United States District Court, N.D. Ohio, Eastern Division
ADAM P. KOHN, Plaintiff,
GLENMEDE TRUST CO., N.A., et al., Defendant.
A. BARKER JUDGE.
M. PARKER MAGISTRATE JUDGE.
Adam P. Kohn filed a “motion to compel defendants to
compensate plaintiff's expert” on October 28, 2019.
ECF Doc. 12. On October 31, 2019, Kohn filed a “motion
for an in camera inspection of documents which defendants
claim are privileged.” (ECF Doc. 15). For the following
reasons, Kohn's motion to compel (ECF Doc. 12) is GRANTED
in part and DENIED in part. His motion for an in camera
inspection (ECF Doc. 15) is DENIED.
2014, Kohn was a search consultant with CTPartners
(“CTP”) and held a total of 626, 698 shares of
CTP stock. ECF Doc. 1-2 at 4-5. Kohn wanted to liquidate his
CTP stock, and, in July 2014, he entered an “investment
management agreement” with defendants Glenmede Trust
Company, N.A. (“Glenmede”) and Robert Siewert to
facilitate that liquidation. ECF Doc. 1-2 at 5. Kohn
transferred 432, 279 CTP shares into a Glenmede account. ECF
Doc. 1-2 at 5. In November 2014, Kohn directed Siewert to
sell 150, 000 CTP shares at $24 per share; however, Glenmede
and Siewert did not compete the sale because they suspected
Kohn was engaged in insider trading. ECF Doc. 1-2 at 6. Kohn
had his remaining CTP shares transferred to an account with a
different company; however, Kohn asserts that Siewert agreed
to continue advising him about liquidating his CTP shares.
ECF Doc. 1-2 at 6. The share price for CTP stock later fell
to $2 per share. ECF Doc. 1-2 at 6.
September 2018, Kohn filed a complaint in Cuyahoga County
Court of Common Pleas alleging numerous causes of action,
including breach of contract, breach of fiduciary duty,
fraud, and negligence. ECF Doc. 1-2. In May 2019, Kohn filed
an expert report by John Hewitt, which indicated that several
of the claims in his complaint alleged violations of the
Advisers Act, Office of the Comptroller of the Currency
regulations, ERISA, and the Exchange Act. ECF Doc. 1 at 2-3;
ECF Doc. 1-2 at 23-61; Docket for Cuy. Cty. Ct. Comm. Pls.
No. CV-18-903584. On June 11, 2019, the defendants removed
the case to this court. ECF Doc. 1.
Motion to Compel
motion to compel seeks an order directing defendants Glenmede
Trust Company, N.A., and Robert Siewert to pay preparation,
attendance, and travel expenses related to the
defendants' November 1, 2019 deposition of plaintiff
expert John Hewitt. ECF Doc. 12. Specifically, Kohn wants the
court to order the defendants to pay Hewitt a total of $18,
165 pursuant to the following fee schedule:
Locate, prepare, and organize documents for
Review documents and e-mail for production and
Review Expert Witness Reports
Review relevant case law, statutes, and regulations
Outline relevant issues and facts
Review of GTC Expert Report-Supplemental and
Participation in Deposition
Total Fees at “Associate” Rate
Total Fees at “Expert” Rate ($650/hour)
Travel Fees ($325/hour)
ECF Doc. 12 at 3; ECF Doc. 12-2. Kohn asserts that after
Hewitt submitted his proposed fee schedule, defendants
refused to compensate him for any activities other than his
deposition attendance. ECF Doc. 12 at 1. Kohn's counsel
claims that he was forced to seek a judicial resolution to
this dispute because the defense counsel said he would call
but did not. ECF Doc. 12 a 1. Finally, Kohn asks the court to
order defendants to pay attorney fees associated with filing
this motion. ECF Doc. 12 at 3.
defendants respond that Kohn's motion to compel should be
denied for three reasons. ECF Doc. 17. First, the defendants
argue that Kohn did not comply with this court's
meet-and-confer requirement under Local Rule 37.1. ECF Doc.
17 at 1, 4, 11-13. Specifically, the defendants assert that
Kohn falsely represented that defense counsel said that he
would call Kohn's counsel, and that Kohn made no attempt
to contact defense counsel after the purportedly scheduled
phone call did not occur. ECF Doc. 17 at 4, 12 & n.2.
Second, the defendants argue that there is no factual basis
supporting Hewitt's fees because: (1) Hewitt did not
actually produce any documents as requested; and (2)
Hewitt's failure to answer questions regarding the
materials relied upon in his expert report indicated that he
did not prepare for deposition. ECF Doc. 17 at 1,
2-11, 13. Finally, the defendants contend that Kohn's
motion should be denied because he has not shown a legal
basis for requiring defendants to pay preparation or travel
fees for a deposition of a Kohn's expert - especially
when they initially scheduled the deposition to take place at
the expert's office, but changed the venue at Kohn's
request. ECF Doc. 17 at 1-2, 13-16.
Rule 37.1 commands that, before seeking judicial resolution
of a discovery dispute, “the party seeking [resolution
must make] sincere, good faith efforts to resolve [the]
dispute.” L.R. 37.1(a)(1). Failure to comply with
this rule is a “sufficient basis for the district court
to conclude that denial [of a motion to compel is]
appropriate.” Lott v. Coyle, 261 F.3d 594, 604
(6th Cir. 2001) (movant failed to comply with telephone
conference required under Rule 37.1).
Rule 37.1 applies to discovery disputes, it is
unclear whether it applies to fee disputes arising
out of discovery. If it does, Kohn has arguably not fully
complied with Rule 37.1 because: (1) defense counsel
never said he would call Kohn's counsel; and (2)
even if he had, Kohn has not shown that his counsel made any
further attempts to contact defense counsel before seeking
judicial resolution to the fee dispute. See
generally ECF Doc. 12; ECF Doc. 12-1. Nevertheless, the
court need not resolve that issue because the parties
briefing indicates that they had engaged in some
communication regarding Hewitt's fees and had reached an
impasse. Further, the parties have had ample time to present
their versions of the facts to each other and the court, and
the parties' briefs and appended materials are sufficient
for this court to reach a decision on the fee dispute.
See generally ECF Doc. 12; ECF Doc. 12-1; ECF Doc.
12-2; ECF Doc. 17; ECF Doc. 17-1; see also ECF Doc.
21 (granting Kohn additional time to file a reply in support
of his motion to compel and respond to defendants'
version of the facts). Thus, the court declines to dismiss
Kohn's motion to compel based on his failure to comply
with Rule 37.1.
Factual & Legal Basis for Fees
Rule of Civil Procedure 26(b)(4)(E)(i) provides that,
“[u]nless manifest injustice would result, the court
must require that the party seeking [deposition of an
opposing party's expert under Rule 26(b)(4)(A) or (D)]
pay the expert a reasonable fee for time spent in responding
to discovery.” In other words, to compel defendants to
pay for Hewitt's fees, Kohn must show that the activities
underlying the fees were “time spent in responding to
discovery.” If Kohn meets this burden, the defendants
may avoid paying the fees only if they show that: (1) the
fees for the activities were unreasonable; or (2) requiring
the defendants to pay the fees would be manifestly unjust. If
the defendants meet that burden, the court has discretion
not to require the defendants to pay the fees.
Cf. Brown v. Tax Ease Lien Servicing, Inc., 776
Fed.Appx. 291, 304 (6th Cir., June 4, 2019) (remanding for a
“district court to exercise its discretion” when
it had not made an explicit finding regarding manifest
injustice or unreasonableness). “In assessing the
reasonableness of an expert's fee, the court should
consider the expert's education, training and experience;
the prevailing rate for comparable experts; and the nature
and complexity of the information sought.” Burgess
v. Fischer, 283 F.R.D. 372, 373 (S.D. Ohio 2012).
activities qualify as “time spent in responding to
discovery” under Rule 26(b)(4)(E) is not always clear,
especially in light of the limited caselaw from the Sixth
Circuit and its sister Courts. Cf. Brown, 776
Fed.Appx. at 304 (“Our circuit has little caselaw on
Rule 26(b)(4)(E) or its predecessor (Rule
26(b)(4)(C)).”). In Rote v. Zel Custom Mfg.
LLC, the Southern District of Ohio noted that:
[a]lthough not universally accepted, numerous courts,
including the Southern District of Ohio, have determined that
a reasonable fee may include an expert witness's
preparation and travel time. See, e.g.,
Burgess[ v. Fischer, 283 F.R.D. 372, 373
[(S.D. Ohio 2012)] (determining that experts may bill for
their reasonable and necessary travel time, provided they
travel to a place other than their office or residence for
the deposition); Anderson v. Jas Carriers, Inc., No.
1:12-cv-280, 2013 U.S. Dist. LEXIS 34743, 2013 WL 991902, at
*1 (S.D. Ohio Mar. 13, 2013) (finding that an expert can
recover for “related preparation time” for his
deposition); Halasa v. ITT Educ. Servs., Inc., 690
F.3d 844, 852 (7th Cir. 2012) (affirming trial court's
order compelling reimbursement of expert fees for “(1)
deposition preparation, (2) travel to and from the
deposition, and (3) time spent reviewing his deposition
transcript”); Fleming v. United States, 205
F.R.D. 188, 190 (W.D. VA. 2000) (finding that “it is
well-established that time spent by an expert preparing for
his or her deposition by opposing counsel is part of a
reasonable fee under Rule 26(b)(4)(C)1Link to the text of the
note”); Borel v. Chevron U.S.A. Inc., 265
F.R.D. 275, 277 (E.D. La. 2010) (providing an in-depth
analysis and citing numerous cases discussing the issue
before concluding that opposing parties can recover