Yes absolutely, but with one caveat. Counsel should not overlook the requirement to carefully document the necessity of any costs claimed to be taxable. This includes costs for videotape copies of depositions.
Rule 54(d) of the Federal Rules of Civil Procedure provides that the prevailing party in civil litigation can recover its costs and attorneys’ fees “[u]nless a federal statute, these rules, or a court order provides otherwise.”
A federal statute, 18 U.S.C. §1920, provides that costs associated with making copies of any materials are taxable “where the copies are necessarily obtained for use in the case.”
In situations in which the costs of prosecuting a civil lawsuit are not taxable against the losing party, there may be other federal statutes that provide a right to recover litigation costs. The Lanham Act, for example, specifically provides for the recovery of costs following a successful trademark infringement action.
Against this background, it’s no surprise that federal courts routinely allow the prevailing party in civil litigation to obtain reimbursement for costs associated with discovery depositions. Deposition costs are taxable for “any purpose” in connection with a case. They need not even be cited in a summary judgment motion. So long as deposition expenses are for the purpose of discovery or trial preparation, they are taxable.
When it comes to deposition costs specifically, litigators in the Northern District of California must abide by local rules that spell out which types of deposition costs are taxable.
Civil Local Rule 54-3 provides:
- (c) Depositions
- (1) The cost of an original and one copy of any deposition (including videotaped depositions) taken for any purpose in connection with the case is allowable.
- (2) The expenses of counsel for attending depositions are not allowable.
- (3) The cost of reproducing exhibits to depositions is allowable if the cost of the deposition is allowable.
- (4) Notary fees incurred in connection with taking depositions are allowable.
- (5) The attendance fee of a reporter when a witness fails to appear is allowable if the claimant made use of available process to compel the attendance of the witness.
The following list contains examples of deposition-related costs that are recoverable following a successful civil action in federal court:
- “rough disk” fees
- “expedited” services charges
- charges for court reporter parking expenses
- charges for court reporter “waiting time”
- charges for court reporter “before/after hours”
- delivery costs, appearance and travel fees
- charges for “video digitizing to DVDs”
- charges for synchronization of deposition video with transcript text
- charges associated with language translation of deposition testimony
In Meier v. United States, No. 05-4404 (N.D. Cal. Apr. 13, 2009), the court awarded over $6,000 in expedited transcript costs to the prevailing party. However, the prevailing party was careful to document these expenses and explain to the court that the depositions were expedited in order to meet a challenging deposition schedule that had been requested by the other side. The court found that these expenses were necessary in the context of the case, and not in any sense extra.
The court in Meier also allowed the prevailing party to recover the costs of both the stenographic transcript and a videotape copy of the same deposition, as authorized by Local Rule 54-3(c). The court reasoned that this copying charge was necessary in view of the numerous discovery disputes that had occurred and the overall “contentious nature” of the pretrial skirmishing among the parties and their counsel. In this case, the court said, there was a “need to have a video record of the behavior of the deponent.”
Justifying and Documenting Costs Are Key to Recovery
There are limits, however. Although courts routinely allow prevailing litigants to obtain costs associated with obtaining both a stenographic and a videotape copy of the same deposition, it’s important to note that lawyers must provide a justification for these expenses in the declaration that accompanies the bill of costs. Some courts will disallow taxation of deposition copies a lawyer has failed to justify.
A recent ruling from a federal district court in San Francisco illustrates the point. In Masterobjects Inc. v. Meta Platforms Inc., No. 21-cv-05428 (N.D. Cal., Jan. 10, 2023), the court disallowed taxation of videotape copies of 31 depositions and reproduction of digital exhibits in 30 remote depositions. The court faulted the lawyer for “provid[ing] no explanation of why these charges are warranted or reasonable beyond mere recitation of the relevant local rule and tender of an internal spreadsheet.”
The court also noted that some claimed, deposition-related costs did not appear at all in the court reporter’s invoices.
Contrast this outcome with Dropbox Inc. v. Thru Inc., No. 15-cv-01741 (N.D. Cal., March 8, 2017), where the court noted, with approval, that the declaration accompanying the prevailing party’s request for costs painstakingly explained that necessity for each claimed expense and provided an itemized breakdown all costs incurred in the litigation.
As we’ve noted before, questions about which costs arising from remote depositions are taxable against the losing party aren’t as easily resolved as they are in the case of in-person depositions and paper copies of deposition exhibits.
The court’s ruling in Masterobjects should be a reminder to federal litigants that although full reimbursement for all costs associated with pretrial depositions is possible, and even customary, prevailing parties must be prepared to provide sufficient documentation to show that the costs were reasonable and necessary to the successful prosecution of the case. This is especially true in cases that involve videotape and digital materials, both of which are vital in modern litigation but often not explicitly mentioned in statutes and court rules.