recommended that Juniper recover $5,914,156.
`Pursuant to the Court’s Order re Attorney’s Fees and Costs and Appointment of a Special
`Master (Dkt. No. 649), Juniper wrote off over $2.4 million in fees and organized its billing into 133
`separate projects. Finjan raises objections to virtually every one. It disputes whether Juniper should
`recover attorney’s fees for all of its work on the ’484 and ’780 Patents, asserts that Juniper’s senior
`attorneys spent too much time on the case, contests how much of Juniper’s fees should be allocated
`to work on the two patents at issue as opposed to the other patents-in-suit, and claims that Juniper’s
`billing was otherwise excessive. Most of these objections lack merit.
`Like the Battle of Verdun, high-stakes patent litigation can become a costly fight over
`inches and yards. When engaging in such combat, each side can expect that its adversary will
`respond in kind. Finjan deployed more than 15 timekeepers on this matter. From a review of both
`sides’ billing records, it appears that Juniper’s defense was proportional to the intensity with which
`Finjan prosecuted the case. It does not appear that Juniper overreached on its claimed fees, such
`that any penalty should be assessed against it. Certain deductions from the amounts sought are
`recommended for the reasons below.
`PROCEDURAL HISTORY
`On February 25, 2021, a status conference was held to establish procedures and deadlines
`for resolving the parties’ dispute. Pursuant to Finjan’s request, it was allowed to submit a brief
`addressing whether all work related to the ’780 and ’494 Patents was recoverable. On March 11,
`2021, Juniper submitted its responsive brief. On March 25, 2021, the parties argued their positions.
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`On March 22, 2021, Juniper submitted a Declaration, reducing the $8,656,971 in attorney’s
`fees it was seeking (Dkt. No. 634 at 23) to $6,228,226 (Declaration of Jonathan Kagan ¶ 13).
`Juniper’s declaration divided its billing in 133 discrete projects and attached time entries for each
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`biller for each project. On April 12, 2021, Finjan submitted a responsive brief along with time
`notes for its timekeepers (Brief re Juniper’s Submission on Fees). Finjan organized its fees into
`only nine projects, which made comparison to Juniper’s 133 projects difficult (Ibid.).
`Another conference was held on April 15, 2021 to address the parties’ dispute over the
`billing rates in Finjan’s submission and Juniper’s request that Finjan produce its engagement letter
`with counsel.1 Juniper’s request was denied. On April 21, 2021, a conference was held to discuss
`the parties’ positions regarding the billing rates that Finjan was using to calculate its fees, and it
`was requested that Finjan select 10 of Juniper’s projects that it thought were excessive, and break
`out Finjan’s time records for comparable projects. On April 22, 2021, Finjan provided rate sheets
`for Kramer, Levin, and the parties jointly submitted summaries of nine Juniper projects that Finjan
`had selected.
`On April 23, 2021, a hearing was conducted regarding the nine contested projects. On April
`27, 2021, Juniper submitted a reply brief responding to Finjan’s proposed apportionment of time to
`the ’780 and ’494 Patents. On April 29, 2021, the parties jointly submitted a spreadsheet on five
`additional projects that Finjan disputed. A hearing was held on April 30, 2021 to discuss the five
`projects and the parties’ competing proposals for time allocation. On May 5, 2021, the parties
`submitted supplemental briefing on their proposed time allocations, and spreadsheets on two
`additional projects that Finjan contested. Juniper submitted a reply to Finjan’s May 5th brief on
`May 6, 2021, and Finjan submitted a reply to Juniper’s May 5th brief on May 7, 2021. On May 14,
`2021, a final hearing was held to cover all remaining issues. Juniper submitted a reply regarding
`costs on May 17, 2021, and Finjan submitted a summary of its objections on May 18, 2021.
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`1 Finjan was represented by Kramer, Levin Naftalis & Frankel LLP (“Kramer, Levin”) during the
`proceedings at issue. Apparently, Finjan’s agreement with Kramer, Levin was at least a partial
`contingency fee agreement, which led to a dispute over what rates to apply to Kramer, Levin’s
`lawyers. Kramer, Levin also block billed and did not record all its time, which made comparisons
`more difficult.
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`RECOMMENDATIONS
`Juniper is entitled to recover its reasonable fees except those “bearing little or no relation”
`to the ’494 and ’780 Patents (Dkt. No. 649 ¶ 11). Juniper appears to have staffed its case
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`reasonably and, with a few exceptions, spent a reasonable amount of time on its 133 projects. It
`also appears that Juniper’s apportionment of fees to account for its work on patents other than the
`’494 and ’780 Patents is fair and accurate. Some deductions have been recommended for Juniper’s
`claimed time for the reasons stated below.
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`I.
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`SCOPE OF RECOVERABLE FEES
`Finjan asserts that Juniper is entitled to fees for only a portion of the work that it did
`defending against the ’494 and ’780 patents. This argument appears to be inconsistent with the
`Court’s Order re Request for Fees (“Order”), which states: “This order holds as exceptional
`Finjan’s assertion of the ’494 and ’780 patents” (Dkt. No. 648 at 5).
`Finjan argues that the reasoning behind the Order was that Finjan should not have continued
`to litigate the case after two “case-dooming” rulings in 2018 (Finjan Supp. Br. at 1). Such a reading
`of the Order, however, appears to be incomplete. The Order’s finding of exceptionality is not
`limited to the conduct after the Court’s legal rulings, but rather based on the totality of the
`circumstances.
`The Order holds that asserting the ’494 Patent was exceptional because there was no viable
`damages case and ultimately no infringement (Order at 3). It further states that Finjan asserted
`shifting litigation positions (ibid.) and put improper and prejudicial evidence before the jury in its
`efforts to obtain a different result (Ibid.). That Finjan proved that all the claim limitations but one
`were met (Finjan Supp. Br. at 5), which shows that Finjan came close (but failed) to establish an
`infringement case without any damages, does not change this calculus.
`The’780 Patent is similar. The Order’s findings include that Finjan should have withdrawn
`its claims after the Court rendered its construction of “performing a hashing function” (Order at 3-
`4), that Finjan lost on notice grounds as well (id. at 4), that Finjan misrepresented authority to the
`Court (ibid.) and attempted to relitigate its own concessions to salvage its claims related to the ’780
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`Patent (Ibid.). The Order expressly held that “Finjan’s assertion of the ’780 patent stands out as
`exceptional as well” (Ibid.).
`Under these circumstances, there is no basis for deviating from the Court’s holding that
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`“Finjan’s assertion of ’494 and ’780 patents” was exceptional.
`JUNIPER’S REASONABLE LEGAL FEES
`II.
`The purpose of an award of attorney’s fees under 35 U.S.C. § 285 is to make whole a party
`injured by its adversary’s “exceptional” conduct. Rembrandt Techs. LP Patent Litig., 899 F.3d
`1254, 1278 (Fed. Cir. 2018). The Federal Circuit has determined that, while courts have broad
`discretion in determining what attorney’s fees are compensatory, those fees must relate to the
`exceptional conduct. Id. at 1278-79.
`Juniper seeks recovery of its lodestar: the reasonable hours its counsel spent, multiplied by
`a reasonable rate. Rate is not an issue here. Finjan has stipulated that the rates claimed by Juniper’s
`counsel at Irell & Manella, LLP are reasonable. These rates apparently are lower than the firm’s
`actual rates, and are based on rates that have been approved by other courts in the Northern District
`of California and are commensurate with what lawyers charge for patent litigation in this District.
`Finjan makes three main arguments regarding the amount of Juniper’s claimed fees.
`Finjan’s first two arguments are that Juniper’s bills are “top heavy” because Juniper overused
`timekeepers with high rates and that Juniper spent too much time on various projects. Finjan seeks
`to establish these points by comparing its own billing to Juniper’s, and performing various
`aggregate calculations (Finjan Brief re: Juniper’s Submission on Fees at 8-17). Comparisons of the
`parties’ billing on 16 similar projects selected by Finjan, however, generally shows that Juniper
`matched Finjan’s prosecution of the case with proportionate force.
`Finjan’s third contention is that Juniper is seeking fees for work it did on patents other than
`the ’494 and ’780 patents. Finjan’s methodology of generally applying a 28.6% apportionment,
`which is based on two of the seven patents-in-suit being found exceptional,2 is not a reasonable or
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`2 There were nine patents asserted in total because Finjan added and subtracted patents in the
`course of the proceedings. However, Finjan asserts that a 2/7 ratio is most reflective of how many
`patents were actually litigated.
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`fair allocation of fees. Juniper’s proposed methodology, which varies depending on the nature of
`the work, appears to be substantially more fair and accurate.
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`Juniper’s Staffing and Billing
`A.
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`Finjan claims that Juniper overused lawyers with high billing rates and generally spent too
`much time on the case. Finjan identified 16 projects where it contends these forms of overbilling
`occurred. A comparison between Juniper’s and Finjan’s billing for the 16 projects shows the
`Juniper’s staffing was generally reasonable and proportional to the staffing used by Finjan. Each of
`those projects is discussed below.
`The Summary Judgment Motions in the First Patent Showdown
`1.
`Juniper’s staffing for the summary judgment motions on the ’780 and ’494 Patents was
`similar to, if not more efficient than, Finjan’s. Juniper had at least three less timekeepers and spent
`less time overall (644.8 hours vs. 696.5 hours).3
`Finjan’s first argument is that Juniper’s senior lawyers spent too much time on these
`motions. The record does not bear this out. In preparing Juniper’s summary judgment motion on
`the ’780 patent, Juniper’s junior partner (a 2007 graduate) billed 109.7 hours. Its senior partner
`billed 48.5 hours, for a total of 158.2 hours by senior lawyers. In preparing Finjan’s summary
`judgment motion on the ’494 patent, Finjan’s senior associate (also a 2007 graduate) billed 152.1
`hours, one senior partner billed 19.2 hours, and a third senior partner billed 3.5 hours, for a total of
`174.8 hours by Finjan’s comparably senior lawyers. In addition, Finjan used two senior associates
`(both 2011 graduates), who billed another 58.1 hours. Juniper did not use any senior associates.
`Thus, as between the two summary judgment motions, Finjan relied on significantly more senior
`lawyer time than Juniper used.
`The opposition briefs on summary judgment tell a similar story. Juniper used 127.9 hours of
`senior lawyer time, whereas Finjan used slightly less: 115.3 hours. However, unlike Juniper, Finjan
`used 152.9 hours of senior associate time; whereas Juniper had 0 hours of senior associate time and
`used junior lawyers instead. Still, Finjan spent over 100 hours more than Juniper. Thus, while the
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`3 Finjan’s time may be understated because it did not submit records for timekeepers who spent less
`than 100 hours on the case. As noted in Section 11 below, some of its timekeepers also did not
`report all their time.
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`parties’ division of labor was slightly different, Finjan relied on much more senior lawyer time than
`Juniper in performing similar tasks.
`Finjan argues that the 2007 graduate it employed was not comparable to the 2007 graduate
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`Juniper used because Juniper’s lawyer was a junior partner, whereas Finjan’s lawyer had not been
`named a partner at the time the motions were briefed in 2018. Lawyers obviously are not fungible.
`But for purposes of comparing the time spent by lawyers from elite firms, as opposed to relying on
`the vagaries of who makes partner at which firms, and when, comparing lawyers of similar vintage
`is a fair proxy for assessing whether one side is over-lawyering the case.
`While Finjan stipulated that the rates claimed by Juniper are reasonable, it separately
`contends that the high billing rates of Juniper’s partners renders it unreasonable for them to spend
`as much time as they did. In its strongest form, Finjan’s argument appears to be that Juniper could
`only reasonably defend the case by employing a model where its lead counsel only parachuted in
`for hearings and trial. That is not the only way to reasonably staff a case, or even necessarily
`advisable given the benefits that experienced counsel can bring to a case.
`Finjan also asserts that its lawyers at Kramer, Levin charged less than the stipulated rates
`for Juniper’s counsel. Kramer, Levin, however, was working on at least a partial contingency basis,
`the details of which Finjan did not disclose. The rates that Finjan used to calculate its fees do not
`appear to be consistent with the rates that an international law firm of Kramer, Levin’s stature
`would actually charge. For example, Finjan asserts that Kramer Levin’s purported rate for a ninth-
`year associate is less than the rate the parties stipulated was reasonable for Irell & Manella’s third-
`year associate (April 29, 2021 Joint Submission at Row 5). This report, therefore, gives little
`weight to Finjan’s claimed rates and relies, instead, on the seniority of the lawyers for purposes of
`gauging the proportionality and reasonableness of Juniper’s fees.
`Juniper’s time entries on these two summary-judgment-motion projects reveal a logical and
`efficient structure. A fourth-year associate was primarily responsible for arguments as to claim
`construction and non-infringement. A first-year associate was mainly charged with researching the
`35 U.S.C. § 101 arguments. A third-year associate researched the marking arguments. The junior
`partner helped develop strategy and took primary responsibility for the drafting. And lead counsel
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`mainly evaluated and outlined the arguments and revised the final papers. This was a sensible and
`efficient division of labor.
`Finjan’s final argument is that Juniper’s billing was excessive. However, Finjan spent 37.1
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`hours more than Juniper on the ’780 Patent summary judgment motion. Although Finjan spent 14.6
`hours less than Juniper on the’494 Patent motion, Finjan was much less leveraged than Juniper.
`Applying Juniper’s rates for Finjan’s attorneys, Finjan’s briefing would cost approximately
`$24,000 more than Juniper’s.
`In sum, Juniper’s staffing and billing on these two projects was at least proportionate to
`Finjan’s. Juniper may have staffed the case differently than Finjan by using a senior lawyer who
`was more involved in the case than senior counsel for Finjan, but in doing so, it was able to avoid
`using substantial amounts of senior associate time. In light of the resources Finjan used, Juniper’s
`fees on these projects were reasonable.
`Prepare for and Defend Coonan Deposition
`2.
`Juniper spent 26.8 hours on this project; whereas Finjan spent 43.9 hours on preparing Mr.
`Hartenstein, which the parties submit is a comparable project. Finjan used no junior associate time.
`Juniper used seven hours of junior associate time. Nothing stands out as inappropriate or
`disproportionate about this project.
`Prepare for Daubert Hearing
`3.
`Juniper spent 43.5 hours on this project, which is a lot for preparation for a hearing – even
`one that proved to be dispositive. Finjan, however, spent 52.6 hours on this project. Further, Finjan
`used no junior associates on this project; whereas, Juniper used 12.6 hours of junior associate time.
`In light of these facts, Juniper’s effort was reasonable and proportionate.
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`Opposition to Daubert Motion for K. Ugone
`4.
`The time spent by the parties on their respective oppositions to Daubert motions on their
`damages experts (Dr. Keith Ugone for Juniper and Dr. Kevin Arst for Finjan) was similar: 109
`hours for Juniper and 103.8 for Finjan. For Juniper, 68.3 hours of its time was billed by junior
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`associates. Finjan, in contrast, had no junior associate bill on this project. Juniper’s billing on this
`project was thus more efficient than Finjan’s.
`Prepare Report and Demonstratives for K. Ugone
`5.
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`Juniper billed more time than Finjan in preparing the report for its damages experts: 198.3
`hours, compared to 159.2 hours. However, 124.3 of Juniper’s hours was junior associate time,
`whereas Finjan had only 22.5 hours of junior associate time. Juniper’s effort was still more
`expensive by roughly $30,000, even applying Juniper’s rates to Finjan’s timekeepers. A review of
`Juniper’s time notes on this project does not show much vagueness or gross inefficiencies. At
`argument, Juniper asserted that its counsel prepared the slides and demonstratives for its expert;
`whereas Finjan’s expert prepared his own slides and demonstratives. Juniper’s time notes that make
`reference to preparing demonstratives do not differentiate between time spent on the report versus
`time spent on the demonstratives (e.g., 11/4/18 [“drafted Ugone Report and demonstratives”]), so it
`is impossible to determine how much time was spent on demonstratives. While this is a close call
`because no two projects are exactly comparable, a 5% reduction ($8,173) on this project is
`recommended to account for any inefficiency.
`Respond to Judge Alsup’s Written Questions on MSJs
`6.
`Juniper spent 45.1 hours on this project. Even under its own calculations, the legal fees it
`incurred we almost three times those of Finjan, even though the Court’s Questions re Oral
`Argument (Dkt. No. 166) were equally directed to both sides. Juniper’s effort thus appears
`disproportionate. A reduction of 50% ($18,298) is recommended.
`The Expert Depositions of Drs. Eric Cole, Alessandro Orso, Aviel Rubin
`7.
`and Michael Mitzenmacher
`These five projects are grouped together because they all concern expert depositions:
`Prepare for and Depose Cole, Prepare for and Depose Orso, Prepare for and Defend Rubin (’494
`Patent), Prepare for and Depose Mitzenmacher, and Prepare for and Defend Rubin (’780 Patent).
`The parties compared their billing for each witness. The parties’ staffing and billing on these
`projects is generally comparable.
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`For taking Dr. Cole’s deposition, Juniper spent 34.8 hours, and Finjan spent 38.8 hours, 3.8
`of which was junior associate time. Juniper’s billing was proportionate to Finjan’s.
`For taking Dr. Mizenmacher’s deposition on the ’780 Patent, Juniper spent 64.7 hours, 21.9
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`of which was junior associate time. Finjan spent 109.1 hours defending the deposition, 79.3 hours
`was junior associate time. Although Finjan was more leveraged, it was also less efficient. Juniper’s
`billing was proportionate to Finjan’s.
`For preparing Dr. Rubin for his deposition on the ’780 Patent, Juniper billed 52 hours,
`whereas Finjan spent 32.2 hours this project. Juniper, however, reduced its request by 26.7 hours
`($21,427) in footnote 3 of the joint spreadsheet submitted on April 22, 2021. No further deductions
`are recommended.
`For the liability experts on the ’494 Patent both sides spent considerably more time taking
`the depositions than defending them. In preparing Dr. Rubin for his deposition on the ’494 Patent,
`Juniper spent 37.4 hours, and Finjan spent 97.2 hours taking the deposition. Conversely, in taking
`the deposition of Dr. Orso, Juniper spent 79 hours, and Finjan spent 27.5 hours defending it.
`Juniper’s efforts seem at least proportional to Finjan’s. It spent 18.2 hours less than Finjan in taking
`the depositions and 8.9 hours more defending them. For Juniper, 44.3 of the 79 hours it spent
`taking the deposition of Dr. Orso were junior associate time. For Finjan, 56.5 of the 97.2 hours it
`spent taking the deposition of Dr. Rubin (’494 Patent) were junior associate time, 2% more than
`Juniper. For Dr. Rubin’s deposition, Juniper used 1.2 hours of junior associate time, and Finjan
`used 0 hours. These efforts are comparable.
`Prepare for and Depose Hartenstein
`8.
`Juniper spent 119.1 hours, 77.2 of which was junior associate time, preparing for the
`deposition of Finjan’s CEO, Phil Hartenstein. Finjan spent 43.9 hours preparing Mr. Hartenstein,
`and 50.2 hours preparing to take the deposition of Scott Coonan, which Finjan asserts was a
`comparable project. Finjan spent no junior associate time on any of these tasks.
`According to Juniper, it spent so much time on this project because Mr. Hartenstein had
`testified in many other depositions and proceedings, and his testimony needed to be reviewed.
`Regardless, it took Finjan half the time to prepare the witness, presumably with the same
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`Case No. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 658 Filed 05/20/21 Page 11 of 21
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`transcripts. The billing entries on this project are repetitive and vague and do not help clarify why
`so much time was expended (See, e.g., 9/6, 9/7, 9/10, 9/11, 9/21, 9/26, 9/27, 10/1, 10/2, 10/3 time
`entries). Because the party seeking fees bears the burden of proof, courts have disallowed time
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`when the entries do not permit meaningful review. See, e.g., Banas v. Volcano Corp., 47 F. Supp.
`3d 957, 967 (N.D. Cal. 2014); Shame on You Prods., Inc. v. Banks, 2016 WL 5929245, *16 (C.D.
`Cal. Aug. 15, 2016) (“Although cognizant of Defendants’ desire to maintain confidentiality and
`protect privileges, the Court finds that some of the billing entries have been so heavily redacted that
`it cannot assess the reasonableness of the time expended.”). Accordingly, a 25% reduction
`($24,378) is recommended for this project.
`Prepare Daubert Motion and Reply to Exclude Arst
`9.
`Juniper spent 203.4 hours on this project, 109.9 of which was junior associate time. Finjan
`spent 164.1 hours on a comparable project, its motion to exclude Juniper’s damages expert, Dr.
`Ugone. Finjan used 3.8 hours of junior associate time. Even applying Juniper’s rates to Finjan’s
`counsel of comparable vintage, Juniper spent $36,070 more than Finjan. While Juniper attributes
`the difference to the importance of the motion (which ultimately proved dispositive) and its use of
`more junior lawyer time, a 10% reduction ($17,225) is recommended in light of that differential
`and a number of vague and repetitive billing entries that could be inefficient (See, e.g., 10/28,
`10/29, 10/30, 10/31, 11/2, 11/8 and 11/9 entries).
`Daubert Hearing
`10.
`Juniper spent 9.1 hours less than Finjan on this project. Finjan did not use any junior
`lawyers on this project. Juniper’s billing was at least proportional to Finjan’s.
`Prepare for and Argue MSJs on ’494 and ’780 Patents
`11.
`Juniper spent 198.6 hours preparing for the hearings. Finjan’s records show that it spent
`76.2 hours on this project. Both parties, however, acknowledge that the lawyer who argued the
`motion on the ’780 Patent for Finjan recorded 0 hours of time on this project. The attorney who
`argued the ’494 Patent for Finjan recorded only four hours, which seems to underestimate the
`actual amount of time he spent – especially considering that he did not bill significant amounts of
`time preparing any of the briefing on the ’494 Patent. But even assuming that Finjan’s two partners
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`Case No. 3:17-cv-05659-WHA
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`REPORT AND RECOMMENDATION
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`Case 3:17-cv-05659-WHA Document 658 Filed 05/20/21 Page 12 of 21
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`billed as many hours as Juniper’s partners, Juniper spent significantly more time on this project.
`Juniper also points out that Finjan’s time entries do not include much time for preparation of slides,
`but it is unclear from Finjan’s time notes whether such activities were subsumed within other
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`generic entries, such as “prepare for hearing.”
`In reviewing Juniper’s time entries on this project, it is difficult to determine why it spent as
`much time as it did. Several of the entries are vague and repetitive (e.g., 7/23/18 [“Preparation for
`summary judgment hearing”], 7/24 [“Preparation for summary judgment hearing”], 7/25/18
`[“Preparation for summary judgment argument”].) A reduction of 20% ($32,625) is recommended
`on this project.
`Prepare Rubin Technical and Damages Rebuttal Reports
`12.
`The parties dispute which project(s) are comparable to Juniper’s preparation of Dr. Rubin’s
`reports on technical issues and damages. Finjan compares this project to its preparation of the
`expert reports of Dr. Harry Bims and Dr. Eric Cole, which it claims took 99.1 hours. Juniper asserts
`that Finjan used Dr. Bims on technical issues, Dr. Cole on infringement and damages, Dr. Orso on
`invalidity and Dr. Arst on damages, and that Dr. Rubin addressed all these issues, except for some
`damages issues, which were addressed by Dr. Ugone. In its May 6, 2021 submission, Juniper seeks
`to break its own project into three subprojects and divide up Finjan’s records into corresponding
`projects to create what it contends is a more accurate comparison. Juniper also notes that Dr. Bims
`had provided similar opinions in other cases Finjan had prosecuted, lessening the amount of work
`Finjan needed to do.
`Given the incongruity of the projects, the inexact and competing comparisons by the parties
`are not a good basis for judging reasonableness. Juniper apparently could have broken this project
`into multiple projects in the first instance, but regardless of how the time records are characterized,
`Juniper spent a substantial amount of time. Juniper spent 231.7 hours on the project, 41.2 hours of
`which were junior associate time. From a review of the records, it appears that duplication may
`exist, and it is difficult to discern whether there was billing efficiency (see, e.g., JGLC entries of
`10/4, 10/5, 10/6, 10/7, 10/8, 10/9). Accordingly, a reduction of 10% ($19,280) is recommended on
`this project.
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`Case No. 3:17-cv-05659-WHA
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`REPORT AND RECOMMENDATION
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`Case 3:17-cv-05659-WHA Document 658 Filed 05/20/21 Page 13 of 21
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`Apportionment
`B.
`The Court has held that Juniper may not recover fees bearing little or no relation to the ’780
`and ’494 Patents. A few of the projects, e.g., Prepare First MSJ Motion and Reply on ’780 Patent,
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`are plainly 100% related to the exceptional conduct. Other projects are not. While Juniper culled its
`billing records to remove time entries directed at patents other than the ’494 and ’780 Patents,
`much of the work on the case, e.g., depositions, is not attributable to any specific patent on its face.
`Finjan proposes applying a 28.6% (2 of 7) apportionment to all fact discovery, except the
`deposition of David Kroll, for which it allocated 33% (Finjan Submission at 19-20). It proposes the
`same 28.6% apportionment for all activities related to case administration and pleadings, except for
`Juniper’s allocations of 100% for the motion to add ATP Appliance to the case, and 50% for the
`motion to dismiss counterclaims and defenses (Id. at 20). During argument, Finjan agreed to the
`following allocations proposed by Juniper: (1) Research and Draft Answer and Counterclaims
`33%, (2) Prepare Case Management Statement 33%, (3) Case Management Conference 33%,
`(4) Prepare and Argue Motion to Dismiss Willfulness and Inducement Claims 33%, (5) Draft
`Answer to First Amended Complaint 33%, (6) Prepared Amended Answer/Counter‐Claims, and
`Motion for Leave to File Same (in response to Order dismissing/striking inequitable
`conduct/prosecution laches) 50%, and (7) Respond to Finjan Motion to Dismiss and Strike
`Counterclaims/Affirmative Defenses to FAC (Inequitable Conduct) 50%. No deductions are made
`for these entries.
`Finjan disputes Juniper’s apportionment of time for over 100 other projects. Those projects
`generally involve patent contentions and case analysis, and depositions and discovery. Finjan
`asserts that the parties were generally using all this discovery for all seven patents-in-suit. Juniper
`claims that while some of the discovery was going to be useful for other patents, the parties’ efforts
`were focused on the ’494 and ’780 Patents because those were the ones subject to the highly
`compressed schedule for the Patent Showdown and trial on the ’494 Patent.
`A flat 28.6% allocation does not fairly account for the work Juniper did on the ’494 and
`’780 Patents. As discussed below, this holds true for the patent contentions and case analysis, as
`well as for depositions and discovery.
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`Case No. 3:17-cv-05659-WHA
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`REPORT AND RECOMMENDATION