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Image is Not Only Everything, It Is Also Legally a Copy, Appeals Court Rules: eDiscovery Case Law

In Colosi v. Jones Lang LaSalle Americas, Inc., 14-3710 (6th Cir. Ohio 2015), the Sixth Circuit Court of Appeals affirmed the District Court’s judgment to approve a $6,369.55 bill of costs which included synchronization of deposition videos and imaging of hard drives that the defendant submitted after prevailing in the case.

Case Background

The plaintiff (and appellant) lost a wrongful termination suit against the defendant (and appellee), her former employer. As the prevailing party, the defendant filed a $6,369.55 bill of costs that the court clerk approved without modification. The plaintiff objected to most of the charges and moved the district court to reduce the bill to $253.50. The district court denied the motion, finding each cost reasonable, necessary to the litigation, and properly taxable under statute. The plaintiff renewed her objections on appeal to the Sixth Circuit Court of Appeals.

The plaintiff contested, as a matter of law, the recoverability of the costs associated with the synchronization of her deposition video and transcript, costs flowing from a cancelled deposition and transcription costs for the depositions of three other witnesses she deemed as unnecessary. She also challenged the district court’s decision to tax the cost of imaging her personal computer’s hard drive, arguing that “as a matter of law, ‘most electronic discovery costs such as the imaging of hard drives are not recoverable as taxable costs.’” She referenced the narrow interpretation of taxable costs in Race Tires America, Inc. v. Hoosier Racing Tire Corp to bolster her argument.

Appellate Court’s Opinion

The appellate court stated that “The taxing statute allows the prevailing party to recover ‘[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case.’ 28 U.S.C. § 1920(2).” It also cited Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989), as follows: “Ordinarily, the costs of taking and transcribing depositions reasonably necessary for the litigation are allowed to the prevailing party. Necessity is determined as of the time of taking, and the fact that a deposition is not actually used at trial is not controlling.”

With regard to synchronization, the court stated “We discern no abuse of discretion in the award of synchronization costs. We previously construed § 1920(2) to embrace the cost of synchronizing a deposition video and transcript, provided the trial court finds the procedure reasonably necessary…It did here.” The appellate court also ruled that the plaintiff-appellant failed to “demonstrate that the district court abused its discretion in finding the other deposition-related costs necessary” and upheld those costs as well.

With regard to the imaging costs, the appellate court noted that “the statute includes no categorical bar to taxing electronic discovery costs. Rather, it authorizes courts to tax ‘the costs of making copies of any materials where the copies are necessarily obtained for use in the case.’ 28 U.S.C. § 1920(4). Thus, we first ask whether imaging a hard drive, or other physical storage device, falls within the ordinary meaning of ‘making copies.’”

Referencing the Oxford English Dictionary, the appellate court in upholding the imaging costs, rejecting the Third Circuit Court decision Race Tires as “overly restrictive”, stated:

“Imaging a hard drive falls squarely within the definition of ‘copy,’ which tellingly lists ‘image’ as a synonym. And the name ‘imaging’ describes the process itself. Imaging creates ‘an identical copy of the hard drive, including empty sectors.’…The image serves as a functional reproduction of the physical storage disk. From the image file, one can access any application file or electronic document on the hard drive with all that document’s original properties and metadata intact…If not actually made or formed in the image of the hard drive, we certainly regard it as such. Thus, a plain reading of the statute authorizes courts to tax the reasonable cost of imaging, provided the image file was necessarily obtained for use in the case.”

So, what do you think? Are courts ever going to apply a consistent interpretation of 28 U.S.C. § 1920(4)? Please share any comments you might have or if you’d like to know more about a particular topic.

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