UNITED STATES DISTRICT COURT
FOR THE DISTRIC'I` OF COLUMBIA

JANET L. SCHMIDT,
Plaintiff,
v_ Civil Action No. 07-2216 (JMF)

HILDA L. SOLIS, Secretary,
U.S. Dept. of Labor,

Defendant,

MEMORANDUM OPINION
l have this case, on the consent of both parties, for all purposes, including trial.
Pending before me and ready for resolution is Plaintiff’s Motion for an Award of Fees for

Expert Witness Deposition Preparation (Pltf`s Mot.) [#27].

I. BACKGROUND
The instant discovery dispute concerns fees associated with preparation work

undertaken by plaintiff’ s expert witness, Dr. Raford, for a deposition held by defendant.
Plaintiff claims entitlement to the fees under Federal Rule of Civil Procedure
26(b)(4)(C)(i), which provides that, "[u]nless manifest injustice would result, the court
must require that the party seeking discovery . . . pay the expert a reasonable fee for time
spent in responding to discovery under Rule 26(b)(4)(A) or (B)." Fed. R. Civ. P.
26(b)(4)(C)(i). Defendant, relying on United States ex rel. Fago v. M&T Mortg. Corp.,
283 F.R.D. 3 (D.D.C. 2006) (Faccio1a, J.), counters that Dr. Raford’s deposition was not

sufficiently complex, nor was the lapse of time between the preparation of his final report

and his deposition sufficiently lengthy, to justify an award of fees. _S_e_e Opposition to

 

Plaintiff’ s Motion for an Award of Fees for Expert Witness Deposition Preparation
("Opp.") at 7 (citing @gg, 283 F.R.D. at 15).
In the F ago case, l attempted to find a middle ground for the fee provision in Fed.
R. Civ. P. 26(b)(4)(C)(i) to deal with the ambiguities raised in preparing for deposition,
where it may be unclear whether an expert is "responding to discovery" or engaging in
trial preparation, the latter of which should not be charged to the deposing party. Fago,
283 F.R.D. at l5. As l will discuss below, after careful consideration, l have come to the
conclusion that my prior position was misguided. lnstead, l believe that reasonable fees
for the time spent by an expert for a deposition should always be paid by the party taking
the deposition,
II. DISCUSSION
One of the reasons for requiring experts to submit reports under Fed. R. Civ. P.
26(a)(2)(B) is to eliminate the need to take a useless deposition in which the expert
simply repeats what he had said in his report. 'l`he Advisory Committee Notes to the
1993 amendments to the F ederal Rules indicate that the rule was amended to force the
party taking the deposition to pay the expert’s fee in the hopes of eliminating such
depositions because the expert will have produced a report that clearly indicates the
opinions the expert holds and will testify about at trial. The 1993 Notes stated:
[P]aragraph (4)(A) is revised to provide that experts who are expected to
be witnesses will be subject to deposition prior to trial, conforming the
norm stated in the rule to the actual practice followed in most courts, in
which depositions of experts have become standard. Concems regarding
the expense of such depositions should be mitigated by the fact that the
expert’s fees for the deposition will ordinarily be bome by the party taking
the deposition. The requirement under subdivision (a)(2)(B) of a
complete and detailed report of the expected testimony of certain forensic

experts may, moreover, eliminate the need for some such depositions or at
least reduce the length of the depositions. Accordingly, the deposition of

an expert required by subdivision (a)(2)(B) to provide a written report
may be taken only after the report has been served.

Fed. R. Civ. P. 26, Notes to 1993 Amendments. See also SA Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 2034 (3d ed. 2010), available at

Westlaw FPP ("lf, as was hoped, these disclosures serve to avoid the need for some
experts’ depositions, or at least to shorten the depositions, that may mean that there will
be fewer occasions for payment of expert fees pursuant to Rule 26(b)(4)(C).") _C_f.
Walker v. Chicago, 526 F. Supp. 2d 899, 900 (N. D. lll. 2007) (Shadur, J.) ("This Court
frequently reminds counsel in cases before it that an important consequence of the Rule
26(a)(2)(B) and (C) requirement of a comprehensive report from every opinion witness
who is expected to testify is that the witness’ trial testimony is circumscribed by that
report.").

Nevertheless, the F ederal Rules of Civil Procedure expressly authorize taking
depositions of expert witnesses (Fed. R. Civ. P 26 (b)(4)(A)), and they are still being
taken. Consistent with the purpose of reducing the number of such depositions, however,
the party seeking discovery from the other party’s expert must pay the expert a
reasonable fee for "time spent in responding to discovery." Fed. R. Civ. P. 26(b)(4)(C)(i).

lt is the universal practice of the bar in this jurisdiction to tender the expert
witness’s fee for attending the deposition that party has noticed. A closer question is
presented when one party demands that the party taking the deposition also pay for the
time spent by the expert preparing for the deposition, usually by reviewing her report and
consulting with the counsel who retained her.

Any lawyer worthy of the name is going to prepare the witness for the deposition

by reviewing the report with the expert, and making sure that the expert can articulate the

 

conclusion and methodology of the report clearly and effectively. lf counsel knows what
she is doing, she will anticipate potential weaknesses that opposing counsel can exploit,
and make sure the expert is ready for them.

As I noted above, in my decision in §gg, l attempted to find a middle ground by
focusing on factors such as the time between the submission of the report and the
deposition and the report’s complexity. _F_z_tgc_), 238 F.R.D. at 15 . l have now concluded,
however, that my approach was misguided, insofar as it focused on the reason for the
preparation by the expert, so that the complexity of her work or the amount of time
between the completion of the report and the deposition (and the consequent need for the
expert to review it) were factors. Whatever the wisdom of that approach, l now
appreciate what my experience should have taught me sooner: that no lawyer will fail to
prepare an expert witness for a deposition and to have that expert witness prepare for the
deposition, no matter how simple or complex the repoit, or how much time since its
completion. To my mind, that a lawyer will prepare the expert and consume some of her
time is such a certainty that it should always be considered as a form of "responding to
discovery" under the pertinent rule, and should always be paid by the party who is taking
the deposition, whatever her motive, intent or purpose. This also advances the rule’s
purpose of discouraging needless deposition of experts.

Prevention of unfaimess, on the other hand, can be left to ascertaining the
reasonableness of what is being charged, and it would be in that context that factors such
as the complexity of the report and the time spent since completing it would be

considered. _S_r§ Borel v. Chevron U.S.A. lnc., 265 F.R.D. 275, 278 (E.D. La. 20l0)

("[A]s long as such fees are reasonable . . . an expert may be compensated for time spent

 

preparing for a deposition."); §f_. Guantanamera Cigar Co. v. Corporacion Habanos, S.A.,
08-cv-072l, 2010 U.S. Dist. LEXlS 82543 at *l8 (D.D.C. Aug. 5, 2010) (noting that the
party seeking reimbursement for an expert witness fee bears the burden of establishing
reasonableness).
III. FEES
As just noted, there are a number of factors to be considered in determining
whether a requested expert witness fee is reasonable. ln this particular case, there is not a
dispute about the amount of the hourly fee charged by the expert, but about the actual
preparation time that should be charged to the defendant.
A. The amount of time expended on preparation
The first invoice sent to defendant’s counsel was sent directly by Dr. Raford,

dated February l8th; he did not include any charges for preparation, Opp. at 5.
Defendant’s counsel objected to particular charges, and the parties went back and forth
over individual items and charges. l;d. at 6. Defendant’s counsel notes that plaintiffs
counsel never mentioned preparation fees during these negotiations. l;d. When the final
invoice was sent, dated April 24th, there was a charge for two (2) hours of preparation
time on Wednesday, February l0th, and four (4) hours of preparation time on Friday,
February l2th. I;d. Plaintiff reduced the charge for preparation time on February 12th to
two (2) hours, after confirming with Dr. Raford that two of the hours he listed as
preparation time that day were spent with plaintiff’ s counsel. I;d. Even though time spent
with plaintiffs counsel preparing would be compensable under this decision, the parties

agreed that defendant would not be responsible for that charge. l;d. at Exh. O. The final

claimed charge is therefore for four (4) hours of preparation time total. I;d. at 6.

 

   
   
  
  
 
  
  
  
  
  
  
   
   

'l`he first point of contention concerns how much time Dr. Raford spent with
plaintiff’ s counsel on February l2th~that is, by how much the original six hours should
be reduced. Defendant’s counsel claims that, if nothing else, it should be reduced by two
and a half hours, rather than two, as Dr. Raford stated that he spent two and a half hours
preparing with counsel on February l2th. ld; Both plaintiffs and defendant’s counsel are

correct, to a point.

Sealed Exhibits (filed by plaintiff) [#29], Raford transcript at l4.
There is also debate, however, as to whether Dr. Raford spent any time at all
preparing for the deposition outside of the time he spent with counsel the day before. As
noted above, Dr. Raford did not include preparation time on his initial invoice.

Furthermore,

Sealed Exhibits, Raford transcript at l9.

Defendant points to Dr. Raford’s statement in this exchange in claiming that,
because plaintiff does not seek payment for the time Dr. Raford spent with plaintiff’s
counsel, there is no compensable preparation time. Opp. at 5. Plaintiff asserts that this

exchange was taken out of context; that, in fact, it was part of a line of questioning aimed

at eliciting the degree to which plaintiff" s counsel influenced Dr. Raford’s opinions, as
opposed to how much time Dr. Raford spent preparing. Reply at 9.

Rather than construe an ambiguous record, l will cut to the quick and ask Dr.
Radford to tell me whether he spent any time preparing for the deposition other than the
time he spent with counsel. Plaintiff’ s counsel will therefore transmit to him the
following interrogatories with the understanding that the doctor will be answering the
questions under pain of perjury:

l. How much time did you spend on Wednesday February l0, 2010
preparing for your deposition?

2. How much time did you spend on Friday, February l2, 2010 preparing for
your deposition?

3. How much time of the time you spent on Friday, February l2, 2010
preparing for the deposition was spent with plaintiff" s counsel?

4. How much time do you claim you spent totally on February l0, 2010 and
February l2, 2010 other than the time you spent with plaintiff’ s counsel‘?

Once lreceive answers to these interrogatories 1 will resolve what (if any) fee l
will allow. First, however, 1 must dispose of the argument that the parties’ counsel had
an agreement that the defendant would not be charged preparation time.

B. Whether the parties had an agreement concerning payment of expert
fees for preparation time

Defendant asserts that dates and the fee schedule were discussed by the parties in
January 2010, but that preparation time was never discussed Opp. at 4. 'l`he exhibits that
defendant cites in support of the claim that there was an "understanding" that she would
not be responsible for deposition preparation time, however, show no such thing. ln the

first, an e-mail from defendant’s counsel dated January 28, 2010, defendant’s counsel

asks plaintiffs counsel about Dr. Raford’s fee for his actual deposition time, as opposed

 

to "the rate he charges for prep time and other expert activities," along with asking
specific questions about the rate charged for travel time. Opp., Exh. H. Plaintiffs
counsel responds in an e-mail dated January 29, 2010, confirming his deposition time fee
and explaining how the travel time fees would be charged. Opp., Exh. l. Defendant
characterizes plaintiffs counsel’s e-mail as "memorializing" a "detailed understanding of
the services for which the govemment would pay." Opp. at 4. Plaintiff cites Dr. Raford’s
fee schedule, included with his original final report in September 2009, which lists his
rate for "Phone Conferences, Testimony Prep Time," asserting that it should be no

surprise that Dr. Raford would charge for that time. Reply at 8.

Sealed Exhibits at l.
lt does not appear that there was a understanding that preparation time fees would
not be charged, and plaintiff may therefore seek them.

A separate Order accompanies this Memorandum Opinion.

Digita||y signed by John M.

Facciola
0 l l DN: c=US, st=DC, ou=District of
° Co|umbia,

email=John_M._Faccio|a@dcd.us
courts.gov, o=U.S. District Court,

0
F a  \ 0 \ a District ofCo|umbia,cn=John M.
Faccio|a

Da'te: 2010.1 l .16 12:20:50 -O5'0O'

JoHN M. i=AccioLA

UNlTED STATES MAGISTRATE JUDGE

 

