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P&G v. WEYERHAEUSER CO.

January 12, 1989

THE PROCTER & GAMBLE COMPANY, Plaintiff,
v.
WEYERHAEUSER COMPANY, a Washington corporation, J.C. PENNEY COMPANY, INC., a Delaware corporation, and MONTGOMERY WARD & CO., INC., an Illinois corporation, Defendants


William T. Hart, United States District Judge.


The opinion of the court was delivered by: HART

WILLIAM T. HART, UNITED STATES DISTRICT JUDGE

 Following a jury trial on its patent claims, plaintiff was awarded $2,374,320 damages and $414,000 prejudgment interest for a total of $2,788,320. It was also determined that exceptional circumstances justified awarding plaintiff attorney's fees. See 35 U.S.C. ยง 285. Plaintiff thereafter petitioned for $2,189,774 attorney's fees, $572,394 related disbursements, and $123,095 costs for a total of $2,885,263. *fn1" The case was referred to a magistrate who recommended awarding $1,254,285 attorney's fees plus in-house counsel fees yet to be determined, $572,170 disbursements, and $48,872 costs for a total of $1,875,327 plus. Both sides objected to the recommendation as to fees and disbursements. Neither side objects to the amount of costs recommended by the magistrate.

 It is well established that the party seeking fees has the burden of establishing what a reasonable fee is and that failure to provide sufficient documentation will result in a reduction of the amount requested. Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983); PPG Industries, Inc. v. Celanese Polymer Specialties Co., 840 F.2d 1565, 1570 (Fed.Cir. 1988); Codex Corp. v. Milgo Electronic Corp., 541 F. Supp. 1198, 1203-05 (D. Mass. 1982), aff'd, 717 F.2d 622 (1st Cir. 1983), cert. denied, 466 U.S. 931, 80 L. Ed. 2d 191, 104 S. Ct. 1719 (1984). Records adequate for billing purposes are not necessarily adequate for purposes of awarding attorney's fees. The court substantially agrees with the magistrate who stated:

 
Large law firms in this city and elsewhere frequently litigate to excess, and staff cases with large numbers of lawyers who all must keep abreast of what is happening in the case but whose involvement is merely for the convenience of the firm and other lawyers. If . . . the client is willing to pay the fees for this kind of representation, that is no concern of this court, but the court is not inclined to encourage overstaffing by requiring the losing party to pay for it.
 
There is nothing in the record which allows the court to determine whether or not this matter was or was not reasonably staffed. The court is unable to determine from this petition how many lawyers read the same memos, attended the same depositions, attended the same status conferences or read briefs and correspondence just to keep informed.

 It is therefore impossible to fully and accurately determine which expenses were unnecessary or duplicative.

 Plaintiff supported its fee claim by supplying the court with copies of the monthly or periodic statements issued by its attorney, and separate documents showing the names of attorneys and attorney time on given dates. It is impossible to correlate this kind of a presentation. It does not show exactly what any attorney did on any date. *fn2" No value judgment can be made as to the need for or worth of such time charges. Such data may be acceptable for client billing, but are not sufficient to impose fees on an adverse party. It is readily apparent, though, that the fees and disbursements claimed by plaintiff are excessive. A precise and accurate reduction cannot be performed, but an analysis, nevertheless, must be done. The methodology employed necessarily involves some balancing calculations because of the inadequacy of the information supplied. Subsequent to the magistrate's recommendation, the court ordered plaintiff to provide a recomputation of the time and cost of pretrial court appearances and deposition appearances based on the use of only one attorney for each. Plaintiff was also ordered to recompute trial time based on the use of only two attorneys. By plaintiff's own calculation this results in a reduction of 49.6% ($247,843 to $124,911). But even the recomputed time, to the extent it can be evaluated, is overstated. The recomputed time includes 11 status hearings, 2 pretrial conference dates, and one motion call where out-of-town counsel billed 8 hours for appearances at each of those. Even the times billed by local counsel while attending status or motion calls exceeds 2 hours on eight occasions. One hour is more than enough time to bill for attending most, if not all, status and motion calls. The court will allow two hours each for the two pretrial conference dates. Based on these generous allotments, the fees allowed for court appearances (other than at trial) are recomputed as follows: Hours Rate Amount 1 $ 64 $ 64 1 68 68 1 77 77 2 104 208 4 113 452 2 124 248 1 140 140 3 150 450 6 160 960 1 163 163 6 165 990 4 198 792 Total 32 ($144.13) $4,612

 This results in an allowable amount of $4,612 which is 10.3% of the $44,563 originally claimed for court appearances and 20.3% of the $22,689 recomputed claim for court appearances. The time spent on depositions cannot be fully evaluated since there is no information as to how long any particular deposition took nor how much of the time billed includes travel time. The amounts, however, appear excessive, though not overly so. For example, 24 hours are billed for two depositions taken on September 21 and 22 in Cincinnati, Ohio. The recomputed amounts are reduced 10% from $43,565 to $39,209. Plaintiff's records were insufficient to precisely determine how much time was actually devoted to the trial. However, the recomputed amount will not be questioned. The appropriate attorney's fee allowed for court appearances, depositions, and the trial are as follows: Court appearances $ 4,612 Depositions 39,209 Trial 58,658 Total $ 102,479

 $102,479 is 41.3% of the $247,843 originally claimed. Additionally it appears that the $247,843 figure is a misstatement as to what was originally claimed. Plaintiff does not include in this figure any amounts claimed for in-house counsel's attendance at court and depositions. Thus, the $102,479 allowed is somewhere under 40% of what was originally claimed.

 Plaintiff was also given the opportunity to provide a breakdown and recomputation of other work done. Plaintiff did not take the opportunity to do so. Presumably, there would be an even greater reduction as to other billings. In any event, the lack of necessary data justifies a substantial reduction. The court will allow only 30% of the other amounts claimed for attorney's fees for outside counsel.

 Defendants object to allowing any fees for in-house counsel. Fees for in-house counsel are appropriate where counsel is performing legal work that would otherwise be performed by outside counsel. See Scott Paper Co. v. Moore Business Forms, Inc., 604 F. Supp. 835, 837 (D. Del. 1984). However, any such claim must be fully documented and was not in this case. The affidavit of Frederick Braun, one of plaintiff's in-house counsel, states the following:


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