“Pragmatic Take” On Routine Costs Was Explained On Appeal, With Non-Used Exhibits Costs Allowable Despite Siding On A Split In Intermediate Appellate Thinking—If They Were Helpful.
Segal v. ASICS America Corp., Case No. B299184 (2d Dist., Div. 4 June 15, 2020) (published) confronted allowing routine costs—although, given modern litigation expenses, maybe far from routine as maybe contemplated under the routine costs statutes—with respect to allowing costs for (1) exhibits and closing argument demonstratives not ultimately used at trial; (2) travel expenses for a second attorney to attend depositions in Japan; and (3) interpreter fees for Japanese depositions and trial testimony. In the end, all of these costs were allowed, with the 2/4 DCA publishing to explain that a “pragmatic approach” should guide routine costs recovery in modern litigation, even though the exhibit category had resulted in a prior split in appellate thinking.
Without getting too much into the weeds, the exhibit/demonstratives costs items was proper—despite a split in thinking (Seever/Ladas—not recoverable; Applegate/Benach—recoverable)—because litigation attorneys cannot be clairvoyant on what and what is not is admissible, so discretion is allowed to the lower court, with no definitive prohibition in light of what modern litigators have to prepare for and maybe present before jurors. When it came to the travel costs to Japan by a second counsel to help with a deposition, this was not be unexpected given modern litigation where it is routine to send more than one attorney to defend or take a deposition in a complex case. Then, when it came to interpreter fees, it would be tough to argue that a deponent not that proficient in English would have the expenses in translating as being a foreseen routine cost, whether in deposition or at trial (and it could be awardable as foreseen and reasonable). So, in the end, pragmatism rules in this area—costs award affirmed in toto!
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