As the use of courtroom presentation technology becomes more and more commonplace, courts have had commensurate struggles with assessing its necessity and awarding costs accordingly. A notable issue regarding the scope of recoverable costs arose in Bender v. Los Angeles, 217 Cal. App. 4th 968 (2013). In Bender, the Second District Court of Appeal in California affirmed an award of costs of approximately $24,000 for “courtroom presentations.” In so holding, the court revised its interpretation of California statutes providing for recovery of costs, and at the same time, offered a possible new calculus for litigants approaching trial strategy.
Background of Bender
The Bender case involved allegations that sheriff’s deputies battered Mr. Bender, the plaintiff, when they arrested him at the apartment complex he managed. Mr. Bender returned home to the apartment complex late one evening, and saw three sheriff’s deputies enter the complex immediately prior to his entry. The deputies arrested two individuals from an upstairs apartment. While the deputies escorted the two arrestees out of the complex, one deputy stopped to pick up broken glass on the stairs. As Mr. Bender approached with an offer to help, the deputy accused Mr. Bender of smoking marijuana with the arrested individuals. Though Mr. Bender vehemently denied the accusation and remained cooperative in his responses, the interaction quickly escalated. Spewing racial epithets, the deputy arrested Mr. Bender and escorted him to the patrol car. He then pepper sprayed Mr. Bender in the face before he and the other deputies physically beat Mr. Bender. Both before and after the altercation, Mr. Bender “did not resist.”
Two videos were recorded during these events. The first recording occurred in the patrol car following Mr. Bender’s arrest while Mr. Bender was interviewed by one of the deputies. The second recording occurred at the police station where another law enforcement agent interviewed him about the night’s events.
Mr. Bender subsequently filed suit against the county of Los Angeles and against the sheriff’s deputies involved in the altercation. He alleged causes of action for assault and battery, false arrest and false imprisonment, intentional infliction of emotional distress, and violations of the Bane and Ralph Acts—two California statutes aimed against violence and threats. During trial, the recorded videos—both from the police station of from the patrol car—were played for the jury, who returned a verdict for Mr. Bender in excess of $500,000 for economic, non-economic, and punitive damages. The court also awarded Mr. Bender just under $1,000,000 in attorney fees and costs, and denied defendants’ motion to tax, i.e. deduct costs in the amount of $24,103.75 for courtroom technology. The defendants appealed, among other things, the court’s refusal to tax those technological costs.
California Provisions for Recovery of Costs
California has two statutes outlining the recovery of costs. Under California Code of Civil Procedure § 1032(b), “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding,” except as otherwise provided by statute. California Code of Civil Procedure § 1033 then outlines costs that are allowable or not allowable. For instance, section 1033 expressly provides that “models and blowups of exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to aid the trier of fact.” It also expressly prohibits items such as “costs in investigation of jurors or in preparation for voir dire.” But section 1033 also outlines a grey area. It gives a trial court discretion to determine “items not mentioned in th[e] section” so long as those costs were “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.”
Until the Bender decision, California courts had grappled with this grey area concerning the determination of what costs were “reasonably necessary.” This uncertainty has emerged in particular with respect to costs relating to technological products that were unavailable at the time section 1033 was codified. For example, does the discretionary provision allow a court to reward litigants for the use of novel, and often times expensive, technological aids? Or are those items outside of the purview of recoverable items because they were not expressly listed as “recoverable costs”?
Most litigants had looked to a 1995 case, Science Applications International Corp. v. Superior Court, 39 Cal. App. 4th 1095 (1995), for guidance regarding what kind of courtroom presentation technology might be recoverable. In Science Applications, California’s Fourth District Court of Appeal granted in part and denied in part a writ of mandamus to vacate an award of costs for a breach of contract case. The Court of Appeal reviewed the costs and held that many of the costs were overbroad. For instance, the court held as not recoverable costs for equipment rental, the use of a technician, and videotaped deposition edits. The court reasoned these costs were for “a high-powered way of retrieving documents” and for “state-of-the-art approach to testimony.” Litigants have since used this framework to argue whether or not cost expenditures are “high-powered” and “state-of-the-art” means of trial conduct.
Bender Offers A New Approach
The Bender court provides a new framework for this grey area. The Bender court faced an award of costs that “included charges for creating designated excerpts from deposition transcripts and video, converting exhibits to computer formats (Tiff’s & JPEG’s), and design and production of electronic presentations,” and a technician to run them. The defendant-appellants asserted that these costs should have been taxed and thereby deducted them from Mr. Bender’s cost award. They argued that the use of cutting edge technology was “explicitly unrecoverable” under section 1033. The Court of Appeal disagreed. Not only were such costs not statutorily barred, but the court also asserted “it would be inconceivable for plaintiff’s counsel to forego the use of [the] technology” in this case. The technology, stated the court, served an essential role in showing the jury both the plaintiff’s physical state—as shown through the videos of the plaintiff taken in the patrol car and at the police station—and in displaying the “key parts” of other witnesses’ depositions shown at trial.
With this holding, the Bender court deviated from the framework offered by the Science Applications court. No longer were “high-powered” or “state-of-the-art” technological costs barred from recovery of costs. Rather, the court took a new approach to conceiving what it means to be reasonably necessary to provide an effective trial in today’s courtrooms.
Of course, it should be noted that the reasonableness of the dollar amount also may have affected the decision, apart from an initial determination of whether a technological device was “reasonably necessary.” In Science Applications, the Court of Appeal was “troubled” by the amount of expenses sought at near $500,000. It reasoned that “[i]f a party litigant chooses unwisely to expend monies in trial presentation in excess of the value of the case, utilizing advanced methods of information storage, retrieval, and display, when more conventional if less impressive methods are available, the party must stand his own costs.” The $24,000 cost is quite low especially in relation to the damages and overall fees and costs award in Bender, but that expense is modest compared to the parallel costs in a more complex type of litigation where the courtroom technology is likewise more complex and much more expensive.
It is unclear what impact Bender will have on the law in California or whether its holding will be applied in other circumstances. Uncertainty remains regarding any individual trial judge’s acceptance of this type of costs, but there is no question that litigants will keep employing new technologies in the courtroom because of their effectiveness and impact on the outcome. The inevitable increase in use of courtroom technology eventually may moot the underlying question altogether, but for now Bender provides a notable new benchmark for litigants grappling with cost issues in California courts.