Trial and technology consultant Ted Brooks of Litigation-Tech, LLC recently posted this blog about the recoverability of trial technology costs pursuant to a post-trial memorandum of costs. Mr. Brooks advises that successful parties seek technology costs, which are being awarded more often now that parties tend to use technology more frequently to present evidence at trial.
California courts allow successful parties to include certain trial technology costs as expenses under California Code of Civil Procedure section 1033.5(a)(12), which permits parties to recover costs for models and blowups of exhibits as long as they were reasonably helpful to aid the trier of fact. In El Dorado Meat Co. v. Yosemite Meat and Locker Service, Inc. (2007) 150 Cal.App.4th 612, the Appellate Court held that, following a defense verdict, the defendant could recover $2,250 for equipment to project documents on a screen at trial, noting that the trial court had discretion to determine that the projections constituted “blowups” and that the projection equipment was reasonably helpful to the jury. Similarly, the cost of writing, directing and filming a videotape for presentation to the jury, has been deemed “a computerized form of blowup or model” and has been included as a recoverable cost where it was reasonably helpful to the jury. Science Applications International Corp. v. Superior Court(1995) 39 Cal.App.4th 1095, 1104.
Both Science Applications and El Dorado also addressed the cost of labor to create databases for high tech presentations. While Science Applications held that the cost of consultants to prepare a database was not recoverable, the Appellate Court’s holding was based on evidence that there were less costly means of presenting the same evidence and therefore that cost was not reasonably necessary to conduct the litigation, but was “merely convenient or beneficial to its preparation.” California Code of Civil Procedure section 1033.5(c)(2). The El Dorado Court permitted consultant and paralegal costs to create a database for use at trial.
Based on the relatively recent holding in El Dorado, it is advisable to include the cost of trial technology, including equipment rental and preparation costs when preparing a post-judgment memorandum of costs. Courts recognize the prevalence and usefulness of technology to present evidence and are likely to become increasingly receptive to requests for costs relating to high tech presentations at trial.
