Publications

(Article from Insurance Law Alert, April 2015)

For more information, please visit the Insurance Law Alert Resource Center.

United States litigants are entitled to limited reimbursement of costs, including duplicating costs, after prevailing in a federal court dispute. In a recent decision, the Sixth Circuit clarified that a federal statute permitting a prevailing party to recover reasonable and necessary litigation expenses allows recovery of the costs of imaging a computer hard drive or other physical storage device. Colosi v. Jones Lang LaSalle Americas, Inc., 781 F.3d 293 (6th Cir. 2015).

After an employer prevailed in litigation initiated by a former employee, the employer filed a bill of costs pursuant to 28 U.S.C. § 1920, which the court clerk approved. The employee moved to reduce the bill, arguing that certain expenses were not taxable under the statute. In particular, the employee challenged the decision to tax the cost of imaging a computer’s hard drive (i.e., creating an identical copy of the hard drive), arguing that electronic discovery costs are not recoverable under the statute. The court disagreed. Section 1920 allows courts to tax "the costs of making copies of any materials where the copies are necessarily obtained for use in the case." The court concluded that "making copies" encompasses the imaging of a hard drive or other physical storage device. The court reasoned that "courts have long understood that the phrase ‘making copies’ fairly includes the production of imitations in a medium or format different than the original." Although the Third Circuit has reached a contrary conclusion, and has construed the phrase "making copies" to exclude the costs of imaging hard drives based on a "functional equivalent" analysis, the Sixth Circuit found such a construction "overly restrictive" and contrary to the statutory text.