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This article discusses litigation costs that may be awarded to the prevailing party in a lawsuit pursuant to Local Civil Rule 54.1 and 28 U.S.C. § 1920. The article will not discuss the award of attorney fees.
Litigation costs are ordinarily awarded to the prevailing party, which may include a prevailing defendant. Costs generally are governed by 28 U.S.C. § 1920, which permits a clerk of court to tax costs for several enumerated categories of expenses. As a general rule, only those costs enumerated in the statute may be awarded. The growing use of electronic discovery has caused a re-examination of traditional concepts of taxing costs.
Local Civil Rule 54.1(b) provides that the specification of the amounts of costs to be taxed are to be submitted to the clerk in the form of a bill of costs. Appendix R to the Clerk’s Office Procedure Handbook provides a standard form for a bill of costs.
Neither the local rule nor the federal rules set a specific time within which a bill of costs must be filed, and case law merely requires that the bill be filed within a “reasonable” time. Moreover, there is no case law imposing a time requirement on the clerk for taxation of costs after a bill of costs is timely filed. Where a claim for costs has been filed, the amounts claimed may not be amended without permission of the adversary or the court.
A request for costs must be adequately documented and a failure of documentation is alone grounds for denial of costs. Where documentation is adequate from the outset, costs are often awarded with little if any comment.
Where a party files a motion with the court rather than proceeding by Local Rule 54.1(b) before the clerk, the motion will be dismissed. Note, similarly, that the clerk’s authority is limited to the taxation of the specific costs, and does not include taxation of sanctions imposed on appeal.
Under the Rule 54.1 as amended in 2009, notice of the request for taxation of costs must be provided in writing to the clerk and to all other parties seven days in advance. Each party seeking costs must be separately listed in any such notice. Note that a party may be entitled to costs as against some adversaries and not as against others. In one case, where eight plaintiffs sued a public entity defendant in a civil rights case, the defendant collected costs from the four unsuccessful plaintiffs even though owing costs to the four successful ones.
The clerk sets the time for taxing costs and notifies the parties through counsel. The clerk’s decision on taxed costs may be appealed to the court by filing a written specification of the items objected to and the grounds of objection to be filed and served within seven days of the taxation of costs.
The standard of review by the court in such cases is de novo. Courts have held that the Federal Rules of Civil Procedure create a presumption that prevailing parties are entitled to costs, and a party objecting to taxation of costs against it bears the burden of showing why costs should not be taxed. The district court is free to receive additional evidence and is not bound by what was presented to the clerk. There is a good overview discussion of allowable costs in Section 19 of the Clerk’s Office Procedure Handbook.
Docket and filing fees are within the class expressly enumerated in 28 U.S.C. § 1920(5) and may be awarded as costs.
Costs of transcriptions necessary for the court’s disposition of a case may be taxed, whether that disposition was at the trial stage or earlier by summary judgment. A prevailing party is generally entitled to recover the costs of transcripts for depositions if the depositions appear reasonably necessary to the party in light of the particular situation existing at the time they were taken. The test is whether the depositions were reasonably necessary to the parties in light of a particular situation existing at the times they were taken. The rule broadly includes all uses of depositions in any judicial proceeding at any stage of litigation. Costs of dispositions taken solely for discovery are not taxable.
Although the law remains unsettled, the majority view is that the costs of either the videotaping or the transcription of videotaped depositions will be taxed but not both. Under some circumstances, courts have permitted costs for both after a showing of necessity.
Costs of daily trial transcripts may be assessed as costs but only where such costs are considered necessary to the trial. Costs associated with obtaining expedited trial transcripts have been deemed necessary and, thus, taxable, in cases involving complex issues or when a trial takes place over a long period of time.
Costs of making copies necessary to the litigation may be taxed, but only when there is specification of what items were copied, how many copies were made and how copying costs are calculated.
Per page costs must be reasonable. Witness attendance fees, mileage and other direct witness costs may be awarded as costs. Taxable costs for expert witnesses may not exceed the statutory witness fee absent specific statutory authority to the contrary.
Costs for demonstrative exhibits such as photographic enlargements, models and the like may be taxed where the cost is deemed necessary and reasonable.
The costs for obtaining the attendance of witnesses by subpoena may be taxed where it is shown that the witnesses would not have appeared or been produced without subpoena. Costs for special service of process by persons other than the Marshals Service are generally allowed, but limited to the fee that would have been incurred if the subpoenas had been served by the U.S. Marshal.
There is a split of opinion whether the costs of postage and for courier services may be recovered. Note that the Clerk’s Office Handbook expressly lists postage as a non-allowable cost.
In current litigation involving discovery of electronically created or stored materials, issues of costs have become more complicated. On July 26, in the Aspartame Antitrust Litigation in the Eastern District of Pennsylvania, 06-cv-1732, the clerk of the Eastern District awarded $576,058 to the defendants who were the prevailing parties. Of that total, $565,305 were costs for exemplification and copies. The losing party plaintiffs challenged the bulk of these costs in a memorandum filed with the court on Aug. 2. The taxing of these costs raise issues of electronic collection, searching, hosting production of documents, and whether many of the procedures can be considered “exemplification and copying” pursuant to 28 U.S.C. § 1920(4). The court has these costs and the objections under consideration.
The plaintiffs in Aspartame argue that the winning party defendants have attempted to classify every expense of electronically searching and collecting documents as exemplification and copying. I will summarize some of the key issues and arguments before the court in Aspartame .
Taxing costs become complicated where parties seek costs for electronic processing, segregating and storing information that might be responsive to a production request. Some courts have held that extricating data from an electronic medium and storing that data for possible use in discovery is more like the work of an attorney or legal assistant in locating and segregating documents. A district court in the Southern District of Texas denied the fees for an outside consultant to collect documents.
In Aspartame , the losing parties contested the costs expended for a data management consultant, as really the work for the attorneys. Likewise, they challenged certain tech usage fees, which were monthly fees incurred for attorneys for the defendant to access the document database and review documents for production, and a charge to maintain the defendant’s own database. The cost of a consultant to assemble the production of subpoenaed documents is generally denied.
In Aspartame , the plaintiffs challenged the requests for “tech usage fees,” which were monthly fees for defendant’s attorneys to access the document database and review documents. Another area at issue in Aspartame are costs described as “data pairing.” These generally were costs creating and maintaining an electronic database. The plaintiffs objected to these as costs of collecting and processing. The plaintiffs contested the charges for hard drives that defendants purchased for themselves, contending that this is a capital purchase not authorized by 28 U.S.C. § 1920. They argued that costs of producing documents should be for producing documents for the opposing party. The cost of Bates stamping documents is not a necessary cost of copying. The proper cost of copying hard copy documents is always a dispute. In Aspartame , the plaintiffs argue that 8 cents per page is the going rate.
The losing parties in Aspartame challenge the costs of OCR-ing documents as recoverable as costs. They argue that the cost to convert TIF to PDF is a double charge. Charges for scanning hard copy documents to electronic files are appropriate. Costs of document production to solely benefit its own attorneys are not appropriate. Automated process replacing attorneys to search for privilege review is contested. Plaintiffs contend this is generally a job of attorneys and using an automated process is not taxable. They contest the costs to image 21 hard drives in their entirety so they can be searched for documents.
Aspartame is just an example of the electronic procedures that are sought to be taxed as costs under 28 U.S.C. § 1920(4). This will be a growing area for a considerable time.