Shifted or Shafted? Greg Buckles Applies Rob Robinson’s Pricing Survey Results to the Lawson Case: eDiscovery Trends

“Old school” readers will get the joke behind today’s graphic… 😉

There has certainly been plenty of analysis of the costs for Technology Assisted Review (TAR) that were cost shifted to the plaintiff in the Lawson v. Spirit Aerosystems case (about which I’ve written three blog posts this year, including this morning) and whether those costs were in line or with the market or high.  We’ve already discussed the case and the costs in the last two panel discussions on our monthly EDRM case law webinar, and the case will certainly make our year-end review webinar in January.  So, were those costs that were shifted to the plaintiff justified or was the plaintiff shafted by the high costs that were ultimately passed along to him?  Let’s see.

For those who haven’t read the rulings (links above), Kansas Magistrate Judge Angel D. Mitchell awarded the defendant $754,029.46 in TAR expenses shifted to the plaintiff and District Judge Eric F. Melgren recently affirmed that ruling.

In his latest post on his excellent eDiscovery Journal blog, Greg Buckles breaks down the components of the cost analysis from that case and compares them to the Winter 2021 eDiscovery Pricing Survey Results just released on Rob Robinson’s terrific Complex Discovery blog.  When compared to the survey analysis and the most commonly selected price from survey participants, the differences are noticeable.  Here are a couple of examples:

  • Monthly Hosting $/GB: $10-20 (54.4%*) vs. $30 in the Lawson case; and
  • Review Attorneys $/hour: $25-40 (42.0%*) vs. $55/$85 contract/team leads in the Lawson case.

*Selected in the ComplexD survey as the top selected result in that category.

There are several other cost comparisons, but I won’t steal Greg’s thunder – you can check those out in his post here.

Greg notes that impossible to determine without access to the invoices or term sheet whether Spirit Aerosystems (and, eventually, Lawson, after cost shifting) paid substantially over market pricing.  He concludes his discussion of the analysis with this statement:

“The order uses rates and pricing from caselaw to make the determination that the overall effort by Aerosystems firms and Legality was reasonable. There is a big difference between reasonable and competitive in our world. I remember the early days when Kroll was selling processing and early deduplication for more than $2,500 per GB. Reasonableness is in relation to the value and impact of the dispute. Aerosystems asserted multiple times that TAR was not the optimal approach to determine relevance, privilege and tiered confidentiality in this matter. They seem to have done their best to comply with the plaintiff demands (from an outside perspective). Pricing and designing retrieval solutions are at the heart of my consulting practice, so I am enjoying the chance to be a backseat driver. Just remember that only the Aerospirit team really understands the nuances of the $750k in TAR costs that they managed to shift onto the plaintiff.”

Greg began his analysis of the case with his Part 1 post here, so check that out too!  Who is the man that would risk his neck for his brother, man?  Greg Buckles!  Can ya dig it? 😉

So, what do you think?  Do you think the TAR costs were out of line in the Lawson case?  Please share any comments you might have or if you’d like to know more about a particular topic.

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Disclaimer: The views represented herein are exclusively the views of the authors and speakers themselves, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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