IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
STANDING ORDER REGARDING BILLS OF COSTS FOR CASES PENDING
BEFORE JUDGE ROBERT SCHROEDER
IT IS ORDERED that before any party files a Motion for Bill of Costs, they should
submit their proposed bill of costs to opposing counsel for review in light of the applicable law.
Further, if there are any areas of disagreement, the parties shall meet, confer, and be prepared to
compromise, making every effort to submit an “agreed” bill of costs to the Court. The Court is
confident that, through meeting, conferring, and compromising on the specific matters, the
parties should be able to resolve the matters without having to impose upon the Court’s limited
resources. However, if the parties have legitimate disputes on which they cannot agree, they
shall file a motion—in accordance with Local Rule CV-54—indicating their areas of
disagreement with specificity. In such case, the Court may elect to conduct a hearing, at which
time lead trial counsel will be ordered to appear and explain why the disputes and differences
remain unresolved.
APPLICABLE LAW
Pursuant to Federal Rule of Civil Procedure 54(d), costs are to be awarded to the
prevailing party as a matter of course, unless the Court directs otherwise. However, the
provision of 28 U.S.C. § 1920 limit the Court’s discretion in taxing costs against the
unsuccessful litigant. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441–42
(1987). Although the prevailing party is entitled to its costs, the prevailing party must still
demonstrate that its costs are recoverable under Fifth Circuit precedent, and the prevailing party
should not burden the Court with costs that are clearly not recoverable under the law.
The statute permits the following recoverable costs:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the
case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies
are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation services under section 1828 of this title.
28 U.S.C. § 1920. A district court is permitted to decline to award costs listed in the statute, but
may not award costs omitted from the statute. Crawford, 482 U.S. at 441-42.
Fees of the clerk and marshal
Private process server fees are not recoverable fees of the clerk and marshal under
§ 1920. Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 257 (5th Cir. 1997)
(“As there was nothing exceptional about the parties or the nature of this case, the district court
should have denied these unnecessary private service costs.”).
Fees for printed or electronically recorded transcripts
Section 1920 was amended in 2008 to authorize recovery for “[f]ees for printed or
electronically recorded transcripts necessarily obtained for use in the case.” The trial court has
great discretion to tax the costs of taking, transcribing, and reproducing depositions that are
“necessarily obtained for use in the case.” Fogleman v. ARAMCO, 920 F.2d 278, 285 (5th Cir.
1991); Nissho-Iwai Co. v. Occidental Crude Sales, 729 F.2d 1530, 1553 (5th Cir. 1984).
Whether a deposition or copy was necessarily obtained for use in the case is a factual
determination to be made by the district court. Id. at 285-86 (citations omitted). The district
court is accorded great latitude in this determination. Id. at 286.
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Costs should not be disallowed merely because the deposition was not ultimately used at
trial or in connection with a dispositive motion. The costs of a deposition are allowed if “there is
a reasonable expectation that the deposition may be used for trial preparation.” Stearns Airport
Equip. Co. v. FMC Corp., 170 F.3d 518, 536 (5th Cir. 1999). Costs associated with a deposition
taken primarily for discovery or investigative purposes are not recoverable. Fogleman, 920 F.2d
at 285.
The 2008 amendment to this provision recognizes that costs may be taxed for
“electronically recorded transcripts.” Accordingly, the Fifth Circuit has now implicitly
recognized that costs may be allowed for video tapes of depositions. See also SynQor, Inc. v.
Artesyn Techs., Inc., NO: 2:07-CV-497, 2011 U.S. Dist. LEXIS 112493, at *9-10 (E.D. Tex.
September 29, 2011) (taxing videotape deposition costs in light of the 2008 amendment).
Recoverable costs related to depositions typically include, but are not limited to: reporter’s
appearance fees, transcript costs, and videographer fees.
However, incidental costs associated with depositions, such as the cost of expedited
delivery charges, ASCII disks, and parking, are generally not recoverable. Harris Corp. v. Sanyo
No. Am. Corp., No. 3–98–CV–2712, 2002 WL 356755, at *3 (N.D. Tex. March 4, 2002); Canion
v. United States, No. EP-03-CA-0347-FM, 2005 WL 2216881 at *3 (W.D. Tex. 2005).
Fees for exemplification and the costs of making copies
Costs of photocopies necessarily obtained for use in the litigation are recoverable upon
proof of necessity. 28 U.S.C. § 1920(4); Holmes v. Cessna Aircraft Co. 11 F.3d 63, 64 (5th Cir.
1994). The party seeking costs need not “identify every xerox copy made for use in the course
of legal proceedings.” Fogleman, 920 F.2d at 286. However, it must demonstrate some
connection between the costs incurred and the litigation. Id. The Court first determines whether
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the charges sought are reasonable in light of the litigation. Reasonable charges shall be allowed;
however, non-specific copying and exemplification charges may be further reduced. 1 Charges
for multiple copies of documents, attorney correspondence, and other such items are not
recoverable. Id.
Electronic discovery costs are generally not allowed, including costs for document
collection, document processing, and document hosting. Document scanning costs are allowed
to the extent that they are reasonable and necessary for litigation. Electronic document
conversion costs are allowed to the extent that they are necessary for use in the case. The
Court’s sample ESI Order designates TIFF as the default format for document production.
Parties that agree to such an arrangement shall have agreed that the costs of converting native
documents to TIFF are taxable under Rule 54. However, in the event that the parties agree that
native document production is acceptable (i.e., no conversion is necessary), the costs associated
with converting native documents to TIFF (or any other format) shall not be recoverable. See
Eolas Techs. Inc. v. Adobe Sys. Inc., No. 6:09-cv-446, Docket No. 1416 at 5–6 (E.D. Tex. July
19, 2012).
Miscellaneous fees
Miscellaneous expenses such as postage, facsimiles, electronic legal research, and travel
expenses are not recoverable under § 1920. See Home Depot U.S.A. v. Fed. Ins. Co., No. 4:02-
CV-95, 2003 U.S. Dist. LEXIS 5492, at *5 (E.D. Tex. 2003) (Davis, J.); see also Compton v.
Taylor, No. H-05-4116, 2006 U.S. Dist. LEXIS 43402 at *8 (S.D. Tex. 2006). Likewise,
reimbursement for attorney travel and meals is not allowed. See Coats v. Penrod Drilling Corp.,
5 F.3d 877, 892 (5th Cir. 1993). In addition, the Fifth Circuit has expressly held that mediation
1
For instance, a charge labeled “copying” is non-specific, while a charge labeled “copying Project X source code” is
considered specific.
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fees are not recoverable. Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 530 (5th
Cir. 2001).
SIGNED this 15th day of January, 2016.
____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE
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