First, how could Judge Percy Anderson (in the C.D. Cal.) get this one wrong? Prevailing parties can recover costs. They can also recover (in an appropriate case) attorney's fees. And that latter item includes otherwise non-recoverable costs; e.g., copying, travel, etc.
That's long been the law. And is a pretty easy rule. This isn't Medicare: there's no "donut hole" in cost awards. Rightly so.
Second, as the above probably reflects, I don't agree with Judge Rymer, who's skeptical of circuit precedent and who's looking for ways to create a donut hole; e.g., by arguing that "every statute is different" and that some may well reflect Congressional intent to award fees and yet deny costs.
I do agree with her, however, that non-recoverable costs are recoverable as fees "only when it is the prevailing practice in a given community for lawyers to bill those costs separately from their hourly rates." But I'd add to that principle a very practical, real-world presumption: these costs are virtually always billed separately. So, unlike Judge Rymer, I wouldn't place the burden on the moving party to satisfy this hypertechnical requirement; rather, I'd place the burden on the opposing party to present evidence that the standard practice in an area is a flat- or all-inclusive fee. The moving party would still have the burden of proof, but let's get real -- and have our decision reflect reality -- and not look for procedural ways to unjustly bounce meritorious cost and fee applications. Costs are routinely billed separately from fees, and our doctrinal burdens should reflect that fact.
