Opinion
No. CIV 01-25 MCA/LFG-ACE.
February 6, 2002.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION FOR PROTECTIVE ORDER
THIS MATTER is before the Court on the Plaintiffs emergency Motion for Protective Order to Protect Plaintiff Expert Kelly DeFeo From Annoyance, Embarrassment, Oppression, and Undue Burden and Expense [Doc. 114]. On February 5, 2002 , the Court conducted a telephonic hearing on this motion. The motion concerns the deposition of Plaintiffs expert, Kelly C. DeFeo, who resides in a rural area in eastern New Hampshire, at the base of the White Mountains, at or near the village of Conway. Conway is located near the New Hampshires border with Maine. The closest metropolitan area of any size is located 68 miles away in Portland. Conway, itself, is 78.8 miles from the capitol, Concord. Due to its rural nature, Conway apparently lacks readily available and suitable facilities to utilize for a video deposition.
Conways website indicates that its population is small, with only 1604 individuals, comprising 911 families residing there.
As a non-party witness, Ms. DeFeo is entitled to have her deposition taken at her residence or place of employment. Alternatively, she should not be compelled to travel more than 100 miles to the place of deposition. Fed.R.Civ.P. 45(c)(3)(A)(ii); In Re Sealed Case, 141 F.3d 337, 341 (D.C. Cir. 1998).
Due to the Defendant United States of Americas (USA) difficulties encountered in attempting to arrange the deposition in Conway, USA requested that the video deposition be taken at Ms. DeFeos home or place of business. Ms. DeFeo declined to have her deposition taken at her residence or place of employment. Thus, USA noticed the deposition for its office located in the capitol, Concord, New Hampshire.
Ms. DeFeo was willing to travel the distance to Concord, but requests compensation for her travel time, together with travel expenses. Ms. DeFeo charges a $400 per hour fee for her deposition time, and sought $100 per hour for her travel time, plus other travel expenses. Her request for reimbursement is sustained in part and overruled in part.
Unless manifest injustice would result, a court must impose on the party seeking expert discovery from a testifying expert the reasonable expert fee for time spent in responding to discovery. Fed.R.Civ.P. 26(b)(4)(C). This Rule seeks to set the fee at a level that will enable the parties to hire quality experts without resulting in a windfall to the expert. 6 Moores Federal Practice § 26.80[3] (3d ed.); Hurst v. United States, 123 F. R. D. 319, 320 (D.S.D. 1988). Courts generally have found a reasonable fee would include compensation for the experts actual time in a deposition. See, e.g., Mathis v. NYNEX, 165 F. R. D. 23, 24 (E.D.N.Y. 1996) (finding that the defendant would have to pay the requested expert fee of $250 of psychiatrist for time spent giving deposition testimony.)
It is less certain, however, whether preparation time and travel costs are included in the determination of a reasonable expert witness fee. In M. T. McBrian, Inc. v. Liebert Corp., 173 F. R. D. 491, 493 (N.D.Ill. 1997), the trial court concluded that, as a general rule, a party deposing the opposing partys expert witness will not be made to bear the expense of that experts preparation time, unless the case is complex. The Court, in M. T. McBrian, explained that while the litigation might be extensive and convoluted, it was not complex litigation. Id. See also McKee, Jansen Corr, Federal Civil Rules Handbook, p. 510 (2001) (commenting that an expert fee normally includes compensation for time testifying, but not for preparation time). In M. T. McBrian, the Court also considered whether the defendant should be required to pay expert fees relating to travel time. 173 F. R. D. at 492-93. The expert, in M. T. McBrian, was not being brought to the offices of the moving party; instead, he was presented at the offices of the responding party. Id. at 493. The Court declined to award any expert fees or costs related to travel time, at least in part because the defendant was incurring its own travel costs to travel to the plaintiffs counsels offices.
In this case, Ms. DeFeo is entitled to payment for her standard hourly rate of $400 for the time giving her deposition. Indeed, USA agreed to pay Ms. DeFeos hourly rate, and has prepaid the sum of $1,200, representing three hours of deposition time. However, the decision to award costs for preparation time or travel time is discretionary with the Court. Fleming v. United States, 2000 WL 33666044 at *2 (W.D.Va. Dec. 6, 2000). Here, I deem the request unreasonable. One basis for my conclusion is that this case has not been designated a complex case under the Civil Justice and Reform Act. Moreover, the above mentioned cases, while not binding authority, are persuasive as to why these requests should be denied.
The current rate paid federal employees is 36.5 cents per mile. 4 Ms. DeFeo, however, is permitted to be paid round-trip mileage from her place of residence to the deposition location. The Court authorizes round-trip mileage at the rate paid federal employees on official travel.
Because the deponents deposition will take less than ten hours of deponents time, she is not entitled to per diem compensation. In sum, the Court will deny the motion for protective order, except in the following respects:
1. Ms. DeFeo may recover from USA her hourly fee of $400 for actual deposition time;
2. Ms. DeFeo may not recover from USA any fee for preparation time or travel time;
3. Ms. DeFeo may recover from USA her round-trip mileage from her residence to the place of deposition, paid at the rate authorized for federal employees on official travel.
4. Ms. DeFeo may not recover per diem or other travel expenses, unless she is away from her residence for more than ten hours. In that event, she may recover per diem at the rate paid federal employees on official business in Concord, New Hampshire.
_______________________________ Lorenzo F. Garcia United States Magistrate Judge