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Setting the "Cost" in the Cost-Shifting Matter Straight

In a February post on True North (“Note to Litigants: When Costs Shift, TAR Costs May Shift with Them”), we described an unusual cost-shifting ruling by Judge Battaglia in which $2.8M in discovery expenses for H5’s technology-assisted review were included, notably as legal fees.

While we believe the real story in this ruling is the fact that the bench essentially treated technology-assisted review costs as attorney’s fees (because the process did what attorneys are usually paid to do), there’s been some dust kicked up about the numbers. Some third parties and bloggers not involved with the case—and therefore not fully informed about all the facts and circumstances—have drawn incorrect conclusions about the value of services provided to Qualcomm by H5.  Alas, we feel we must set the matter as straight as we can, given that we are still subject to certain confidentiality restrictions. It’s tough to have to mince words when you know the facts as construed have wandered substantially off the track.

With approval from our client, we can now tell this much of the story.  In 2009, H5 was engaged by Qualcomm to provide data reduction, search term consultation and responsive review services in connection with the Gabriel matter. Ultimately, the services H5 provided to Qualcomm included all of the above, plus data analytics and strategic document search services to support case preparation, depositions, and motion practice. The engagement lasted more than one year. Contrary to what’s been reported by other bloggers, H5’s fees covered the full range of expert analysis and review services described above.

Qualcomm and H5 determined that the cost of the work performed by H5 was significantly less than what it would have cost using linear review.  When considering the information provided by Qualcomm and its counsel, the court ultimately ruled on the reasonableness of H5’s process and the related costs.  The fact that H5 provided far more than just responsiveness review only added to the savings and value Qualcomm received.

As a parting remark, we’ll just reiterate that the cost of H5 review as compared to other alternatives is always a primary reason that clients choose to engage H5. So rest assured that as compared to alternatives, if costs have to be shifted, with H5 there will always be fewer costs to shift.


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