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E-Discovery Alert – Sixth Circuit Affirms Award of Costs, Including the Imaging of a Hard Drive, to Prevailing Employer

In an appeal of a lost wrongful termination suit, Colosi v. Jones Lang LaSalle Ams., Inc., 2015 U.S. App. LEXIS 4184 (6th Cir. Ohio 2015), the Sixth Circuit Court of Appeals has found that a prevailing party’s request for costs, some of which were associated with the imaging of a hard drive, as properly taxable, relying on the authority of 28 U.S.C. § 1920 and Fed.R. Civ. P. 54(d)(1) as well as a less “restrictive” reading of the former than of that found in the Race Tires opinion. Specifically, the court found that [i]maging a hard drive falls squarely within the definition of ‘copy,’” and that therefore, “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.” Costs in the amount of $6,369.55 were affirmatively awarded to the prevailing employer.

While acknowledging that other courts have been unwilling to tax e-discovery costs on this theory, the Sixth Circuit held that the costs of imaging the opposing party’s hard drive were taxable as the “costs of making copies.” So in this regard, some portion of e-discovery costs now may be shifted to a losing party. Not all of them though: the court’s opinion did suggest in the closing sentences that costs for other e-discovery services, like deduplication, indexing and “other non-copying electronic discovery services” would not be taxable.  Please stay tuned as courts are still sorting out how new technologies fit into longstanding rules about cost allocation. 

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