Johnson et al v. Bay Area Rapid Transit District et al

Filing 332

ORDER Re Deposition Travel Expenses Discovery Dispute (emclc2, COURT STAFF) (Filed on 4/16/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WANDA JOHNSON, et al.,

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For the Northern District of California

United States District Court

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Plaintiffs,
v.
BAY AREA RAPID TRANSIT DISTRICT,
et al.,

No. C-09-0901 EMC
CONSOLIDATED CASES
C-09-4014 EMC (Grant)
C-09-4835 EMC (Bryson, et al.)
C-10-0005 EMC (Caldwell)

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Defendants.
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ORDER RE DISCOVERY DISPUTE
(Docket No. 331)

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AND RELATED ACTIONS.
___________________________________/

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Pending before the Court is a discovery dispute that has arisen between Defendant Pirone

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and Plaintiff Oscar Grant, Jr. Counsel for Plaintiff has noticed the deposition of John Polito –

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Defendant’s expert – for April 21, 2014 at 10:00am in San Francisco, California. See Dkt. No. 329.

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Defendant requested either that (1) Plaintiff pay for Mr. Polito’s airfare costs and reasonable travel

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time or (2) permit Mr. Polito to appear via videoconference from Burbank, California. Dkt. No. 328.

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Plaintiff’s counsel denied both requests, stating that “Plaintiff will pay Mr. Polito for his time spent

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in responding to deposition questions and nothing more.” Dkt. No. 329, at 1.

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Federal Rule of Civil Procedure 26(b)(4)(E) governs the payment of expert expenses

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incurred in responding to discovery. In relevant part, this provision provides that “[u]nless manifest

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injustice would result, the court must require that the party seeking discovery . . . pay the expert a

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reasonable fee for time spent in responding to” depositions. See Fed. R. Civ. P. 26(b)(4)(E).

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Courts have consistently held that such expenses are covered by Rule 26(b)(4)(E). See, e.g., Stewart

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v. City of Houston, No. H-07-4021, 2010 WL 1524015, at *1 (S.D. Tex. Apr. 14, 2010) (recognizing

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that the fees allowed under Rule 26 “include time spent in preparing for the deposition, in traveling

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to the deposition, and in the deposition”); Nilssen v. Osram Sylvania, Inc., No. 01 C 3585, 2007 WL

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257711, at *4 (N.D. Ill. Jan. 23, 2007) (“Travel costs are also recoverable [under Rule 26].”); Handi-

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Craft Co. v. Action Trading, S.A., No. 4:02 CV 1731 LMB, 2003 WL 26098543, at *16 (E.D. Mo.

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Nov. 25, 2003) (“In this manner, expenses incurred during travel are compensable under Rule

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26(b)(4)(C) so long as they are reasonable.”); McBrian, Inc. v. Liebert Corp., 173 F.R.D. 491, 493

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(N.D. Ill. 1997) (“It would seem logical that if an expert witness is brought to the moving attorney

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For the Northern District of California

The Court ORDERS Plaintiff to pay Mr. Polito’s reasonable travel fees and expenses.

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United States District Court

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instead of the attorney going to the witness, the witnesses’ travel expenses should be paid by the

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moving party.”); Bonner v. American Airlines, Inc., No. 96CIV.4762, 1997 WL 802894, at *1

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(S.D.N.Y. Dec. 31, 1997) (“[T]he weight of authority appears to hold that Rule 26(b)(4)(C) permits

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recovery of fees for an expert’s travel time and preparation time in connection with a deposition,

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along with the expert’s out-of-pocket expenses.”).

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The parties are further reminded that this Court’s standing order requires that the parties

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meet and confer regarding discovery matters in person or, if good cause is shown, by telephone.

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Meet and confer via letter, e-mail, or the like will not be accepted in the future.

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IT IS SO ORDERED

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Dated: April 16, 2014

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_________________________
EDWARD M. CHEN
United States District Judge

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