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Rote v. Zel Custom Manufacturing LLC

United States District Court, S.D. Ohio, Eastern Division

May 7, 2018

TROY ROTE, et al., Plaintiffs,
v.
ZEL CUSTOM MANUFACTURING LLC, et al., Defendants.

          James L. Graham Judge

          OPINION AND ORDER

          CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court for consideration of Defendant Direccion General de Fabricaciones Militares's (hereinafter “DGFM”) Motion to Compel Plaintiffs to Pay Expert Witness Deposition Fees and accompanying affidavit (ECF Nos. 206 & 207), Defendant Zel Custom Manufacturing LLC's (hereinafter “Zel”) Response in Opposition (ECF No. 214), Plaintiffs' Troy Rote and Amanda Rote's (“Plaintiffs”) Response in Opposition (ECF No. 215), and DGFM's Reply and accompanying affidavit (ECF Nos. 216 & 217). The parties dispute what expenses are properly included in an expert witness's “reasonable fee” under to Federal Rule of Civil Procedure 26(b)(4)(E). Although Plaintiffs paid for the expert witnesses' time spent at the deposition, DGFM contends that precedent in the Southern District of Ohio also requires Plaintiffs to pay for the expert witnesses' preparation time, travel time, and out-of-pocket expenses. (Def.'s Mot. to Compel 1, ECF No. 206.) For the reasons that follow, DGFM's Motion is GRANTED in part and DENIED in part.

         I.

         On September 7, 2017, Plaintiffs served deposition notices for DGFM expert witnesses Dr. Torrence Welch and Mr. Vincent Di Ricco. The next day, Plaintiffs served another deposition notice for DGFM's expert witness Frank Hatten. (Walker Aff. ¶¶ 3-4, ECF No. 207.)

         On September 14, 2017, DGFM's counsel gave notice to Plaintiffs' counsel that pursuant to case law in the Southern District of Ohio, he intended to seek compensation for his experts' fees for preparation and travel time, in addition to their time spent at the deposition. (Walker Aff. ¶ 6- 7; Exh. D, ECF No. 207.) Zel's counsel responded to DGFM's email and suggested that each party should instead pay for their own expert's preparation time. (Exh. D, ECF No. 207.) The experts' depositions proceeded as scheduled. (Walker Aff. ¶ 5, ECF No. 207.) On November 28, 2017, Plaintiffs sent checks to DGFM's counsel for the cost of the experts' depositions in the amounts of $527.50 for Dr. Welch, $2, 100.00 for Mr. Di Ricco, and $802.13 for Mr. Hatten. (Id. at ¶ 11.) These payments did not include the preparation or travel time that DGFM requested. (Id. at ¶ 12.)

         A. Defendant DGFM's Request for Expert Fees

         After the parties could not resolve the fee issue, DGFM filed its Motion to Compel on December 6, 2017, seeking an order compelling Plaintiffs to pay $7, 210.92 for fees DGFM's three expert witnesses incurred, which included their preparation time, travel time, and other out-of-pocket expenses. (Def.'s Mot. to Compel 1, ECF No. 206.) This amount excludes the amount Plaintiffs already paid for the expert witnesses' time spent during the depositions. DGFM posits that the law is “clear in this district that an expert's deposition preparation time and travel time are reimbursable.” (Id. at 4.) DGFM also seeks attorney's fees for the costs incurred in bringing this Motion.

         In support of its request for additional expert witness fees, DGFM attaches three invoices purporting to reflect the total expenses owed to each expert less the fees already paid for the deposition time. (Walker's Aff. in Support ¶¶ 8; 11; see also Exhs. F-H, ECF No. 207.) DGFM also points out that Exhibits F and G reflect a downward adjustment for which DGFM's counsel negotiated. (Walker Aff. ¶ 8, ECF No. 207.) The Court reviews the breakdown of each expert's invoice in turn.

         1. Expert Witness Dr. Welch

         DGFM attaches an invoice from Rimkus Consulting Group in support its request for reimbursement of Dr. Welch's preparation fees. The invoice reflects preparation fees of $2, 937.00, billed at a rate of $330.00 per hour. (Exh. F, PAGEID # 4306, ECF No. 207.) More specifically, DGFM seeks $2, 343.00 for Dr. Welch's time spent gathering materials and preparing for the deposition on his own and an additional $594.00 for the time Dr. Welch spent with DGFM's counsel preparing for the deposition. (Id.) Mr. Walker's affidavit states that Plaintiffs have already paid $527.50 for Dr. Welch's deposition time. (Walker Aff. ¶ 11, ECF No. 207.)

         2. Expert Witness Mr. Di Ricco.

         To account for Mr. Di Ricco's expenses, DGFM attaches an email from Mr. Di Ricco reflecting $2, 450.00 for preparation time, billed at a rate of $350.00 per hour. (Exh. G, PAGEID # 4307, ECF No. 207.) The email reflects that Mr. Di Ricco billed three hours to “review, assemble and provide copies as required by Court Order of all pertinent material, ” for a total of $1, 050.00. (Id.) Mr. Di Ricco also billed four hours to “read Mr. Powell's deposition, ” for a total of $1, 400.00. Plaintiffs have already paid Mr. Di Ricco $2, 100.00 for his time spent at the deposition. (Walker Aff. ¶ 11, ECF No. 207.)

         3. Expert ...


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