Nevada Cost-Taxation Limits Reaffirmed: No Deposition Video Costs Absent Statute; Extra Transcript Copies Disallowed; Expert Fees Above NRS 18.005 Cap Must Be Tied to Actual, Itemized Proof

Precedents Cited

1) Standard of review and preservation/waiver

• Miller v. Jones, 114 Nev. 1291, 1300, 970 P.2d 571, 577 (1998): supported abuse-of-discretion review for attorney-fee awards generally.
• Davis v. Beling, 128 Nev. 301, 321, 278 P.3d 501, 515 (2012): supported de novo review when an award turns on legal questions like contract interpretation—though the Court ultimately did not reach Continental’s contract-interpretation theory due to waiver.
• Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981): provided the controlling waiver rule—issues not urged below (absent jurisdiction) are waived on appeal.
• State Board of Equalization v. Barta, 124 Nev. 612, 188 P.3d 1092 (2008): was used to reject Continental’s claimed “purely legal issue” exception. The Court emphasized Barta did not create a broad escape hatch; it noted exceptions but found them inapplicable there.
• Nev. Power Co. v. Haggerty, 115 Nev. 353, 365 n.9, 989 P.2d 870, 877 n.9 (1999), and Desert Chrysler- Plymouth v. Chrysler Corp., 95 Nev. 640, 643-44, 600 P.2d 1189, 1190-91 (1979): illustrated the narrow contexts where Nevada courts have sometimes addressed unpreserved issues (judicial economy in statutory interpretation; constitutional issues). The Court found those rationales absent here.

2) Reasonableness of attorney fees (Brunzell and duplication/rates)

• Bruwnzell v. Golden Gate National Bank, 85 Nev. 345, 349-50, 455 P.2d 31, 33 (1969): supplied the four-factor framework the district court had to consider (qualities of advocate; character of work; work actually performed; result).
• Logan ७. Abe, 131 Nev. 260, 266, 350 P.3d 1139, 1143 (2015): supported the proposition that express findings on each Brunzell factor are preferable but not required so long as the court meaningfully exercises discretion.
• Sciara v. Campbell, No. 2:18-cv-01700-DJA, 2021 WL 8321866 (D. Nev. Apr. 28, 2021), and Moreno v. City of Sacramento, 534 F.3d 1106, 1113 (9th Cir. 2008): were used to evaluate “duplication” arguments. The Court distinguished Sciara as involving overstaffing for a straightforward motion, while recognizing (consistent with Moreno) that some duplication can be necessary in complex, long-running litigation.
• Mitchell v. Metro. Life Ins. Co., No. CV 05-00810 DDP (RNBx), 2008 WL 1749473, at *3 (C.D. Cal. Apr. 7, 2008), and Aim v. Fujikawa, 871 F.2d 1427, 1435 n.9 (9th Cir. 1989): supported the idea that multiple-attorney participation (drafting, reviewing, revising briefs) can be reasonable, especially in complicated matters.
• Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008) (quoting Barjon v. Dalton, 132 F.3d 496, 502 (9th Cir. 1997)): supplied the “prevailing community rate” principle for assessing billing rates.
• In re USA Com. Mortg. Co., No. 2:07-CV-892-RCJ-GWF, 2013 WL 3944184, at *19-20 (D. Nev. July 30, 2013), and United States ex rel. Luke v. HealthSouth Corp., No. 2:13-cev-01319-APG-VCF, 2020 WL 1169393, at *2 (D. Nev. March 11, 2020): supported the district court’s acceptance of high hourly rates (up to the mid-$700s) as consistent with Nevada market rates for complex litigation.

3) Prejudgment interest (ascertainability and timing)

• City of Las Vegas v. 180 Land Co., LLC, 140 Nev., Adv. Op. 29, 546 P.3d 1239, 1256 (2024): supported abuse-of-discretion review for prejudgment interest decisions.
• State Drywall, Inc. v. Rhodes Design & Dev., 122 Nev. 111, 116, 127 P.3d 1082, 1086 (2006): supplied the rule that NRS 99.040(1) applies when the amount due is ascertainable on an ascertainable date.
• Paradise Homes, Inc. v. Cent. Sur. & Ins. Corp., 84 Nev. 109, 116, 437 P.2d 78, 83 (1968): required the district court to identify the interest rate, the commencement date, and the principal to which the rate applies; also explained interest may be based on contract performance value determined by mathematical calculation from contract/market standards.
• BHY Trucking, Inc. v. Hicks, 102 Nev. 331, 333, 720 P.2d 1229, 1231 (1986): was used to contrast situations where damages are not tied to a “sum due” under a contractual performance promise.
• Westgate Planet Hollywood Las Vegas, LLC v. Tutor-Saliba Corp., No. 75033, 2019 WL 4786884, at *3 (Nev. Sept. 27, 2019) (Order Affirming in Part, Reversing in Part and Remanding): reinforced that amounts can be “ascertainable by mathematical calculation” even if litigation later changes the numbers due to offsets/external factors.

4) Taxation of costs (documentation, expert fees, depositions, e-discovery)

• Cadle Co. v. Woods & Erickson, LLP, 131 Nev. 114, 120, 345 P.3d 1049, 1054 (2015): anchored the requirement that taxed costs must be reasonable, necessary, and actually incurred.
• Bobby Berosini, Ltd., v. People for the Ethical Treatment of Animals, 114 Nev. 1348, 1352, 971 P.2d 383, 385-86 (1998): required itemized memoranda plus documentation showing costs were actually incurred and necessary.
• In re DISH Network Derivative Litig., 133 Nev. 438, 452, 401 P.3d 1081, 1098 (2017): clarified “justifying documentation” must be more than a memorandum, and recognized e-discovery expenses as potentially taxable under NRS 18.005(17) in appropriate circumstances.
• Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006): supported rejecting arguments lacking supporting authority (here, TSC’s attempt to bypass statutory cost limits by contract language).
• Frazier v. Drake, 131 Nev. 632, 650-51, 357 P.3d 365, 377-78 (Ct. App. 2015): supplied the multi-factor test for awarding expert fees above the NRS 18.005(5) $15,000 cap per expert.
• N. Las Vegas Infrastructure Inv. and Constr., ELC v. City of N. Las Vegas, 139 Nev. 46, 52, 525 P.3d 836, 842 (2023), and Armstrong v. Onufrock, 75 Nev. 342, 349, 341 P.2d 105, 108-09 (1959): were used to disallow deposition videotaping and additional deposition copy costs absent authorizing statute or necessity; N. Las Vegas Infrastructure specifically rejected taxing deposition videotaping costs.
• Zamora v. Klein, No. 87026-COA, 2024 WL 2747828, at *5 (Nev. Ct. App. May 28, 2024) (Order of Affirmance): supported upholding costs when supported by substantial invoices/receipts plus sworn explanation of necessity.

5) Apportionment of costs among parties

• Mayfield v. Koroghli, 124 Nev. 343, 353-54, 184 P.3d 362, 369 (2008): required district courts to attempt apportionment (and make findings if impracticable) in multi-defendant cases involving interrelated claims. The Court distinguished Mayfield because Travelers’ surety exposure was wholly derivative of Continental’s breach, making apportionment unnecessary on these facts.

Legal Reasoning

A. Contract-based fee entitlement and waiver

The Court’s first move was procedural and decisive: Continental’s claim that the subcontract provisions were merely “typical indemnity provisions” rather than fee-shifting provisions was not preserved in the district court. Applying Old Aztec Mine, Inc. v. Brown, the Court treated that contract-interpretation theory as waived. Continental’s attempt to invoke State Board of Equalization v. Barta failed because Barta did not adopt a broad “purely legal issue” exception; and the narrow exceptions suggested by Nev. Power Co. v. Haggerty and Desert Chrysler- Plymouth v. Chrysler Corp. (judicial economy/statutory interpretation; constitutional issues) did not fit.

Even so, the Court added that the subcontract’s sections “4(c), 4(f), 7.1, 7.2, and 8.5” obligated Continental to pay attorney fees and costs arising from its breach and TSC’s cure efforts—linking fee entitlement to the already adjudicated defective work and refusal to remediate.

B. Reasonableness of the fee amount under Brunzell

Turning from entitlement to amount, the Court upheld the district court’s Brunzell analysis. While the fee order was not a lengthy factor-by-factor treatise, Logan ७. Abe allowed flexibility so long as the court actually exercised discretion. The record supported the district court’s findings that this was “super complex,” with a massive document trail, thousands of couplings, a 48-day bench trial, extensive motion practice, and an appeal.

Continental’s “too many lawyers/firms” argument failed because the Court treated some coordination and review as expected in complex litigation, distinguishing Sciara v. Campbell and aligning with the recognition in Moreno v. City of Sacramento and Aim v. Fujikawa that multiple-lawyer participation is not per se unreasonable. It also relied on federal persuasive authority (Mitchell v. Metro. Life Ins. Co.) to validate drafting/review/revision workflows on appeal.

On rates, the Court used the “prevailing community rate” approach from Camacho v. Bridgeport Fin., Inc. (quoting Barjon v. Dalton) and cited Nevada examples approving similar high-end partner rates (In re USA Com. Mortg. Co.; United States ex rel. Luke v. HealthSouth Corp.).

C. Prejudgment interest from remediation completion

The district court pegged the interest start date to August 30, 2016 (completion of remediation), and the Court affirmed. The governing idea—drawn from State Drywall, Inc. v. Rhodes Design & Dev. and Paradise Homes, Inc. v. Cent. Sur. & Ins. Corp.—is “ascertainability”: when a contract calls for performance (here, reimbursement/indemnity for cure costs), prejudgment interest can run from the date the amount became determinable by calculation from contract standards. The Court rejected Continental’s argument that “heavy dispute” at trial defeats interest; it emphasized the inquiry is tied to the contractual due date/ascertainability, consistent with Westgate Planet Hollywood Las Vegas, LLC v. Tutor-Saliba Corp..

D. Retaxing costs: expert fees and deposition media/copies

The most legally consequential portion is the Court’s tightening of cost-taxation methodology:

1. Expert fees above the cap: NRS 18.005(5) caps expert witness fees at $15,000 per expert (up to five) unless the court finds necessity for more. Frazier v. Drake supplies the necessity factors. The Court accepted that MKA’s expert work was important and helpful, and it approved excluding miscellaneous invoice items (photos/printing/lodging/meals) where TSC did not show they were reasonable/necessary. However, it reversed because the district court’s final $403,000 number appeared arbitrary (matching what Continental “purportedly” paid its expert), rather than reflecting “actual” itemized costs as required by Bobby Berosini, Ltd., v. People for the Ethical Treatment of Animals. On remand, the district court must review invoices and subtract only those specific items not shown to be reasonable, necessary, or actually incurred.
2. Deposition transcripts and videos: NRS 18.005(2) permits a reporter’s fee for depositions, including “one copy” of each deposition. The Court reversed costs for additional transcript copies because TSC did not justify why more than one copy was necessary. It also reversed deposition videotaping costs because Nevada law does not authorize taxing those expenses absent a statute or uniform procedure, relying on N. Las Vegas Infrastructure Inv. and Constr., ELC v. City of N. Las Vegas and Armstrong v. Onufrock, especially where the videos were not used at trial and the district court did not order videotaped depositions.
3. E-discovery management: The Court affirmed Holo and Quivx costs under NRS 18.005(17), emphasizing the presence of detailed invoices plus a sworn declaration explaining purpose/necessity, consistent with In re DISH Network Derivative Litig. and Zamora v. Klein. The Court also credited the district court’s finding that trial exhibit management by a third-party technician was necessary given the scale of the case.

E. No required apportionment between principal and surety here

Continental sought apportionment of costs between itself and Travelers (the surety). The Court affirmed the denial. While Mayfield v. Koroghli requires apportionment efforts (or findings of impracticability) in some multi-defendant scenarios, the Court found Mayfield “inapposite” because Travelers’ liability was entirely derivative of Continental’s breach of the subcontract. Thus, the same costs would have been incurred regardless of whether TSC sued Continental, Travelers, or both.

Impact

• Preservation discipline in fee disputes: The decision is a cautionary precedent that parties must timely litigate the contractual basis for fees/costs in the district court; raising only “reasonableness” under Brunzell will not preserve contract-interpretation arguments on appeal.
• Concrete limits on taxable deposition costs: The Court reinforces bright lines: (a) extra transcript copies are not recoverable absent necessity under NRS 18.005(2), and (b) deposition videotaping is not taxable absent authorization—especially where not used and not ordered. This is likely to shape litigation budgeting and post-trial cost strategy in Nevada.
• Expert-fee awards above the cap must be auditable: Even when a court finds necessity under Frazier v. Drake, the final number must be traceable to actual, itemized proof. Courts may not “proxy” the award by reference to the opponent’s spending.
• E-discovery costs remain recoverable with the right record: The opinion confirms a workable path to recover substantial e-discovery/exhibit-management expenses under NRS 18.005(17) where parties provide invoices, sworn explanations, and a showing of necessity proportional to the case’s scale.
• Surety cases: By distinguishing Mayfield v. Koroghli, the Court signals that cost apportionment analysis may be streamlined where one defendant’s liability is purely derivative (principal/surety), reducing procedural burdens in similar construction-bond litigation.