A recent blog post here examined the circumstances under which a prevailing party in litigation can obtain reimbursement for deposition-related costs in federal courts. The rules are complicated, constrained by the statutory command that the depositions be “necessarily obtained for use in the case,” 28 U.S.C. 1920(2), and further limited by the need to actually prevail in the litigation. Importantly, reimbursement of depositions taken purely for discovery purposes is not available under federal law.There is, however, another way for a party to obtain reimbursement for the costs of depositions. That way is Rule 37 of the Federal Rules of Civil Procedure, which provides that a party is entitled to the costs of proving the existence of a law or fact, or the genuineness of a document, in response to a request for admissions. A party need not prevail in the litigation to be entitled to recovery of costs under Rule 37; moreover, both deposition costs and attorneys’ fees are recoverable.reimbursement for the costs of a deposition that should not have been necessary if the opposing party had admitted to material facts posited in a request for admissions is clearly available under federal law (and most similar state laws).The relief described under Rule 37 is colloquially known as “costs of proof” – i.e.,

that the drug maker had failed to warn users that its Zofran anti-nausea drug could cause birth defects when taken by pregnant women.GlaxoSmithKline’s bill of costs included deposition transcript charges including charges relating to:10 depositions used in a successful motion for summary judgment40 depositions noticed by the plaintiffs6 depositions of GlaxoSmithKline expert witnesses that had been challenged by the plaintiffsAlthough the court denied recovery for most of GlaxoSmithKline’s deposition-related costs, it did award costs for several deposition transcripts, providing a roadmap of sorts for parties in similar circumstances.The general rule, stated in Phetosomphone v. Allison Reed Grp., Inc., 984 F.2d 4 (1st Cir. 1993), is that deposition transcripts obtained in the preparation and litigation of a case are not taxable against the losing party. The reason for this is that discovery depositions are not considered to be “necessarily obtained for use in the case,” as provided in 28 U.S.C. 1920(2). Deposition transcripts introduced in evidence or used at trial, however, are taxable against the losing party. District courts also have discretion to order the payment of costs relating to deposition transcripts relied on by the prevailing party in a dispositive motion. Brigham and Women’s Hosp. Inc.v. Perrigo Co., 395 F. Supp. 3d 168, 173 (D. Mass. 2019).Looking at the 10 depositions used in GlaxoSmithKline’s summary judgment motion, the court in In re Zofran ruled that the three depositions of then-current GlaxoSmithKline employees are not taxable. However, the depositions of two former employees were found to be taxable, as were five other depositions cited in GlaxoSmithKline’s motion for summary judgment.A Summary of Taxable Deposition CostsThe In re Zofran ruling is a good opportunity to provide a brief summary of which deposition-related costs are properly chargeable against the losing party in federal civil litigation. In a nutshell, the rules in the federal courts are these:

or process. As indicated above, this argument was likely to distinguish her case from Warhol and show that the purpose behind her tattoo was neither commercial nor the same as Sedlik’s purpose behind photographing Miles Davis.Sedlik proposed a “hypothetical-license damages” position based on the amount a willing buyer would have reasonably been required to pay a willing seller at the time of infringement for the actual use made by the infringer of the plaintiff’s work. He did not seek specific damages and did not present a damages expert. After a two-hour deliberation, the jury found that fair use protected the tattoo and the social media posts of the tattoo, and that the tattoo was not substantially similar to the Sedlik’s portrait. On January 30, 2024, Judge Fischer enteredjudgment that a jury rendered a verdict in favor of Kat Von D, ordered that Sedlik take nothing, dismissed the action on the merits with prejudice, and granted the defendants’ recovery of the “cost of suit” under 28 U.S.C. § 1920, which largely includes filing fees.TakeawaysWhile many tattoo parlors, artists, and customers with ink on their skin are relieved over the legality and safety of their pieces, ongoing considerations remain for the intersection of copyright law and tattoos.First, the jury decided this case on “substantial similarity,” finding that the tattoo was not substantially similar to the portrait, measuredby the total concept and feel of the works and a particular combination, selection, or arrangement. Without a written opinion, litigators are limited as to understanding how the works were different or what arguments were successful. Nevertheless, one can imagine cases where a tattoo is substantially similar to a photograph or even an iconic font.Second, most tattoos are inked for a fee, unlike in this case, which benefits both the artist and the tattoo parlor. This could implicate the first fair use factor, which asks about the “commercial nature” of using another’s work. This is the stronges

t Court for the Eastern District of Tennessee (Greenville Division), regarding the SBA’s compliance with the Ultima court’s injunction against using the rebuttable presumption of social disadvantage contained at 13 CFR 124.103(b).The Notice of Compliance was issued in advance of a hearing in the Ultima case that took place on August 31, 2023. The hearing was scheduled by the district court to determine how to address the other remedies that Ultima sought in its complaint.In its complaint, Ultima asked for the following relief:A declaratory judgment that defendants are violating the Fifth Amendment to the United States Constitution and 42 U.S.C. § 1981;Injunctive relief precluding defendants from reserving NRCS contracts for the Section 8(a) Program;Requiring the defendants to reinstate contracts that defendants refused to renew for discriminatory reasons and/or replaced plaintiff with a Section 8(a) contractor;Damages in an amount to be determined;Attorney’s fees and costs pursuant to 28 U.S.C. §§ 1920, 2412(a), or 2412(b), 42 U.S.C. § 1988, or any other applicable authority; andAny other relief that is appropriate.The injunction issued by the court addressed the firstrequest for relief (that the SBA violated the Constitution by applying a rebuttable presumption of social disadvantage) but did not address the other relief sought by Ultima.Nor did the motions briefed and argued directly address those other claims, focusing on the predicate issue of whether the SBA’s rebuttable presumption is constitutional.As such, the hearing may be to address these other remedies sought by Ultima, in addition to whether the SBA is complying with the district court’s injunction.Notably, the SBA, as a federal agency, has sixty days from the date of the injunction to file its notice of appeal, so they have until September 17th to file an appeal.SummaryThe Notice of Compliance is consistent with past announcements by the SBA regarding its response to the injunction in Ultima, specifically the requireme

ing, and an oral procedure that mainly consists of a one-day oral hearing. All of these procedural characteristics can be expected to result in lower overall costs than in the U.S. And while actual costs, of course, remain to be seen at this point, the court issued a table of “ceilings” for attorney fees a prevailing party can recover, as described in detail below. For example, if the value of the action is €15 million, the “ceiling” for recoverable representation costs is €800,000.19 Those ceilings can be expected to function as somewhat of a guidepost – clients will presumably expect that their counsel not exceed the “ceiling” by too much.Reimbursement of Litigation CostsJust as important as the amount of the litigation costs is the question whether the successful party can get them back.In the U.S., the typical reimbursement of a prevailing party’s litigation expenses is modest. Based on Rule 54 of the Federal Rules of Civil Procedure,20 under which the court may award “costs,” and 28 U.S.C. § 1920, which “defines the term ‘costs’ as used in Rule 54(d) and enumerates expenses that a federal court may tax as costs under the discretionary authority found in Rule 54(d),”21 the court may order reimbursement of a fairly limited set of expenses, including the court fees discussed above, statutory witness fees, and certain deposition and copying expenses.22 Overall, these “costs” usually make up only a very small part of the prevailing party’s litigation expenses. Expert fees, beyond the small statutory attendance fee, are not recoverable under these provisions. And most importantly, the biggest expense item of the prevailing party is not either: attorney fees.“Under the bedrock principle known as the ‘American Rule,’ each litigant pays his own attorney’s fees, win or lose, unless a statute or contract provides otherwise.”23 As a rationale for the American Rule, “it has been argued that since litigation is at best uncertain one should not be penalized for merely defending or prosecutin

Remote deposition fees? Costs of document-sharing platform? Here the court said no.The federal statute governing taxation of costs, 28 U.S.C. §1920, allows “[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case.” The court ruled here that this language was not broad enough to reach remote deposition fees.

A party can also seek reimbursement for a reporter’s travel expenses and attendance fee.6/22/2021: Demonstratives can be taxed in E.D. Wash. The Eastern District of Washington’s guide on the Taxation of Costs states that the provision of 28 U.S.C. 1920 addressing exemplification costs includes demonstratives used as trial exhibits. It allows for the prevailing party to be reimbursed for the cost of such exhibits provided that it gets the Court’s permission to tax this cost.

A recent decision out of the Circuit Court in Washington, D.C., provides guidance into which e-discovery costs may be recoverable under 28 U.S.C. § 1920 (See U.S. v Halliburton Co., 954 F3d 307 [D.C. Cir. 2020]).Factual Background of Halliburton: Harry Barko (“Barko”) brought a lawsuit against his former employer, Kellogg Brown & Root Services (“KBR”), alleging that KBR and various subcontractors defrauded the U.S. Government by inflating costs and accepting kickbacks while administering military contracts in wartime Iraq, whereby violating the False Claims Act.

The whistleblower challenged over $70,000, arguing that the expenses were outside the scope of taxable costs. In a unanimous opinion, the DC Circuit sided with the whistleblower, holding that KBR’s “expansive” reading of 28 U.S.C. § 1920(4) was “capacious" and unsupported, and reduced the amount awarded.The DC Circuit’s Opinion is here.

Judge Zobel rejected this argument, however, because Perrigo “categorically won” the case and therefore was the only party entitled to costs.Judge Zobel awarded Perrigo $22,843.48 in costs, the highlights of which are as follows:Transcript and Video Expenses: Judge Zobel denied Perrigo’s request for an additional $3,458.70 for trial realtime fees because they were not “necessarily” incurred within the meaning of 28 U.S.C. §1920(2).Copies and Exemplification Fees: Judge Zobel denied Perrigo’s request for the costs incurred for a graphic designer to prepare demonstratives because the amount ($35,298) was excessive, and there was not enough evidence that this expense was necessary, so it was not within the scope of 28 U.S.C. §1920(4).Witness Fees: Judge Zobel denied some of the subsistence expenses that Perrigo requested because there were no supporting receipts.