Case 1:15-cv FDS Document 156 Filed 09/13/17 Page 1 of 7 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

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1 Case 1:15-cv FDS Document 156 Filed 09/13/17 Page 1 of 7 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS HEFTER IMPACT TECHNOLOGIES, LLC, v. Plaintiff, SPORT MASKA INC., d/b/a REEBOK-CCM HOCKEY, Defendant. CIVIL ACTION NO. 1:15-CV FDS DEFENDANT S RESPONSE TO PLAINTIFF S APPLICATION FOR FEES AND COSTS IN CONNECITON WITH ITS MOTION FOR SANCTIONS 1 Sport Maska Inc., d/b/a Reebok-CCM Hockey ( CCM hereby responds to the above referenced Fee Application because the amount that Hefter Impact Technologies, LLC ( HIT has requested to be reimbursed is unreasonable. INTRODUCTION On January 6, 2017, HIT filed its Motion for Sanctions for Spoliation of Evidence and Discovery Misconduct ( Motion for Sanctions [Dkt. No. 83], seeking redress for five distinct and severable acts in which it claimed CCM engaged: 1. Destroying virtually all correspondence related to the products at issue prior to Destroying design documents 3. Destroying product marketing materials 4. Destroying all of product manager Laura Gibson s electronic and hard copy files that existed as of December CCM respectfully disagrees with the Court s decision to award fees and costs, and nothing in this Response should be construed as an admission to the contrary.

2 Case 1:15-cv FDS Document 156 Filed 09/13/17 Page 2 of 7 5. Making a belated production of documents. Motion for Sanctions [Dkt. No. 83] (emphasis in original. HIT only prevailed on its Motion for Sanctions with respect to that portion of item 4, above, related to the negligent destruction of Laura Gibson s notebooks (and CCM never disputed that such destruction was inappropriate. In any event, because the notebooks were unlikely [to] have contained a substantial amount of information that was highly probative of CCM s liability, the Court ruled that the Motion for Sanctions was not ultimately successful. Memorandum and Order on Plaintiff s Motion for Sanction for Spoliation of Evidence and Discovery Misconduct ( Order [Dkt No. 143] at p. 16. Notwithstanding the forgoing, and given the overall circumstances, the Court allowed HIT to file an application for the reasonable fees and costs it incurred in bringing [its] motion for sanctions for spoliation. Id. at p. 17 (emphasis added. Nevertheless, because the $54, in fees and costs HIT seeks are unreasonable and/or were not incurred in connection with any alleged spoliation, only a small fraction of that amount should be awarded. ARGUMENT While HIT acknowledges on page 2 of its Fee Application, that it has the burden of proving that the fees and costs it seeks are reasonable under the circumstances, it has failed to carry this burden. I. HIT Should Not Be Awarded Any Fees Or Costs Incurred Prior To Or In Connection With The Deposition Of Laura Gibson HIT seeks $10,190 in legal fees and $5, in costs incurred prior to and/or in connection with the deposition of Laura Gibson. See Exhibits 1 and 2 to Affidavit of Giovani Ruscitti ( Ruscitti Affidavit [Dkt No ] at pp ; [Dkt No ] at pp. 3, 6-8. For a 2

3 Case 1:15-cv FDS Document 156 Filed 09/13/17 Page 3 of 7 variety of very straight-forward reasons, however, HIT should not be awarded any of these fees or costs. A. Legal Fees Prior To Or In Connection With Ms. Gibson s Deposition It was not until the deposition of Laura Gibson (and that of Connie Cadovius, the following day that HIT learned the facts on which it based its Motion for Sanctions. For this reason, alone, it would not be reasonable for any award to reimburse HIT for fees incurred prior to that deposition. In addition, the bulk of the legal fees at issue actually relate to discovery disputes that were resolved amicably and/or were not even raised in the Motion for Sanctions. See Affidavit of Shepard Davidson ( Davidson Affidavit at 3. Accordingly, any fee award to HIT should not consider time charges incurred prior to Ms. Gibson s deposition. HIT also should not be compensated for any legal fees expended in connection with taking Ms. Gibson s deposition. As an initial matter, Ms. Gibson plainly is one of the key witnesses in this case. Davidson Affidavit at 4. Further, while her deposition transcript spans 406 pages, testimony about the destroyed notebooks only appears on 6 pages. Id. Thus, virtually all of the time HIT s counsel spent deposing Ms. Gibson had nothing to do with the Motion for Sanctions (id. and, therefore, it would be unreasonable for HIT to be reimbursed for that time. 2 B. Costs Incurred In Connection With Ms. Gibson s Deposition HIT also argues that it should recover the costs incurred in connection with Ms. Gibson s deposition, including transcript costs and travel costs for HIT s counsel and the court reporter. For all of the same reasons set forth in the prior section, it would be unreasonable for HIT to be reimbursed for any of these costs. 2 As for the travel time, CCM also notes that HIT s counsel took three other depositions on the same days and at the same location that it deposed Ms. Gibson. Davidson Affidavit at 5. 3

4 Case 1:15-cv FDS Document 156 Filed 09/13/17 Page 4 of 7 II. It Would Be Unreasonable To Award HIT $31, In Legal Fees For Preparing Its Motion For Sanctions A. The $31, In Legal Fees Claimed Is Over-Stated HIT claims that it incurred legal fees of $31, in researching, conferring over, preparing, filing and participating in the hearing on the Motion for Sanctions. Fee Application at p. 1. While HIT acknowledges that its counsels time entries include work unrelated to the Motion for Sanctions, HIT s counsel claims that he and his colleague reviewed [their] respective time entries and estimated how much time was spent bringing the motion for sanction for spoliation and subtract[ed] the time and costs for work unrelated to the Motion for Sanctions. Ruscitti Affidavit [Dkt. No ] at 11. Nevertheless, the very first time entry dated after Ms. Gibson s deposition (6 hours/$2,100 was not written down at all, and the vast majority of the time expended plainly had nothing to do with the Motion for Sanctions: Travel to Denver and review and legal analysis of 30(b(6 testimony and outline issues for motion for sanctions, consider evidentiary issues for videos and product reviews, outline discovery path going forward, and general follow up regarding status and tasks to complete. Exhibit 1 to the Ruscitti Affidavit [Dkt No ] at p. 50 (emphasis added. Even with respect to the entries where HIT did take deductions, CCM does not believe HIT deducted enough. Based on CCM s counsel s review of the relevant entries, only about $25,000 worth of time appears to have been spent by HIT s counsel on the Motion for Sanctions and the related hearing. Davidson Affidavit at 6. B. There Should Be A Substantial Downward Adjustment Of The Fees Actually Incurred Before Any Award Is Made As HIT acknowledges, the fees actually incurred only acts as a starting point for a fee award, and that amount should be adjusted: [U]pward or downward based on several factors [and] the most relevant factor is the results obtained for HIT on the Motion for Sanctions. The phrase results 4

5 Case 1:15-cv FDS Document 156 Filed 09/13/17 Page 5 of 7 obtained includes the plaintiff s success claim by claim, the relief actually achieved, and the societal importance of the right [that] has been vindicated, considered together. Fee Application at pp. 5-6 (emphasis added. Applying those criteria to the facts of this case indicates that a significant downward adjustment should be made. First, as far as success claim by claim is concerned, HIT lost on 4 out of 5 claims; only prevailed on a portion of the fifth (which portion CCM never even disputed; and even the Court described the Motion for Sanctions as not ultimately successful. Order [Dkt. No. 143] at p. 16. Second, there literally was no relief actually achieved (other than the award of reasonable fees and costs. Finally, there was no true societal importance of the right [that] has been vindicated because, again, the only issue on which HIT prevailed was never challenged by CCM. Thus, not only did HIT did not make any new law through its Motion for Sanctions, but the ultimate ruling will not have any impact on society going forward. Accordingly, CCM respectfully suggests that a downward adjustment of at least 50% is appropriate under the circumstances. III. HIT Only Has Shown That $ In Costs Were Reasonably Incurred In Connection With Its Motion For Sanctions The only costs HIT has itemized related to the Motion for Sanctions (as opposed to Ms. Gibson s deposition are $87.15 for copies and $78.31 for Federal Express. 3 See Exhibit 2 to the Ruscitti Affidavit [Dkt No ] at p.5. Thus, HIT should be awarded no more than $ in costs. 3 Because HIT s counsel plainly was going to travel to Boston to argue the parties cross motions for summary judgment, HIT is not entitled to any of the travel costs related to that trip. Cf. Eldridge v. Gordon Bros. Grp., LLC, 189 F. Supp. 3d 188, (D. Mass

6 Case 1:15-cv FDS Document 156 Filed 09/13/17 Page 6 of 7 IV. HIT Should Not Be Awarded $6, For Preparing Its Fee Application As an initial matter, CCM notes that this Court only allowed HIT to submit a fee application with respect to the fees and costs incurred in connection with its Motion for Sanctions. The Court did not allow HIT to double-dip by also recovering the fees associated with the Fee Application, itself. As such, and because HIT cites nothing to support the notion that it should be awarded any fees incurred in preparing its Fee Application, none should be awarded. To the extent that this Court is inclined to award HIT any fees related to the preparation of its Fee Application, that award should be far less than the $ HIT has requested. As an initial matter, the 27.6 hours HIT s counsel claims was expended in connection with the Fee Application (Ruscitti Affidavit [Dkt. No ] at 17 was excessive. Indeed, based on the billing entries provided, it appears that over 26 hours were spent preparing the Fee Application and supporting Affidavit. See Exhibit 1 to the Ruscitti Affidavit [Dkt No ] at pp This was far more time than was necessary, as born out by the length and substantive breadth of the Fee Application (and the Ruscitti Affidavit. Indeed, all HIT really had to do was review the various time and expense invoices and file a verifying affidavit along with a formalistic fee petition. Davidson Affidavit at 7. Plainly, that could have been done in less than half the 27.6 hours HIT actually claims to have expended. Id. Accordingly, if this Court is inclined to award legal fees incurred in connection with the preparation of the Fee Application, CCM respectfully suggests that $2,500 is reasonable. CONCLUSION In light of the foregoing, HIT should be awarded no more than $12, for fees and costs incurred in connection with the Motion for Sanctions based on the following analysis: 6

7 Case 1:15-cv FDS Document 156 Filed 09/13/17 Page 7 of 7 Gross amount of fees claimed to prepare the Motion for Sanctions $31, Adjustment for work included that was unrelated to the Motion for Sanctions ($6, Sub-total $25,000 50% Downward adjustment for the overall results achieved ($12,500 Total legal fees awarded $12,500 Total costs incurred $ Grand Total $12, Dated: September 13, 2017 Respectfully submitted, SPORT MASKA, INC., d/b/a REEBOK- CCM HOCKEY /s/ Shepard Davidson Shepard Davidson (BBO # sdavidson@burnslev.com Laura Lee Mittelman (BBO # lmittelman@burnslev.com Burns & Levinson LLP 125 Summer Street Boston, Massachusetts Telephone: ( Facsimile: ( CERTIFICATE OF SERVICE I hereby certify that a true copy of this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing on September 13, /s/ Laura Lee Mittelman Laura Lee Mittelman 7