Commercial Litigation and Arbitration

Duty to Reimburse Expert Deposition Expenses under Rule 26(b)(4)(c)

Federal Rule of Civil Procedure 26(b)(4)(C) (as restyled) provides:

Unless manifest injustice would result, the court must require that the party seeking discovery: (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (B).

Does the time “spent” by an expert “in responding in discovery” by way of a deposition (under Rule 26(b)(4)(A)) include preparation and transit expenses, or only the time answering questions under oath”? After taking the deposition of the plaintiff’s expert, the defendant in Waters v. City of Chicago, 2007 U.S. Dist. LEXIS 95159 (N.D. Ill. Dec. 28, 2007), claimed that the plaintiff’s expert was “not entitled to be paid for his preparation time and travel time — only for 4.32 hours attributable to the deposition time itself.” As discussed in the opinion by District Judge Milton Shadur, “[t]here are mixed judicial rulings on this subject.” Judge Shadur concluded that the more expansive view is the correct one. He reasoned that the deposition was not necessary because under rule 26(a)(2)(B), the entirety of the expert’s testimony was required to be set forth in his report. Accordingly, while the defendant was nonetheless entitled to take the deposition, it should in fairness pay for the expenses triggered by its insistence on doing so. Judge Shadur held that “all but a minor portion of the time reflected by [the expert’s] itemization is compensable. This Court eliminates ... only the one hour that his time records show he spent in telephone conversations with [plaintiff’s] counsel before the deposition.”

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