Sixth Circuit Affirms Recovery of e-Discovery Costs for Imaging Plaintiff’s Computer

Colosi v. Jones Lang LaSalle Amers. Inc., 781 F.3d 293 (6th Cir. 2015)

In this opinion, the court addressed the recovery of taxable costs related to e-Discovery and concluded that “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.”  Accordingly, the circuit court affirmed the lower court’s award related to the cost of imaging Plaintiff’s personal computer.

Plaintiff lost a wrongful termination law suit.  Defendant, as the prevailing party, submitted a bill of cost for $6,369.55, which was approved by the court clerk and affirmed by the district court over Plaintiff’s objections. Those objections were renewed on appeal.  Among other things, Plaintiff challenged the taxing of costs related to the imaging of her personal computer.

Taking up the issue, the circuit court first addressed the question of “whether imaging a hard drive, or other physical storage device, falls within the ordinary meaning of ‘making copies’” and concluded that it did.  “Thus,” the court concluded, “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.”  In so concluding, the court rejected Plaintiff’s reliance on the Third Circuit’s opinion in Race Tires American v. Hoosier Racing Tires Corp., in which the court “construed the phrase ‘making copies’ in § 1920(4) to exclude most of [the at-issue processes] in light of historical context and the Supreme Court’s traditionally narrow reading of § 1920,” finding that court’s construction to be “overly restrictive.”    Instead, the circuit court in the present case focused on the question of whether the copy was necessarily obtained for use in the case:

Here, we perceive no abuse of discretion in ruling imaging costs reasonable and necessary. 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. Colosi’s decision to tender the physical computer forced JLL to dispatch a vendor and make an image before it could search the hard drive for discoverable information, as the district court determined it had a right to do. JLL sent a vendor to image the hard drive not as an expedient; this was the sole avenue permitting review of Colosi’s files. We analogize this situation to the more typical—and taxable—cost of a party delivering an image file in response to an opponent’s production request.^FN2 See CBT Flint, 737 F.3d at 1334 n. 1 (O’Malley, J., concurring in part and dissenting in part) (“I do not question that the cost of imaging source media would fall under section 1920(4) if it were directly imaged and provided to the opposing party as part of discovery.”). The vendor’s invoice excludes the cost of deduplication, indexing, and the other non-copying electronic discovery services. See CBT Flint, 737 F.3d at 1331–32; Race Tires, 674 F.3d at 169–70. In fact, Colosi concedes that “JLL never went beyond the mere electronic copying of all of the Colosi family’s personal computer files.” (Appellant Reply at 6.) And she points to nothing in the record showing that the district court abused its discretion in finding the invoice amount reasonable.

FN2. We recognize the disagreement between the Third and Federal Circuits on the question of whether § 1920 permits courts to tax the cost of imaging as it usually occurs in the electronic discovery process. Compare CBT Flint, 737 F.3d at 1329–30 (holding imaging costs taxable when the opposing party requests metadata be included in the production and imaging is the least expensive manner of obtaining it), with Race Tires, 674 F.3d at 169–71 (holding imaging an untaxable process regardless of the need for metadata). But the unique facts of this case do not require us to address that question, and we do not.

A full copy of the court’s opinion is available here.