Opinion
Nos. 96 Civ. 4762 (KMW) (HBP), 96 Civ. 4763 (KMW) (HBP), 96 Civ. 6846 (KMW) (HBP).
December 30, 1997
MEMORANDUM OPINION AND ORDER
Plaintiffs move for an Order pursuant to Rule 26(b)(4)(C) requiring defendant to pay certain expenses incurred in connection with defendant's depositions of two of plaintiffs' experts, Dr. L. Ray Hoxit and Paul Bray. Plaintiffs' motion is granted in part.
Hoxit was deposed for two hours and spent two additional hours in preparation for his deposition. At his hourly rate of $155, his time charges for these aspects of his deposition totaled $620. In addition to the foregoing, plaintiffs seek reimbursement for Hoxit's travel time (8.5 hours at $80/hour or $680), travel expenses ($806) and time spent in responding to specific discovery requests made at his deposition ($183). Defendant does not dispute its liability for the four hours expended at the deposition and in preparation, nor does it challenge the reasonableness of Hoxit's rate. It does, however, claim that expenses beyond the time charges actually incurred for deposition and preparation time are outside the scope of the expenses recoverable under Rule 26(b)(4)(C).
Bray was deposed for one hour and charges an hourly rate of $150. Although plaintiffs seek compensation for eight hours of Bray's time, they provide no information concerning how the other seven hours were spent. Defendant admits liability for only one hour of Bray's time, and does not challenge the reasonableness of Bray's rate.
Rule 26(b)(4)(C) provides in pertinent part:
Unless manifest injustice would result, . . . the court shall require that the party seeking discovery pay [the adverse party's] expert a reasonable fee for time spent in responding to discovery under this subdivision. . . .
Although there are conflicting decisions, see generally 8 C. Wright, A. Miller, R. Marcus, Federal Practice Procedure § 2034 (2d ed. 1994), the weight of authority appears to hold that Rule 26(b)(4)(C) permits recovery of fees for an expert's travel time and preparation time in connection with a deposition, along with the expert's out-of-pocket expenses. Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 646 (E.D.N.Y. 1997); McHale v. Westcott, 893 F. Supp. 143, 151 (N.D.N.Y. 1995); David Tunick, Inc. v. Kornfeld, 151 F.R.D. 534, 536-37 (S.D.N.Y. 1993); In re Agent Orange Products Liability Litigation, 105 F.R.D. 577, 582 (E.D.N.Y. 1985); Carter-Wallace, Inc. v. Hartz Mountain Indus., 553 F. Supp. 45, 53 (S.D.N.Y. 1982).
Defendant's argument that plaintiffs waived their right to reimbursement for travel fees by failing to object to the depositions being taken in New York is a non sequitur. Defendant cites no authority for this proposition, and my own research has disclosed nothing that even suggests that acquiescence to the location selected by the discovering party operates as a waiver of the rights created by Rule 26(b) (4) (C).
Thus, in addition to the $620 defendant concedes is due for Hoxit's deposition, plaintiffs are entitled to recover the fee claimed for Hoxit's travel time ($680), Hoxit's out-of-pocket travel expenses ($806) and the fee for the time Hoxit spent obtaining additional information to respond to requests made at his deposition ($183).
Bray has not broken down his time, and the calculation of what fees are due for his deposition is, therefore, more difficult. Bray resides in Westport, Connecticut and was deposed in New York City. I take judicial notice of the fact that the round-trip travel time between New York and Westport is approximately two and one-half hours. I also find that it is reasonable to conclude that Bray would have spent at least one hour preparing for his deposition. Adding these three and one-half hours to the one hour consumed by the deposition itself yields a total of four and one-half hours. At Bray's rate of $150 per hour, plaintiffs are entitled to recover a total of $675 as the reasonable fee for Bray's deposition.
Accordingly, withing ten (10) business days of the date of this Opinion and Order, defendant is directed to pay to plaintiffs' counsel $2,289 as reimbursement for the fees and expenses reasonably incurred in connection with the Hoxit deposition and $675 as reimbursement for the fees and expenses reasonably incurred in connection with the Bray deposition.
SO ORDERED.