The National Law Review reported on March 25th that the Sixth Circuit affirmed a decision in Colosi v. Jones Lang LaSalle Americas, Inc. which held that the cost of imaging a computer hard drive is a taxable cost recoverable by a prevailing party under 28 U.S.C. § 1920(4). That section allows a court to reimburse the prevailing party for the "cost of making copies of any materials where the copies are necessarily obtained for use in the case."
In Colosi, the party opposing the taxation of costs for computer imaging pointed to the Third Circuit’s decision in Race Tires America, Inc. v. Hoosier Racing Tire Corp.
That decision adopted a narrow view of § 1920(4), rejected the taxation of a variety of eDiscovery-related costs, and allowed costs sought in that case for “only the scanning of hard copy documents, the conversion of native files to TIFF, and the transfer of VHS tapes to DVD.” The Colosi Court, while commending the concern in Race Tires about expanding § 1920(4) to encompass a wide variety of eDiscovery expenses not contemplated by Congress, rejected the Race Tires analysis as “overly restrictive.” The Sixth Circuit concluded that the appropriate analysis under § 1920(4) only required answering the “context-dependent question of whether the prevailing party necessarily obtained its copies for use in the case.” In Colosi, the Court emphasized that the producing party tendered its entire computer in response to the production request and demanded that the requesting party use a vendor to make an image. The Court therefore determined that the image of the computer was “for use in the case” and taxable as costs under a plain reading of § 1920(4).
While the two cases reached different conclusions on taxing costs for computer imaging, their analysis was consistent. The Sixth Circuit upheld the costs in Colosi because the entire computer was tendered for production and the image was therefore “for use in the case.” While Race Tires criticized the notion of taxing costs for computer imaging, it did so in reference to imaging that came earlier in the eDiscovery process and that was more analogous to collection and search than to production.
The Colosi decision is significant because of its focus on a plain reading of §1920(4) and the conclusion that “making copies” generally encompasses forensic imaging. As the article notes, litigants are likely to face continued uncertainty regarding taxation of costs for eDiscovery and other technology-related activities unless and until they are addressed more specifically in § 1920.
And it is past time that we address this and many other laws/rules that lag so far behind the technology we commonly employ . . . .
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