Appealability, Costs, Discovery: Denial Of $1.1 Million For Electronic Discovery Costs Reversed Because Lower Court Seemed To Indicate No Discretion On Awarding Them

Modern Trend Is To Recognize E-Discovery Recoupment Costs As Long As They Are Justified.

            Ya know, times change, technology changes, and jurisprudence changes.  Although unpublished, City of Los Angeles v. PricewaterhouseCoopers, LLP, Case No. B305583 (2d Dist., Div. 5 July 8, 2021) (unpublished) shows how electronic discovery costs may be awardable, if justified, based on  evolving technological changes from an early appellate court decision which was adverse to recovery of these costs.  (We do not discuss the affirmance of some substantial costs reductions for out-of-town attorneys traveling and attending depositions, because the reductions were in order given that the same law firm had Los Angeles attorneys who could attend rather than New York travelling attorneys.  If you need support for these reductions, you can read the decision.)

            What happened here is that the City of Los Angeles voluntarily dismissed a suit, with defendant moving to recover about $1.1 million in electronic discovery costs, mainly for processing/loading, hosting, and producing documents.  The lower court denied all the requested costs based on an older decision in Science Applications Internat. Corp. v. Superior Court, 39 Cal.App.4^th 1095, 1103-1104 (1995), deciding that routine costs in this area should be denied in an earlier time where the technology costs were substantial and the rationale for granting them was more attenuated.  Much has changed with technology since Science Applications, given that subsequent decisions generally show a proclivity to award these electronic discovery costs as long as they are supported as being necessary and reasonable in nature.  (See, e.g., El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc., 150 Cal.App.4^th 612, 620 (2007); Bender v. County of Los Angeles, 217 Cal.App.4^th 968, 990-991 (2013); Hooked Media Group, Inc. v. Apple Inc., 55 Cal.App.5^th 323, 338-339, 351 (2020).)  Because these costs are not prohibited and can be awarded in the trial court’s discretion, the denial based on an outright ban had to be reversed and remanded for another look. 

            BLOG MILEAGE TIME—Although there is a split in thinking, this appellate panel also sided with the view that an order taxing routine costs is appealable as a post-trial order, following Mesa Shopping Center-East, LLC v. O Hill, 232 Cal.App.4^th 890, 898 (2014) and Gassner v. Stasa, 30 Cal.App.5^th 346, 354-355 (2018), but not following the contrary decision in Mon Chong Loong Trading Corp. v. Superior Court, 218 Cal.App.4^th 87, 92 (2013).  The panel found its conclusion was consistent with the treatment of collateral final orders.  (Krikorian Premiere Theatres, LLC v. Westminster Central, LLC, 193 Cal.App.4^th 1075, 1083 (2011).)