Court Awards $2.8M to Cover Cost of Technology Assisted Review

Judge Battaglia

Among e-discovery practitioners, it was a major milestone last year when U.S. Magistrate Judge Andrew J. Peck issued Da Silva Moore v. Publicis Groupe, the first judicial opinion expressly approving the use of technology-assisted review. In the context of real-world litigation, however, using TAR may be only half the battle — there is also the issue of having to pay for it. Thus, another judicial milestone may have been reached recently when a federal judge in San Diego awarded $2.8 million for costs associated with the use of TAR in a complex patent lawsuit that involved “voluminous” quantities of electronically stored information.

The fee award in Gabriel Technologies Corp. v. Qualcomm Inc. was part of a much-larger $12.4 million attorneys’ fees award in favor of Qualcomm. U.S. District Judge Anthony Battaglia entered the fee award after determining that the plaintiffs’ claims “were objectively baseless and brought in subjective bad faith.” As part of its fee request, Qualcomm and its lead counsel, Cooley LLP, sought to recover $391,928.91 for use of an outside document-review vendor and $2,829,349.10 for fees associated with the outside vendor’s use of TAR. Turning first to the fees for the review vendor, Judge Battaglia found that Cooley’s use of the vendor, Black Letter, was reasonable and that the fees charged by the vendor were reasonable.

The Black Letter attorneys billed a total of 6,949.5 hours of document review at rates of $55 to $67 per hour. As Defendants note in their motion, Plaintiffs’ claims involved 92 patents resulting in voluminous document production. For this reason, Cooley reasonably decided to have Black Letter perform document review in this matter. Had Cooley performed the document review themselves, the resulting attorneys’ fees would have undoubtedly been exponentially higher than those charged on behalf of Black Letter. In light of the circumstances and the amount of discovery required, the Court concludes that the rates charged and hours spent by Black Letter are reasonable and, thus, finds the resulting lodestar amount of $391,928.91 to be reasonable as well.

Turning next to the use of technology-assisted review supplied by a different vendor, H5, Judge Battaglia begins his analysis by quoting Qualcomm’s explanation for the use of TAR:

Over the course of this litigation, Defendants collected almost 12,000,000 records — mostly in the form of Electronically Stored Information (ESI). . . . Rather than manually reviewing the huge volume of resultant records, Defendants paid H5 to employ its proprietary technology to sort these records into responsive and non-responsive documents.

Here again, Judge Battaglia found both the use and the cost of TAR to be reasonable:

The review performed by H5 and Black Letter accomplished different objectives with the H5 electronic process minimizing the overall work for Black Letter. Again, the Court finds Cooley’s decision to undertake a more efficient and less time-consuming method of document review to be reasonable under the circumstances. In this case, the nature of Plaintiffs’ claims resulted in significant discovery and document production, and Cooley seemingly reduced the overall fees and attorney hours required by performing electronic document review at the outset. Thus, the Court finds the requested amount of $2,829,349.10 to be reasonable.

From what I have been able to find, this is the first published opinion in which a federal judge expressly awarded fees to cover the cost of technology-assisted review. Just as Da Silva Moore opened the door to other cases endorsing the use of TAR in e-discovery, perhaps so will this case open the door to other cases awarding fees for TAR.

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About Bob Ambrogi

Bob is known internationally for his expertise in the Internet and legal technology. He held the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers USA. A long-time advisor to Catalyst, Bob now divides his time between law practice and media consulting. He writes two blogs, LawSites and MediaLaw, co-authors Law.com's Legal Blog Watch, and co-hosts the weekly legal-affairs podcast Lawyer2Lawyer. A 1980 graduate of Boston College Law School, Bob is a life member of the Massachusetts Bar Foundation and an active member of the Massachusetts Bar Association, which honored him in 1994 with its President's Award.