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Opposing Party Ordered to Pay Expert Deposition Preparation Fees

By Duchess Harris, Litigation News Associate Editor – May 14, 2010

The use of experts in litigation is common, and so are disputes over the payment of their fees. In Borel v. Chevron, the Eastern District of Louisiana joined a slim majority of jurisdictions that allow a party to recoup fees its expert charges to prepare for a deposition taken by the opposing party.

Betty Borel had sued for injuries allegedly sustained in a slip and fall. To impute liability on the defendant, Borel retained an expert safety witness. The witness quoted fees for his deposition by the defendant’s counsel that were different from the fees he quoted for services to the plaintiff.

U.S. District Court Magistrate Judge Daniel E. Knowles III reduced the expert’s hourly rate owed by the defendant for time spent at the deposition to the same hourly rate the expert had charged the plaintiff.

The court also awarded Borel the amount she incurred for one and one-half hours of the time the expert spent preparing for his deposition.

Paying for Preparation Time
In issuing the award for deposition preparation time, the court reviewed a number of decisions interpreting Fed. R. Civ. P. 26(b)(4)(C) and found that “a slim majority provides for such recovery, on the condition that the recovered fees are reasonable.”

The court’s order points to federal district court decisions in Kansas, Illinois, New York, Iowa, and South Dakota that allowed recovery of fees for expert preparation, while other decisions in Illinois and in district courts in California, Wisconsin, and Colorado have only allowed fee recovery in limited or extenuating circumstances.

Courts granting the recovery have reasoned that time spent in deposition preparation is time spent responding to discovery, not time spent for trial preparation for the benefit of the party who tendered the expert.

Courts have also noted that the goal of Fed. R. Civ. P. 26(b)(4)(C) is to compensate experts for their time, but also “to prevent one party from unfairly obtaining the benefit of the opposing party’s expert work free from cost.”

Reasonableness of Fees
A challenge with such fee-shifting to the opposing party lies in setting “reasonable” fees for preparation time, and then, determining how much of those fees will be assessed to the opposing party seeking the discovery.

The Borel opinion analyzed “reasonableness” by 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 interests implicated by Rule 26.

In Borel, defense counsel had challenged the amount of time spent by the expert for preparation as well as the expert’s hourly rate. The defendant requested that the court reduce the expert’s hourly rate to the same rate charged to the plaintiff. The court granted that request, after determining there was no reason for the differential.

As part of its analysis, Borel cited an Iowa District Court opinion that found compensating an expert for the time spent in deposition preparation “may actually reduce costs by decreasing the length of time spent at the deposition.” Hose v. Chicago & N.W. Transp. Co.

However, some litigators are concerned about how far the majority position adopted by Borel could lead.

After a reasonableness review in Borel, the court ultimately determined that the number of hours spent by the particular expert in preparing for the deposition should be reduced by one-half, notes Joan Archer, Kansas City, MO, cochair of the ABA Section of Litigation’s Expert Witnesses Committee.

“A trend in this direction would be concerning,” Archer says. “Where do you draw the line for what constitutes legitimate preparation for the deposition as opposed to work associated with the engagement [for the party retaining the expert]?” she queries.

Is This a Common Problem?
Parties will generally agree in advance how to handle payment of expert witness fees, Archer says.

Most parties would not have allowed this type of dispute to reach the magistrate for a determination of reasonableness, agrees Jeffrey A. Beaver, Seattle, cochair of the Section’s Expert Witnesses Committee.

“Generally, I think the parties agree beforehand whether the party retaining the expert will pay for his fees or whether the opposing party will pay for his fees,” Beaver says.

Beaver has never encountered an issue of an expert trying to charge different hourly rates for deposition preparation.

Keywords: Litigation, expert witnesses, Borel v. Chevron, reasonable fees, deposition

Related Resources
  • »Borel v. Chevron U.S.A. Inc., 2010 U.S. Dist. LEXIS 24379 (E.D. La. Feb. 24, 2010).

  • Cases Allowing Fee Recovery
  • »Compare Boos v. Prison Health Servs., 212 F.R.D. 578 (D. Kan. 2002).
  • »Collins v. Village of Woodridge, 197 F.R.D. 354 (N.D. Ill. 1999).
  • »>McNerney v. Archer Daniels Midland, 164 F.R.D. 584 (W.D.N.Y. 1995).

  • »Hose v. Chicago & N.W. Transp. Co., 154 F.R.D. 222 (S.D. Iowa 1994).

  • »Hurst v. United States, 123 F.R.D. 319 (D.S.D. 1988).
  • »Am. Steel Prod. Corp. v. Pa. Cent. Corp., 110 F.R.D. 151 (S.D.N.Y. 1986).

  • Cases Allowing Recovery Only under Extenuating Circumstances or in Complex Matters
  • »3M Co. v. Kanbar, no. C06-01225, 2007 WL 2972921 (N.D. Cal. 2007).
  • »M.T. McBrian, Inc. v. Liebert Corp., 173 F.R.D. 491 (N.D. Ill 1997).
  • »S.A. Healy Co. v. Milwaukee Metro Sewerage Dist., 154 F.R.D. 212.
  • »Benjamin v. Gloz, 130 F.R.D. 455 (D. Colo. 1990).
  • »Benjamin v. Gloz, 130 F.R.D. 455 (D. Colo. 1990).
  • June 4, 2010 – This might come up in Longshore cases,esp on the costs Employers' evaluating doctors want to charge claimant's


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