In In re Aspartame Antitrust Litigation [pdf], No. 2:06-CV-1732, 2011 (E.D. Penn. Oct. 5, 2011), Judge Legrome D. Davis, granted, in part, the defendants’ Bill of Costs seeking the recovery of nearly $500,000 in electronic discovery costs.

In this price-fixing case brought under the Sherman Act, the court granted summary judgment as to certain defendants who then submitted their bill of costs in excess of $500,000.  The plaintiffs objected and argued that they should not have to pay the costs associated with e-discovery.  However, the court agreed with the defendants that electronic discovery saved a significant amount of costs overall by allowing discovery to be conducted in an efficient and cost effective manner. Accordingly, the court under Federal Rule of Civil Procedure 54(d) granted the defendants’ motion seeking the recovery of costs associated with the creation of a litigation database, storage of data, imaging hard drives, keyword searches, de-duplication, data extraction and processing, privilege screen (i.e., keywords for privileged documents), data hosting, technical support, project management, data recovery, tape restoration, and the production costs associated with the creation of load files that allowed documents saved as TIFFs to be loaded into review platforms.

However, the court refused to award all of the defendants’ costs related to their document review platform (Attenex).  The court acknowledged the review tool was undoubtedly helpful, but found the program exceeded the necessary keyword search and filtering capability and was rather a luxury tool that could perform advanced concept searches and clustering. The court similarly rejected the defendants’ cost bill for data analytics and related software applications used to separate responsive and non-responsive documents.  The court also reduced the defendants’ recovery of costs related to “tech usage” fees to only those months that the defendants actually utilized such services instead of permitting a blanket per month fee.  In all, the court awarded the defendants more than $500,000 in taxable costs, the overwhelming majority of which dealt with electronic discovery.