Costs associated with the electronic discoveryprocess have increased as companies
rely more on electronic storage for documents and records. The protocol in
lawsuits was that defendants had to cover the cost of e-discovery on their
ownuntil now. Netflix recently was awarded a large restitution for
e-discovery, a landmark decision.
On April 20th, Netflix was awarded $ 700,000 to
recover costs associated with e-discovery, and it all came out of the plaintiffs
taxed pockets. Judge Phyllis Hamilton of the Northern District of California
awarded the ruling, standing in direct contrast to a recent decision in another
antitrust case, Race Tires America, Inc. v. Hoosier Racing Tire Corp, in the Third Circuit. On
May 14th, plaintiffs filed an appeal to fight the penalty with the
Ninth Circuit Court of Appeals. More and more cases rely on e-mails, word
documents, and raw digital data to decide verdicts. Part of e-discoverys cost
comes from scanning and converting documents from paper and analog form to
digital. There are three essential phases of e-discovery: collection,
processing, and review. Processing whittles down and refines these sources of
data to more viewable forms of data, and review involves the actual evaluation
of the information to identify pertinent documents and information. The most labor
intensive and demanding phase is review.
Hamilton heard the plaintiffs appeal against the
taxed payment. Legally, Electronic Discovery is a fairly new issue.
In another case, Race Tires America, Inc. v. Hoosier Racing Tire Corp, the appellate court
overturned the districts decision to pay back the defendant over $ 300,000 for
e-discovery costs. This court used the
Taxation of Costs statute (Title 28, USC Section 1920(4) to back up the
ruling. In Hamiltons case, she did not interpret this statute in the same way.
One issue with this decision is that it might discourage plaintiffs from filing
class action lawsuits. However, the obvious benefit of a substantial payoff
from a decision would outweigh the costs, typically lower than in this case, of
paying the bill for a defendants e-discovery.
The Netflix case, of the anti-trust variety,
involves the allegations that Netflix and Walmart configured a plan to
manipulate US DVD sales and rentals in their favor. The case has Netflix scouring
over 1 million records, and plaintiffs are alleging that Netflix is inflating e-discovery
costs, and performing e-discovery in an inefficient manner. E-discovery often mandates that for trial
presentation, files and documents must be in a certain format. In this case,
Netflix is converting millions of pages into TIFF format, with corresponding
raw data. Plaintiffs feel that Netflix has inadequate documentation for the
e-discovery services, and for the complete invoices that they do have, run high
above market standards for these services.
While Hamiltons ruling is good for defendants, one
thing is certain: something has to be done about Section 1920 (4). Without a
clear notion of what is and is not covered by discovery, and its rapidly
growing offshoot e-discovery, these cases cannot be decided reliably. In the meantime,
Hamilton has provided respite for tired hands at Netflixs scanners, and a few
headaches for eager plaintiffs.