Defendant Spirit AeroSystems Inc. filed a Motion to Shift Costs of Technology Assisted Review of ESI to Plaintiff Larry Lawson. At Lawson’s request, the parties spent months engaged in an ESI discovery process regarding the issue of business overlap between Spirit and a non-party, Arconic Inc., using traditional ESI methods involving custodians and search terms. When that process repeatedly yielded low responsiveness rates, the court allowed the parties to proceed – again, at Lawson’s request – with a technology-assisted review of approximately 322,000 documents, with the caveat that the court would decide whether to allocate the TAR expenses to Lawson.
Granting the defendant’s motion, the court was mindful of the default rule that the producing party should ordinarily bear the costs of production, but found good cause to allocate the TAR expenses to Lawson. “Early in the case, Lawson pursued a scattershot ESI approach on the issue of Spirit’s ‘Business’, and the court repeatedly cautioned Lawson to better focus his ESI custodians and search terms because the court would, at some point, begin shifting costs. Spirit has already borne its fair share of expenses providing discovery on this subject matter by accommodating Lawson’s ESI requests for the custodians and search terms he selected, by running court-ordered sampling exercises, and by making targeted document productions on a separate path than the ESI process. That ESI process repeatedly yielded low responsiveness rates. But Lawson was unwilling to abandon the largely non-responsive ESI dataset and instead sought continued review via TAR that unnecessarily perpetuated and exacerbated ESI/TAR expenses. The TAR process ultimately yielded a responsiveness rate of only 3.3%. Even the documents that were technically responsive were of marginal (if any) relevance above and beyond what Spirit produced outside of the ESI/TAR process. Thus, the ESI/TAR process became disproportionate to the needs of the case.”
Lawson v. Spirit AeroSystems, Inc., No.18-1100, 2020 WL 3288058 (D.Kan. June 18, 2020).