Right here is the newest visitor publish from our Reed Smith colleague, Kevin Hara. He examines whether or not a prevailing celebration in litigation can get better, as “prices,” the bills of witness depositions carried out remotely – a query that has arisen with growing frequency because the COVID-19 pandemic prompted a normal development in the direction of use of distant depositions. Since our purchasers may very well be on both aspect of this challenge, Kevin’s analysis addresses each side. As all the time, our visitor bloggers deserve all of the credit score (and any blame) for his or her efforts.
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The authorized career seldom reaches absolute consensus on a authorized query, and even when that occurs, there are typically variations. The discovered middleman doctrine is such an instance—it took a very long time, however finally, all 50 states (fortunately) adopted the authorized precept that in circumstances involving medical units and prescription drugs, a producer’s warnings to a prescribing doctor fulfill its obligation to warn. But, there are nuances—take, for instance, Oregon, the place for state-specific causes, the doctrine doesn’t apply in strict legal responsibility circumstances. Nonetheless, the discovered middleman rule is as near common as one can get within the legislation. Sadly, such uniformity is the exception slightly than the rule, and that’s the identical with the topic of at the moment’s publish: can a prevailing celebration get better its prices for a distant deposition? The reply is sure—in some jurisdictions—and never in others. In different phrases, it is a quintessential case of “it relies upon.” If that could be a acquainted and unsatisfying denouement, one can take consolation that a few of the finest motion pictures, Blade Runner, 2001: House Odyssey, and The Factor, have ambiguous endings.
Federal Rule of Civil Process 54(d) governs awards of prices to prevailing events, and gives, in related half, “[u]nless a federal statute, these guidelines, or a court docket order gives in any other case, prices—apart from legal professional’s charges—must be allowed to the prevailing celebration.” Fed. R. Civ. P. 54. The supply of a prevailing celebration’s restoration of its prices typically is determined by whether or not they’re “cheap” and “crucial,” and can also depend upon the necessities of a court docket’s native guidelines, or relevant state legislation. Furthermore, in some ways, the pandemic altered our notion of “cheap” and “crucial” measures.
The Supreme Courtroom held 28 U.S.C. § 1920 defines “prices” as utilized in Rule 54(d), and enumerates sure classes of recoverable prices. Taniguchi v. Kan Pac. Saipan Ltd., 566 U.S. 560, 565 (2012) (quotation omitted). Accordingly, underneath part 1920, a prevailing celebration might get better the next classes of prices:
(1) Charges of the clerk and marshal; (2) Charges for printed or electronically recorded transcripts essentially obtained to be used within the case; (3) Charges and disbursements for printing and witnesses; (4) Charges for exemplification and the prices of constructing copies of any supplies the place the copies are essentially obtained to be used within the case; (5) Docket charges underneath part 1923 of this title; (6) Compensation of court docket appointed consultants, compensation of interpreters, and salaries, charges, bills, and prices of particular interpretation companies underneath part 1828 of this title.
Baer’s Furnishings Co. v. Comcast Cable Commc’ns Mgmt. LLC, 2023 U.S. Dist. LEXIS 7707, at *3 (Magazine. S.D. Fla. Jan. 17, 2023) (citing 28 U.S.C. § 1920). Furthermore, “a specific expense should fall into one of many classes of prices statutorily licensed [by section 1920] for reimbursement.” Avanzalia Photo voltaic, S.L. v. Goldwind USA, Inc., 2023 U.S. Dist. LEXIS 158348, at *2 (N.D. Unwell. Sept. 7, 2023) (quotation omitted) (emphasis added). Moreover, “[a]ny celebration searching for an award of prices carries the burden of displaying that the requested prices had been essentially incurred and cheap.” Id.
Though distant depositions are usually not particularly listed among the many classes of recoverable prices, some courts have allowed prevailing events to get better the prices of distant and/or Zoom depositions, to the extent the claimant can display they had been “cheap and crucial.” Nonetheless, different courts have denied prevailing events’ requests for restoration of the price for such depositions, citing the dearth of authority based mostly on part 1920.
Courts Permitting Restoration Of Bills Associated To Distant Depositions
The courts which have allowed a prevailing celebration to get better its prices for distant depositions have typically carried out so based mostly on the availability of part 1920 authorizing restoration of “charges for printed or electronically recorded transcripts essentially obtained to be used.” See 28 U.S.C. § 1920(2). Different courts have awarded prices for distant depositions underneath the authority of their native guidelines. A number of the courts awarding prices to the prevailing celebration have explicitly relied on security issues of in-person depositions created by the COVID-19 pandemic. They’ve granted requests for restoration of charges related to distant depositions, together with prices for establishing and administering distant depositions, exhibit sharing, and different associated bills. Notably, some courts in the identical circuit (Southern and Center Districts of Florida)—and even some in the identical district (Northern District of Illinois)—have reached reverse conclusions. All the courts permitting prevailing events to get better prices pertaining to distant depositions have decided that such bills had been crucial and particularly licensed underneath 28 U.S.C. § 1920, a court docket’s native guidelines, or relevant state legislation.
Allowed By Part 1920 And/or Native Guidelines
Two Southern District of Florida choices held distant deposition associated prices had been taxable. First, in Versfelt v. Sanza Meals Serv., LLC, the court docket discovered it might award prices “related to the depositions submitted” in help of motions for abstract judgment, as a result of the shedding celebration couldn’t display the prices had been “not crucial to be used within the case” or that the deposition was unrelated to a pertinent challenge. 2022 U.S. Dist. LEXIS 108426, at *6 (Magazine. S.D. Fla. June 17, 2022); adopted, 2022 U.S. Dist. LEXIS 117933 (S.D. Fla. July 5, 2022). The court docket concluded “prolonged hour and the exhibit share prices” had been recoverable as a result of “the deposition was of Plaintiff, and given the geographical location of Plaintiff (Oregon), his counsel (Florida), Defendant’s counsel (Florida), and extra problems as a result of COVID-19 pandemic, such measures had been wanted to conduct the deposition remotely.” Id. at *8. (emphasis added).
In Baer’s Furnishings Co. v. Comcast Cable Commc’ns Mgmt. LLC, the court docket adopted Versfelt, the place the plaintiff objected to “prices of displays and the exhibit sharing utility used on the depositions.” 2023 U.S. Dist. LEXIS 7707, at *4 (Magazine. S.D. Fla. Jan. 17, 2023). The defendant defined that the exhibit share prices had been crucial for the Zoom depositions “as a result of pandemic and the geographical areas of a few of the witnesses.” Id. at *6. Equally to Versfelt, the court docket discovered it was licensed to tax prices “related to the depositions” submitted pursuant to abstract judgment. Id. (quotation omitted). The plaintiff failed to indicate “the particular deposition prices had been both not crucial . . . or that the deposition was not associated to a problem current within the case,” main the court docket to rule:
[I]n regard to using Exhibit Share and Actual-Time,. . . the prices related to these bills are recoverable,” [because] “[d]ue to the COVID-19 pandemic, in-person depositions posed a danger to a person’s well being, [and] such applications have been routinely used to permit Events to successfully conduct depositions remotely.
Id. at *9. Accordingly, the decide advisable that the defendant ought to get better the prices of the distant deposition underneath §1920(2) (citing Versfelt at *3).
In St. Xavier Univ. v. Mossuto, the court docket dominated the defendant might get better prices associated to distant depositions as a result of there was a “robust presumption” the defendant was entitled to its prices because the prevailing celebration underneath Rule 54. 2023 U.S. Dist. LEXIS 133023, at *2-3 (N.D. Unwell. Aug. 1, 2023). Because the shedding celebration, the College objected to prices for “Veritext Digital Providers” for a distant deposition, however the court docket disagreed, ruling “distant depositions had been moderately crucial in the course of the COVID-19 surge,” and allowed the defendant to get better them. Id. at *6; see additionally Siwak v. Xylem, Inc., No. 19 C 5350, 2021 U.S. Dist. LEXIS 214483, at *1 (N.D. Unwell. Nov. 5, 2021) (awarding prices related to distant deposition as a result of ongoing international pandemic).
A court docket’s native guidelines can also function the premise for restoration of prices, as within the Northern District of California, “the prevailing celebration should state individually and particularly every merchandise of taxable prices claimed,” with an accompanying affidavit demonstrating prices are “appropriately acknowledged, had been essentially incurred and allowable by legislation.” 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)) (quotation and citation marks omitted) (emphasis added). The court docket discovered the defendant “adequately clarify[ed]” that “Video-Preliminary Service prices are a base payment from Veritext for establishing a video deposition,” And the court docket concluded these prices had been “inextricable” and crucial for digital depositions. Additional, as a result of the plaintiff supplied no foundation for displaying the prices had been unreasonable, the court docket dominated the video arrange prices had been recoverable underneath part 1920 and the native guidelines. Id. at *14. The plaintiffs additionally objected to “Exhibit Prices,” however the court docket disagreed, noting the native guidelines licensed restoration of such prices and people for the displays as “essentially incurred and allowable by legislation.” Id.
In Pareja v. 184 Meals Corp., the Justice of the Peace decide advisable an award of prices to the plaintiff based mostly on a default judgment towards the defendants, together with restoration of prices associated to a distant deposition. 2021 U.S. Dist. LEXIS 136945, at *35 (S.D.N.Y. July 22, 2021). Nonetheless, this case is of restricted worth as there was no evaluation of the difficulty relating to distant depositions.
As this dialogue signifies, the sooner circumstances permitting taxation of the prices of distant depositions usually based mostly “necessity” findings on the consequences of the COVID-19 pandemic. Whether or not they stay good legislation because the pandemic has receded is open to query.
Allowed By State Regulation
State legislation may even impression a prevailing celebration’s restoration of prices, and courts in California, Nevada and New York awarded prices associated to distant depositions based mostly on relevant state legislation. For instance, in Ami, Inc. v. Greenback Shave Membership, the court docket famous “[a]llowable prices underneath [California] Code of Civil Process part 1033.5 have to be moderately crucial to the conduct of the litigation, slightly than merely handy or useful to its preparation, and have to be cheap in quantity.” 2023 Cal. Tremendous. LEXIS 15312, at *5 (Cal. Tremendous. Mar. 14, 2023) (quotation omitted). Nonetheless, even gadgets not particularly allowable underneath part 1033.5 could also be recoverable within the court docket’s discretion if they’re “moderately crucial and cheap in quantity.” Id. at *6. As such, the court docket discovered prices for a distant deposition and “video service prices” had been cheap. Id. at *15.
In Silva v. Gustafson, the plaintiff prevailed at trial and arbitration and was entitled to a price award. 2021 Nev. Dist. LEXIS 1011, at *1-2 (Nev. Dist. Oct. 15, 2021). Plaintiff sought to get better prices for a Zoom deposition, and the court docket discovered “videotaping a Zoom deposition to reduce the expense of paying consultants once more to testify at trial . . . [was] cheap and such prices [were] recoverable” underneath Nevada legislation. Id. at *2. The court docket cited Nev. Rev. Stat. Ann. § 18.005, which defines prices and consists of quite a few classes together with a “catchall” provision permitting restoration of “[a]ny different cheap and crucial expense incurred in reference to the motion.” Nev. Rev. Stat. Ann. § 18.005(17) (emphasis added).
In World Revolution TV v. A.J. Muste Mem. Inst., Inc., the court docket defined that the overall rule was for a celebration taking the deposition to bear the related prices, excluding videoconferenced depositions. 73 Misc. 3d 1119, 1125 (N.Y. Sup. Sept. 21, 2021). Based on CPLR 3116(b), “until the court docket orders in any other case, the celebration taking the deposition shall bear the prices thereof.” Id. at 1124. Nonetheless, Plaintiffs requested a video deposition and court docket ordered they need to be answerable for the prices of arranging “the deposition through videoconference, . . . prices for the videoconference above the strange prices of the deposition,” and prices for administration of the oath. Id. at 1125.
Courts Denying Restoration Of Prices For Distant Depositions
Regardless that acknowledging that distant depositions had been crucial for the protection and comfort of the events, some courts have denied prevailing events’ requests for restoration of the related charges, both as a result of they weren’t licensed underneath part 1920, or a celebration has didn’t display distant depositions had been “cheap” and “crucial.”
Not Licensed Beneath 28 U.S.C. § 1920
Though courts within the Southern District of Florida awarded distant deposition associated prices to prevailing events after discovering part 1920 supported these bills, courts within the Center District of Florida have repeatedly rejected motions to tax value for distant depositions, ruling 28 U.S.C. § 1920 “doesn’t particularly permit for restoration of distant video platform charges.” Bucklew v. Constitution Communs., 2021 U.S. Dist. LEXIS 154364, at *1-2 (Magazine. M.D. Fla. July 16, 2021). Two different courts within the Center District of Florida and Northern District of Texas additionally cited Bucklew with approval in reaching the identical conclusion.
In Bucklew, the plaintiff alleged claims of incapacity discrimination, however misplaced on abstract judgment. 2021 U.S. Dist. LEXIS 154364, at *1-2. The defendant sought an award of distant deposition prices, together with for exhibit sharing for a video deposition taken in the course of the pandemic. Id. at *6. The court docket discovered “[s]ection 1920 doesn’t particularly permit for restoration of distant video platform charges nor has [defendant] supplied authority” within the Center District of Florida authorizing such charges. Id. (emphasis added). Subsequently, the court docket dominated the defendant was not entitled to get better prices, and advisable denial of the defendant’s request. Id.
In Cates v. Zeltiq Aesthetics, a medical gadget producer efficiently moved for abstract judgment and sought to get better its prices together with these associated to distant depositions. 2021 U.S. Dist. LEXIS 246622, at *2-3 (M.D. Fla. Dec. 27, 2021). Regardless of recognizing Rule 54(d)’s “robust presumption” in favor of awarding prices to the prevailing celebration which requires a “sound foundation” to beat, the court docket in the end adopted Bucklew. Id. at *3. In so doing, the court docket reiterated Bucklew’s reasoning, ruling it couldn’t award prices apart from these “particularly licensed” underneath § 1920. Id. at *4. (emphasis added). Subsequently, the court docket rejected defendant’s request for prices associated to “internet conferencing,” discovering they weren’t recoverable underneath § 1920 and recommending that the court docket decline to award these prices. Id. at *9-10. (citing Bucklew).
In Lapham v. Fla. Fish, the plaintiff sought damages and injunctive reduction towards two Florida state businesses underneath the ADA, however the court docket granted defendants’ abstract judgment. 2021 U.S. Dist. LEXIS 212652, at *1 (Magazine. M.D. Fla. Nov. 3, 2021). Plaintiff objected to the request for “videoconferencing and repair arrange prices” within the quantity of $737 for Zoom depositions. Id. at *5. The court docket concurred, citing Bucklew and ruling “[s]ection 1920 doesn’t particularly permit for the restoration of distant videoconferencing and repair arrange charges, and FWC has not supplied authority of when such charges have been awarded.” Id. (emphasis added).
In the newest case following Bucklew, the clerk awarded the defendant its taxable prices, together with these associated to distant depositions, and the plaintiff objected. Plane Holding Sols., LLC v. Learjet, Inc., 2022 U.S. Dist. LEXIS 85025, at *3 (N.D. Tex. Might 11, 2022). The defendant sought prices “necessitated by the distant nature of the depositions,” however was unable to establish what sure costs had been for and didn’t meet its burden to indicate “the need and quantity of its prices,” however the court docket indicated it might “solely award prices included in § 1920.” Id. at *18-19. The court docket referenced Bucklew, and agreed with that court docket’s reasoning in denying such prices. Id. at *19-20. Particularly, the court docket acknowledged:
[I]t is troublesome to see the place such prices would match inside § 1920 contemplating that they’re charges incurred for a distant platform to conduct a deposition, not charges for an electronically recorded transcript or printed transcript,” and thus, the court docket held “distant deposition prices are usually not awardable” underneath part 1920.
Id. at *20 (quotation omitted).
Prevailing Social gathering Did Not Reveal Distant Deposition Prices Have been Crucial
A pair of choices within the Northern District of Illinois departed from the reasoning set forth in St. Xavier, with out quotation or dialogue, rejecting the prevailing celebration’s movement for prices of a distant deposition. In Avanzalia Photo voltaic, S.L., the plaintiff alleged tort claims towards the defendant in reference to its photo voltaic vitality undertaking, however the court docket granted abstract judgment in defendant’s favor. 2023 U.S. Dist. LEXIS 158348, at *1. The court docket acknowledged that “discovery passed off in the course of the COVID-19 pandemic when many proceedings, together with the depositions on this case, couldn’t be carried out in individual,” and utilizing video recordings “was cheap given the dangers that sickness or journey restrictions” might need brought on. Id. at *16. The defendant sought restoration of “prices related to the show of displays and different prices in connection” with distant depositions. Id. at *19. However the necessity for distant depositions, the court docket decided defendant supplied “virtually no rationalization as to what the assorted costs in [that] class characterize[ed]” and why they had been “moderately crucial.” Id. at *19-20. Subsequently, the court docket denied the defendant’s request for prices associated to distant depositions.
In Socha v. Metropolis of Joliet, the defendants efficiently moved for abstract judgment and filed a movement for prices, however the court docket adopted Avanzalia Photo voltaic. 2023 U.S. Dist. LEXIS 190611, at *1-2 (N.D. Unwell. Oct. 24, 2023). The court docket cited a “robust presumption” that the prevailing celebration will likely be awarded its prices underneath 28 U.S.C. § 1920, and famous the shedding celebration should “affirmative[ly] present[.] that taxed prices are usually not acceptable.” Id. (quotation omitted). Nonetheless, the court docket declined to award the prices related to distant depositions, together with “deposition-related costs listed as “Authorized/View/Webex Net Convention.” Id. at *9. The court docket dominated defendants uncared for to “clarify what the net conferencing costs associated to or why they had been moderately crucial,” and subsequently “denie[d] Defendants’ requested taxation of web-conferencing prices.” Id. (citing Avanzalia Photo voltaic, S.L. v. Goldwind USA, Inc. 2023 U.S. Dist. LEXIS 158348 (N.D. Unwell. Sept. 7, 2023)).
In distinction to the California court docket in Greenback Shave Membership, one other California trial court docket refused to tax prices for “Realtime deposition prices,” a distant deposition service that allowed view of “a reside textual content stream in the course of the deposition.” Sky Raise Aero. v. Lockheed Martin Corp., 2022 Cal. Tremendous. LEXIS 58475, at *6 (Cal. Tremendous. Sept. 20, 2022). The court docket famous the defendant was not presumptively entitled to the prices, and was required to indicate the service “could be moderately essential to the conduct of the litigation.” Id. The defendant argued the service was crucial for Zoom depositions to beat technical points to make sure “correct and full reporting of testimony in real-time.” Id. Nonetheless, the court docket dominated the defendant failed to indicate the service was “moderately crucial,” and didn’t award these prices. Id.
Though the physique of case legislation addressing whether or not a prevailing celebration might get better the price of distant depositions is comparatively restricted, there may be one frequent thread amongst all the circumstances. If a prevailing celebration can clearly articulate the bills incurred for distant depositions had been crucial and cheap, there’s a good likelihood the celebration will be capable to tax these prices, in jurisdictions awarding such bills. Alternatively, to have taxation of distant deposition prices denied, it seems to assist in case you are an unsuccessful plaintiff. Nonetheless, there is no such thing as a vibrant line rule, and we’re left with the slightly unsatisfying realization that the reply actually is “it relies upon.”
