Ninth Circuit Discusses Split Re Whether Computer-Based Legal Research Expenses are Compensable as “Reasonable Attorney’s Fees”

Per Trustees of Const. Industry and Laborers Health and Welfare Trust v. Redland Ins. Co., --- F.3d ---, 2006 WL 2494038 (9th Cir. Aug. 30, 2006):

The Supreme Court has provided two guidelines addressing the scope of attorney's fees as applied to litigation expenses. First, "reasonable attorney's fees" do not include costs that, like expert fees, have by tradition and statute been treated as a category of expenses distinct from attorney's fees. See W. W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 99-100 (1991). Second, "reasonable attorney's fees" include litigation expenses only when it is "the prevailing practice in a given community" for lawyers to bill those costs separately from their hourly rates. See Jenkins, 491 U.S. at 286-87.

We note that there is a circuit split concerning whether expenses for computer-based legal research are compensable as "reasonable attorney's fees." The Eighth Circuit has held that "computer-based legal research must be factored into the attorneys' hourly rate, hence the cost of the computer time may not be added to the fee award." Standley v. Chilhowee R-IV Sch. Dist., 5 F.3d 319, 325 (8th Cir.1993). No other circuit has endorsed this view, and many have expressly held that computerized research costs can, in appropriate circumstances, be recovered in addition to the hourly rates of attorneys. See, e.g., Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 369 F.3d 91, 98 (2d Cir.2004) ("If [the firm] normally bills its paying clients for the cost of online research services, that expense should be included in the fee award."); InvesSys, Inc. v. Mc-Graw-Hill Cos., 369 F.3d 16, 22 (1st Cir.2004) ("[C]omputer-assisted research should be ... reimbursed under attorney's fee statutes ... so long as the research cost is in fact paid by the firm to a third-party provider and is customarily charged by the firm to its clients as a separate disbursement."); Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1257-58 (10th Cir.1998) ("Reasonable expenses incurred in representing a client in a civil rights case [such as Westlaw charges] should be included in the attorney's fee award if such expenses are usually billed in addition to the attorney's hourly rate."); see also Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 975 (D.C.Cir.2004).

We believe that the growing circuit consensus reflects the Supreme Court's treatment of litigation expenses under attorney's fee statutes. Neither tradition nor statutory usage distinguishes computer-based legal research costs from attorney's fees. Cf. W.Va. Univ. Hosps., 499 U.S. at 99-100. We therefore hold that reasonable charges for computerized research may be recovered as "attorney's fees" under § 1132(g)(2)(D) if separate billing for such expenses is "the prevailing practice in the local community." Jenkins, 491 U.S. at 287 n. 9.