HealthMatters
Here is the latest guest post from our Reed Smith colleague, Kevin Hara. He examines whether a prevailing party in litigation can recover, as “costs,” the expenses of witness depositions conducted remotely – a question that has arisen with increasing frequency since the COVID-19 pandemic prompted a general trend towards use of remote depositions. Since our clients could be on either side of this issue, Kevin’s research addresses both sides. As always, our guest bloggers deserve all the credit (and any blame) for their efforts.
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The legal profession seldom reaches absolute consensus on a legal question, and even when that happens, there are generally variations. The learned intermediary doctrine is such an example—it took a long time, but eventually, all 50 states (thankfully) adopted the legal principle that in cases involving medical devices and pharmaceuticals, a manufacturer’s warnings to a prescribing physician satisfy its duty to warn. Yet, there are nuances—take, for example, Oregon, where for state-specific reasons, the doctrine does not apply in strict liability cases. Nevertheless, the learned intermediary rule is as close to universal as one can get in the law. Unfortunately, such uniformity is the exception rather than the rule, and that is the same with the subject of today’s post: can a prevailing party recover its costs for a remote deposition? The answer is yes—in some jurisdictions—and not in others. In other words, this is a quintessential case of “it depends.” If that is a familiar and unsatisfying denouement, one can take comfort that some of the best movies, Blade Runner, 2001: Space Odyssey, and The Thing, have ambiguous endings.
Federal Rule of Civil Procedure 54(d) governs awards of costs to prevailing parties, and provides, in relevant part, “[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” Fed. R. Civ. P. 54. The availability of a prevailing party’s recovery of its costs generally depends on whether they are “reasonable” and “necessary,” and may also depend on the requirements of a court’s local rules, or applicable state law. Moreover, in many ways, the pandemic altered our perception of “reasonable” and “necessary” measures.
The Supreme Court held 28 U.S.C. § 1920 defines “costs” as used in Rule 54(d), and enumerates certain categories of recoverable costs. Taniguchi v. Kan Pac. Saipan Ltd., 566 U.S. 560, 565 (2012) (citation omitted). Accordingly, under section 1920, a prevailing party may recover the following categories of costs:
(1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
Baer’s Furniture Co. v. Comcast Cable Commc’ns Mgmt. LLC, 2023 U.S. Dist. LEXIS 7707, at *3 (Mag. S.D. Fla. Jan. 17, 2023) (citing 28 U.S.C. § 1920). Moreover, “a particular expense must fall into one of the categories of costs statutorily authorized [by section 1920] for reimbursement.” Avanzalia Solar, S.L. v. Goldwind USA, Inc., 2023 U.S. Dist. LEXIS 158348, at *2 (N.D. Ill. Sept. 7, 2023) (citation omitted) (emphasis added). Additionally, “[a]ny party seeking an award of costs carries the burden of showing that the requested costs were necessarily incurred and reasonable.” Id.
Although remote depositions are not specifically listed among the categories of recoverable costs, some courts have allowed prevailing parties to recover the costs of remote and/or Zoom depositions, to the extent the claimant can demonstrate they were “reasonable and necessary.” However, other courts have denied prevailing parties’ requests for recovery of the cost for such depositions, citing the lack of authority based on section 1920.
Courts Allowing Recovery Of Expenses Related To Remote Depositions
The courts that have allowed a prevailing party to recover its costs for remote depositions have generally done so based on the provision of section 1920 authorizing recovery of “fees for printed or electronically recorded transcripts necessarily obtained for use.” See 28 U.S.C. § 1920(2). Other courts have awarded costs for remote depositions under the authority of their local rules. Some of the courts awarding costs to the prevailing party have explicitly relied on safety concerns of in-person depositions created by the COVID-19 pandemic. They have granted requests for recovery of fees associated with remote depositions, including costs for setting up and administering remote depositions, exhibit sharing, and other related expenses. Notably, some courts in the same circuit (Southern and Middle Districts of Florida)—and even some in the same district (Northern District of Illinois)—have reached opposite conclusions. All of the courts allowing prevailing parties to recover costs pertaining to remote depositions have determined that such expenses were necessary and specifically authorized under 28 U.S.C. § 1920, a court’s local rules, or applicable state law.
Allowed By Section 1920 And/or Local Rules
Two Southern District of Florida decisions held remote deposition related costs were taxable. First, in Versfelt v. Sanza Food Serv., LLC, the court found it could award costs “associated with the depositions submitted” in support of motions for summary judgment, because the losing party could not demonstrate the costs were “not necessary for use in the case” or that the deposition was unrelated to a pertinent issue. 2022 U.S. Dist. LEXIS 108426, at *6 (Mag. S.D. Fla. June 17, 2022); adopted, 2022 U.S. Dist. LEXIS 117933 (S.D. Fla. July 5, 2022). The court concluded “extended hour and the exhibit share costs” were recoverable because “the deposition was of Plaintiff, and given the geographical location of Plaintiff (Oregon), his counsel (Florida), Defendant’s counsel (Florida), and additional complications due to the COVID-19 pandemic, such measures were needed to conduct the deposition remotely.” Id. at *8. (emphasis added).
In Baer’s Furniture Co. v. Comcast Cable Commc’ns Mgmt. LLC, the court followed Versfelt, where the plaintiff objected to “costs of exhibits and the exhibit sharing application used at the depositions.” 2023 U.S. Dist. LEXIS 7707, at *4 (Mag. S.D. Fla. Jan. 17, 2023). The defendant explained that the exhibit share costs were necessary for the Zoom depositions “due to the pandemic and the geographical locations of some of the witnesses.” Id. at *6. Similarly to Versfelt, the court found it was authorized to tax costs “associated with the depositions” submitted pursuant to summary judgment. Id. (citation omitted). The plaintiff failed to show “the specific deposition costs were either not necessary . . . or that the deposition was not related to an issue present in the case,” leading the court to rule:
[I]n regard to the use of Exhibit Share and Real-Time,. . . the costs associated with these expenses are recoverable,” [because] “[d]ue to the COVID-19 pandemic, in-person depositions posed a risk to an individual’s health, [and] such programs have been routinely used to allow Parties to effectively conduct depositions remotely.
Id. at *9. Accordingly, the judge recommended that the defendant should recover the costs of the remote deposition under §1920(2) (citing Versfelt at *3).
In St. Xavier Univ. v. Mossuto, the court ruled the defendant could recover costs related to remote depositions because there was a “strong presumption” the defendant was entitled to its costs as the prevailing party under Rule 54. 2023 U.S. Dist. LEXIS 133023, at *2-3 (N.D. Ill. Aug. 1, 2023). As the losing party, the University objected to costs for “Veritext Virtual Services” for a remote deposition, but the court disagreed, ruling “remote depositions were reasonably necessary during the COVID-19 surge,” and allowed the defendant to recover them. Id. at *6; see also Siwak v. Xylem, Inc., No. 19 C 5350, 2021 U.S. Dist. LEXIS 214483, at *1 (N.D. Ill. Nov. 5, 2021) (awarding costs associated with remote deposition due to the ongoing global pandemic).
A court’s local rules may also serve as the basis for recovery of costs, as in the Northern District of California, “the prevailing party must state separately and specifically each item of taxable costs claimed,” with an accompanying affidavit demonstrating costs are “correctly stated, were necessarily incurred and allowable by law.” Shields v. Fed’n Internationale de Natation, 2023 U.S. Dist. LEXIS 205818, at *15 (N.D. Cal. Nov. 16, 2023) (citing Civil L.R. 54-1(a)) (citation and quotation marks omitted) (emphasis added). The court found the defendant “adequately explain[ed]” that “Video-Initial Service costs are a base fee from Veritext for setting up a video deposition,” And the court concluded those costs were “inextricable” and necessary for virtual depositions. Further, because the plaintiff provided no basis for showing the costs were unreasonable, the court ruled the video set up costs were recoverable under section 1920 and the local rules. Id. at *14. The plaintiffs also objected to “Exhibit Costs,” but the court disagreed, noting the local rules authorized recovery of such costs and those for the exhibits as “necessarily incurred and allowable by law.” Id.
In Pareja v. 184 Food Corp., the magistrate judge recommended an award of costs to the plaintiff based on a default judgment against the defendants, including recovery of costs related to a remote deposition. 2021 U.S. Dist. LEXIS 136945, at *35 (S.D.N.Y. July 22, 2021). However, this case is of limited value as there was no analysis of the issue regarding remote depositions.
As this discussion indicates, the earlier cases allowing taxation of the costs of remote depositions often based “necessity” findings on the effects of the COVID-19 pandemic. Whether they remain good law as the pandemic has receded is open to question.
Allowed By State Law
State law will also impact a prevailing party’s recovery of costs, and courts in California, Nevada and New York awarded costs related to remote depositions based on applicable state law. For example, in Ami, Inc. v. Dollar Shave Club, the court noted “[a]llowable costs under [California] Code of Civil Procedure section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount.” 2023 Cal. Super. LEXIS 15312, at *5 (Cal. Super. Mar. 14, 2023) (citation omitted). However, even items not specifically allowable under section 1033.5 may be recoverable in the court’s discretion if they are “reasonably necessary and reasonable in amount.” Id. at *6. As such, the court found costs for a remote deposition and “video service costs” were reasonable. Id. at *15.
In Silva v. Gustafson, the plaintiff prevailed at trial and arbitration and was entitled to a cost award. 2021 Nev. Dist. LEXIS 1011, at *1-2 (Nev. Dist. Oct. 15, 2021). Plaintiff sought to recover costs for a Zoom deposition, and the court found “videotaping a Zoom deposition to lessen the expense of paying experts again to testify at trial . . . [was] reasonable and such costs [were] recoverable” under Nevada law. Id. at *2. The court cited Nev. Rev. Stat. Ann. § 18.005, which defines costs and includes numerous categories including a “catchall” provision allowing recovery of “[a]ny other reasonable and necessary expense incurred in connection with the action.” Nev. Rev. Stat. Ann. § 18.005(17) (emphasis added).
In Global Revolution TV v. A.J. Muste Mem. Inst., Inc., the court explained that the general rule was for a party taking the deposition to bear the associated costs, with the exception of videoconferenced depositions. 73 Misc. 3d 1119, 1125 (N.Y. Sup. Sept. 21, 2021). According to CPLR 3116(b), “unless the court orders otherwise, the party taking the deposition shall bear the costs thereof.” Id. at 1124. However, Plaintiffs requested a video deposition and court ordered they should be responsible for the costs of arranging “the deposition via videoconference, . . . costs for the videoconference above the ordinary costs of the deposition,” and costs for administration of the oath. Id. at 1125.
Courts Denying Recovery Of Costs For Remote Depositions
Even though acknowledging that remote depositions were necessary for the safety and convenience of the parties, some courts have denied prevailing parties’ requests for recovery of the associated fees, either because they were not authorized under section 1920, or a party has failed to demonstrate remote depositions were “reasonable” and “necessary.”
Not Authorized Under 28 U.S.C. § 1920
Although courts in the Southern District of Florida awarded remote deposition related costs to prevailing parties after finding section 1920 supported those expenses, courts in the Middle District of Florida have repeatedly rejected motions to tax cost for remote depositions, ruling 28 U.S.C. § 1920 “does not specifically allow for recovery of remote video platform fees.” Bucklew v. Charter Communs., 2021 U.S. Dist. LEXIS 154364, at *1-2 (Mag. M.D. Fla. July 16, 2021). Two other courts in the Middle District of Florida and Northern District of Texas also cited Bucklew with approval in reaching the same conclusion.
In Bucklew, the plaintiff alleged claims of disability discrimination, but lost on summary judgment. 2021 U.S. Dist. LEXIS 154364, at *1-2. The defendant sought an award of remote deposition costs, including for exhibit sharing for a video deposition taken during the pandemic. Id. at *6. The court found “[s]ection 1920 does not specifically allow for recovery of remote video platform fees nor has [defendant] provided authority” in the Middle District of Florida authorizing such fees. Id. (emphasis added). Therefore, the court ruled the defendant was not entitled to recover costs, and recommended denial of the defendant’s request. Id.
In Cates v. Zeltiq Aesthetics, a medical device manufacturer successfully moved for summary judgment and sought to recover its costs including those related to remote depositions. 2021 U.S. Dist. LEXIS 246622, at *2-3 (M.D. Fla. Dec. 27, 2021). Despite recognizing Rule 54(d)’s “strong presumption” in favor of awarding costs to the prevailing party which requires a “sound basis” to overcome, the court ultimately followed Bucklew. Id. at *3. In so doing, the court reiterated Bucklew’s reasoning, ruling it could not award costs other than those “specifically authorized” under § 1920. Id. at *4. (emphasis added). Therefore, the court rejected defendant’s request for costs related to “web conferencing,” finding they were not recoverable under § 1920 and recommending that the court decline to award those costs. Id. at *9-10. (citing Bucklew).
In Lapham v. Fla. Fish, the plaintiff sought damages and injunctive relief against two Florida state agencies under the ADA, but the court granted defendants’ summary judgment. 2021 U.S. Dist. LEXIS 212652, at *1 (Mag. M.D. Fla. Nov. 3, 2021). Plaintiff objected to the request for “videoconferencing and service set up costs” in the amount of $737 for Zoom depositions. Id. at *5. The court concurred, citing Bucklew and ruling “[s]ection 1920 does not specifically allow for the recovery of remote videoconferencing and service set up fees, and FWC has not provided authority of when such fees have been awarded.” Id. (emphasis added).
In the most recent case following Bucklew, the clerk awarded the defendant its taxable costs, including those related to remote depositions, and the plaintiff objected. Aircraft Holding Sols., LLC v. Learjet, Inc., 2022 U.S. Dist. LEXIS 85025, at *3 (N.D. Tex. May 11, 2022). The defendant sought costs “necessitated by the remote nature of the depositions,” but was unable to identify what certain charges were for and did not meet its burden to show “the necessity and amount of its costs,” but the court indicated it could “only award costs included in § 1920.” Id. at *18-19. The court referenced Bucklew, and agreed with that court’s reasoning in denying such costs. Id. at *19-20. Specifically, the court stated:
[I]t is difficult to see where such costs would fit within § 1920 considering that they are fees incurred for a remote platform to conduct a deposition, not fees for an electronically recorded transcript or printed transcript,” and thus, the court held “remote deposition costs are not awardable” under section 1920.
Id. at *20 (citation omitted).
Prevailing Party Did Not Demonstrate Remote Deposition Costs Were Necessary
A pair of decisions in the Northern District of Illinois departed from the reasoning set forth in St. Xavier, without citation or discussion, rejecting the prevailing party’s motion for costs of a remote deposition. In Avanzalia Solar, S.L., the plaintiff alleged tort claims against the defendant in connection with its solar energy project, but the court granted summary judgment in defendant’s favor. 2023 U.S. Dist. LEXIS 158348, at *1. The court acknowledged that “discovery took place during the COVID-19 pandemic when many proceedings, including the depositions in this case, could not be conducted in person,” and using video recordings “was reasonable given the risks that illness or travel restrictions” might have caused. Id. at *16. The defendant sought recovery of “costs associated with the display of exhibits and other costs in connection” with remote depositions. Id. at *19. Notwithstanding the need for remote depositions, the court determined defendant provided “almost no explanation as to what the various charges in [that] category represent[ed]” and why they were “reasonably necessary.” Id. at *19-20. Therefore, the court denied the defendant’s request for costs related to remote depositions.
In Socha v. City of Joliet, the defendants successfully moved for summary judgment and filed a motion for costs, but the court followed Avanzalia Solar. 2023 U.S. Dist. LEXIS 190611, at *1-2 (N.D. Ill. Oct. 24, 2023). The court cited a “strong presumption” that the prevailing party will be awarded its costs under 28 U.S.C. § 1920, and noted the losing party must “affirmative[ly] show[.] that taxed costs are not appropriate.” Id. (citation omitted). Nonetheless, the court declined to award the costs associated with remote depositions, including “deposition-related charges listed as “Legal/View/Webex Web Conference.” Id. at *9. The court ruled defendants neglected to “explain what the web conferencing charges related to or why they were reasonably necessary,” and therefore “denie[d] Defendants’ requested taxation of web-conferencing costs.” Id. (citing Avanzalia Solar, S.L. v. Goldwind USA, Inc. 2023 U.S. Dist. LEXIS 158348 (N.D. Ill. Sept. 7, 2023)).
In contrast to the California court in Dollar Shave Club, another California trial court refused to tax costs for “Realtime deposition costs,” a remote deposition service that allowed view of “a live text stream during the deposition.” Sky Lift Aero. v. Lockheed Martin Corp., 2022 Cal. Super. LEXIS 58475, at *6 (Cal. Super. Sept. 20, 2022). The court noted the defendant was not presumptively entitled to the costs, and was required to show the service “would be reasonably necessary to the conduct of the litigation.” Id. The defendant argued the service was necessary for Zoom depositions to overcome technical issues to ensure “accurate and complete reporting of testimony in real-time.” Id. However, the court ruled the defendant failed to show the service was “reasonably necessary,” and did not award those costs. Id.
Although the body of case law addressing whether a prevailing party may recover the cost of remote depositions is relatively limited, there is one common thread among all of the cases. If a prevailing party can clearly articulate the expenses incurred for remote depositions were necessary and reasonable, there is a good chance the party will be able to tax those costs, in jurisdictions awarding such expenses. On the other hand, to have taxation of remote deposition costs denied, it appears to help if you are an unsuccessful plaintiff. However, there is no bright line rule, and we are left with the rather unsatisfying realization that the answer really is “it depends.”
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