Clouse v. Southern Methodist University: Necessity Standard Allows Taxing Both Deposition Video and Transcript Costs Under 28 U.S.C. § 1920(2)

Introduction

This Fifth Circuit decision arises from long-running litigation brought by former student-athletes against Southern Methodist University (“SMU”) concerning alleged Title IX and Texas negligence violations tied to serious hip injuries sustained on SMU’s women’s rowing team between 2012 and 2015. After the district court largely disposed of the case on limitations grounds—entering judgment for SMU as to eight plaintiffs while one plaintiff (Kelly McGowan) partially survived—SMU sought to recover litigation costs under Federal Rule of Civil Procedure 54(d)(1) and 28 U.S.C. § 1920.

The appeal presented three core questions: (1) whether SMU qualified as a “prevailing party” despite mixed results; (2) whether the discretionary factors described in Pacheco v. Mineta justified denying costs; and (3) whether SMU proved the amount and necessity of the costs awarded—especially the disputed categories of deposition video + transcript costs and copying/exemplification (including scanning and certain litigation support).

Summary of the Opinion

The Fifth Circuit affirmed the cost award. It held that SMU was a prevailing party because it obtained summary judgment with prejudice against eight of nine plaintiffs, which carried the required “judicial imprimatur” and materially altered the parties’ legal relationship. The court further held that plaintiffs did not overcome the “strong presumption” favoring costs to a prevailing party and that the Pacheco v. Mineta factors did not warrant denying costs.

Most significantly, the Fifth Circuit resolved an issue it described as previously unsettled in the circuit: it approved taxing costs for both deposition video recordings and written transcripts under § 1920(2) when each was “necessarily obtained for use in the case” (necessity, not convenience, is the controlling inquiry). The court also endorsed the view that document scanning is recoverable as “copying” under § 1920(4).

Analysis

1. Precedents Cited

Prevailing-party status and the Rule 54(d) presumption

  • El Paso Indep. Sch. Dist. v. Richard R., 591 F.3d 417 (5th Cir. 2009): Used for the definition of prevailing party—requiring “judicial imprimatur” on a material alteration of the legal relationship. The court applied this to SMU’s with-prejudice summary judgment wins against eight plaintiffs.
  • Fogleman v. ARAMCO, 920 F.2d 278 (5th Cir. 1991): Two roles. First, it supports assessing prevailing party status by viewing the case “as a whole” and confirms a party need not prevail on every issue to recover costs. Second, it supplies standards for necessity and reasonableness of costs and cautions against taxing multiple copies.
  • Schwarz v. Folloder, 767 F.2d 125 (5th Cir. 1985): Reinforces the “strong presumption” that the prevailing party will be awarded costs.
  • Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373 (5th Cir. 2012): Emphasizes that a district court may not deny or reduce costs without articulating a “good reason.”

The Pacheco factors (discretion to deny costs)

  • Pacheco v. Mineta, 448 F.3d 783 (5th Cir. 2006): Supplies the five non-dispositive factors to consider when a losing party objects to costs. The panel applied them and found none favored plaintiffs on this record.
  • Long, 807 F.3d 125 (5th Cir. 2015) (as cited in the opinion): Cited for two propositions: (i) the Fifth Circuit has not held limited resources alone justify denying costs; and (ii) “electronically recorded transcripts” can encompass video depositions, with district courts afforded “great latitude.”
  • Moore v. CITGO Refin. & Chems. Co., 735 F.3d 309 (5th Cir. 2013): Used to narrow reliance on “limited resources” and to resist relative-wealth comparisons as a standalone reason to deny costs.
  • Smith v. Chrysler Grp., L.L.C., 909 F.3d 744 (5th Cir. 2018): Further supports treating the “enormous financial resources” factor narrowly.

Substantial public benefit and persuasive out-of-circuit examples

  • Ass'n of Mex.-Am. Educators v. California, 231 F.3d 572 (9th Cir. 2000) (en banc): Cited for an example of “substantial public benefit” requiring concrete, external benefits beyond the parties in extraordinarily important litigation.
  • White & White, Inc. v. Am. Hosp. Supply Corp., 786 F.2d 728 (6th Cir. 1986): Cited as an example of litigation creating public benefit (e.g., lower consumer healthcare costs).
  • I.F. v. Lewisville Indep. Sch. Dist., No. 4:14-cv-259, 2017 WL 11630564 (E.D. Tex. May 4, 2017): Plaintiffs invoked it to argue Title IX public importance can justify denying costs; the Fifth Circuit distinguished it because “almost all” Pacheco factors favored denial there, while none did here.

The taxable-costs framework: limiting costs to § 1920 categories

  • Gagnon v. United Technisource, Inc., 607 F.3d 1036 (5th Cir. 2010) and Cook Children's Med. Ctr. v. New Eng. PPO Plan of Gen. Consolidation Mgmt., Inc., 491 F.3d 266 (5th Cir. 2007): Together confirm federal courts may award only those costs enumerated in § 1920 absent explicit statutory or contractual authorization.
  • Marmillion v. Am. Int'l Ins. Co., 381 F. App'x 421 (5th Cir. 2010) (per curiam): Quoted for the standard that costs are taxable when items could reasonably be expected to be used for trial preparation, not merely convenience.

New Fifth Circuit alignment on video + transcript deposition costs

  • In re Ricoh Co. Patent Litigation, 661 F.3d 1361 (Fed. Cir. 2011): Persuasive authority approving taxing both video and written transcripts as a plausible interpretation of § 1920 (in light of local rules).
  • BDT Prods., Inc. v. Lexmark Int'l, Inc., 405 F.3d 415 (6th Cir. 2005) and Tilton v. Cap. Cities/ABC, Inc., 115 F.3d 1471 (10th Cir. 1997): Cited to show sister-circuit acceptance that both videotaping and transcribing can be taxed under § 1920 when justified.
  • Allstate Ins. Co. v. Plambeck, 66 F. Supp. 3d 782 (N.D. Tex. 2014): Exemplifies the necessity-focused approach: both video and transcript costs are recoverable if each could reasonably be expected to be used for trial/trial preparation.
  • Two-Way Media, LLC v. AT&T Servs., Inc., No. SA-09-CA-00476-OLG, 2013 WL 12090356 (W.D. Tex. Nov. 22, 2013): Example of a stricter approach requiring actual use at trial; the panel implicitly rejected that as the controlling standard.
  • Kozlowski v. Buck, No. 3:20-cv-365, 2022 WL 22608241 (S.D. Tex. Nov. 29, 2022): Adopted as persuasive reasoning: video depositions may be “necessarily obtained” where credibility matters and witnesses are outside subpoena range—even if the case ends at summary judgment rather than trial.

Copying/exemplification and scanning

  • Rundus v. City of Dallas, No. 3-06-CV-1823-BD, 2009 WL 3614519 (N.D. Tex. Nov. 2, 2009), amended 2009 WL 9047529 (N.D. Tex. Dec. 10, 2009), aff'd, 634 F.3d 309 (5th Cir. 2011): Treated scanning as tantamount to copying, hence taxable under § 1920(4).
  • Eolas Techs. Inc. v. Adobe Sys., Inc., 891 F. Supp. 2d 803 (E.D. Tex. 2012): Similar support for scanning costs as taxable copying.

Contextual prior appeal

  • Clouse v. S. Methodist Univ., No. 24-10461, 2025 WL 2427755 (5th Cir. Aug. 22, 2025) (per curiam): Provides the procedural backdrop—affirming summary judgment because Title IX and negligence claims were time-barred and not tolled.

2. Legal Reasoning

A. SMU was a prevailing party despite one plaintiff’s surviving claims

The panel treated “prevailing party” as a status question assessed “considering the case as a whole” (from Fogleman v. ARAMCO). Applying El Paso Indep. Sch. Dist. v. Richard R., SMU’s with-prejudice summary judgment against eight plaintiffs supplied the necessary judicial relief and “judicial imprimatur.”

Plaintiffs’ practical argument—that discovery overlap meant SMU would have incurred similar costs even with a single remaining plaintiff— was rejected as inconsistent with the governing legal framework: Rule 54(d)(1) turns on prevailing status and the presumption favoring costs, not on a counterfactual allocation of marginal litigation expenses.

B. The Pacheco factors did not justify denying costs

The court emphasized that the losing party bears the burden to rebut the “strong presumption” in favor of costs. It found plaintiffs’ showings thin across the factors they pressed:

  • Limited resources: Plaintiffs’ assertion that they are “young” was not developed; and in any event the court cited Long and Moore v. CITGO Refin. & Chems. Co. for the proposition that limited resources have not been recognized in this circuit as a basis to deny costs.
  • Close and difficult issues: While Title IX can be complex, this litigation was resolved on a “well-settled” statute of limitations issue. General statements about Title IX complexity were insufficient.
  • Substantial public benefit: Media attention and institutional introspection were not treated as the kind of concrete, external benefit described in cases like Ass'n of Mex.-Am. Educators v. California and White & White, Inc. v. Am. Hosp. Supply Corp.. The panel distinguished I.F. v. Lewisville Indep. Sch. Dist. as factually different on the factor balance.
  • Enormous financial resources: The panel, citing Moore and Smith v. Chrysler Grp., L.L.C., refused to treat relative wealth—standing alone—as a reason to deny costs.

C. Necessity—not convenience—governs taxable costs under § 1920

The opinion reiterates the key statutory constraint: under Gagnon v. United Technisource, Inc. and Cook Children's Med. Ctr. v. New Eng. PPO Plan of Gen. Consolidation Mgmt., Inc., a court may tax only the categories listed in § 1920 absent special authorization. Within those categories, the central inquiry is whether an item was “necessarily obtained for use in the case,” not purchased merely for counsel’s convenience.

D. New Fifth Circuit rule: both deposition video and transcript costs may be taxed under § 1920(2) when each is necessary

The panel acknowledged intra-circuit district court divergence and stated that no Fifth Circuit case had “squarely decided” the recoverability of both a video recording and a written deposition transcript. It then aligned the circuit with In re Ricoh Co. Patent Litigation, BDT Prods., Inc. v. Lexmark Int'l, Inc., and Tilton v. Cap. Cities/ABC, Inc.: both forms of recording may be taxable under § 1920(2) when justified by necessity.

Importantly, the court rejected a rule that would condition taxation on actual trial use (as reflected in Two-Way Media, LLC v. AT&T Servs., Inc.). Instead, it embraced the trial-preparation/motion-practice necessity standard illustrated by Allstate Ins. Co. v. Plambeck and Kozlowski v. Buck.

Applying that approach, the panel held the district court did not abuse its discretion in finding necessity where: (1) 26 witnesses were expected to be outside subpoena range by trial, (2) SMU used depositions in summary judgment motion practice, and (3) SMU provided itemized invoices and attorney testimony tying the materials to motion practice and/or trial preparation. The panel also accepted that ending at summary judgment does not retroactively render trial-oriented deposition preservation “convenient” rather than “necessary” (echoing Kozlowski v. Buck).

E. Copying/exemplification: scanning is taxable copying; e-discovery limits remain real

Under § 1920(4), the district court awarded substantial copying/exemplification costs, while also excluding certain categories (notably extraction/collection/processing/storage of e-discovery) as non-taxable. The Fifth Circuit found no abuse of discretion in the district court’s line-drawing and noted plaintiffs’ lack of specific invoice-by-invoice objections in the district court— which the panel treated as waiver of attempts to relitigate the “math” on appeal.

On scanning specifically, the panel endorsed district court authority treating scanning as functionally equivalent to making copies, citing Rundus v. City of Dallas and Eolas Techs. Inc. v. Adobe Sys., Inc., and “hold[ing] accordingly.”

3. Impact

  • Clarifies taxable deposition costs in the Fifth Circuit: Parties can now more confidently seek (or oppose) taxation of both deposition video and transcript costs under § 1920(2) based on a necessity inquiry. This is a material, practical precedent for complex cases where preservation, witness unavailability, or credibility presentation is anticipated.
  • Shifts cost-dispute focus to evidentiary specificity: The opinion rewards detailed records (itemized invoices, tie to motion practice/trial prep) and penalizes generalized objections. Litigants opposing costs should make targeted, invoice-specific challenges in the district court to avoid waiver arguments on appeal.
  • Reinforces the narrowness of “public benefit” and “relative wealth” as bases to deny costs: Even in socially salient Title IX litigation, generalized media attention or institutional reconsideration may be insufficient absent concrete, external benefits and a strong multi-factor showing under Pacheco v. Mineta.
  • Confirms scanning as taxable copying, but not a blank check for e-discovery: While scanning is treated as copying, the decision preserves constraints excluding many e-discovery processing activities—encouraging careful vendor billing descriptions and judicial parsing of what is truly “copying” versus non-taxable processing/hosting.

Complex Concepts Simplified

  • “Prevailing party”: A party that wins a meaningful court-ordered change in the case—here, dismissal with prejudice of eight plaintiffs’ claims—so the court recognizes the party as having prevailed, even if some issues or claims remain pending.
  • Rule 54(d)(1) presumption: Costs “should be allowed” to the prevailing party. The losing party must provide persuasive reasons to depart from that norm.
  • Taxable “costs” vs. attorneys’ fees: “Costs” are limited, enumerated litigation expenses (like transcripts or copying) authorized by § 1920. They are not the same as attorneys’ fees, and courts cannot expand costs beyond § 1920 without special authorization.
  • “Necessarily obtained for use in the case”: The touchstone for many § 1920 items. The question is whether the expense was reasonably needed for motion practice or trial preparation at the time it was incurred—not whether it ultimately got used at trial.
  • “Exemplification”: Costs associated with producing materials in a form used to present evidence (often demonstratives or organized productions). The decision underscores that courts will distinguish taxable copying-type work from non-taxable e-discovery processing.

Conclusion

Clouse v. Southern Methodist University strengthens and clarifies Fifth Circuit cost doctrine in three important ways: (1) a defendant can be a prevailing party entitled to costs even when a related plaintiff’s claims survive; (2) the Pacheco v. Mineta factors rarely overcome Rule 54(d)’s presumption without concrete, well-supported showings; and (3) most notably, the Fifth Circuit now recognizes that both deposition video and written transcripts may be taxed under 28 U.S.C. § 1920(2) when each is shown to be necessary for use in the case—while also affirming that scanning is taxable “copying” under § 1920(4). The decision will likely increase the stakes of deposition-format choices and sharpen the need for precise, contemporaneous documentation (and specific objections) in post-judgment cost litigation.