J. RANDAL HALL, Chief District Judge.
The Court's Order of December 6, 2017, found Plaintiff violated Federal Rule of Civil Procedure 26(a) (2) (B)'s disclosure requirements and missed the Court's deadline to disclose expert witness reports. (Doc. 65, at 7-11, 19.) When a party fails to properly disclose an expert witness report, Federal Rule of Civil Procedure 37(c) (1) allows a court to prevent the use of that witness to supply evidence. "In addition to or instead of this sanction, the court . . may order payment of the reasonable expenses, including attorney's fees, caused by the failure." FED. R. Civ. P. 37(c)(1) (A).
In this case, the Court choose the latter path. Rather than exclude the testimony of Frank Parson and Stuart Gregory, the Court reopened discovery and allowed Defendant to depose both experts. (Order of Dec. 6, 2017, at 9, 11.) The Court then allowed Defendant to "submit an itemized list of the costs incurred, which will be borne by Plaintiff," for the two depositions. (
Subsequently, Defendant's counsel Maureen E. Murphy and Seretha Howell, Ms. Murphy's paralegal, submitted affidavits with an itemized list of the costs incurred in preparing for and taking the depositions of Frank Parson and Stuart Gregory. (Murphy Aff., Doc. 69, ¶ 5; Howell Aff., Doc. 70, ¶ 5.) Ms. Murphy billed 30.2 hours at a rate of $150.00 per hour and incurred $483.84 in mileage expenses. (Murphy Aff., ¶ 5.) Ms. Howell billed 2.2 hours at a rate of $65.00 per hour. (Howell Aff., ¶ 5.) Defendant also incurred $49.15 in copying costs. (
Plaintiff makes two objections to the costs and fees claimed. First, they argue the Court should not award attorney's fees for the time Ms. Murphy spent traveling from her office in Douglasville, Georgia to Statesboro, Georgia to take the two depositions. In Plaintiff's view, the costs of Defendant's decision to retain out-of-town counsel when there are qualified attorneys in the Statesboro area should not be borne by Plaintiff. The Court is inclined to agree.
Second, Plaintiff contends she should not be required to pay for the hours billed preparing for and conducting Mr. Gregory's deposition. In her view, these costs represent a windfall for Defendant because Plaintiff made Mr. Gregory available for deposition before the end of discovery and it was Defendant's decision to not depose him. Plaintiff forgets, however, that part of the reason Defendant chose to not depose Mr. Gregory during discovery was because Plaintiff failed to timely disclose his expert witness report. Defendant reasonably believed that a motion to exclude Mr. Gregory would succeed based on Plaintiff's failure to comply with Rule 26 and the Court's deadlines. Accordingly, the Court will not reduce the fees for preparing and conducting Mr. Gregory's deposition.
In sum, after subtracting the fees for Ms. Murphy's travel time, the Court awards Defendant $2,873.00 in attorney's fees and $532.99 in costs incurred for the depositions of Frank Parson and Stuart Gregory.