IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

VERITAS VINCIT, LLC, et al.,

Plaintiffs,

v. 

FRED ALAN BROWN, et al.,

Defendants.

§

§

§

§

§

§

§

§

§

§

CIVIL ACTION NO. 4:24-CV-00079-JRG

MEMORANDUM OPINION AND ORDER

Before the Court is the Bill of Costs Submission (Dkt. No. 145) and Memorandum in 

Support of Bill of Costs Submission (Dkt. No. 146) (collectively, the “Bill of Costs”) filed by 

Plaintiffs Veritas Vincit, LLC and William Berry Dean, III (collectively, “Plaintiffs”). Having 

considered the Bill of Costs, the Court finds it should be and hereby is GRANTED-IN-PART and

DENIED-IN-PART.

I. BACKGROUND

The Court held a jury trial in the above-captioned case on August 16, 2024. (Dkt. No. 134.) 

On August 21, 2024, the jury reached and returned its unanimous verdict finding in favor of 

Plaintiffs and against Defendants Charles William Durham II and Birnam Wood Capital, LLC 

(collectively, “Durham Defendants”) and Defendant Fred Alan Brown (“Defendant Brown”). (Dkt. 

No. 139.) Subsequently, the Court entered a Final Judgment awarding Plaintiffs their costs as the 

prevailing party and directing Plaintiffs to file their proposed Bill of Costs. (Dkt. No. 144.) That 

proposed Bill of Costs is now at issue before the Court.

Case 4:24-cv-00079-JRG Document 164 Filed 11/08/24 Page 1 of 8 PageID #:

22410
2

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 54(d)(1), “[u]nless a federal statute, these rules, or 

a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the 

prevailing party.” Fed. R. Civ. P. 54(d)(1). Rule 54(d) affords courts discretion in awarding costs 

to prevailing parties. Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 565 (2012). Additionally, 

Section 1920 enumerates specific expenses that a federal court may tax as costs under the 

discretionary authority found in Rule 54(d) to include:

(1) Fees of the clerk and marshal; 

(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in 

the case; 

(3) Fees and disbursements for printing and witnesses; 

(4) Fees for exemplification and the costs of making copies of any materials where the 

copies are necessarily obtained for use in the case; 

(5) Docket fees under section 1923 of this title; 

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, 

fees, expenses, and costs of special interpretation services under section 1828 of this title.

28 U.S.C. § 1920. While a court may decline to award costs listed in the statute, it may not award 

costs omitted from the statute. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 

(1987). 

Upon determining the “prevailing party” within the meaning of Rule 54(d)(1), courts must 

then determine what costs, if any, should be awarded to the prevailing party. Marx v. General 

Revenue Corp., 568 U.S. 371, 375 (2013). The Fifth Circuit has noted that a district court “may 

neither deny nor reduce a prevailing party’s request for costs without first articulating some good 

reason for doing so.” Pacheco v. Mineta, 448 F.3d 783, 793-94 (5th Cir. 2006). Indeed, there is a 

“strong presumption” that the prevailing party will be awarded costs, and a denial is “in the nature 

of a penalty.” Id. (quoting Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985)).

Case 4:24-cv-00079-JRG Document 164 Filed 11/08/24 Page 2 of 8 PageID #:

22411
3

III. DISCUSSION

Durham Defendants1 do not dispute that Plaintiffs are the prevailing party but argue that 

certain of the costs Plaintiffs seek are not recoverable as taxable costs. (Dkt. No. 151.)

A. Uncontested Recoverable Costs

Durham Defendants do not contest that $38,806.48 is taxable as costs against Durham 

Defendants and Defendant Brown, as follows:

• $1,489.69 in Fees of the Clerk;

• $30,693.26 in Fees for printed or electronically recorded transcripts necessarily 

obtained for use in the case; 

• $2,135.53 in Fees and disbursements for printing; and

• $4,488.00 in Fees for witnesses.

(Dkt. No. 145-1 at 2; Dkt. No. 151.) Accordingly, the Court awards Plaintiffs the aforementioned 

uncontested costs.

B. Disputed Graphics, Demonstratives, and Trial Materials Costs

Durham Defendants argue that Plaintiffs improperly seek to recover $9,732.73 in costs 

associated with graphics, demonstrative aids, and trial materials. (Dkt. No. 151 at 4-5.) Durham 

Defendants argue that the Court should not award Plaintiffs costs associated with their trial 

graphics because Plaintiffs did not receive pre-trial approval and trial graphics fall outside of

Section 1920. (Id.) Durham Defendants also argue that “[t]o the extent this Court determines that 

costs for trial presentation work are compensable at all, . . . that the amount of those costs be 

limited to a reasonable amount for all necessary work.” (Id.)

1 Defendant Brown does not dispute the Bill of Costs or the amount of costs Plaintiffs seek. (Dkt. No. 145 at 3; Dkt. 

No. 156 at 1.)

Case 4:24-cv-00079-JRG Document 164 Filed 11/08/24 Page 3 of 8 PageID #:

22412
4

In response, Plaintiffs argue that Durham Defendants mischaracterize the $9,732.73 in 

costs Plaintiffs seeks as only related to graphics and demonstrative aids. (Dkt. No. 156 at 2-3.) 

Plaintiffs assert that the $9,732.73 in costs Plaintiffs seek includes copying fees and graphics and 

demonstrative aid fees. (Id.) Regarding the costs associated with graphics and demonstrative aids,

Plaintiffs argue that these costs are taxable. (Id. at 3.) Regarding the fees associated with copying, 

Plaintiffs argue that these costs include charges from three vendors—Mainstay Legal, KTS, and 

East Texas Office Supply—“directly related to the litigation and the trial.” (Id.) 

The Court is persuaded that Plaintiffs are entitled to a portion of the $9,732.73 in costs they

seek under Section 1920(4), but that some of these costs are excessive and include costs not 

recoverable under Section 1920.

First, regarding the $3,621.67 in costs Plaintiffs seek associated with Mainstay Legal, the 

Court is persuaded that these costs are not recoverable. Plaintiffs assert that “Mainstay Legal 

provided physical copies of all binders and documents related to the pretrial conference, hearings 

and selected depositions in this case.” (Dkt. No. 156 at 3-4; Dkt. No. 156-1 ¶ 9.) However, the 

invoices Plaintiffs submitted either offer no description of the nature of the documents being 

copied or provide non-specific and marginally informative descriptions. (See Dkt. No. 145-8 at 3 

(providing no description), 4 (“Brett and Chris Trial Binders (Dockets)”), 6 (“Impeachment 

Exhibits”).) While the Court does not expect Plaintiffs to “identify every xerox copy made for use 

in the course of legal proceedings,” Fogelman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991), 

Plaintiffs must provide information from which the Court can determine whether the requested 

costs are recoverable. Plaintiffs are entitled to recover its “fees for exemplification and the costs 

for making copies” that were “necessarily obtained for use in the litigation,” however, “[c]harges 

for multiple copies of documents . . . are not recoverable.” (See this Court’s Standing Order 

Case 4:24-cv-00079-JRG Document 164 Filed 11/08/24 Page 4 of 8 PageID #:

22413
5

Regarding Bills of Costs at 4.) Plaintiffs’ descriptions do not state with particularity what 

documents were prepared, for what reason, or that any printing that was done was limited to single 

copies. Further, Plaintiffs did not explain why these documents were necessary for trial, “rather 

than obtained simply for the convenience of counsel.” See Fogelman, 920 F.2d at 286. Based on 

the marginally informative descriptions, it appears that most of these printings were merely for 

counsel’s convenience, such as having a copy of Defendants’ trial exhibits for use at counsel’s 

table at trial. These invoices also include costs for binders, tabs, folders, and redwelds which are 

not recoverable under Section 1920. See Traxcell Techs., LLC v. Huawei Techs. USA Inc., 2020 

WL 11884713, at *4 (E.D. Tex. Mar. 10, 2020).

Second, regarding the $5,389.52 in costs Plaintiffs seek associated with KTS, the Court is 

persuaded that Plaintiffs are entitled to recover a portion of these costs. Plaintiffs assert that in 

response to the Court’s Order Regarding Exhibits (Dkt. No. 107), KTS printed and provided these 

documents. (Dkt. No. 156 at 4.) Plaintiffs also assert that “KTS provided the binders used for 

impeachment at trial, including binders of deposition transcripts and exhibits.” (Id.) The Court 

finds that Plaintiffs are entitled to recover $2,613.79 in costs for trial exhibits and documents 

ordered by the Court. The Fifth Circuit has held that a party must obtain pretrial authorization for 

trial exhibits to recover those costs. Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319 (5th 

Cir. 1995). Here, the Court directed the parties to have one copy of their respective original exhibits 

and three copies of their exhibit list and witness list. (Dkt. No. 107.) The Court also directed the 

parties to provide the Court copies of all expert reports. Upon review of Plaintiffs’ Exhibit A-7, 

$2,613.79 in costs from KTS are associated with the Court’s orders. (See Dkt. No. 145-8 at 12.) 

The remaining KTS charges in Exhibit A-7, $2,775.73, are not associated with the Court’s orders

and/or are not recoverable. For example, some of the remaining KTS costs Plaintiffs seek are 

Case 4:24-cv-00079-JRG Document 164 Filed 11/08/24 Page 5 of 8 PageID #:

22414
6

delivery fees, which are not recoverable, and costs to print depositions, which the Court did not 

order. 

Finally, regarding the $721.54 in costs Plaintiffs seek associated with East Texas Office 

Supplies, the Court finds that these are not taxable costs. Plaintiffs assert that “East Texas Office 

Supply provided office supplies that were used at trial, including folders, tabs, binders, and labels.” 

(Dkt. No. 156 at 4.) Each of those costs appears to be merely incidental costs for items such as 

folders, tabs, binders, and labels that Plaintiffs used at trial. (Dkt. No. 156 at 4; Dkt. 146-8 at 7.) 

These costs are not recoverable under Section 1920. See Traxcell Techs., LLC v. Huawei Techs. 

USA Inc., 2020 WL 11884713, at *4 (E.D. Tex. Mar. 10, 2020).

Accordingly, the Court finds that Plaintiffs are entitled to recover $2,613.79 in costs related 

to graphics, demonstratives, and trial materials. 

C. Disputed Trial Technician Costs

Durham Defendants argue that Plaintiffs improperly request $7,393.25 in costs associated 

with Plaintiffs’ trial technician and graphic designer. (Dkt. No. 151 at 3, 5-6.) Durham Defendants 

contend that “[a]lmost half of what Plaintiffs seek to recover appears to be attorneys’ fees 

associated with ‘hot seat operations’ as they seek $3,600.00 for trial presentation for vendor 

CCRG, which is presumably Charhon Callahan Robson & Garza.” (Id. at 3; see also id. at 5-6.) 

Durhan Defendants also assert that “there is no statutory provision for the recovery of trial 

technician/graphic designer fees.” (Id.) 

In response, Plaintiffs argue that the $7,393.25 in costs associated with trial technology, 

trial technicians, and courtroom graphics design and presentation are recoverable under Section 

1920. (Dkt. No. 156 at 5-7.) Plaintiffs assert that of the $7,393.25 in costs they seek, “$3,793.25 

are charges incurred to third party vendors 3b Solutions and OnCue Software.” (Id. at 5-6.) 

Plaintiffs argue that “[t]hese charges are all anticipated, useful, and necessary for the efficient 

Case 4:24-cv-00079-JRG Document 164 Filed 11/08/24 Page 6 of 8 PageID #:

22415
7

presentation of Plaintiffs’ case.” (Id.) Plaintiffs assert that they “used the software licensed from 

OnCue to make their presentations at trial (i.e., to pull up exhibits and display deposition 

testimony).” (Id.) Plaintiffs assert that “3b Solutions . . . assisted in the creation of Plaintiffs’ 

opening and closing slides and demonstratives that were used in connection with certain 

witnesses.” (Id. at 6.) In response to the “hot seat charges,” Plaintiffs contend that $3,600 of the 

costs they seek “is for the ‘hot seat’ work done at trial by Connor Scott, an associate at Plaintiffs’ 

law firm, CCRG.” (Id.) Plaintiffs argue that “all of Mr. Scott’s ‘hot seat’ work was useful, 

reasonable, and necessary for trial.” (Id.) Plaintiffs argue that they are not attempting to recover 

attorney’s fees for Mr. Scott’s hot seat work and, instead, “taxed Mr. Scott’s services at a rate of 

$150 per hour, which is significantly below his attorney-fee hourly rate or the rate that an outside 

vendor proposed to charge Plaintiffs for ‘hot seat’ services at trial.” (Id. at 7.) Plaintiffs assert that 

they “only seek costs for the hours Mr. Scott spent in trial (i.e., in the courtroom) in his ‘hot seat’ 

role,” and do not seek to “recovery for the additional hours Mr. Scott spent prior to trial or out-ofcourt hours in connection with his ‘hot seat’ role” or his role as an attorney. (Id.)

The Court is not persuaded that Plaintiffs are entitled to recover the $7,393.25 in costs

associated with trial technology, trial technicians, and courtroom graphics design and presentation. 

Section 1920 enumerates specific expenses that a federal court may tax as costs and the Court may 

not award costs omitted from the statute. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 

441-42 (1987). The Court does not find that costs associated with a software license, creating slides 

and demonstratives, or a hot seat operator meet the definition of exemplification in Section 

1920(4), the section under which Plaintiffs seek these costs. See 28 U.S.C. § 1920(4) (“Fees for 

exemplification and the costs of making copies of any materials where the copies are necessarily 

obtained for use in the case”); see also Innovation Scis., 2022 WL 2824675, at *4 (“the definition 

Case 4:24-cv-00079-JRG Document 164 Filed 11/08/24 Page 7 of 8 PageID #:

22416
8 

of exemplification, i.e., ‘[a]n official transcript of a public record, authenticated as a true copy for 

use as evidence.’”). Additionally, the Court did not order or approve any of these costs. 

Accordingly, the Court finds that Plaintiffs are not entitled to $7,393.25 in costs associated 

with costs related to graphics, demonstratives, and trial materials.

IV. CONCLUSION

The Court finds that Plaintiffs’ Bill of Costs (Dkt. No. 145) should be and hereby is

GRANTED-IN-PART and DENIED-IN-PART as specifically set forth herein. It is ORDERED

that Plaintiffs’ Bill of Costs as to the uncontested costs noted herein, in the amount of $38,806.48 

are APPROVED. It is ORDERED that Plaintiffs’ Bill of Costs as to costs related to graphics, 

demonstratives, and trial materials in the amount of $2,613.79 are APPROVED, but the remaining 

costs related to graphics, demonstratives, and trial materials in the amount of $7,118.94 are 

DISALLOWED. It is further ORDERED that Plaintiffs’ Bill of Costs as to costs related to trial 

technician in the amount of $7,393.25 are DISALLOWED. As a result, Plaintiffs’ total allowable 

costs herein equal $41,420.27, and its Bill of Costs in this amount is APPROVED. 

.

____________________________________

RODNEY GILSTRAP

UNITED STATES DISTRICT JUDGE So ORDERED and SIGNED this 8th day of November, 2024.

Case 4:24-cv-00079-JRG Document 164 Filed 11/08/24 Page 8 of 8 PageID #:

22417