Visitor Put up – Are Distant Deposition Prices Recoverable by the Prevailing Occasion?  Possibly, Sure, Possibly, No.

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Right here is the newest visitor submit from our Reed Smith colleague, Kevin Hara. He examines whether or not a prevailing social gathering in litigation can get better, as “prices,” the bills of witness depositions carried out remotely – a query that has arisen with growing frequency for the reason that COVID-19 pandemic prompted a normal development in the direction of use of distant depositions. Since our shoppers could possibly be on both facet of this situation, Kevin’s analysis addresses either side. As all the time, our visitor bloggers deserve all of the credit score (and any blame) for his or her efforts.


The authorized career seldom reaches absolute consensus on a authorized query, and even when that occurs, there are usually variations.  The realized 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 gadgets and prescription drugs, a producer’s warnings to a prescribing doctor fulfill its responsibility 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 realized middleman rule is as near common as one can get within the legislation.  Sadly, such uniformity is the exception moderately than the rule, and that’s the similar with the topic of right this moment’s submit:  can a prevailing social gathering get better its prices for a distant deposition?  The reply is sure—in some jurisdictions—and never in others.  In different phrases, this can be 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 greatest films, Blade Runner, 2001: Area Odyssey, and The Factor, have ambiguous endings.

Federal Rule of Civil Process 54(d) governs awards of prices to prevailing events, and supplies, in related half, “[u]nless a federal statute, these guidelines, or a courtroom order supplies in any other case, prices—aside from legal professional’s charges—must be allowed to the prevailing social gathering.”  Fed. R. Civ. P. 54.  The supply of a prevailing social gathering’s restoration of its prices usually is dependent upon whether or not they’re “affordable” and “essential,” and might also depend upon the necessities of a courtroom’s native guidelines, or relevant state legislation.  Furthermore, in some ways, the pandemic altered our notion of “affordable” and “essential” 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, beneath part 1920, a prevailing social gathering 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 beneath part 1923 of this title; (6) Compensation of courtroom appointed specialists, compensation of interpreters, and salaries, charges, bills, and prices of particular interpretation companies beneath 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 selected 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. Ailing. Sept. 7, 2023) (quotation omitted) (emphasis added).  Moreover, “[a]ny social gathering in search of an award of prices carries the burden of displaying that the requested prices have been essentially incurred and affordable.”  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 have been “affordable and essential.” Nevertheless, different courts have denied prevailing events’ requests for restoration of the fee for such depositions, citing the shortage of authority based mostly on part 1920.

Courts Permitting Restoration Of Bills Associated To Distant Depositions

The courts which have allowed a prevailing social gathering to get better its prices for distant depositions have usually executed so based mostly on the supply 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 beneath the authority of their native guidelines.  A few of the courts awarding prices to the prevailing social gathering 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 have been essential and particularly licensed beneath 28 U.S.C. § 1920, a courtroom’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 have been taxable.  First, in Versfelt v. Sanza Meals Serv., LLC, the courtroom discovered it may award prices “related to the depositions submitted” in help of motions for abstract judgment, as a result of the dropping social gathering couldn’t display the prices have been “not essential to be used within the case” or that the deposition was unrelated to a pertinent situation.  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 courtroom concluded “prolonged hour and the exhibit share prices” have 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 issues because of the COVID-19 pandemic, such measures have 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 courtroom 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 have been essential for the Zoom depositions “because of the pandemic and the geographical areas of a few of the witnesses.”  Id. at *6.  Equally to Versfelt, the courtroom discovered it was licensed to tax prices “related to the depositions” submitted pursuant to abstract judgment.  Id. (quotation omitted).  The plaintiff failed to point out “the precise deposition prices have been both not essential . . . or that the deposition was not associated to a problem current within the case,” main the courtroom to rule:

[I]n regard to the usage of 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 packages have been routinely used to permit Events to successfully conduct depositions remotely.

Id. at *9.  Accordingly, the choose really helpful that the defendant ought to get better the prices of the distant deposition beneath §1920(2) (citing Versfelt at *3).

In St. Xavier Univ. v. Mossuto, the courtroom dominated the defendant may 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 social gathering beneath Rule 54.  2023 U.S. Dist. LEXIS 133023, at *2-3 (N.D. Ailing. Aug. 1, 2023).  Because the dropping social gathering, the College objected to prices for “Veritext Digital Providers” for a distant deposition, however the courtroom disagreed, ruling “distant depositions have been moderately essential throughout 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. Ailing. Nov. 5, 2021) (awarding prices related to distant deposition because of the ongoing international pandemic).

A courtroom’s native guidelines might also function the premise for restoration of prices, as within the Northern District of California, “the prevailing social gathering should state individually and particularly every merchandise of taxable prices claimed,” with an accompanying affidavit demonstrating prices are “accurately said, have 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 courtroom discovered the defendant “adequately clarify[ed]” that “Video-Preliminary Service prices are a base charge from Veritext for establishing a video deposition,” And the courtroom concluded these prices have been “inextricable” and essential for digital depositions.  Additional, as a result of the plaintiff supplied no foundation for displaying the prices have been unreasonable, the courtroom dominated the video arrange prices have been recoverable beneath part 1920 and the native guidelines.  Id. at *14. The plaintiffs additionally objected to “Exhibit Prices,” however the courtroom 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 choose really helpful an award of prices to the plaintiff based mostly on a default judgment in opposition to 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).  Nevertheless, this case is of restricted worth as there was no evaluation of the problem concerning distant depositions.

As this dialogue signifies, the sooner circumstances permitting taxation of the prices of distant depositions usually based mostly “necessity” findings on the results 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 will even affect a prevailing social gathering’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 courtroom famous “[a]llowable prices beneath [California] Code of Civil Process part 1033.5 should be moderately essential to the conduct of the litigation, moderately than merely handy or helpful to its preparation, and should be affordable in quantity.”  2023 Cal. Tremendous. LEXIS 15312, at *5 (Cal. Tremendous. Mar. 14, 2023) (quotation omitted).  Nevertheless, even gadgets not particularly allowable beneath part 1033.5 could also be recoverable within the courtroom’s discretion if they’re “moderately essential and affordable in quantity.”  Id. at *6.  As such, the courtroom discovered prices for a distant deposition and “video service prices” have been affordable.  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 courtroom discovered “videotaping a Zoom deposition to minimize the expense of paying specialists once more to testify at trial . . . [was] affordable and such prices [were] recoverable” beneath Nevada legislation.  Id. at *2.  The courtroom 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 affordable and essential 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 courtroom 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).  In accordance with CPLR 3116(b), “until the courtroom orders in any other case, the social gathering taking the deposition shall bear the prices thereof.”  Id. at 1124.  Nevertheless, Plaintiffs requested a video deposition and courtroom ordered they need to be answerable for the prices of arranging “the deposition through videoconference, . . . prices for the videoconference above the peculiar prices of the deposition,” and prices for administration of the oath.  Id. at 1125.

Courts Denying Restoration Of Prices For Distant Depositions

Though acknowledging that distant depositions have been essential 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 beneath part 1920, or a celebration has didn’t display distant depositions have been “affordable” and “essential.” 

Not Approved Underneath 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 price for distant depositions, ruling 28 U.S.C. § 1920 “doesn’t particularly enable 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 throughout the pandemic.  Id. at *6.  The courtroom discovered “[s]ection 1920 doesn’t particularly enable 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 courtroom dominated the defendant was not entitled to get better prices, and really helpful 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 social gathering which requires a “sound foundation” to beat, the courtroom in the end adopted BucklewId. at *3.  In so doing, the courtroom reiterated Bucklew’s reasoning, ruling it couldn’t award prices aside from these “particularly licensed” beneath § 1920.  Id. at *4. (emphasis added).  Subsequently, the courtroom rejected defendant’s request for prices associated to “internet conferencing,” discovering they weren’t recoverable beneath § 1920 and recommending that the courtroom decline to award these prices.  Id. at *9-10. (citing Bucklew).

In Lapham v. Fla. Fish, the plaintiff sought damages and injunctive reduction in opposition to two Florida state companies beneath the ADA, however the courtroom 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 courtroom concurred, citing Bucklew and ruling “[s]ection 1920 doesn’t particularly enable 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 latest 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 determine what sure prices have been for and didn’t meet its burden to point out “the need and quantity of its prices,” however the courtroom indicated it may “solely award prices included in § 1920.”  Id. at *18-19.  The courtroom referenced Bucklew, and agreed with that courtroom’s reasoning in denying such prices.  Id. at *19-20.  Particularly, the courtroom said:

[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 courtroom held “distant deposition prices are usually not awardable” beneath part 1920.

Id. at *20 (quotation omitted).

Prevailing Occasion Did Not Display Distant Deposition Prices Had been Essential

A pair of selections within the Northern District of Illinois departed from the reasoning set forth in St. Xavier, with out quotation or dialogue, rejecting the prevailing social gathering’s movement for prices of a distant deposition.  In Avanzalia Photo voltaic, S.L., the plaintiff alleged tort claims in opposition to the defendant in reference to its photo voltaic power challenge, however the courtroom granted abstract judgment in defendant’s favor.  2023 U.S. Dist. LEXIS 158348, at *1.  The courtroom acknowledged that “discovery came about throughout 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 affordable given the dangers that sickness or journey restrictions” might need prompted.  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 courtroom decided defendant supplied “nearly no rationalization as to what the varied prices in [that] class symbolize[ed]” and why they have been “moderately essential.”  Id. at *19-20.  Subsequently, the courtroom 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 courtroom adopted Avanzalia Photo voltaic.  2023 U.S. Dist. LEXIS 190611, at *1-2 (N.D. Ailing. Oct. 24, 2023).  The courtroom cited a “robust presumption” that the prevailing social gathering can be awarded its prices beneath 28 U.S.C. § 1920, and famous the dropping social gathering should “affirmative[ly] present[.] that taxed prices are usually not applicable.”  Id. (quotation omitted).  Nonetheless, the courtroom declined to award the prices related to distant depositions, together with “deposition-related prices listed as “Authorized/View/Webex Internet Convention.”  Id. at *9.  The courtroom dominated defendants uncared for to “clarify what the net conferencing prices associated to or why they have been moderately essential,” 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. Ailing. Sept. 7, 2023)). 

In distinction to the California courtroom in Greenback Shave Membership, one other California trial courtroom refused to tax prices for “Realtime deposition prices,” a distant deposition service that allowed view of “a stay textual content stream throughout the deposition.”  Sky Raise Aero. v. Lockheed Martin Corp., 2022 Cal. Tremendous. LEXIS 58475, at *6 (Cal. Tremendous. Sept. 20, 2022).  The courtroom famous the defendant was not presumptively entitled to the prices, and was required to point out the service “could be moderately essential to the conduct of the litigation.”  Id.  The defendant argued the service was essential for Zoom depositions to beat technical points to make sure “correct and full reporting of testimony in real-time.”  Id.  Nevertheless, the courtroom dominated the defendant failed to point out the service was “moderately essential,” and didn’t award these prices.  Id.

Though the physique of case legislation addressing whether or not a prevailing social gathering might get better the price of distant depositions is comparatively restricted, there may be one frequent thread amongst all the circumstances. If a prevailing social gathering can clearly articulate the bills incurred for distant depositions have been essential and affordable, there’s a good likelihood the social gathering will be capable of tax these prices, in jurisdictions awarding such bills.  However, to have taxation of distant deposition prices denied, it seems to assist in case you are an unsuccessful plaintiff. Nevertheless, there isn’t any vivid line rule, and we’re left with the moderately unsatisfying realization that the reply actually is “it relies upon.”

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