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.4^th 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.4^th 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.

Industry associations are another useful information source for researching experts. Organizations, such as DRI and TIDA offer electronic expert databases to members allowing for a fast exchange of information. A number of private websites, including Daubert Tracker also provide background information, including prior trial testimony, to users for a fee.

Adverse experts who specialize in a particular subject may post articles they have written on their websites explaining their views on subjects that may be relevant to your lawsuit. For instance, the surgeon who has written that rotator cuff injuries are usually chronic injuries caused by wear and tear over many years may be questioned effectively on that opinion when offering the view in pending litigation that a rotator cuff injury was the result of trauma. Where there are emerging issues and disagreements within the discipline, it may also be helpful to review the expert’s published articles to explore for inconsistencies.

In Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L, 2006 WL 665005 (N.D. Ill., Mar. 8 2006), the defendant permitted plaintiff to inspect its electronic records but protested when plaintiff then requested that he make copies of that electronic data. Instead, defendant offerred to print out all electronic documents or, in the alternative, to convert the documents to TIFF format.  Either change to the form of the document would clean the document of metadata.

Plaintiff argued that production of the documents in their native forms was essential for the two reasons: under FRCP Rule 34, (1) he is entitled to copies of the designated electronic data, and (2) the TIFF documents created by 3B6 USA are fundamentally different from the original documents and are not documents produced as they are kept in the usual course of business. Id at 2.

Plaintiff went on to contend that:

[T]he TIFF documents are inadequate reproductions that (1) lack clarity and color, (2) lack metadata that track when a document was created or modified and whether e-mails contained attachments and to whom they were sent, (3) lack clear indications as to where each document starts and stops (i.e., the TIFF pages all run together and make it difficult to determine which pages are part of one document), (4) lack clear indications as to which documents are stored together on the original compact discs and DVDs (i.e., over sixty original compact discs and DVDs were reduced to four compact discs containing TIFF documents), and (5) make it impossible for Plaintiff to use search terms to quickly and efficiently search through the documents electronically. Id.

The court held that, in these circumstances, the data must be produced in native form:

As an initial matter, it is clear that the TIFF documents do not contain all of the relevant, nonprivileged information contained in the designated electronic media. The parties agree that, unlike the original electronic media, the TIFF documents do not contain information such as the creation and modification dates of a document, e-mail attachments and recipients, and metadata.

By contrast, the court in In re Ford Motor Co. 345 F.3d 1315 (11th Cir. 2003) found that Rule 34(a) does not permit a propounding party to perform an unrestricted, direct search of a responding party’s database compilation. That Court commented in its holding:
The Advisory Committee Notes to Rule 34(a) support this interpretation. Commenting on data compilations, the Committee stated, When the data can as a practical matter be made usable by the discovering party only through respondent’s devices, respondent may be required to use his devices to translate the data into usable form. In many instances, this means that respondent will have to supply a print-out of computer data. Fed.R.Civ.P. 34(a) advisory committee’s note (1970 amend.). Like the other discovery rules, Rule 34(a) allows the responding party to search his records to produce the required, relevant data. Rule 34(a) does not give the requesting party the right to conduct the actual search. While at times-perhaps due to improper conduct on the part of the responding party-the requesting party itself may need to check the data compilation, the district court must protect respondent with respect to preservation of his records, confidentiality of nondiscoverable matters, and costs. Id at 1317.

Notably, both of these cases took place prior to the December 1, 2006 enactment of the revised Federal E-Discovery Rules. They reflect the case-by-case approach courts must take due to the variety of data and lack of significant case law regarding E-Discovery.