As litigators know, the United States follows the so-called “American Rule” when apportioning the costs of litigation. Unless a statute specifically provides otherwise, parties in court are responsible for their own attorneys’ fees, regardless of outcome. The spirit of this rule applies to other litigation-related costs as well: the losing side in civil litigation typically pays only a portion of the winner’s costs of suit.

Nowhere is this principle more true than in the area of deposition-related costs which, for the most part, are not recoverable by prevailing parties.

The article aims to provide a quick summary of which deposition-related costs can be recovered by prevailing parties in civil litigation, as well as a few suggestions for maximizing recovery of these expenses.

Depositions taken for trial purposes, or used in dispositive motions, are fair game for inclusion in a bill of costs. Finally now, more than ever, it pays to consult local court rules early on in litigation in order to lay the groundwork for a successful motion to tax deposition-related costs.

Deposition costs in well-litigated cases are not insignificant. In fact, deposition-related costs in environmental harm, product liability, class action, and other complex multi-district cases can easily run into six figures. Just last week, in In re Zofran Ondansetron Prods. Liab. Litig., No. MDL 1:15-md-2657-FDS (D. Mass., Feb. 28, 2024), the district court entertained a request from pharmaceutical manufacturer GlaxoSmithKline for recovery of $119,517 in deposition transcript fees. GlaxoSmithKline in 2021 obtained a summary judgment dismissing hundreds of cases alleging 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 judgment
• 40 depositions noticed by the plaintiffs
• 6 depositions of GlaxoSmithKline expert witnesses that had been challenged by the plaintiffs

Although 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 Costs

The 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:

• Deposition transcripts not used at trial. No recovery. However, costs for depositions read into evidence or of witnesses who testified at trial are allowed.
• Deposition transcripts of current employees. No recovery.
• Deposition transcripts used in successful motion for summary judgment. Yes, a prevailing party can recover for those. But see Gochis v. Allstate Ins., 162 F.R.D. 248, 252 (D. Mass. 1995) (“[C]itation in a brief does not automatically entitle the prevailing party to costs.”).
• Deposition transcript of corporate representative, or witness produced for deposition under Federal Rule of Civil Procedure 30(b)(6). Yes, so long as the witness is not a real party in interest or a named party.
• Deposition transcripts of expert witnesses. No recovery. Taxation of costs is generally not allowed for transcripts that are merely “necessary to the thorough preparation” of a case or for transcripts used in non-dispositive motions.
• Court reporter’s additional charges for exhibit-sharing technology services. This is a topic that has been getting renewed attention lately. Courts are willing to hear arguments that these charges are necessary in specific instances. For example, the court in Baer’s Furniture Co. v. Comcast Cable Commc’ns Mgmt., No. 20-61815 (S.D. Fla. Jan 17, 2023), ruled that a court reporter’s additional charges for exhibit-sharing technology and real-time transcripts were properly taxed against the losing side. Along the way, the court observed that these technologies “have been routinely used to allow Parties to effectively conduct depositions remotely.”
• Court reporter’s additional charges for “real-time” transcription services. Here again, judicial opinions on the recovery of charges for “real-time” transcripts are mixed. Some courts will hear arguments that these charges are necessary. And see Baer’s Furniture Co., where the court allowed recovery of real-time transcript expenses.
• Costs of deposition video recordings. Yes, in many jurisdictions, if taken for a valid reason. However, some courts require parties to seek permission prior to trial for allowance of video recordings. Taxation of costs for both a video and a stenographic recording is allowed in some jurisdictions, while others require a party to choose between one format or the other.

While the taxation of deposition-related costs is somewhat uniform across the federal court system, it is nevertheless true that each district has its own set of rules, driven by guidance from circuit and district court opinions. For example, the U.S. District Court for the District of Massachusetts will consider awarding costs for expedited deposition transcripts if a quick turnaround was “indispensable, rather than merely for the convenience of the attorneys.” However, a party must file a motion seeking recovery of these expenses prior to trial.

Winning the Taxable Costs Battle

This area of the law is changing as remote depositions and video-recorded depositions become firmly entrenched in modern litigation. Increasingly, trial courts will exercise their discretion to allow prevailing parties to tax deposition-related costs – even new technology-driven costs such as real-time transcripts and video recordings – if it can be shown that special circumstances reasonably require these expenditures.

In every case involving remote depositions, counsel will be able to cite favorably Federal Rule of Civil Procedure Rule 1’s admonition that the rules should be construed “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Litigators’ widespread adoption of remote depositions and other advances in court reporting technology, which make depositions less expensive and more convenient to schedule, shouldn’t be penalized when it comes time to review the bill of costs.

Litigators should carefully consider how a particular deposition might be used at trial or in dispositive motions, which will be helpful if called upon to rebuff the argument that a deposition was “merely taken for discovery purposes.” Depositions taken for trial purposes, or used in dispositive motions, are fair game for inclusion in a bill of costs. Finally, now more than ever, it pays to consult local court rules early on in litigation in order to lay the groundwork for obtaining the maximum allowable reimbursement for deposition-related costs.