New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Expert Entitled to Compensation from Deposing Party for Preparation as Well as Deposition Time, But Only at Rate Charged to Party That Engaged Him or Her

Download PDF

From Borel v. Chevron U.S.A. Inc., 2010 U.S. Dist. LEXIS 24379 (E.D. La. Feb. 24, 2010):

Plaintiff sued defendant for damages for injuries allegedly sustained when plaintiff slipped and fell while descending a fixed ladder on a bunk bed. To impute liability on defendant, plaintiff retained Robert E. Borison as an expert safety witness. Borison testifies for a living. Before his deposition, Borison notified defendant that he would not testify unless he received$ 1,500.00. Borison's deposition lasted approximately three hours. Borison allegedly earned almost $500.00/hour for the three-hour deposition when he only charged plaintiff's counsel $210.00/hour. Defendant now asks the Court to reduce Borison's fee to $ 210.00/hour and award him a total fee of $630.00 for three hours at the deposition.

To determine whether a fee request pursuant to Rule 26(b)(4)(C) is reasonable, courts consider seven criteria: (1) the witness's area of expertise; (2) the education and training required to provide the expert insight that is sought; (3) the prevailing rates of other comparably respected available experts; (4) the nature, quality, and complexity of the discovery responses provided; (5) the fee actually charged to the party who retained the expert; (6) fees traditionally charged by the expert on related matters; and (7) any other factor likely to assist the court in balancing the interest implicated by Rule 26. Fisher-Price, Inc. v. Safety 1st, Inc., 217 F.R.D. 329, F.R.D. 329, 333 (D. Del. 2003); Edin v. Paul Revere Life Ins. Co., 188 F.R.D. 543, 546 (D. Ariz. 1999). "Ultimately," however, "it is in the court's discretion to set an amount that it deems reasonable." Fisher-Price, 217 F.R.D. at 333 (quoting Fleming v. United States, 205 F.R.D. 188, 190 (W.D. Va. 2000)). ***

[C]ourts do not hesitate to reduce an expert's fee when that expert charges one party more than another. See, e.g., Jochims v. Isuzu Motors, Ltd., 141 F.R.D. 493, 497 (S.D. Iowa 1992) ("Applying the factors discussed earlier, the court determines that $250.00 an hour is the outer limit of a reasonable fee for Dr. Nalecz. This is the current rate he is charging the Plaintiff for the most difficult work performed for him . . . ."). Plaintiff's counsel has given the Court no good reason why Borison charged plaintiff $210.00/hour and then charged defendant $250.00/hour. Accordingly, and applying the factors above, the Court will reduce Borison's hourly fee to $210.00/hour and award Borison fees in the amount of $630.00 (three hours at $210.00/hour) for time spent at the deposition.

The issue of first impression here is whether Borison is entitled to fees for time spent preparing for the deposition. Federal courts interpreting rule 26(b)(4) are split on whether the rule allows for parties to recoup fees from opposing parties for time spent preparing for the opposition's depositions. However, a slim majority provides for such recovery, on the condition that the recovered fees are reasonable. Compare Boos v. Prison Health Servs., 212 F.R.D. 578, 578 (D. Kan. 2002) (mem.) (allowing recovery of expert's reasonable fees for time spent preparing for depositions); Collins v. Vill. of Woodridge, 197 F.R.D. 354, 357 (N.D. Ill. 1999) (mem.) ("The Court believes the better reading of Rule 26(b)(4)(C)(i) is that the expert's reasonable fees for preparation time are recoverable by the party who tendered the expert."); McNerney v. Archer Daniels Midland, 164 F.R.D. 584, 587 (W.D.N.Y. 1995) (allowing recovery of expert's reasonable fees for time spent preparing for depositions); Hose v. Chicago & N.W. Transp. Co., 154 F.R.D. 222, 228 (S.D. Iowa 1994) (disagreeing with "other cases denying an expert compensation for time spent preparing for the deposition"); Hurst v. United States, 123 F.R.D. 319, 321 (D.S.D.1988) (allowing recovery of expert's reasonable fees for time spent preparing for depositions); American Steel Prods. Corp. v. Penn Cent. Corp., 110 F.R.D. 151, 153 (S.D.N.Y. 1986) (same), and Carter-Wallace, Inc. v. Hartz Mountain Indus., Inc., 553 F. Supp. 45, 53 (S.D.N.Y. 1982) (same), with 3M Co. v. Kanbar, No. C06-01225, 2007 WL 2972921 (N.D. Cal. Oct. 10, 2007) (denying fees for time spent preparing for deposition unless case is complex or extenuating circumstances exist); M.T. McBrian, Inc. v. Liebert Corp., 173 F.R.D. 491, 493 (N.D. Ill. 1997) (allowing recovery for expert deposition preparation time only if the litigation is complex and there "has been [a] considerable lapse of time between an expert's work on the case and the date of his actual deposition"); S.A. Healy Co. v. Milwaukee Metro. Sewerage Dist., 154 F.R.D. 212, 214 (E.D. Wis. 1994) (same); EEOC v. Sears, Roebuck & Co., 138 F.R.D. 523, 526 (N.D. Ill. 1991) (agreeing with Rhee); and Benjamin v. Gloz, 130 F.R.D. 455, 457 (D. Colo.1990) (same); Rhee v. Witco Chem. Corp., 126 F.R.D. 45, 47 (D. Ill.1989) (allowing recovery under rule 26(b)(4) only in limited circumstances, "such as in a complex case where the expert's deposition has been repeatedly postponed over long periods of time by the seeking party causing the expert to repeatedly review voluminous documents"). Recently, a federal district court in Louisiana has followed the reasoning in Collins and held that an expert should be entitled to an award of fees for time spent preparing for a deposition. Paz v. Our Lady of Lourdes Reg'l Med. Ctr., Inc., Civ. A. No. 01-2693, at *4 (W.D. La. May 19, 2009) (Methvin, M.J.). ***

This Court ... holds that — as long as such fees are reasonable an expert may be compensated for time spent preparing for a deposition.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

RICO: (1) Victim vs. Perpetrator Enterprises — (2) § 1962(b): Elements of a Violation — (3) Meaning of “Interest” and “Control” in § 1962(b) — (4) The Defendant in a § 1962(b) Action Need Not Be an Enterprise; The Victim Must Be An Enterprise — (5) Acquisition/Maintenance Injury Required (6) Aiding and Abetting Liability under RICO

Rule 11 Sanctions: Request for Bill of Particulars re Sanctions Proceeding Reviewed for Abuse of Discretion — Court’s Discretion Narrows As Severity of Sanction Increases OR When It Initiates the Sanction Proceeding Itself — Particularly Strict Abuse of Discretion Standard Applied — “Rule 11 Does Not License a District Court to Sanction Any Action by an Attorney or Party That It Disapproves of” (Good Quote) — Failure to Provide Identify Specific Pleading and Detail Specific, Objectionable Conduct within that Pleading Violates Due Process — Failure to Provide Notice That Most Severe Sanction May Be Imposed Violates Due Process — Failure to Provide Notice That “Scarlett Letter Sanction” (Mandatory Circulation of Sanctions Order) Or Other Sanction That Could Leave Indelible Imprint on Career Might Be Imposed Violates Due Process — Notice That Law Firm Might Be Sanctioned Insufficient to Afford Notice to Firm Lawyer and Managing Partner That He Might Be Sanctioned — Refusal to Impose Additional Sanction Until Impact of Other Imposed Penalties (Not Sanctions) Ascertained to See Whether Sanction Needed

Rule 37(c)(1) Sanctions: (1) Exclusion of Expert Testimony Reviewed for Abuse of Discretion Even When It Results in Summary Judgment — (2) Whether Physicians Must File 26(a)(2)(B) Report Depends on Whether They Formed Their Opinions for Litigation Or in the Course of Medical Treatment — (3) Party Seeking to Avoid Exclusion of Its Expert for Noncompliance with Rule 26 Bears Burden of Showing Harmlessness or Substantial Justification — (4) Expert Report Subject to Exclusion If It Is Conclusory and Does Not Meet the Level of Rigor Required by Rule 26(a)(2)(B)

RICO: The Statute Defines Enterprise Broadly, “But That Breadth Is Not Without Limit” (Good Quote) — Enterprise Inadequately Pled Where Plaintiffs Fail to Name the Common Purpose, Explain How the Relationships Among the Defendants Allowed Them to Advance That Purpose, Or Specify the Period of Time Sufficient to Achieve That Purpose — In a Particular Case, the Pattern of Racketeering May Be Sufficient to Infer the Existence of an Association-in-Fact Enterprise, But Pattern Does Not Necessarily Establish Enterprise — A RICO Conspiracy May Exist Regardless of Whether the Substantive RICO Violation Is Consummated, But the Substantive Violation Must Be Adequately Pled

RICO: (1) Claim Accrued When Plaintiff Suffered, and Was Aware of, Her Injury — Overt Retaliation in Her Employment As A Result of Reporting Another Employee’s Sexual Misconduct — Not When a Report Confirming that Misconduct Later Became Public; (2) Inhouse Lawyer’s Conclusion No Sexual Misconduct Occurred Is a Mere Expression of a Legal Conclusion, Not Deception Warranting SOL Reprieve Due to Equitable Tolling or Fraudulent Concealment — Plaintiff Exhibited Lack of Diligence in Failing to Consult Own Counsel or Challenge Inhouse Counsel’s Conclusion; (3) Causation: Plaintiff Must Prove Her Injuries Were Directly Caused by the Predicate Acts — (4) Concealment of Report Commissioned by Employer Directly Harmed Employer (by Exposing It to Liability) and Victims of Sexual Misconduct, and Only Indirectly Harmed Plaintiff Who Suffered Retaliation in Her Employment for Reporting the Misconduct

RICO: Without Injury to Business or Property, Injury Resulting from RICO Violation Is Not Actionable under RICO — Meaning of “Property” in § 1964(c) — Meaning of “Business” in § 1964(c) — Mere “Expectancy Interests” ≠ Business or Property — Loss of NCAA Eligibility = Loss of a Status, Not Loss of Property — Pecuniary Losses (Here, Attorney’s Fees) Flowing from a Non-Cognizable Injury Are Not Recoverably via RICO

RICO: Enterprise Not Sufficiently Distinct from Defendant Where Enterprise Allegedly Consisted of the Defendant Corporation, Corporate Employees, Their Counsel and “Friends”

FRAP 38 Sanctions Should Not Lightly Be Awarded on the Ground That an Incorrect Argument Was Frivolous — “An Appeal Can Be Weak, Indeed Almost Hopeless, Without Being Frivolous” (Good Quote) — There Must Be “No Legitimate Basis for Pursuing the Appeal” (Good Quote)

Severe Emotional Distress and Trauma ≠ RICO Injury — Parents’ Voluntary Financial Support of Adult Daughter Who Was Forced to Sign Over Her Annuity in Violation of RICO Not Proximately Caused by RICO Violation — Injury Is Derivative, Not Direct (Intimation of Different Result if Financial Support Required by Law) — RICO Injury Is Requirement for Statutory Standing (12(b)(6) Issue), Not Constitutional Standing (12(b)(1) Issue)

RICO — Neither Filing a Complaint Nor Issuing a Press Release Constitutes Wire Fraud — Litigation Privilege Is Absolute and Bars All Tort Claims Other Than Malicious Prosecution — Abuse of Process Claim Barred (California Law)

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice