In Segal v. ASICS America Corp., the Supreme Court today holds that superior courts have the discretion, but not the duty, to allow a prevailing party to recover the cost of preparing photocopies of exhibits and demonstrative aids that end up not being used at trial.

The court’s unanimous opinion by Chief Justice Tani Cantil-Sakauye is one of statutory construction. It says that, for costs of the copies and aids to be recoverable as a matter of right under one term of Code of Civil Procedure section 1033.5, it’s necessary that “the items were (in fact) reasonably helpful to aid the trier of fact (a judge or jury in ruling on a factual issue).” Another section 1033.5 term, however, allows the costs to be recovered at the superior court’s discretion “when such materials are reasonably necessary to the conduct of litigation and reasonable in amount.”

The court affirms the published opinion of the Second District, Division Four, Court of Appeal, “although on slightly narrower grounds,” the Supreme Court says, because Division Four held the costs were recoverable both as a matter of right and at the superior court’s discretion. It disapproves a 2006 decision by the Second District, Division Seven, but says Division Four’s opinion was consistent with a 2007 Second District, Division Eight, opinion and a 1994 First District, Division Three opinion.