[00:00:15] Speaker 03:
Chief Judge your honor is made please the court this appeal affords this court the opportunity to correct the legal error committed by the district court in using hindsight bias if you will

[00:00:44] Speaker 03:
in finding the case below an exceptional case under Section 285.

[00:00:48] Speaker 03:
And it also allows the court to correct the way the award of $820,000 in excess of that in attorney's fees when it granted a motion to dismiss at the early stages of this case for lack of standing while depriving Max Sound the opportunity to have access to the billing records that were used to base that.

[00:01:10] Speaker 06:
Where did you object to that?

[00:01:11] Speaker 03:
On the last page of our response,

[00:01:13] Speaker 03:
It was on page 15, but let me find the appendix number.

[00:01:29] Speaker 03:
What happened was Google submitted only the declaration of Ms.

[00:01:32] Speaker 03:
Schanberg, which had a very high-level description of the nature of the work performed and the lawyers who performed the work without any details.

[00:01:44] Speaker 03:
I think it's in volume three, probably.

[00:01:46] Speaker 03:
Excuse me, I'm sorry.

[00:01:49] Speaker 02:
You were referring to 1515?

[00:01:51] Speaker 03:
1515, let me see.

[00:01:52] Speaker 03:
It was in the last page.

[00:01:56] Speaker 03:
Yes.

[00:01:57] Speaker 03:
And what happened was that Google only submitted the Schanberg Declaration, which didn't contain any real detail about that.

[00:02:08] Speaker 06:
I'm sorry.

[00:02:09] Speaker 06:
Where is your objection to

[00:02:12] Speaker 06:
the court's order which required a production of the bills to occur in-camera.

[00:02:18] Speaker 06:
Where did you object that in-camera wasn't fair to you that you had a right to... We didn't have an opportunity to object to that.

[00:02:24] Speaker 03:
He just issued the order.

[00:02:26] Speaker 03:
So that was done on his own at the request of Google.

[00:02:30] Speaker 06:
Google said in the original... Thirteen months elapsed between when the court issued an order requiring production bills for in-camera inspection and before he issued an order awarding fees.

[00:02:42] Speaker 06:
So I'm not certain where you were for 13 months, such that you're telling me you didn't have an opportunity to object.

[00:02:48] Speaker 03:
We were relying on our objection on 1515, where we said, moreover, Google suggests that if the court orders production of Google's time records, it should be allowed to produce those records in camera.

[00:02:59] Speaker 03:
But Maxon must see the supporting.

[00:03:01] Speaker 06:
I'm sorry.

[00:03:01] Speaker 06:
I can't find where you're reading from.

[00:03:02] Speaker 03:
1515, footnote number 14.

[00:03:04] Speaker 03:
It's about a half or a quarter, third of a page footnote.

[00:03:08] Speaker 06:
Oh, I think I might have the wrong one.

[00:03:10] Speaker 06:
Oh, no.

[00:03:10] Speaker 06:
There it is.

[00:03:11] Speaker 03:
I'm sorry, did you have it, Your Honor?

[00:03:13] Speaker 06:
So you're in the footnote, number 14.

[00:03:16] Speaker 06:
Yes.

[00:03:17] Speaker 03:
And keep in mind that this was just a suggestion by Google that if you don't think what we submitted is enough, then allow us to go submit these records in camera.

[00:03:27] Speaker 06:
This was prior to when the court issued the order.

[00:03:33] Speaker 06:
Yes.

[00:03:33] Speaker 06:
So wait, so before the court issues an order in a footnote varied

[00:03:38] Speaker 06:
at page 22 of your thing, you say, by the way, we should get to see these things.

[00:03:44] Speaker 06:
Then the court says, I'm going to order in-camera review.

[00:03:48] Speaker 06:
The court didn't address this, nor understand this to be an objection to its order, nor did you then make one, nor do I think it would have been futile if you made one, because this is buried in the middle of nothingness.

[00:04:00] Speaker 06:
I didn't even know this was here.

[00:04:03] Speaker 03:
Well, it's in our brief, but most of it... No, it's in a footnote in your brief.

[00:04:07] Speaker 03:
Yes.

[00:04:07] Speaker 06:
And what all... Buried in a very long footnote in your brief, a single sentence.

[00:04:11] Speaker 03:
Yes, but it's very specific where we say that, no, this would be improper.

[00:04:15] Speaker 03:
We're entitled to view these things and object and challenge those documents.

[00:04:21] Speaker 06:
And this was, again, in response to... Where does it say it would be improper if you didn't get to see it?

[00:04:25] Speaker 03:
It should be allowed, here we go, but Max Sound must see the supporting time records to be in a position to challenge their reasonableness.

[00:04:33] Speaker 06:
You say, I must see something.

[00:04:35] Speaker 06:
That doesn't say it would be improper if I didn't allow you to see it.

[00:04:38] Speaker 06:
My children use the word must all the time.

[00:04:40] Speaker 03:
I can't speak for your children, but I can speak for us.

[00:04:44] Speaker 04:
Let me just point out also the oddity.

[00:04:46] Speaker 04:
We have our own rules about arguments made in footnotes.

[00:04:49] Speaker 03:
I know.

[00:04:51] Speaker 04:
seems to double down on how buried any information can be in a footnote, because what's being footnoted has nothing to do with any of that.

[00:05:00] Speaker 04:
It's a sentence that deals with 1927 sanctions.

[00:05:05] Speaker 03:
Well, I disagree, Your Honor, because this talks, again, please let me make my point on this.

[00:05:13] Speaker 03:
Google did not submit any records with its motion.

[00:05:16] Speaker 03:
They submitted this very thin Schanberg declaration.

[00:05:20] Speaker 03:
in a footnote of sorts of their own, they said, well, if you don't find that acceptable, then let us submit detailed time records.

[00:05:28] Speaker 03:
And then there was a hearing to be held on this motion.

[00:05:32] Speaker 03:
And I think a few days before the hearing, the court canceled the hearing and simply said, submit your time records, and I'll look at them.

[00:05:40] Speaker 05:
In camera.

[00:05:41] Speaker 03:
In camera.

[00:05:41] Speaker 03:
So we were going to certainly.

[00:05:43] Speaker 05:
But why didn't you object?

[00:05:44] Speaker 03:
Because the hearing was canceled.

[00:05:47] Speaker 05:
But do you have a computer?

[00:05:48] Speaker 05:
Do you own one?

[00:05:49] Speaker 03:
We sure do.

[00:05:49] Speaker 05:
How about a piece of paper and a pen?

[00:05:51] Speaker 06:
You couldn't have written an objection down and gotten it to the judge.

[00:05:54] Speaker 06:
There's no mechanism for filing documents.

[00:05:57] Speaker 03:
But I think it's very clear that we objected to this requested procedure.

[00:06:00] Speaker 06:
This is definitely not clear to me.

[00:06:02] Speaker 02:
OK, well, I... The other tell kind of... I'm sorry, go ahead.

[00:06:08] Speaker 02:
You're referring to this footnote and obviously getting yourself into a little bit of a box, but there's text on lines 9 through 13

[00:06:19] Speaker 02:
that addresses this.

[00:06:23] Speaker 03:
Yeah, I'm sorry.

[00:06:24] Speaker 02:
Thank you, Your Honor.

[00:06:25] Speaker 02:
What's the consequence of that?

[00:06:27] Speaker 03:
Again, this backhanded request by Google wasn't even a fault.

[00:06:34] Speaker 03:
It was, oh, by the way, if you don't think we've done enough, they had the obligation in their motion to submit all of the proper evidence that supported it, and not to say if we didn't, if we submitted an inadequate declaration

[00:06:46] Speaker 03:
give us a break and let us submit some more records.

[00:06:48] Speaker 03:
And we were saying, no, that's wrong.

[00:06:50] Speaker 03:
They have an obligation in this motion to back it up, back up the number 800.

[00:06:53] Speaker 04:
I don't understand.

[00:06:54] Speaker 04:
I'm reading the paragraph that Judge Lynn was just, in the event the court were to find the case exceptional and the court would exercise its discretion and award attorney's fees, Maxon requests the court to order Google to produce detailed billing records so that it can be given the fair opportunity to review the records.

[00:07:14] Speaker 03:
Yes, it being Max Sound.

[00:07:15] Speaker 03:
And meaning the court.

[00:07:16] Speaker 03:
No, it being Max Sound.

[00:07:18] Speaker 03:
Max Sound requests the court so that it can be given a fair opportunity to view the records to determine whether Google's request to fee appears reasonable.

[00:07:25] Speaker 03:
I read it as being reasonable.

[00:07:26] Speaker 06:
Are you the one who determines whether it's reasonable or is it the court that makes that determination?

[00:07:30] Speaker 03:
Well, the court makes that determination.

[00:07:31] Speaker 06:
Right, so would it be fair for the it?

[00:07:32] Speaker 03:
But we have a say on that.

[00:07:33] Speaker 03:
We have an opinion to give on that.

[00:07:35] Speaker 04:
Do you really think the best reading of this sentence is that the it means Max Sound because it can be given a fair opportunity

[00:07:43] Speaker 04:
to review the records to determine whether, who makes the determinations here as to whether Google's fees are reasonable?

[00:07:51] Speaker 03:
You or the court?

[00:07:52] Speaker 03:
The court makes the binding determination.

[00:07:53] Speaker 04:
So we're talking about it being given.

[00:07:55] Speaker 04:
I mean, I read this sentence.

[00:07:58] Speaker 04:
And I guess part of the tell here for me, even if I thought this was kind of close, is did the district court in its ultimate order, which was very lengthy, resolving all of this and discussing in detail its in-camera review, did it?

[00:08:13] Speaker 04:
respond or to any suggestion or argument that this was improper?

[00:08:19] Speaker 04:
Well, that's why, you know, I start with the district court.

[00:08:22] Speaker 04:
And when he or she does not say anything, it leads me to wonder whether or not someone had lodged a clear objection to what he was doing.

[00:08:31] Speaker 04:
So if you think he was so clear that you had a fair objection going on in-camera review, don't you think the district court would have at least

[00:08:41] Speaker 04:
reference that?

[00:08:41] Speaker 03:
Well, the district court didn't reference a lot of things that we argued in our papers in the court below, so I'm not sure.

[00:08:47] Speaker 03:
I understand you're saying that that would beg the question, well, did the court get adequate notice?

[00:08:52] Speaker 03:
And I believe that that paragraph on page 1515 in the footnote clearly said, we don't think it's proper for the court to look at these things in camera.

[00:09:01] Speaker 06:
And then the hearing was... Just out of curiosity, have you challenged Local Rule 54.5b.2 for the Northern District of California?

[00:09:10] Speaker 03:
Have we done what to it?

[00:09:11] Speaker 06:
Challenged local rule 54-5b2, which expressly states the court can order the production of the digital bills for in-camera inspection.

[00:09:21] Speaker 03:
No, we haven't, but that doesn't overcome the due process clause of the Constitution.

[00:09:25] Speaker 03:
The court, by local rule, can do that.

[00:09:26] Speaker 06:
So there's a local rule in the court that tells the court to do the process exactly the way they did it in this case.

[00:09:31] Speaker 06:
You're saying you objected to the use of that local rule without ever mentioning it in your briefs?

[00:09:35] Speaker 03:
And neither did Google mention it in its briefs.

[00:09:38] Speaker 06:
Because did it understand you to be objecting?

[00:09:40] Speaker 06:
Did it respond?

[00:09:41] Speaker 03:
I was objecting to it.

[00:09:42] Speaker 06:
Did Google respond to what it understood to be an objection by you

[00:09:48] Speaker 06:
to in-camera inspection.

[00:09:50] Speaker 03:
It didn't say anything about its in-camera inspection request.

[00:09:53] Speaker 06:
I think nobody understood that sentence in your footnote as being the objection that you were trying to tell us now.

[00:09:57] Speaker 03:
I think that the paragraph does say that if you're going to allow this, we need to be given a fair opportunity to review.

[00:10:04] Speaker 03:
The court decides, but we have to have an opportunity to review it and object and complain about whatever they're using to base that $820,000 fee award.

[00:10:15] Speaker 03:
And so the court

[00:10:17] Speaker 03:
is not the it there, it is us, and I apologize if it wasn't clear enough, but we clearly were objecting to this procedure as unconstitutionally depriving us the chance to be heard and complain about any of the billing records in this case.

[00:10:31] Speaker 06:
And the $820,000... You just said we clearly were objecting to the constitutionality.

[00:10:38] Speaker 03:
Yes.

[00:10:38] Speaker 06:
Really?

[00:10:39] Speaker 06:
Yes.

[00:10:40] Speaker 06:
Do you use the word objection or constitution or due process in any of your papers before?

[00:10:45] Speaker 03:
Fair opportunity to review the records is the due process right we're seeking to enforce here.

[00:10:50] Speaker 03:
We didn't say it would violate due process.

[00:10:53] Speaker 03:
It would deprive us of a fair opportunity, which is what the due process clause is guaranteed to protect.

[00:10:58] Speaker 04:
Well, that assumes that you said it was very clear.

[00:11:01] Speaker 04:
It assumes the clarity of the little debate we were having earlier about who's given a fair opportunity, i.e.

[00:11:08] Speaker 04:
who determines whether it's reasonable.

[00:11:11] Speaker 04:
So I mean, I'm still hung up on what I think is the best reading of the sentence, which isn't clear at all.

[00:11:20] Speaker 04:
So I'm left with what's in the footnote.

[00:11:21] Speaker 03:
Well, clearly.

[00:11:22] Speaker 04:
But you're telling me back to the rule that Judge Moore was citing.

[00:11:27] Speaker 03:
Yes.

[00:11:27] Speaker 04:
So this rule says it gives the court discretion as the court deems appropriate.

[00:11:33] Speaker 03:
Yes.

[00:11:33] Speaker 04:
They can do in camera or not.

[00:11:34] Speaker 04:
So you're saying that if the judge

[00:11:37] Speaker 04:
ever orders, exercises the authority that he has under this rule, that's not consistent with the Constitution.

[00:11:48] Speaker 03:
It's a violation of due process to keep this evidence secret and rely on it and base your attorney's fees award on detailed billing records that the other side has no chance to review and critique.

[00:12:01] Speaker 03:
That is a fundamental violation of the due process right.

[00:12:04] Speaker 03:
And the court can issue all the local rules at once, but that doesn't supersede that constitutional right, which we were deprived of.

[00:12:12] Speaker 03:
But to get back to the merits on the exceptional case, the court consistently simply said, in rejecting our arguments about the strength of our case, although we lost the issue on standing, but on the strength of our case, the court simply said, I've previously considered that in my dismissal order,

[00:12:34] Speaker 03:
I don't need to hear arguments about this again.

[00:12:36] Speaker 03:
This doesn't have to be re-litigated.

[00:12:38] Speaker 03:
But by doing that, the court equated the success of our arguments with the strength of our arguments.

[00:12:44] Speaker 03:
And the record is replete, both on our alter ego and our agency arguments in support of standing.

[00:12:50] Speaker 03:
There was substantial evidence to support that argument.

[00:12:55] Speaker 03:
And the court simply gave it the back of the hand by saying, I've already considered this.

[00:13:00] Speaker 03:
I don't need to hear it again.

[00:13:01] Speaker 03:
It's done.

[00:13:02] Speaker 04:
I'm looking at the court's

[00:13:05] Speaker 04:
discussion on that, which spans quite a few pages, right?

[00:13:08] Speaker 04:
And has quite a bit of detail.

[00:13:09] Speaker 04:
I mean, the judge didn't summarily say this is an exceptional case because of what I said in the dismissal.

[00:13:16] Speaker 04:
It goes through quite a lot of detail in its analysis, right?

[00:13:20] Speaker 03:
I disagree.

[00:13:22] Speaker 03:
It never addressed.

[00:13:23] Speaker 03:
The only argument it made ultimately on our alter ego and agency arguments is that on alter ego or on agency, the court said that the showing

[00:13:35] Speaker 03:
did not overcome the presumption that VSL and Vedanti are separate entities.

[00:13:40] Speaker 03:
There is no presumption of that.

[00:13:43] Speaker 04:
Can you direct me to the page in the district court?

[00:13:46] Speaker 04:
OK.

[00:13:46] Speaker 03:
Yes, Your Honor.

[00:13:53] Speaker 04:
Is it 13?

[00:13:54] Speaker 04:
Sorry?

[00:13:57] Speaker 03:
I have it here somewhere.

[00:13:58] Speaker 04:
I think it's 13.

[00:13:59] Speaker 03:
Yes.

[00:14:00] Speaker 03:
Yes, Your Honor.

[00:14:01] Speaker 03:
Yes.

[00:14:01] Speaker 03:
Yes.

[00:14:01] Speaker 03:
Exactly.

[00:14:02] Speaker 03:
Yes.

[00:14:04] Speaker 03:
There is no presumption that's applicable to an agency argument.

[00:14:08] Speaker 03:
We argued that VSL acted as the agent of Vedanti in granting the license to the 339 patent.

[00:14:14] Speaker 03:
And I might note, the court did not dispute that VSL was acting as the agent of Vedanti in granting Max Sound the right to enforce the European 277 patent.

[00:14:28] Speaker 03:
And so the very same agreement

[00:14:30] Speaker 03:
did VSL was the agent or sub-licensee of Vedanti when it granted the rights to the EP277.

[00:14:37] Speaker 03:
All right.

[00:14:37] Speaker 04:
Well, I'll just point out to you that as I read this paragraph, and there's a lot of detail here regarding your suggestion about overcoming the presumption, the court goes on to discuss that point in a lot of detail, citing a lot of docket numbers here discussing that.

[00:14:56] Speaker 04:
So we didn't just say,

[00:14:59] Speaker 04:
You haven't overcome the presumption and the story, right?

[00:15:02] Speaker 03:
But he ignored the agency issue completely.

[00:15:05] Speaker 03:
He simply argued about the separate entities and that there's evidence in the record of there being separate entities.

[00:15:11] Speaker 03:
That has nothing to do with the agency argument we made.

[00:15:14] Speaker 03:
And again, given that Vedanti designated VSL as the agent in granting the license to the EP277 patent, how could that not be persuasive evidence that it did the same thing regarding the 339 patent?

[00:15:27] Speaker 03:
The court equated

[00:15:29] Speaker 03:
agency and alter ego and simply said I'm not convinced you've given, well in the dismissal order said I'm not convinced you've shown that it was the alter ego.

[00:15:38] Speaker 03:
In this order, in the attorney's order, it simply said there was evidence of separateness among the parties.

[00:15:44] Speaker 03:
We lost that issue already.

[00:15:45] Speaker 03:
I'm not going to re-litigate that.

[00:15:47] Speaker 03:
But the issue is here, did we have enough evidence to show that, to make our argument about alter ego not objectively baseless?

[00:15:55] Speaker 03:
And I submit yes we did.

[00:15:57] Speaker 03:
We lost the argument

[00:15:58] Speaker 03:
But success is not the same thing as strength.

[00:16:01] Speaker 04:
Okay.

[00:16:02] Speaker 04:
We've exceeded.

[00:16:02] Speaker 04:
You've used all your time, so we'll give you a little bit of rebuttal.

[00:16:05] Speaker 03:
Thank you very much.

[00:16:06] Speaker 01:
May it please the court.

[00:16:22] Speaker 01:
The district court's judgment should be affirmed.

[00:16:25] Speaker 01:
This court reviews an award of attorney's fees under Section 285 by applying the highly differential abuse of discretion standard.

[00:16:33] Speaker 01:
Indeed, as this court has made clear, deference is the hallmark of an abuse of discretion review.

[00:16:40] Speaker 01:
And a large part of that deference derives from the recognition that when, as here, a district court judge presides over a case for a prolonged period of time, that judge is in the best situation to assess

[00:16:54] Speaker 01:
whether a case stands out from others and is exceptional.

[00:16:57] Speaker 01:
And that is precisely the situation here as Judge Davila lived with this case for nearly three years.

[00:17:03] Speaker 01:
During that time, Judge Davila issued an order dismissing this case for lack of standing.

[00:17:09] Speaker 01:
In doing so, Judge Davila addressed agency and alter ego arguments in his dismissal order, and he found that based on entirety of the record, there was an inescapable conclusion that Mack Sound lacked standing.

[00:17:24] Speaker 01:
After this court affirmed that order, Judge Davila considered the totality of the circumstances and issued a detailed opinion that spanned 24 pages and found that this case was exceptional for two separate and independent grounds.

[00:17:48] Speaker 04:
confidentiality or privilege question that enures to the kind of information the District Court reviewed in camera?

[00:17:56] Speaker 01:
Absolutely, Your Honor.

[00:17:57] Speaker 01:
I believe that's why the Ninth Circuit and the Northern District of California have rule 54-5-B2, I believe Judge Moore noted, because inevitably, or most likely, in any attorney billing records, there will be embedded attorney-client communications or work product doctrine.

[00:18:14] Speaker 01:
And that's why 54-B52 indicates that

[00:18:18] Speaker 01:
a judge can request an in-camera inspection and do so to confirm statements of work and details of work that were set forth in a declaration supporting attorney's fees.

[00:18:30] Speaker 01:
And that's precisely what the district court did here.

[00:18:33] Speaker 06:
Well, but in Yamada, the Ninth Circuit said that due process requires access to time sheets to support the fee order, and then they go on to explain

[00:18:44] Speaker 06:
that there could be an in-camera submission of the specific records for exactly the reason that you're articulating attorney-client privilege concerns if the declaration describing the work relates to the quote from the case relating to the case and the invoice summaries listing the amount of time that work took.

[00:19:01] Speaker 06:
So I guess my problem for you is that Yamada required you to produce a lot more than what you produced, it seems to me.

[00:19:13] Speaker 06:
to them.

[00:19:14] Speaker 06:
I'm not objecting to the idea that the district court can, in certain circumstances, perform an in-camera review of the detailed billing entries, but you gave them a very cursory declaration that, for example, there are several cases out of the Ninth Circuit, I don't know how to say this one, URAD included, and each of those cases had far more detailed invoice summaries, which is required by Yamada, than what you produced in this case.

[00:19:41] Speaker 06:
So I'm concerned that there's still a due process problem in this case with in-camera review, because they didn't have access to anything approaching the level of detail that the Ninth Circuit found sufficient in other cases when in-camera review occurred.

[00:19:56] Speaker 01:
Well, Your Honor, putting aside, I think, the waiver issue, but speaking to the substance, the declaration in Ms.

[00:20:00] Speaker 01:
Schanberg submitted.

[00:20:02] Speaker 06:
Can you tell me what page in the appendix it is?

[00:20:04] Speaker 06:
Let's look at it.

[00:20:13] Speaker 04:
I think it's 1301.

[00:20:15] Speaker 01:
Yes, 1301.

[00:20:16] Speaker 01:
Thank you, Your Honor.

[00:20:18] Speaker 01:
And pages 1302 and 1303, where Ms.

[00:20:23] Speaker 01:
Schamberg sets forth eight different categories of activities that were performed by the attorneys working on this case.

[00:20:29] Speaker 04:
Yeah, but it seems to me what seems to be the gap, if any, in this information is allocating their $1,500 here, $1,400, to allocating

[00:20:41] Speaker 04:
What portion of that time related to each of these, however many, seven categories or eight categories that you're listing here?

[00:20:51] Speaker 04:
And don't you think that's the kind of information that seems to be required in the cases that Judge Moore was citing?

[00:20:58] Speaker 01:
No, I don't.

[00:20:59] Speaker 01:
Actually, I think certainly could the information have been richer or divided into finer granularity?

[00:21:05] Speaker 01:
That's certainly possible.

[00:21:07] Speaker 01:
But I think this fully complies with

[00:21:09] Speaker 01:
local civil rule 54B, which requires to set forth the work done and the time spent and the attorneys who spent on it.

[00:21:20] Speaker 02:
Without any correlation between the categories of work performed and the hours expended by each attorney, it's impossible to make any assessment of whether the time was reasonable.

[00:21:36] Speaker 02:
I mean, for example,

[00:21:38] Speaker 02:
Ms.

[00:21:38] Speaker 02:
Schanberg spent 172 and a half hours on this case.

[00:21:43] Speaker 02:
We have no idea what she did.

[00:21:45] Speaker 02:
No idea.

[00:21:48] Speaker 02:
No idea whether she participated in one, two, three, or all of these categories.

[00:21:55] Speaker 01:
That is correct.

[00:21:56] Speaker 01:
To the extent that additional detail would require to correlate how many hours each individual attorney spent on those categories, that was part of the in-camera review that Judge

[00:22:08] Speaker 04:
I don't know what Judge Lynn is saying, but I'm not even suggesting that you have to identify exactly the number of hours that each attorney necessarily spent in each of these categories.

[00:22:20] Speaker 04:
But the other side doesn't even know if you're allocating 1,300 hours to discovery and very little to the others.

[00:22:30] Speaker 04:
So even how would at least

[00:22:36] Speaker 04:
an estimate of the amount of the 1,400 hours divided up by the categories, how would that push up against the concerns that you've expressed that I think are real sometimes in terms of privilege or confidentiality?

[00:22:50] Speaker 04:
That wouldn't be a problem, would it?

[00:22:53] Speaker 01:
I suppose, no.

[00:22:54] Speaker 01:
Again, I don't believe that the rules are requiring more detail, but certainly more detail could have been given.

[00:23:01] Speaker 01:
And I suppose

[00:23:03] Speaker 06:
I'm not sure if the rules require more detail.

[00:23:06] Speaker 06:
It's not the rule, it's due process.

[00:23:07] Speaker 06:
They haven't alleged, and I think it's really clear, they haven't alleged the Northern District violated its rule.

[00:23:13] Speaker 06:
They've alleged that what they did in this case violated due process, and that's the hurdle you have to overcome.

[00:23:19] Speaker 06:
So your answer that I don't think the rules require more is not an answer to the question.

[00:23:26] Speaker 01:
I don't believe that the records here.

[00:23:28] Speaker 06:
Time sheets to me imply a breakdown

[00:23:31] Speaker 06:
of time for task.

[00:23:32] Speaker 06:
What do they mean to you?

[00:23:34] Speaker 01:
They mean specifically that.

[00:23:36] Speaker 06:
So timesheets is the exact language used in some of the cases.

[00:23:40] Speaker 06:
Where are there timesheets in this declaration?

[00:23:43] Speaker 01:
There are no timesheets.

[00:23:44] Speaker 01:
They were submitted in camera.

[00:23:47] Speaker 01:
The timesheets were submitted in camera.

[00:23:50] Speaker 06:
Yamada says expressly, the due process clause requires opposing councils to have access to timesheets relied on to support the fee order.

[00:23:59] Speaker 01:
I also believe that in footnote seven, Yamada addresses the circumstance that we have here.

[00:24:03] Speaker 06:
I've got footnote seven right in front of me, so please go ahead and tell me why you think so.

[00:24:07] Speaker 01:
Well, there, it made clear that a rude, where the court did conduct it in camera view, was appropriate.

[00:24:15] Speaker 06:
In circumstances where they had summaries relating to the work and the time spent that had been extracted from the privileged material were accurate.

[00:24:24] Speaker 01:
Right.

[00:24:24] Speaker 06:
So where do you have the time spent on your particular work in this?

[00:24:29] Speaker 06:
That's what the footnote said was adequate.

[00:24:31] Speaker 06:
I don't see that in yours.

[00:24:32] Speaker 01:
With the particular work note, the overall hours on a description.

[00:24:35] Speaker 05:
$800,000!

[00:24:36] Speaker 05:
You're talking about $800,000!

[00:24:39] Speaker 01:
Right, and $800,000 in part, there's 24, 23 different categories of tasks.

[00:24:46] Speaker 01:
performed with respect to the amount of money.

[00:24:48] Speaker 06:
So I should just conclude that, oh my gosh, you listed a lot of bullet points and therefore it's worth $800,000?

[00:24:52] Speaker 01:
No, but that's precisely why you have in-camera review, that the district court can corroborate and confirm that.

[00:24:57] Speaker 06:
Your process requires them to have an opportunity to say whether it's reasonable or not.

[00:25:01] Speaker 06:
How do they have an opportunity to meaningfully review this?

[00:25:05] Speaker 01:
Well, they could have requested a redacted version, which they didn't.

[00:25:08] Speaker 01:
They could have objected to simply providing an in-camera review rather than requesting some sort of

[00:25:15] Speaker 01:
review of the timesheets that would have removed or excised any attorney-client privilege or work product.

[00:25:20] Speaker 01:
They didn't do that.

[00:25:23] Speaker 04:
Do you have anything to add to the waiver discussion we had?

[00:25:27] Speaker 01:
No, I don't.

[00:25:31] Speaker 06:
Did you understand their argument at page 1515 to be an objection or at least an assertion that income review would be improper?

[00:25:43] Speaker 06:
that they had a right to see the time records.

[00:25:46] Speaker 06:
What did you understand?

[00:25:47] Speaker 06:
Or what did your client understand about what they were arguing on page 1515?

[00:25:52] Speaker 01:
What I understand them to argue is they would like to see the records.

[00:25:56] Speaker 01:
They think they were entitled to the records.

[00:25:57] Speaker 01:
But when the court formally requested

[00:26:01] Speaker 01:
an in-camera inspection.

[00:26:02] Speaker 01:
They were silent.

[00:26:03] Speaker 01:
In fact, as Your Honor pointed out, they were silent for that 13-month period where they could have said, if Your Honor is now requesting an in-camera review, we would like to see a redacted version so we can verify that for ourselves.

[00:26:15] Speaker 01:
That never occurred.

[00:26:17] Speaker 06:
Well, they didn't follow up after his ruling is basically what you're saying.

[00:26:20] Speaker 06:
But did you understand the statement they made at 1515 to amount to an objection to in-camera review in this case?

[00:26:28] Speaker 01:
Yes, and I think they objected to in-camera review at that time to the extent they said that it would be improper, but clearly in-camera review is proper.

[00:26:39] Speaker 06:
Under Rule 54... So you don't think that their generalized objection to in-camera review was sufficient given that in some circumstances in-camera review is proper?

[00:26:47] Speaker 01:
Correct.

[00:26:47] Speaker 06:
It's proper and contemplated by... And did they make... Did they just... Help me understand the timing.

[00:26:52] Speaker 06:
Did they make that objection on page 1515

[00:26:56] Speaker 06:
prior to receiving this declaration that was submitted, or after receiving it?

[00:27:00] Speaker 01:
They made that objection after, because the declaration came first, then they objected, or they had that argument in footnote 14, however we want to characterize it.

[00:27:08] Speaker 01:
Then, Judge DeVilla requested an in-camera inspection of the documents.

[00:27:14] Speaker 04:
What about, can you just insert, your friend mentioned that there was a hearing that was canceled in the interim, so you didn't tell us about that.

[00:27:20] Speaker 01:
Yes, I believe the court was going to have a hearing on the attorney's fees issue,

[00:27:25] Speaker 01:
But then the judge canceled the hearing and requested an in-camera review.

[00:27:29] Speaker 04:
Would he have issued an order?

[00:27:30] Speaker 04:
Correct.

[00:27:33] Speaker 06:
Because you guys did respond, you know, to this as though you thought it was an objection.

[00:27:39] Speaker 01:
You know, a response.

[00:27:40] Speaker 01:
Right.

[00:27:42] Speaker 06:
So, you know, I don't read, I didn't read 1515 as being very clear, but you all did respond to it expressly on page 1610.

[00:27:54] Speaker 06:
Your opponent on the other side apparently didn't have that at his ready when I was asking the questions, but he did respond to it.

[00:28:08] Speaker 01:
Are you referring to lines 13 and 14?

[00:28:13] Speaker 06:
No, I'm responding.

[00:28:15] Speaker 06:
As such, it's lines 11 and 12.

[00:28:17] Speaker 06:
As such, Max sounds contention that in-camera view should not be allowed as baseless.

[00:28:21] Speaker 06:
Correct.

[00:28:23] Speaker 00:
That's correct.

[00:28:24] Speaker 00:
I think that's consistent with the local rules.

[00:28:26] Speaker 06:
And then up above, you argued it as well at Lines 7, 6, 7, and 8.

[00:28:30] Speaker 06:
And what was the timing of this?

[00:28:32] Speaker 04:
This thing was July 28, 2016.

[00:28:34] Speaker 04:
So Judge Moore and I interrupted her was trying to get from you the sequence of events.

[00:28:41] Speaker 04:
So they filed this 15-15 document.

[00:28:45] Speaker 04:
And then was this before the hearing?

[00:28:49] Speaker 01:
Did you file this before?

[00:28:52] Speaker 01:
The briefing was complete, so I believe this was our reply brief, which is 1610.

[00:28:55] Speaker 01:
Okay.

[00:28:56] Speaker 01:
And then at which point the court decided to determine the issue on the briefing, but requested an in-camera review of the billing records.

[00:29:05] Speaker 06:
Just so you know for the future, there is no doubt what you did here is inadequate to me to satisfy the concerns of due process.

[00:29:11] Speaker 06:
No doubt.

[00:29:12] Speaker 06:
The only chance you have of prevailing in this case is if I decide

[00:29:16] Speaker 06:
that they waived this argument for purposes of appeal by virtue of not having objected after the court issued its order, because I don't think the court understood their early objection to be the kind of objection that might have been necessary in this case.

[00:29:31] Speaker 06:
Namely, the declaration is very cursory.

[00:29:34] Speaker 06:
We haven't been given enough.

[00:29:36] Speaker 06:
Yes, in-camera review might be appropriate in some circumstances, but not in these, because they didn't give us enough information.

[00:29:43] Speaker 06:
So that's your only chance of prevailing.

[00:29:45] Speaker 06:
And I say that to you so that hopefully you and your clients will understand in the future that you can't turn something like this over and believe that it is going to satisfy the requirements of due process.

[00:29:55] Speaker 06:
So if you do walk away with a victory, let them listen to this oral argument or refer them to it in the future if this is all they want to turn over next time.

[00:30:04] Speaker 01:
Understood, Your Honor.

[00:30:07] Speaker 01:
Any further questions?

[00:30:09] Speaker 01:
I respectfully give the court back its time and request an affirmative.

[00:30:16] Speaker 04:
Thank you.

[00:30:19] Speaker 04:
You've used all your time.

[00:30:20] Speaker 04:
I will give you a few minutes if you need.

[00:30:22] Speaker 04:
Thank you, Your Honor.

[00:30:23] Speaker 04:
I appreciate that.

[00:30:24] Speaker 04:
A couple of points.

[00:30:24] Speaker 04:
Just to respond to what was said.

[00:30:27] Speaker 03:
In terms of the notice, if you look at page appendix 1515, I think you have to read the sentence or the paragraph in the main text

[00:30:36] Speaker 03:
in the context of the footnote that appears right below it, where Max Sound argued that it there, clearly, it should be allowed, but Max Sound must see the supporting time records to be in a position to challenge the reasonableness.

[00:30:56] Speaker 06:
But the rules and due process don't require you, don't require that you get to see the actual time records.

[00:31:03] Speaker 06:
Detailed summaries would be sufficient.

[00:31:04] Speaker 06:
You may not have had those in this case, but you didn't make that objection.

[00:31:08] Speaker 03:
Well, but the key is that what we contended was that what they submitted was clearly inadequate.

[00:31:12] Speaker 06:
So on that record... Where did you contend that?

[00:31:14] Speaker 03:
Oh, in our reply... Tell me where.

[00:31:17] Speaker 06:
What page?

[00:31:18] Speaker 03:
Here we go.

[00:31:20] Speaker 03:
The previous page.

[00:31:21] Speaker 03:
Google has not provided adequate documentation of its requested fees.

[00:31:25] Speaker 03:
Google, Google, sorry, can you please tell me what page and line number?

[00:31:29] Speaker 03:
A page, well, 1514 of the appendix.

[00:31:33] Speaker 03:
And it's that from the line 14 on that page to the end of the next page where we say that they've got the burden, that's on line 25, where the documentation of ours is inadequate, that's on line 28, the district court may reduce the award accordingly.

[00:31:51] Speaker 06:
No, but here you're arguing to the court

[00:31:54] Speaker 06:
that the meager evidence they submitted is not sufficient to have any award.

[00:32:00] Speaker 06:
Yes.

[00:32:01] Speaker 06:
This I don't understand to be an argument that you are being deprived of an opportunity to respond to the reasonableness of their request.

[00:32:12] Speaker 03:
That's right below it.

[00:32:13] Speaker 03:
So one, we complain that what they submitted is inadequate.

[00:32:16] Speaker 04:
Where is it right below?

[00:32:19] Speaker 03:
There are two points.

[00:32:19] Speaker 03:
One is what they submitted is inadequate.

[00:32:21] Speaker 03:
They have the burden.

[00:32:22] Speaker 06:
We don't have that.

[00:32:24] Speaker 03:
No, no, I thought you were saying that we didn't adequately say that their submission was on its face inadequate.

[00:32:33] Speaker 03:
We did say that.

[00:32:34] Speaker 06:
No, you're saying it's inadequate for an award.

[00:32:37] Speaker 06:
I'm saying inadequate for you, it is a matter of due process to be able to challenge the reasonableness.

[00:32:42] Speaker 03:
Well, we were challenging it in total, if you will, that what they submitted from front to back, everything there, that's in order.

[00:32:52] Speaker 04:
I mean, the question becomes a different kind of question with respect to the adequacy.

[00:32:57] Speaker 03:
And they can't cure that by submitting these documents in camera, which is the documents that really supported the award amount.

[00:33:05] Speaker 06:
We should have objected.

[00:33:07] Speaker 03:
I thought we did well enough.

[00:33:08] Speaker 03:
And then the hearing, just to make, the hearing was scheduled for August 24th.

[00:33:14] Speaker 03:
And we were going to make these arguments there as well.

[00:33:16] Speaker 05:
And you should have submitted them in writing.

[00:33:18] Speaker 05:
If you felt like you needed to make them at the hearing, then I don't understand why you didn't submit them in writing.

[00:33:22] Speaker 05:
14 months of time.

[00:33:23] Speaker 03:
We only had the chance to file this response.

[00:33:25] Speaker 03:
The court didn't grant their order until August 19th of a month later.

[00:33:30] Speaker 06:
There were 14 months between when the court ordered in-camera review and when it issued an opinion.

[00:33:34] Speaker 06:
You had 14 months during that time to object.

[00:33:37] Speaker 03:
We felt we had made the point that that would be improper.

[00:33:40] Speaker 03:
They understood it as well.

[00:33:43] Speaker 03:
Thank you.

[00:33:43] Speaker 03:
We thank both sides in the case system.