Update (January 30, 2019): In the dispute about “susceptor food packaging” or “SFP,” described below, Plaintiff Inline Packaging (“Inline”) appears to have gotten a butt-kicking (pending appeal) (link is to the U.S. District Court’s grant of the summary judgment motion of Defendant Graphic Packaging International “Graphic”).

Now Graphic seeks $304,930.89 in costs, the vast bulk of which—$226,137.53—is for costs related to its e-discovery platform, Integreon Discovery Solutions. (Here is Inline’s opposition to being saddled with these substantial costs.)

As readers can see in the earlier post below, it seems that Inline pushed Graphic hard during discovery and now, victorious, Graphic naturally wants to be reimbursed.

Whether e-discovery costs are included in recoverable (“taxable”) costs is an unsettled business about which we’ve posted before. So, are these costs taxable or not and why does it seem difficult for the U.S. District Court for the District of Minnesota to issue clear guidance or all be on the same page?

It seems to us that this is a decision that has to be tailored case by case.

Often, one side or the other bears more responsibility for the high cost of e-discovery and it may or may not be the “prevailing party.” If a party is BOTH the prevailing party AND the victim of the other side’s hyper-zealous e-discovery, it was seem obvious it should recover its e-discovery costs in their entirety. By the same token, if a prevailing party chased its own tail or self-imposed a particularly onerous e-discovery burden, it would seem obvious that it should not get a penny for its self-inflicted wound.

Finally, interesting practical considerations: (1) large law firms have e-discovery capabilities in-house. Smaller firms cannot. To what extent does disallowing the recoverability of e-discovery costs fall particularly hard on smaller firm clients (i.e., often smaller business or individuals)? (2) should “ability to pay” be a consideration un imposing e-discovery costs as “taxable costs”? Little Guy v. Corporation litigation will very likely include asymmetric e-discovery costs and impositing e-discovery costs in cases like that could be financially devastating to Little Guy (or be a “rounding error” for Corporation, on the other hand).

Original post (March 27, 2017) (under headline: Large Scale Discovery in Big Cases Nauseates Trial Lawyers): Americans are consumed by a passion for hot and crispy food. Long-time Minnesota Litigator readers will undoubtedly savor the smoky memories of “the bacon battle,” drawn out litigation over a means of cooking bacon in a microwaveAnother microwaved food related battle in U.S. District Court (D. Minn.) has come to our attention, an antitrust case over “susceptor food packaging” (“SFP”), which would appear to be another way of saying microwavable packaging.

What do you get when you mix fried food, microwaves, antitrust claims, and document discovery?

Has Defendant Graphic Packaging International, Inc., been abusing its dominance in the field of SFP with various unlawful anti-competitive actions or, is the comparatively small Plaintiff Inline Packaging simply a jealous also-ran grasping at straws?

As most of our readers know, before any judge or jury can answer that basic question, Inline is entitled to discovery, meaning that Inline can seek evidence (e.g., “documents” which is misleading because it includes digital evidence, of course) from Graphic to prove its claims. This simple and essential facet of our civil litigation system is, in practice, complicated and difficult.

We note the recent FOURTH motion to compel by Plaintiff Inline against Defendant Graphic. Recognizing that discovery disputes are unwelcome (and undoubtedly nauseating) to court personnel, when one has four motions to compel, there is a significant risk that someone is going to get hurt, whether the movant or the respondent. The question is, who? Is the Plaintiff egesting a smoke-screen to obscure the fact that its case has no merit (as the defendant argues) or is Defendant intentionally evasive (as Plaintiff argues) or finally, could it be that flawlessly collecting, reviewing, culling, and producing tens of thousands of documents, emails, spreadsheets, etc. exceeds human competence? And how are we to know?

No one aside from the lawyers involved and the unfortunate court personnel who have to deal with this latest discovery skirmish has the time or patience to get to the bottom of this. But there are some threatening clouds for Defendant Graphic on the horizon.

First, this is the fourth motion and Graphic has already been sanctioned in the case on a discovery issue. (See here at p. 20, ftn. 1.)

Second, Graphic has made some significant admissions, admitting that its process has failed repeatedly for various reasons (incorrect entries on the privilege log, failure to note redacted documents on the privilege log, inaccurate data provided, relevant data unintentionally omitted) (see, for example, here at p. 13).

But what makes these discovery disputes nauseating is that good faith compliance on both sides, bad faith stone-walling, bad-faith finger-pointing “gotcha” gaming, incompetence, or simply “being imperfect/being human” — all seem like plausible explanations. And the whole kerfuffle is, of course a side-show, which may have nothing to do with the merits (or lack of merits) of the supposed antitrust violations.

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