United States District Court, W.D. Texas, San Antonio Division
Honorable Fred Biery United States District Judge.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES
Report and Recommendation concerns Defendant Alamo Community
College District's Bill of Costs [#54], which was filed
on October 4, 2018. Defendant's Bill of Costs was
referred to the undersigned for disposition on April 15, 2019
[#57]. The undersigned has authority to enter this
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). In
issuing this recommendation, the undersigned has also
reviewed Plaintiff William Stephen Delgado's Objection to
Defendant's Bill of Costs [#55] and Defendant's
Response to Plaintiff's Objections to Defendant's
Bill of Costs [#56]. For the reasons that follow, the
undersigned will recommend granting Defendant's request
for costs associated with deposition transcripts and copies
of Plaintiff's administrative record but deny the request
for costs associated with the video recording of
Plaintiff's deposition and copies of his medical records.
record reflects that on September 21, 2018 the District Court
adopted the undersigned's report and recommendation,
granted Defendant Alamo Community College District's
Motion for Summary Judgment, and dismissed Plaintiff's
claims against Defendant with prejudice [#52, #53].
Defendant, as the prevailing party, filed its Bill of Costs
on October 4, 2018, requesting $4, 294.11 in costs associated
with the written transcripts of the depositions of Plaintiff
and Harold Whitis and the video recording of Plaintiffs
deposition. Defendant also requests $470.60 in costs
associated with making copies of Plaintiffs Texas Workforce
Commission (“TWC”) Civil Rights Division file and
medical records from the office of John S. Garcia, M.D.
Defendant claims these costs were necessarily obtained for
use in the case and are therefore recoverable from Plaintiff.
Plaintiff generally opposes Defendant's Bill of Costs and
asks the Court to deny all of the costs requested because he
brought his lawsuit in good faith and he would be financially
burdened by an order assessing costs against him.
54(d) of the Federal Rules of Civil Procedure provides that
“[u]nless a federal statute, these rules, or a court
order provides otherwise, costs-other than attorney's
fees-should be allowed to the prevailing party” in an
action. Taxable costs are expressly recoverable pursuant to
28 U.S.C. § 1920. Section 1920(2) authorizes recovery of
costs for “fees for printed or electronically recorded
transcripts necessarily obtained for use in the case.”
28 U.S.C. § 1920(2). Section 1920(4) authorizes recovery
of the “costs of making copies of any materials where
the copies are necessarily obtained for use in the
case.” 28 U.S.C. § 1920(4). The party seeking
recovery of costs bears the “burden of justifying the
necessity of obtaining the depositions and copies at
issue.” Fogleman v. ARAMCO (Arabian Am. Oil
Co.), 920 F.2d 278, 286 (5th Cir. 1991). “[A]
district court has great latitude in determining whether a
deposition was ‘necessarily obtained for use in the
case' or was obtained merely for the convenience of the
attorney.” Brumley Estate v. Iowa Beef Processors,
Inc., 704 F.2d 1362, 1363-64 (5th Cir. 1983) (quoting
Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 336
(5th Cir. 1981)).
should be permitted to recover its costs for the two
deposition transcripts and the copies of Plaintiff's TWC
file. “If, at the time it was taken, a deposition could
reasonably be expected to be used for trial preparation,
rather than merely for discovery, it may be included in the
costs of the prevailing party.” Fogleman, 920
F.2d at 285. “[A] deposition need not be introduced
into evidence at trial in order to be ‘necessarily
obtained for use in the case.'” Id.
Plaintiff does not raise any specific argument in his
objections asserting that the deposition transcripts and
administrative files were not obtained for use in this case.
And the undersigned cannot identify one. As noted by
Defendant, the transcripts at issue are for the depositions
of Plaintiff and Plaintiff's supervisor, who was a key
witness in this case. Additionally, these documents were the
primary evidence offered by the parties in support of and in
opposition to Defendant's motion for summary judgment.
(See Pl's. Dep. [#26-2] at 8; Whitis Dep.
[#31-5] at 1; EEOC Charge [#26-2] at 2; EEOC Dismissal
[#26-4] at 14; TWC Charge [#31-9] at 1.)
Defendant should not recover the costs associated with the
copies of Plaintiff's medical records. Again, Defendant
can only recover the costs associated with the copies of
these documents if they were “necessarily obtained for
use in the case.” 28 U.S.C. 1920(4). Defendant has
failed to carry its burden to demonstrate that these
documents were actually necessary, “rather than
obtained simply for the convenience of counsel.”
Fogleman, 920 F.2d at 286. Plaintiff alleged in this
case that he was the victim of national origin
discrimination, a hostile work environment, and retaliation
in violation of Title VII while working for Defendant's
Student Financial Aid Department. (First Am. Compl. [#20].)
His lawsuit focused entirely on staffing and promotion
decisions with the department, Plaintiff's perceived
demotion upon a return from leave, ensuing internal
grievances, and retaliation and discipline he allegedly
suffered as a result of his complaints and a “verbal
exchange” with another coworker. (Id. at
¶¶ 8-29.) Defendant moved for summary judgment on
the basis that Plaintiff failed to exhaust his administrative
remedies as to his hostile work environment claim and failed
to allege an adverse employment action as to his
discrimination and retaliation claims. (Mot. for Summ. J.
[#26].) The Court ultimately granted the motion on both
grounds. (Report and Recommendation [#40]; Order [#52].) No
party relied on Plaintiff's medical records in resolving
this case, and Defendant has not convinced the undersigned
that they were “necessarily obtained for use in the
case.” See 28 U.S.C. § 1920(4).
District Court should also decline to award costs for the
video recordings of Plaintiff's deposition. Again,
Section 1920(2) expressly authorizes recovery of costs for
“fees for printed or electronically recorded
transcripts necessarily obtained for use in the case.”
28 U.S.C. § 1920(2) (emphasis added). District courts
diverge on their interpretation of Section 1920(2) and
whether the statute should be read inclusively to allow for
the recovery of costs for both print and video depositions or
disjunctively to allow for the recovery of only one or the
other. See Allstate Ins. Co. v. Plambeck, 66
F.Supp.3d 782, 786 (N.D. Tex. 2014) (collecting conflicting
cases on statutory interpretation of Section 1920(2) but
ordering recovery of costs associated with both deposition
transcripts and video recordings, regardless of use at
trial). The consensus in the Western District of Texas is,
however, to allow the recovery of the costs of videotaped
depositions only where the video recordings are actually used
at trial. See, e.g., Two- Way Media, LLC v.
AT&T Servs., Inc., No. SA-09-CA-00476-OLG, 2013 WL
12090356, at *3 (W.D. Tex. Nov. 22, 2013); Taylor v.
Seton Healthcare, No. A-10-CV-650 AWA, 2012 WL 2396876,
at *2 (W.D. Tex. June 22, 2012); Lear Siegler Servs. v.
Ensil Int'l Corp., No. SA-05-CV-679-XR, 2010 WL
2595185, at *2 (W.D. Tex. June 23, 2010). Because this case
never proceeded to trial, the District Court should deny
Defendant's request for the costs associated with the
video recordings as duplicative of the written transcripts.
the undersigned agrees with Defendant that the fact that
Plaintiff's suit was brought in good faith is
insufficient alone to justify a denial of costs to Defendant.
See Pacheco v. Mineta, 448 F.3d 783, 795 (5th Cir.
2006) (finding an abuse of discretion where the district
court denied costs based on an argument of “good
faith” and noting that all litigants are obligated to
bring suit in good faith under the Federal Rules of Civil
Procedure). The Court also rejects Plaintiff's arguments
regarding financial hardship as a basis for denying
Defendant's request for costs. Plaintiff attaches a
declaration to his Objections, which states that he earns
approximately $5, 000.00 per month in “take home
pay” but has significant monthly bills associated with
the care of his 95-year-old mother and student and other
loans that make him unable to pay Defendant's costs.
(Delgado Decl. [#55-1].)
to pay may be considered in some instances, such as where a
plaintiff is of such modest means that it would be unjust or
inequitable to enter a cost award.” Javeler Marine
Servs. LLC v. Cross, 175 F.Supp.3d 756, 760 (S.D. Tex.
2016) (internal quotation omitted). However, the Fifth
Circuit has also held that the relative wealth of the parties
is not a proper consideration in deciding to grant or deny an
award of costs. Moore v. CITGO Ref. & Chems. Co.,
L.P., 735 F.3d 309, 319-20 (5th Cir. 2013). Moreover,
the Fifth Circuit has repeatedly required parties to pay
prevailing parties their costs even where they are indigent
and proceeding in forma pauperis. See,
e.g., Washington v. Paths, 916 F.2d 1036, 1039
(5th Cir. 1990); Calton v. City of Garland, 170 Fed.
App'x 338, 338 (5th Cir. 2006). Although Plaintiff
contends he will suffer financial hardship if he is forced to
pay Defendant's costs, Plaintiff is not of such modest
means that a cost award is unjust in this case. See
Javeler Marine Servs. LLC, 175 F.Supp.3d at 760. The
Fifth Circuit recognizes “a strong presumption that the
court will award costs to the prevailing party.”
See Salley v. E.I. DuPont de Nemours & Co., 966
F.2d 1011, 1017 (5th Cir. 1992). Despite Plaintiff's
financial circumstances, the undersigned still recommends
that Plaintiff remain liable to Defendant for its costs under
28 U.S.C. § 1920 and Federal Rule of Civil Procedure
54(d) but at an amount reduced by the cost of Plaintiff's
videotaped deposition and medical records.
Conclusion and Recommendation
considered Defendant's Bill of Costs, Plaintiff's
Objections, Defendant's Response, and the governing case
law, the undersigned recommends that
Plaintiff's Objections [#55] be overruled in part and
sustained in ...