Litigation Support

Thanks to colleague and friend Jennifer Ellis for passing along a story (note that premium access is required) that made headlines yesterday.

Judge Thomas Vanaskie of the 3rd U.S. Circuit Court of Appeals said for a three-judge panel that organizing files cannot be considered part of the copying expense. He slashed 90% of the more than $360,000 that was to be recovered by the defendants. His March 16th opinion defines copies as scanning and file-format conversation. He reduced the award in Race Tires America Inc. v. Hoosier Racing Tire Corp. to just $30,000.

Clearly, this decision is at odds with other courts. Vanaskie talks in his opinion about the fact that America never intended to replicate the English practice of trying to provide a successful litigant with full reimbursement. Our country instead chose to provide easy access to the court system without the threat of enormous liability for litigation expenses which might deter someone from filing an action or asserting a meritorious defense.

Vanaskie takes the position that the work of discovery here was not "making copies," saying that "None of the steps that preceded the actual act of making copies in the pre-digital era would have been considered taxable . . . and that is because Congress did not authorize taxation of charges necessarily incurred to discharge discovery obligations. It allowed only for the taxation of making copies."

An interesting decision and probably faithful to tradition, though tradition hasn't gotten a lot of traction in the courts recently. There will no doubt be a lot of discussion about this opinion and whether it will slow the tide of courts which are allowing these expenses to be recovered.

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