In Clouse v. Southern Methodist Univ., No. 24-10860 (5th Cir. Mar. 16, 2026), the Fifth Circuit resolves a split among the circuit’s district courts by holding that ordering both video and printed depositions are chargeable as costs under Fed. R. Civ. P. 54(d)(1) and 28 U.S.C. § 1920. The panel thus affirms a total $184,033.11 award of costs against eight former student-athletes suing their school under Title IX of the Civil Rights Act.
Plaintiffs, eight women varsity rowers (now graduated), alleged that “SMU’s substandard coaching, athletic training, and medical treatment—which were driven in part by systemic gender-based disparities—caused their hip injuries.” All but one of the plaintiffs were dismissed on limitations grounds; they took a certified appeal from the merits (affirmed in another opinion) and the award of costs.
The Fifth Circuit affirms the taxing of costs. Plaintiffs argued that “because one of the nine original Plaintiffs partially survived summary judgment” and there remained “the possibility of overlapping discovery,” SMU was not yet a prevailing party. But the panel holds that, at least as to the eight appealing plaintiffs, the judgment finally “altered the legal relationship between the parties” and supported an award of costs.
The panel also weighs the discretionary fee factors articulated in Pacheco v. Mineta, 448 F.3d 783 (5th Cir. 2006), and holds that they did not excuse an award of costs. “Plaintiffs assert that their case has created substantial public benefit because it garnered significant media attention and pushed SMU and other schools to reexamine their Title IX compliance. But Plaintiffs’ citations to school newspapers and blogs do not by themselves show a substantial benefit conferred to the public.”
Plaintiffs also challenged the necessity of some of the costs, particularly ordering both print and video copies of deposition testimony. “No case in our court has squarely decided whether costs for both video and written deposition transcripts are recoverable under 28 U.S.C. § 1920 or other authority” and the panel notes that the case law in the lower courts was divided. Some of the case authority turned on whether the videos were actually used for trial or trial preparation.
The panel sides with allowing an award of costs for video along with printed depositions, even when the case ends on summary judgment. It cites decisions from the Sixth, Tenth, and Federal Circuits in support. “[W]e hold that the district court did not abuse its discretion in awarding fees for both videos and transcripts of depositions, given its determination concerning the necessity of both.”
The panel also finds no abuse of discretion by the district court. “[T]he district court evaluated SMU’s arguments and evidence including: (1) the video recordings of 26 witnesses, all of whom were expected to be outside of subpoena range by trial; (2) SMU’s utilization of the depositions of each Plaintiff and several other fact and expert witnesses in its motion for summary judgment; and (3) SMU’s attorney’s testimony that the reimbursement sought ‘was intended for use in motion practice and/or trial in this case’ . . . [The] district court found SMU met its burden to demonstrate that the video depositions were necessarily obtained for use in this case.”
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