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Veasey v. Abbott

United States District Court, S.D. Texas, Corpus Christi Division

March 23, 2017

MARC VEASEY, et al, Plaintiffs,
GREG ABBOTT, et al, Defendants.



         Before the Court is the Veasey-LULAC Plaintiffs' (Plaintiffs) motion to order Defendants to pay fees and expenses incurred by Plaintiffs' experts in responding to Defendants' deposition requests. (D.E. 824) Defendants filed a response to the motion (D.E. 826) and Plaintiffs filed a reply (D.E. 828). For the reasons set out below, the motion is GRANTED IN PART AND DENIED IN PART.

         Under Federal Rule of Civil Procedure 26(b)(4)(E), each party has the obligation to pay reasonable fees and expenses generated by experts responding to discovery. The rule states:

         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) or (D); 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.

Fed. R. Civ. P. 26(b)(4)(E). “The mandatory nature of this Rule is tempered by two limitations: 1) the costs may not be imposed if doing so would result in manifest injustice; and 2) the expert's fee must be reasonable.” Paz v. Our Lady of Lourdes Reg'l Med. Ctr., Inc., Civil Action No. 01-2693, 2009 WL 1401696, at *2 (W.D. La. May 19, 2009).

         The Fifth Circuit has not addressed whether Rule 26(b)(4)(E) covers fees for time spent preparing for a deposition. Other courts are split on whether the rule allows for such compensation with a slim majority allowing recovery as long as the fees are reasonable. Borel v. Chevron U.S.A., Inc., 265 F.R.D. 275, 277 (E.D. La. 2010) (collecting cases); see also Paz, 2009 WL 1401696, at *2. District courts within the Fifth Circuit have generally found that time spent preparing for a deposition is compensable under Rule 26(b)(4)(E).[1]

         Courts consider seven criteria in determining a reasonable fee: “(1) the witness's area of expertise; (2) the education and training required to provide the expert insight which is sought; (3) the prevailing rates of other comparably respected available experts; (4) the nature, quality, and complexity of the discovery responses provided; (5) the fee actually charged to the party who retained the expert; (6) fees traditionally charged by the expert on related matters; and (7) any other factor likely to assist the court in balancing the interests implicated by Rule 26.” Borel, 265 F.R.D. at 276; see also Williams v. M-I, LLC, No. Civ.A.05-04-404, 2006 WL 2604672, at *1 (W.D. La. Sept. 8, 2006). The party seeking reimbursement of deposition fees bears the burden of proving reasonableness. Duke v. Performance Food Grp., Inc., No. 1:11CV220-MPM-DAS, 2014 WL 370442, at *6 (N.D. Miss. Feb. 3, 2014) (citing New York v. Solvent Chem. Co., Inc., 210 F.R.D. 462, 468 (W.D.N.Y. 2002)); see also Paz, 2009 WL 1401696, at *3.

         A. Mr. George Korbel

         Plaintiffs request fees of $5, 425.25 and expenses of $147.00 for expert witness George Korbel for a total amount of $5, 572.00. D.E. 824, p. 2. This includes 3 hours of travel time, 8.5 hours of preparation time, and 4 hours of deposition time at an hourly rate of $350.00. Id. at 13. The preparation time included 6.5 hours of “Review of Reports and pleadings, review of earlier works, additional proof, proof reading of data, drop box additions and general preparation” and 2 hours of “Meet and Confer prior to Deposition.” Id. The expenses consist of $132.00 in mileage (176 miles at $0.75/mile) and $15.00 for two meals. Id.

         Defendants argue that Korbel's fees should be denied because (1) the Court did not rely exclusively on his testimony for any factual findings or legal conclusions, and (2) his fees are unreasonable. D.E. 826, p. 4. Defendants did not identify any authority in support of their first argument and they do not argue that Korbel was not qualified or that his testimony was irrelevant. Thus the Court finds Defendants' first argument without merit.

         Defendants cite to Fiber Optic Designs, Inc. v. New England Pottery, LLC, 262 F.R.D. 586 (D. Colo. 2009) for their argument that Korbel's fees are unreasonable. The Fiber Optic court reduced the number of hours sought for the expert's preparation time from 16.1 to 4 hours because of the incomplete record before the court and the relative short interval of less than a month between the Rule 26(a)(2)(B) disclosure and the expert's 7.5 hour deposition. Id. at 593-94. Defendants contend that Korbel should have required minimal time to prepare because there was little time lapse between his June report and his August deposition. Defendants also argue that because Korbel's preparation and deposition occurred one month before trial, Plaintiffs benefited from this timing in preparing for trial. D.E. 826, p. 5. The Court finds that Korbel's 8.5 hours of preparation for the deposition are reasonable.

         Next, Defendants argue that Korbel's hourly rate of $350.00 is unreasonable because it is at least $100.00 more than the hourly rates of four of the other five experts. Id. The Court finds that Korbel's hourly rate is reasonable for an expert of his experience and qualifications. See Abundiz, 2004 WL 1161402, at *3 (granting real property expert's hourly rate of $450.00 even though his rate exceeded the billing rate of other experts on the case by as much as $275.00).

         Defendants also argue that Korbel should not be reimbursed the $15.00 in meal costs because he failed to provide receipts. D.E. 826, p. 4. The Court finds that Korbel's invoice is sufficient documentation to support the requested costs of $15.00 for meals. See United Teacher Assocs. Ins. Co. v. Union Labor Life Ins., Co., 414 F.3d 558, 574 (5th Cir. 2005) (district court did not abuse its discretion by awarding travel costs based on an invoice attached to a bill of costs).

         Finally, Defendants object to Korbel's mileage rate of $0.75 because the 2014 General Services Administration (“GSA”) rate is $0.56 per mile[2]. D.E. 826, p. 5. The Court finds that Plaintiffs are entitled only to a mileage reimbursement of $98.56 (176 miles at $0.56/mile) for Korbel.

         Therefore, the Court ORDERS Defendants to pay Plaintiffs Korbel's fees and expenses in the sum of $5, 538.56-representing 8.5 hours of preparation time, 3 hours of travel time, and 4 hours of deposition time at a rate of $350.00 per hour, as well as $98.56 in mileage costs and $15.00 for meals.

         B. Mr. ...

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