This post was prepared by Aimee Czachorowski, an attorney in the Delaware office of Lewis Brisbois.

Specific costs recoverable by a prevailing party is an oft-asked question in the Delaware courts. The Superior Court’s Complex Commercial Litigation Division recently addressed what expert fees and trial technology costs can be recovered by the prevailing party in NewWave Telecom and Technologies, Inc. v. Ze Jiang, et al., C.A. No. N-20C-09-215 VLM CCLD (Del. Super., Oct. 24, 2024).

Although the Court discussed an award of attorneys’ fees pursuant to the applicable SPA, the Court’s discussion of allowable costs is of more widespread interest to practitioners. The Court indicated that expert witness fees were recoverable, but only for the portion of the expert’s time that was “necessarily spent in attendance upon the court for the purpose of testifying.” Slip op. at 9.

The Court also explained that: Time spent by the expert traveling to and from the courthouse, and time spent waiting to be called to the witness stand was recoverable. The Court also addressed what trial technology support costs could be recoverable.

Specifically, the Court allowed for: 1) Travel, lodging, and meals incurred while the expert was waiting to be called to testify (even while waiting to be called in rebuttal); 2) Time the expert actually spent waiting upon the Court—defined to mean the actual trial time plus an hour for travel to and from the courthouse; and 3) trial technology support for the actual trial time, not including preparation time.