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Kohn v. Glenmede Trust Co., N.A.

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

December 31, 2019

ADAM P. KOHN, Plaintiff,
GLENMEDE TRUST CO., N.A., et al., Defendant.




         I. Introduction

         Plaintiff 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.

         II. Background

         In May 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.

         In 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.

         III. Motion to Compel

         Kohn's 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 production




Review documents and e-mail for production and testimony



$1, 930[1]

Review Expert Witness Reports



$1, 300[2]

Review relevant case law, statutes, and regulations



$1, 950[3]

Outline relevant issues and facts



$1, 950

Review of GTC Expert Report-Supplemental and related authority




Participation in Deposition



$4, 550[5]

Total Fees at “Associate” Rate ($350/hour)



Total Fees at “Expert” Rate ($650/hour)


$16, 315[6]

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.

         The 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.[7] ECF Doc. 17 at 1-2, 13-16.

         A. Meet-and-Confer Requirement

         Local 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).

         Although 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.

         B. Factual & Legal Basis for Fees

         Federal 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).

         What 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 ...

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