A recent blog post here examined the circumstances under which a prevailing party in litigation can obtain reimbursement for deposition-related costs in federal courts. The rules are complicated, constrained by the statutory command that the depositions be “necessarily obtained for use in the case,” 28 U.S.C. 1920(2), and further limited by the need to actually prevail in the litigation. Importantly, reimbursement of depositions taken purely for discovery purposes is not available under federal law.

There is, however, another way for a party to obtain reimbursement for the costs of depositions. That way is Rule 37 of the Federal Rules of Civil Procedure, which provides that a party is entitled to the costs of proving the existence of a law or fact, or the genuineness of a document, in response to a request for admissions. A party need not prevail in the litigation to be entitled to recovery of costs under Rule 37; moreover, both deposition costs and attorneys’ fees are recoverable.

reimbursement for the costs of a deposition that should not have been necessary if the opposing party had admitted to material facts posited in a request for admissions is clearly available under federal law (and most similar state laws).

The relief described under Rule 37 is colloquially known as “costs of proof” – i.e., the costs of proving a matter that should have been admitted in a response to a request for admissions propounded under Rule 36 of the Federal Rules of Civil Procedure. Most states procedural rules provide a similar right to obtain recovery for “costs of proof.”

The costs of a deposition that would not have been necessary had the opposing party admitted facts asserted in a request for admissions are clearly recoverable under Rule 37. The promising nature of the Rule 37 remedy is, unfortunately, tempered by the fact that qualifying for Rule 37 relief is a high hurdle to jump.

According to Rule 37(c):

(2) Failure to Admit. If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney’s fees, incurred in making that proof.

The court must so order unless:

1. the request was held objectionable under Rule 36(a);
2. the admission sought was of no substantial importance;
3. the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or
4. there was other good reason for the failure to admit.

As the reader can see from the above, a party facing a demand for reimbursement of costs under Rule 37(c)(2) has a number of available defenses, starting with the forgiving language of subsection (c)(2)(C). A “reasonable ground” for believing it “might prevail” arguably takes in all but the most groundless reasons for declining to admit a disputed fact or law. And if that exception is not large enough to escape an award of costs, subsection (c)(2)(D) invites consideration of any “other good reason” for a failure to admit.

Nevertheless, in a proper case, reimbursement for the costs of a deposition that should not have been necessary if the opposing party had admitted to material facts posited in a request for admissions is clearly available under federal law (and most similar state laws). Requests for admission are, after all, intended to streamline litigation and eliminate the need for parties to litigate facts and legal theories not reasonably in dispute.

Finally, a case in point. Recently, an appellate court reviewed an arbitration ruling in which the arbiter awarded the plaintiff $45,189.50 in costs for a deposition and expert witness fees to prove facts that should have been admitted in response to a request for admissions. In California, Civil Code Section 22033.420 – similar to Rule 37 – gives a party the right to obtain a court order requiring the non-admitting party to pay the reasonable expenses incurred if a party fails to admit the truth of a relevant matter. In Ourfali v. 21st Century Ins. Co., No. B324150 (Calif. Ct. App., 2d Dist., March 27, 2024), the appellate court set aside the award on procedural grounds. However, it did not question the soundness of the arbitrator’s conclusion that the costs of allegedly unnecessary deposition were properly recoverable under Section 22033.420.