District Court Affirms Defendant Award for Cost Shifting of TAR Costs: eDiscovery Case Law

Third time is not the charm!  Different court and judge, same result for plaintiff Lawson…

In Lawson v. Spirit Aerosystems, Inc., No. 18-1100-EFM-ADM (D. Kan. November 24, 2020), Kansas District Judge Eric F. Melgren, finding that the “Magistrate Judge considered all the relevant facts and concluded that Lawson’s persistence in pursuing the costly, ineffective TAR was disproportional to the needs of the case” and that “[n]othing in Lawson’s appeal points to anything in the Magistrate Judge’s order that this Court considers clearly erroneous or contrary to law”, affirmed the order of Magistrate Judge Angel D. Mitchell to award the defendant $754,029.46 in TAR expenses and denied the plaintiff’s appeal regarding that award.

Case Background

The previous history of the case (up to the motion previously granted by Judge Mitchell for cost shifting) is briefly synopsized here and details regarding the order granting in part and denying in part the defendant’s Application for Technology Assisted Review (TAR) Expenses (where the defendant was awarded $754,029.46 in TAR expenses out of $791,700.21 sought) can be found here.

Judge’s Ruling

Judge Melgren rejected the plaintiff’s assertion that “the extensive and costly TAR was necessitated by Spirit’s ‘broad affirmative defense’ that it competed with Arconic and that Lawson’s contract with Elliott was therefore a breach of contract”, stating “the interpretation of the Retirement Agreement’s non-competition provision is the crux of this case, not an affirmative defense asserted solely by Spirit. Contrary to Lawson’s implication, Spirit does not carry the sole burden of proving its interpretation of that provision. Both parties have a significant interest in discovery related to the business overlap issue. As such, Spirit’s responsibility to cooperate during discovery and its responsibility to pay the associated costs is no different from a typical case. What is different is that, up until the Magistrate Judge’s order, Spirit disproportionally carried the financial burden.”

Judge Melgren also rejected the plaintiff’s argument that Judge Mitchell’s order shifting costs was clearly erroneous since the TAR uncovered some useful evidence to support his theory of the case, stating he was “not persuaded by this ‘ends justify the means’ argument”.  He added that “the Judge simply decided—within her sound discretion—that what little fruit would come from the search did not justify Spirit solely bearing its financial burden. Given the highly deferential standard of review, the Court concludes that Lawson has failed to carry his burden to prove that the Magistrate Judge’s order was clearly erroneous or contrary to law.”

Finally, in affirming Judge Mitchell’s decision, Judge Melgren rejected the plaintiff’s argument that Judge Mitchell issued her order based on briefings submitted in October 2019—before the TAR’s final results were reported in January, noting that “the TAR’s final results were even worse than Spirit’s predictions in its October briefing, which the Court relied upon in its order shifting costs. Based on its extensive sampling exercises, Spirit predicted that only 5% of the 322,000 would be responsive. Once the TAR was completed—at a substantial cost of time and money—only 3.3% of the documents proved responsive. While post-facto reasoning alone is insufficient to justify the Court’s order, it does provide strong evidence for the fact that the Magistrate Judge’s decision was based on sound principles and projections.”

Want more info about this case?  Check out Kelly Twigger’s ACEDS #CaseOfTheWeek podcast from earlier this week!  With this ruling, eDiscovery Assistant now has ten eDiscovery related rulings for this case!

So, what do you think?  Are you surprised that the Judge Melgren affirmed the decision?  Should costs be shifted when parties request extensive discovery with a low responsiveness rate?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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