Disclaimer: This article is for educational purposes only. It does not provide legal advice, does not establish an attorney-client relationship, and should not be relied on for legal decisions. Always consult a licensed attorney regarding your specific case.
The cost-recovery analysis at the end of a federal PI case is rarely as straightforward as the rule's language suggests. FRCP 54(d)(1) states the default plainly: "Unless a federal statute, these rules, or a court order provides otherwise, costs — other than attorney's fees — should be allowed to the prevailing party." 28 U.S.C. § 1920 then enumerates which expenses are taxable: clerk's fees, transcript fees, witness fees, copying fees, court-appointed expert fees, and interpreter fees.
In practice, deposition cost recovery has been the subject of substantial circuit-level litigation since 2012 — driven principally by the Third Circuit's narrow reading of § 1920 in Race Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012). The category of "transcript fees" is well-settled at its core; the surrounding deposition-related costs — videography, realtime, hyperlinked transcripts, ESI — are not.
This article is for PI attorneys closing out federal cases and confronting the question of which deposition costs can actually be recovered as taxable costs to the prevailing party.
The Statutory Architecture
The cost-recovery question begins with the Supreme Court's holding in Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437 (1987), that § 1920 sets the exclusive list of costs that may be taxed under Rule 54(d) absent an explicit contrary authorization. The list, applied to deposition-related expenses, reduces to two operative categories:
§ 1920(2): Fees for printed or electronically recorded transcripts necessarily obtained for use in the case. This is the primary recovery vehicle for deposition costs.
§ 1920(4): Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case. This category was amended in 2008 to include "electronically recorded" materials and has been the subject of most of the recent circuit-level litigation.
Two interpretive issues drive most cost disputes:
The "necessarily obtained" requirement. Depositions taken purely for discovery purposes — and not used at trial, in summary judgment, or in some other dispositive proceeding — have historically been treated as not "necessarily obtained" and thus not taxable. Courts have split on whether depositions reasonably calculated to be useful at the time taken are taxable even if not ultimately used.
The scope of "transcripts." Whether the statutory term encompasses video recordings, realtime feeds, condensed transcripts, indexed transcripts, and digital exhibits has been the subject of substantial circuit-level disagreement.
The Race Tires Framework and Its Reach
Race Tires Am., Inc. v. Hoosier Racing Tire Corp. arose in the context of e-discovery costs but established a framework that has reshaped deposition cost-recovery analysis across the federal courts. The Third Circuit held that § 1920(4)'s "exemplification" and "copies" categories are to be read narrowly, encompassing only those services that are functionally equivalent to the historical activities the statute originally contemplated.
Applied to deposition-related expenses, the Race Tires framework has supported the following distinctions:
Recoverable under § 1920(2): - Court reporter attendance fees. - Original transcript fees. - Certified copy transcript fees, where the copy was necessarily obtained. - In most circuits: the cost of the deposition transcript even if also videotaped (one of the two formats, not both).
Contested: - Video deposition costs. Some circuits permit recovery; others require the prevailing party to elect between transcript and video. - Realtime feed costs. Some circuits treat realtime as taxable; others treat it as a convenience cost not authorized by § 1920. - Synchronized video-and-transcript packages. Same split as video standalone. - Indexed or hyperlinked transcripts. Generally treated as non-taxable convenience costs. - Expedited transcript fees. Recoverable when the expediting was reasonable in light of the case schedule; not recoverable as a matter of course.
Generally not recoverable: - Court reporter travel, meals, or lodging. - Deposition exhibit preparation costs. - Deposition summary or analysis costs. - Computer-assisted research costs related to deposition preparation.
The variance is enough that experienced practitioners typically check the circuit's recent rulings before submitting a bill of costs.
The Discretion Built Into Rule 54(d)
Even where a deposition cost falls within § 1920, Rule 54(d) gives the district court discretion to deny taxation. The default is in favor of taxation — Rule 54(d) creates a "presumption" that costs will be awarded to the prevailing party — but the court may decline on grounds including:
- The losing party's good faith in pursuing the claim.
- The complexity or novelty of the issues litigated.
- The closeness of the questions decided.
- The losing party's relative ability to pay.
- The prevailing party's own conduct in the litigation.
For PI cases specifically, the discretion is most often exercised to reduce — not deny — the costs award. A successful plaintiff with $40,000 in deposition costs may recover $25,000 after the court excludes contested categories or reduces the award based on case-specific factors.
The strategic implication is that the bill of costs should be defensible on its specifics. A bill that includes contested categories without justification invites broad reductions. A bill that documents each cost as "necessarily obtained" with citation to specific use in the case typically holds up better.
What "Necessarily Obtained" Actually Means
The "necessarily obtained for use in the case" requirement in § 1920(2) has been interpreted differently across circuits. The leading approaches:
The "reasonably necessary at the time" standard. Most circuits hold that depositions reasonably calculated to be useful at the time taken are taxable, even if the deposition turned out not to be used at trial. Under this standard, the bill of costs typically need only show that the deposition related to claims, defenses, witnesses, or evidence that was at issue at the time of the deposition.
The "actually used" standard. A minority of circuits, or some judges within circuits, apply a stricter standard, requiring the bill of costs to demonstrate that the deposition was used at trial, in summary judgment briefing, or in some other dispositive proceeding.
The hybrid approach. Some courts treat the cost of the deposition itself under the "reasonably necessary" standard but apply the stricter standard to ancillary costs like video, realtime, or expedited service.
For PI litigation specifically, the deposition of every plaintiff, defendant, and significant witness is generally treated as reasonably necessary regardless of trial use, because settlement-stage discovery requires it. The contested cases tend to involve depositions of marginal witnesses or 30(b)(6) topics that were ultimately not pursued.
Strategic Timing
Cost recovery is not just an end-of-case exercise. Strategic decisions made during discovery affect what can be recovered.
Election between video and transcript. Where the circuit limits recovery to one format, the deposition decision should anticipate which format the case theory will require. For depositions likely to be used in jury trial, video is often the better choice; for depositions likely to be used only in motion practice, transcript-only is sufficient.
Expedited transcripts. Expedited transcript fees are recoverable when the expediting is reasonable in light of the case schedule. Document the schedule pressure (motion deadlines, mediation timing, trial date) when ordering expedited transcripts.
Realtime feeds. Where realtime is contested, the cost should be limited to depositions where realtime served a specific case-management function (multi-counsel coordination, contemporaneous exhibit handling, immediate motion-to-strike rulings).
Designation of "necessary" depositions. Some practitioners maintain, throughout discovery, a designation log noting why each deposition was necessary. This contemporaneous record supports the bill of costs at the end of the case.
The State Court Picture
State court treatment of deposition costs varies considerably. A few patterns:
Statutory categories. Many state cost statutes track § 1920 closely; others authorize broader recovery (including litigation support costs, exhibit preparation, and expert preparation time) or narrower recovery.
Prevailing party definition. State definitions vary. Some treat the party who recovers any damages as the prevailing party; others apply a "substantially prevailed" standard; others use offer-of-judgment frameworks that shift costs based on settlement proposals.
Fee-shifting statutes. Civil rights cases, certain consumer statutes, and other fee-shifting frameworks may authorize broader cost recovery than the default state rule.
For multi-jurisdictional practice, the cost-recovery analysis should be done jurisdiction-specifically at the start of the case to inform discovery decisions, not at the end when those decisions have already been made.
The Prevailing-Party Calculation
Cost recovery requires being the prevailing party. In PI litigation, several scenarios complicate the analysis:
Mixed verdicts. A plaintiff who prevails on liability but recovers less than the defendant's offer of judgment may not be the prevailing party for cost purposes. Federal Rule 68 offers of judgment shift costs to the offeror's perspective when the verdict does not exceed the offer.
Partial success. A plaintiff who recovers on some claims but not others may be partially the prevailing party. Some courts apportion costs; others award full costs to whoever prevailed on the most significant claims.
Settlement. Settlements typically include releases of cost claims. Where they do not, the settled party may still seek costs as if they had prevailed, though the absence of a judgment complicates the analysis.
Voluntary dismissal. A dismissal without prejudice generally does not produce a prevailing party for cost purposes; a dismissal with prejudice often does, favoring the defendant.
For PI cases that settle rather than reach judgment, deposition cost recovery is typically not available — which is part of why the cost analysis matters most in tried cases and is rarely the deciding factor in settlement decisions.
Frequently Asked Questions
Are deposition costs recoverable in cases that settle?
Generally no, unless the settlement agreement provides for them. Most settlements include a release of cost claims as part of the global resolution. Where they do not, the settled party can theoretically claim costs but typically lacks a judgment that establishes them as the prevailing party.
Can I recover deposition costs if I lost at trial?
Almost never. Cost recovery under Rule 54(d) flows to the prevailing party. A losing party seeking to recover deposition costs from the prevailing party would need either a contractual basis, a statutory exception, or a court finding of misconduct by the prevailing party that shifts costs.
What about expert witness deposition fees?
Expert witness fees for the time the expert spends testifying at deposition are generally taxable under § 1920(3) (witness fees) and the implementing scale at 28 U.S.C. § 1821. The scale is modest — under $50 per day at current rates — and does not cover the expert's professional fees. Professional fees for expert testimony are generally not recoverable as costs in federal court, though they may be recoverable as components of attorney's fees in fee-shifting cases or by court order in unusual circumstances.
Are deposition costs recoverable as litigation expenses in PI contingent-fee cases?
This is a state-law question governed by the fee agreement. Most PI contingency-fee agreements provide for deposition costs to be advanced by the firm and reimbursed from the client's recovery. The federal cost-recovery framework discussed here governs only the post-judgment taxation of costs to the losing party, not the client-fee-arrangement question.
Closing
Federal deposition cost recovery is more contested than the rule's plain text suggests. The strategic decisions that affect what can be recovered — video versus transcript, expedited versus standard, realtime versus none — are typically made during discovery, well before the cost-recovery question is on the horizon. Firms that approach those decisions with the cost framework in mind often recover meaningfully more at the close of successful cases than firms that treat cost recovery as an afterthought.
For PI practitioners whose cases regularly proceed to judgment, the discipline of contemporaneous cost documentation — noting why each deposition was necessary, what format was elected and why, what ancillary services were used — is the difference between a bill of costs that holds up under objection and one that gets significantly reduced.