THOMAS N. O'NEILL, Jr., District Judge.
This case involves a longstanding dispute concerning the use of a 5.29-acre property located at 50 Oreland Mill Road in Springfield Township, Pennsylvania. On February 27, 2017, I granted summary judgment in favor of defendants on all of plaintiffs' claims. Defendants now seek to compel plaintiffs to pay expert witness deposition fees pursuant to Federal Rule of Civil Procedure 26(b)(4)(A). I will grant the motion, but limit the total amount of recoverable costs and fees to $3056.25.
Plaintiffs initiated the current action against defendants pursuant to 42 U.S.C. § 1983, alleging violations of their due process and equal protection rights, as well as a state law claim of tortious interference with contractual relations. In the course of discovery, defendants retained Charles L. Guttenplan, an expert in land use planning, zoning, land development and related municipal practices, to testify as to defendants' liability. Additionally, they retained John J. Coyle III, an expert in real estate appraisal, leases and the calculation of fair market price for industrial property rentals, to testify as to damages. On February 18, 2015, both experts issued expert reports.
Pursuant to the scheduling order, plaintiffs noticed the depositions of both experts. Plaintiffs took Mr. Guttenplan's deposition on April 17, 2015, following which he invoiced defense counsel for his fees and costs, at a rate of $150.00 per hour, as follows:
Defs.' Mot. Expert Dep. Fees, Ex. A. In addition, Mr. Guttenplan billed $13.00 for train fare and $1.00 for parking.
Defendants forwarded these invoices to plaintiffs for payment under Federal Rule of Civil Procedure 26(b)(4)(E). By way of letters dated May 11, 2015 and May 27, 2015, plaintiffs argued that although expert discovery costs are generally recoverable by defendants, the amounts sought by the two experts were excessive. Defs.' Mot. Expert Dep. Fees, Ex. C & D. Plaintiffs offered compromises of $1,495.25 for Mr. Guttenplan and $1,380.00 for Mr. Coyle.
Before reaching the merits of defendants' motion, I must address plaintiffs' claim that defendants' motion should be denied for failure to comply with Local Rule 26.1(f). For purposes of this motion only, I will excuse the Rule 26.1 requirement.
The Eastern District of Pennsylvania's Local Rule 26.1(f) states: "No motion or other application pursuant to the Federal Rules of Civil Procedure governing discovery or pursuant to this rule shall be made unless it contains a certification of counsel that the parties, after reasonable effort, are unable to resolve the dispute." Loc. R. Civ. P. 26.1(f). Rule 26.1(f) "imposes a substantial obligation on counsel to resolve discovery problems before bringing them to the attention of the court."
In this case, defendants failed to file any certification averring that they made reasonable efforts to resolve the present dispute. While this failure is contrary to the spirit of the Local Rules, I will nonetheless excuse defendants' certification requirement and proceed to the merits of the motion for several reasons. First and foremost, it is not entirely clear that the certification requirement applies to a request for expert deposition fees under Rule 26(b)(4)(E). Although the language of Local Rule 26.1(f) makes it applicable to any "motion or application . . . pursuant to this rule," plaintiffs do not cite, and I cannot find, any case that has applied this Rule to a request for expert fees. Accordingly, defendants could have reasonably believed that such a certification was not required. Second, defense counsel made some—albeit limited—effort to resolve this case. After each of the expert depositions, defense counsel sent the experts' bills to plaintiff's counsel requesting reimbursement. Plaintiffs provided detailed responses, offered a compromise on the amounts owed and remarked that they did not "believe it will be economical for either side to litigate these questions before the Court." Defs.' Mot. Expert Dep. Fees, Ex. C & D. Although defense counsel did not respond to these offers, defendants argue that they believed plaintiffs were attempting to force them to capitulate to avoid a threat of a contest on the relatively small claims. Defs.' Mem. Supp. Expert Dep. Fees 4;
Rule 26(b)(4)(E) states that "[u]nless manifest injustice will 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 (D)." Fed. R. Civ. P. 26(b)(4)(E)(i). This rule is mandatory, subject only to two caveats: (1) manifest injustice must not result from enforcement of the rule and (2) the fees sought must be "reasonable."
As described in more detail above, defendants request a total of $5,025 representing the costs incurred as a result of plaintiffs' depositions of defendants' two experts. Plaintiffs now challenge multiple portions of these bills as not "reasonable" within the rule. I consider each of these challenges separately.
Plaintiffs do not dispute the well-established principle that deposition time is compensable under Rule 26(b)(4)(E).
Mr. Coyle billed for "five hours of testimony" at a rate of $300 per hour. According to his deposition transcript, however, his deposition began at 10:01 a.m. and finished at 1:36 p.m., for a total of approximately three and a half hours.
Plaintiff's second challenge to the bills concerns travel time.
Adopting this majority approach, I will reduce the experts' hourly rate for travel time by one-half. As set forth above, approximately 3.75 hours of Mr. Guttenplan's billed time is attributable to travel. Although he billed his normal rate of $150 per hour for that time, I will allow recovery of that time at a rate of $75 per hour. Approximately 1.5 hours of Mr. Coyle's billed time is attributable to travel, for which he charged his normal rate of $300 per hour. I will also reduce that rate by one-half to allow recovery of that time at $150 per hour. Accordingly, defendants may recover a total of $506.25 for travel time for both experts.
Plaintiffs also claim that they need not reimburse defendants for the experts' time spent meeting with defense counsel. Courts have recognized that "the deposing party should not have to pay for the expert's time that is used for other purposes, such as trial preparation, education of the retaining party's attorney, or instruction to the expert about how to handle questioning by opposing counsel."
Accordingly, I must again reduce the recoverable fee for Mr. Guttenplan. His bill reveals that he spent 1.75 hours meeting with H. Mahoney, Esq. Such a meeting is more akin to trial preparation and education of defense counsel than to "responding to discovery." Therefore, I will deduct $262.50 (1.75 hours × $150 per hour) from the requested amount due for Mr. Guttenplan.
The last, and perhaps most controversial, category of expenses challenged by plaintiffs concerns the experts' preparation time. Plaintiffs contend that, under Rule 26(b)(4)(E), they are not responsible for any such preparation time incurred by the experts. While I disagree and find that preparation time is indeed compensable under the Rule, I will nevertheless reduce the amount of the recoverable fee.
Whether preparation time is properly reimbursable under Rule 26(b)(4)(E) as "time spent in responding to discovery" has been the subject of substantial litigation. The Court of Appeals has not affirmatively ruled on this issue, but there is persuasive authority both from within this circuit and from other jurisdictions. A substantial majority of the courts that have considered the issue have held that fees for a reasonable amount of deposition preparation time are properly chargeable to the party seeking discovery.
On the other hand, a minority of courts "have expressed particular concern about the `great risk of abuse in compensating a party for his expert's deposition preparation time, since that time usually includes much of what ultimately is trial preparation work' for the retaining party."
Following the weight of the authority, I adopt the majority view and find that preparation time is properly reimbursable under Rule 26(b)(4)(E) as "time spent in responding to discovery," particularly where the preparation consists of "the expert's review of his or her report and voluminous record materials pertinent to the expert's expected testimony."
Applying such principles to the present case, I conclude that some of the experts' preparation time is compensable under Rule 26(b)(4)(E). Mr. Coyle billed for only one hour of preparation time for a three and a half hour deposition. Plaintiffs offer no specific objection to this period of time and I find it reasonable. Therefore, I will order that plaintiffs compensate defendants for Coyle's billed preparation time.
Mr. Guttenplan, on the other hand, billed for thirteen hours of preparation time for a three-hour deposition. Defendants cursorily argue that such hours are reasonable in light of the complex zoning, subdivision and land development ordinances, as well as the many deposition transcripts, he had to review to arrive at his report findings and prepare for his deposition. This argument is unconvincing for several reasons. First, Mr. Guttenplan had to review these documents in order to draft his report, not as preparation for his deposition. Second, his report consisted of only nine substantive pages and focused on land use requirements, issues that lack the complexity of many other areas of expert testimony. Third, Mr. Guttenplan's report was issued only two months prior to his deposition, meaning there was no "considerable lapse" of time that should have required extensive efforts to refresh his recollection. Fourth, the deposition spanned only three hours, yet he billed for more than four times that in preparation. Finally, despite seeking $1,950 in compensation for his preparation time, Mr. Guttenplan included no details as to how precisely he spent these thirteen hours. I find that for a three-hour deposition related to a nine-page report issued only two months prior, a total of five hours of preparation time should have been more than sufficient.
In light of the foregoing, I will grant defendants' motion and compel plaintiffs to pay expert deposition fees under Rule 26(b)(4)(E). I will, however, substantially reduce the amount requested for the two experts as follows:
Based on these calculations, I will order that plaintiffs pay the defendants the sum of $3,056.25 as reimbursement for the expert witness deposition fees of Charles L. Guttenplan and John J. Coyle, III.
An appropriate Order follows.
This argument is misplaced. In the case cited by plaintiffs in support of their argument,