By Traci R. Gentilozzi
The Daily Record Newswire
A plaintiff who did not prevail on her wrongful discharge claim is responsible for paying the reasonable costs associated with the lawsuit — including the defendant’s cost of imaging her personal computer’s hard drive, the 6th U.S. Circuit Court of Appeals has ruled.
The defendant filed a $6,369.55 bill of costs and the federal district court clerk approved it. The plaintiff objected and asked the district court to reduce the bill to $253.50. The district court denied the motion, finding each cost was reasonable and necessary to the litigation, and properly taxable under 28 USC§ 1920.
On appeal, the plaintiff specifically challenged the cost of imaging her PC’s hard drive. She asserted it did not fall within the ordinary meaning of “making copies” under § 1920.
The 6th Circuit disagreed in Colosi v. Jones Lang LaSalle Americas, Inc. (MiLW No. 01-88159, 7 pages).
“Imaging a hard drive falls squarely within the definition of ‘copy,’ which tellingly lists ‘image’ as a synonym,” Judge Deborah L. Cook wrote. “And the name ‘imaging’ describes the process itself.”
Noting there is a disagreement between several circuits about whether § 1920 permits courts to tax the cost of imaging as it usually occurs in the electronic discovery process, Cook said imaging a PC’s hard drive is similar to the typical — and taxable — cost of a party delivering an image file in response to an opponent’s production request.
Senior Judge Damon J. Keith and Judge Bernice B. Donald joined the decision.
‘Making copies’
To make its decision, the 6th Circuit looked to the definition of “copy” in the dictionary, which says, “a transcript or reproduction of an original.”
In addition, the courts have understood that the phrase “making copies” includes the “production of imitations in a medium or format different than the original,” Cook said.
When copying a computer’s hard drive, the image is a “functional reproduction of the physical storage disk,” the judge said. “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,” the judge said.
Therefore, a plain reading of § 1920 authorizes courts to tax the reasonable cost of imaging, as long as the image file was necessarily obtained for use in the case.
But the plaintiff claimed the 3rd U.S. Circuit Court of Appeals’ decision in Race Tires America, Inc. v. Hoosier Racing Tire Corp. demanded a different outcome.
In Race Tires America, the prevailing party wanted to recover the entire cost of electronic discovery, which included many processes, including imaging hard drives, duplicating image files,populating a database and so forth.
The 3rd Circuit interpreted the phrase “making copies” in § 1920 to exclude most of these processes in light of historical context and the U.S. Supreme Court’s traditionally narrow reading of the statute, Cook explained.
The 3rd Circuit concluded that only converting responsive documents to an agreed-upon format and burning those files onto a DVD were similar enough to the pre-digital act of photocopying to be “the functional equivalent of ‘making copies,’” Cook said.
“We find this construction overly restrictive,” she wrote. “In attempting to do justice to the historically limited role of taxing costs in the American system, the Race Tires court ignored § 1920’s text.”
According to Cook, the question is not whether imaging is the “functional equivalent” of making photocopies in the pre-electronic discovery era because it already comes within the ordinary meaning of “making copies of any materials.”
Moreover, the district courts generally have the discretion to tax the cost of “copies attributable to discovery” as necessarily obtained for use in the case, Cook pointed out.
“Courts often contrast copies necessarily produced to meet discovery obligations, which are recoverable, with copies produced solely for internal use or the convenience of counsel in conducting discovery, which are not,” the judge said.
Here, “we perceive no abuse of discretion in ruling imaging costs reasonable and necessary,” Cook said. “Rather than produce relevant computer files in response to JLL’s discovery requests and the district court’s orders compelling production, Colosi delivered her computer to her attorney’s office and demanded that JLL send a third-party vendor to image its hard drive under her attorney’s supervision.”
The plaintiff’s decision to tender the computer forced the defendant to hire a vendor and make an image before it could search the hard drive for discoverable information, Cook explained.
Moreover, the vendor’s invoice did not include the cost of deduplication, indexing and the other non-copying electronic discovery services, the judge noted. Therefore, the invoice amount was reasonable.
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