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Cohen v. Jaffe, Raitt, Heuer, and Weiss, P.C.

United States District Court, E.D. Michigan, Southern Division

August 23, 2017

NEAL COHEN, et al., Plaintiffs,
v.
JAFFE, RAITT, HEUER, AND WEISS, P.C., et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL EXPERT FEES (DE 45)

          ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

         This legal malpractice case is before the Court for consideration of Plaintiffs' motion to compel payment of expert fees (DE 45), Defendants' response (DE 48), Plaintiffs' reply (DE 50), and the parties' joint list of unresolved issues (DE 51). At issue in this motion is whether Defendants are required to compensate Plaintiffs' expert witnesses for the time spent preparing for their depositions and, if so, how much compensation is reasonable. The parties, through counsel, came before me for a hearing on August 16, 2017. For the reasons outlined below, Plaintiffs' motion is GRANTED IN PART AND DENIED IN PART.

         I. BACKGROUND

         Defendants noticed the depositions of three of Plaintiffs' expert witnesses: Andrew Stumpff, Dwight Duncan, and Timothy Geddes. Mr. Stumpff is Plaintiffs' standard of care expert, Mr. Duncan is Plaintiffs' expert on damages, and Mr. Geddes is the actuarial expert.

         Prior to the depositions, counsel engaged in an email exchange, wherein Plaintiffs informed Defendants that they expected them to pay their experts for time spent preparing for the depositions. Specifically, Plaintiff's counsel wrote that, “In addition to whatever time you take with them in deposition, we anticipate that each expert will have an additional 3 hours of time for preparing for and traveling to the depositions.” (DE 45-2 at 3.) Defendants responded that they would pay for time spent taking the depositions, but not for preparation or travel time. (Id. at 2.) In any event, the depositions went forward. Mr. Stumpff's occurred on February 9, 2017 and lasted from 8:02 a.m. to 10:28 a.m. (R. at 48-3.) Mr. Geddes' occurred on the same day and lasted from 10:34 a.m. to 11:09 a.m. (R. at 48-4.) The record gives no indication that Mr. Geddes should have anticipated that his deposition would take less than an hour, or at least no such portion of the record has been brought to the Court's attention. Mr. Duncan's deposition occurred on March 21, 2017 and lasted from 9:00 a.m. to 11:24 a.m. (DE 48-5.)

         When the depositions concluded, Plaintiffs sent reimbursement requests to Defendants, outlining the time spent preparing for the depositions, travel, and deposition testimony. (DE 45-3.)[1] All told, Plaintiffs sought fees in the amount of $20, 489.50. (Id. at 3.) Defendants paid for a portion of the fees-by agreement covering the time spent being deposed-leaving the $12, 892 for deposition preparation in dispute. (DE 50 at 7.)

         Plaintiffs assert that Defendants are responsible for the entirety of their experts' preparation: 8.6 hours for Mr. Stumpff; 9.3 hours for Mr. Geddes; and 5.9 hours for Mr. Duncan. Defendants counter that they are not responsible for any preparation fees. In the alternative, they assert that the number of hours of preparation is unreasonable in light of the relatively short depositions. They further take issue with the reasonableness of Mr. Geddes' $715 per hour rate.

         II. STANDARD

         Federal Rule of Civil Procedure 26(b)(4)(E) provides as follows:

         (E) Payment. Unless manifest injustice would 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) [experts who may testify] or (D) [experts employed only for trial preparation]; and
(ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions.

         For purposes of this motion, only subpart “i” is at issue, as the experts whose time is at issue have all been designated as potential trial witnesses. (DE 21-23.)

         III. ...


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