United States District Court, S.D. Texas, Corpus Christi Division
ORDER ON VEASEY-LULAC PLAINTIFFS' MOTION TO ORDER
THE PAYMENT OF CERTAIN EXPERT WITNESS EXPENSES
GONZALES RAMOS UNITED STATES DISTRICT JUDGE
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.
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:
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).
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).
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.
Mr. George Korbel
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.
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.
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.
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).
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
Defendants object to Korbel's mileage rate of $0.75
because the 2014 General Services Administration
(“GSA”) rate is $0.56 per mile. 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
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.