Commercial Litigation and Arbitration

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

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.

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