Cook, Deborah L., United States Circuit Judge
The Sixth Circuit affirmed the trial court's order granting the defendant's request on a Bill of Costs against plaintiff under 28 U.S.C. § 1920 and allowed recovery for creating a forensic image of a hard drive as "making copies". The underlying case was a wrongful termination case that resulted in entry of judgment for the employer. The employer then sought costs and was awarded $6,369.55. Although most of the costs pertained to deposition transcripts and synchronizing video to the transcripts in the case, the focus of the court's decision was on the recovery of the cost of imaging of plaintiff's personal computer hard drive.
The court broke the relevant language of § 1920(4) -- "the costs of making copies of any materials where the copies are necessarily obtained for use in the case" -- into two pieces. First, the court considered whether the imaging of the hard drive was "making copies", and, citing the Sedona Conference Glossary for the term imaging, concluded that it was.
The court then considered whether the copy was "necessarily obtained for use in the case." Plaintiff argued the cost was not recoverable, citing the Third Circuit's decision in Race Tires v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) holding that imaging hard drives was not included in the language of § 1920(4) based on the Supreme Court's narrow reading of that statute. But the Sixth Circuit broke from Race Tires, and stated that it found the Race Tires' court's "construction overly restrictive", and that to exclude imaging of hard drives from the "making copies" language "ignored § 1920's text":
It compared many of these processes to untaxable discovery procedures from the pre-digital era like visiting a client's records room, searching for responsive documents, copying the relevant papers, and bringing them back to the law firm for review and redaction. It 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.'" [citations omitted]
The Sixth Circuit agreed that the Race Tires court "rightly worried over expanding the scope of § 1920(4) to include expensive discovery procedures not contemplated by Congress", but found that the concern should be raised when considering whether the "prevailing party necessarily obtained its copies for use in the case." And the analysis for the two cases diverges there. In Race Tires, the prevailing party sought costs for images made "to facilitate counsel's review of discoverable documents rather than to create the actual production." (emphasis added) But plaintiff here required the other side to image her computer by delivering the computer to her attorney's office and demanding the opposing party have a third party vendor make an image before it could search the drive for responsive information. In this case, unlike Race Tires, the copy was necessary for the production in the case and the court upheld recovery of the cost.
The Court also noted that the vendor's invoice did not include costs related to de-duplication, indexing and other non-copying eDiscovery services.
v.
JONES LANG LASALLE AMERICAS, INC., Defendant–Appellee