Litigation costs incurred for eDiscovery are notoriously opaque and rarely disclosed for public consumption. This is, perhaps, part of the reason they continue to elude wider scrutiny, even though organizations and individuals collectively spend enough on gathering and producing data for litigation each year in US courts to surpass the GDP of some developed countries. Generally, the only people who can speak to the true costs of eDiscovery are either paying for it or charging for it — and even those people aren’t likely to know off the top of their heads just how much. Most of the time, it seems, eDiscovery comes out in the wash.
But when cases go to trial, prevailing parties are entitled to certain litigation expenses that their adversaries must pay. And the filings associated with requests for those fees, which are available to the public, include a trove of information.
In an effort to show how expensive eDiscovery can be, especially in the context of complex civil litigation, this blog will occasionally review costs associated with high profile cases that go to trial.
Here we look at the fees Samsung incurred for eDiscovery in one of its major US patent battles with Apple (Though it brought claims of its own, Samsung’s primary position in this case is of defendant/”producing” party, which is why its expenses are being examined).
Notably, the totals described below likely do not represent Samsung’s entire eDiscovery spend for this particular case. To the contrary, the vendor invoices Samsung submitted to a San Jose federal court, totaling $13.1 million, do not appear to include costs incurred for document review — which, by some estimates, usually comprises up to 70% of total eDiscovery costs. Nor do these expenses include the costs Samsung incurred to preserve potentially relevant evidence leading up to and during its years-long battles with Apple.
The figures below represent only those associated with Apple-Samsung II (a primer of which can be found here) — not the higher profile first trial that ended in a billion dollar verdict for Apple. In II, Samsung was alleged to have infringed on five Apple patents, most notably the “slide-to-unlock” tablet/smart phone patent at the heart of this particular trial. After the court granted summary judgement to Apple on some claims, a jury ultimately found Samsung to have infringed on two patents, and awarded Apple $119,625,000. Samsung, which alleged infringement of three of its own patents, prevailed on one of those claims, and was awarded $158,000.
The amount Samsung paid to its eDiscovery vendor in the 20 months beginning March 2012 — the vast majority of which was incurred for data processing (i.e. formatting data to be loaded into a review platform), data production and “online review hosting.”
The number of documents Samsung’s eDiscovery vendor collected and processed — or, about 3.6 terabytes of data, assuming 3,000 documents per GB.
The number of documents Samsung collected and processed that were actually produced to Apple — 8% of the total number of documents collected and processed.
The number of pages Samsung produced to Apple, or about 10 pages per document.
The amount Samsung is seeking to recoup from Apple for the recoverable eDiscovery costs it incurred to bring its “offensive” case. That sum is $104,000 more than it won in damages from Apple.
The percentage of documents Samsung attorneys at Quinn Emanuel estimated were produced to Apple as a result of its failed offensive case — meaning, Samsung potentially spent more than $6.5 million in eDiscovery vendor fees alone to bring claims for which it was awarded $158,000.
The average hourly rate billed by Quinn Emanuel associates for their work in the Apple lawsuits. It is unclear to what extent Quinn Emanuel attorneys were involved in reviewing documents, and how much they might have charged for that service.
Complete vendor invoices and court filings can be downloaded below.
Robert Hilson is a director at Logikcull. He can be reached at firstname.lastname@example.org.