Chapter 23 - § 23.7 RECOVERABLE COSTS FOR THE USE OF TECHNOLOGY

• Jurisdiction: Colorado

§ 23.7 RECOVERABLE COSTS FOR THE USE OF TECHNOLOGY

Courts are increasingly allowing prevailing parties to recover their costs for the use of technology.⁷⁵ Recoverable costs may include the cost of video depositions,⁷⁶ synchronizing video depositions,⁷⁷ computer-generated illustrations,⁷⁸ software to run a timeline during trial,⁷⁹ or even the fees for support staff to run the technology when part of an attorney fee award.⁸⁰ Judge Arguello has even made clear that when considering costs to be awarded, she will "will not penalize Defendant for using technology that promotes efficiency."⁸¹ Some courts have gone so far as to hold that the costs of "traditional" demonstratives are not recoverable in light of the technology available in the courtroom.⁸²

But some courts remain skeptical.⁸³ The skepticism arises not from an outright ban, however, but rather a party's failure to show that the costs were necessarily and reasonably incurred in case preparation.⁸⁴ In this context, the technology available in the courtroom itself may obviate the need for "expensive computer software and services to present exhibits and visualizations" when the technology in the courtroom "is in place and is regularly used by the practicing bar without any need for such supplemental software and services."⁸⁵ But counsel must also be careful not to read these cases as favoring hard-copy materials: failure to use the court's available technology can result in an order denying costs for hard-copy materials.⁸⁶

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Notes:

^[75] Bender v. Cty. of Los Angeles, 159 Cal. Rptr. 3d 204, 223 (Ct. App. 2013).

^[76] Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1477 (10th Cir. 1997).

^[77] See, e.g., City of Alameda v. Nuveen Mun. High Income Opp. Fund, 2012 U.S. Dist. LEXIS 7403, at *9-10 (N.D. Cal. Jan. 23, 2012); Hynix Semiconductor Inc. v. Rambus Inc., 697 F. Supp. 2d 1139, 1150-51 (N.D. Cal. 2010).

^[78] Tookes v. Port Auth. of N. Y. & N.J., No. 08-CV-1060-FB-RLM, 2015 U.S. Dist. LEXIS 119337, at *5-6 (E.D.N.Y. Sept. 9, 2015).

^[79] Kalitta Air, LLC v. United Air Lines, Inc., 2012 U.S. Dist. LEXIS 140588, at *6-8 (E.D. Mich. Sept. 28, 2012).

^[80] Beastie Boys v. Monster Energy Co., 112 F. Supp. 3d 31, 56-57 (S.D.N.Y. 2015).

^[81] TCR Sports Broad. Holding, LLC v. Cable Audit Assocs., Case No. 13-cv-01803-CMA-CBS, 2016 U.S. Dist. LEXIS 43684, at *5 (D. Colo. Mar. 31, 2016), aff'd, 674 F. App'x 805 (10th Cir. 2017).

^[82] Smith v. Joy Techs., Inc., No. CIV. 11-270-ART, 2015 U.S. Dist. LEXIS...