Dish Network L.L.C. et al v. Sonicview USA, Inc. et al

Filing 131

ORDER Regarding Defendants' Expert Witness Fees. Signed by Magistrate Judge William V. Gallo on 10/13/2011.(mtb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DISH NETWORK, LLC, et al.,

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Plaintiffs,

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v.

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SONICVIEW USA, INC., et al.,

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Defendants.

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Civil No. 09-1553-L(WVG)
ORDER REGARDING DEFENDANTS’
EXPERT WITNESS FEES

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On September 12 and 14, 2011, the Court received letter

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briefs from counsel regarding Plaintiffs’ failure to pay Defendants’

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expert witness for the time he spent in his deposition. On September

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15, 2011, the Court requested further briefing on the issues

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presented in the letter briefs. On September 26, 2011, counsel

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submitted the requested briefing. On October 13, 2011, the Court

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held a Discovery Conference in this matter. Chad Hagan appeared on

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behalf of Plaintiffs. David Clark appeared on behalf of Defendants.

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Prior to the deposition and pursuant to Fed. R. Civ. P. 26(a),

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Defendants informed Plaintiffs that their expert, Richard Caylor,

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charged $300 per hour for deposition testimony. Prior to the

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deposition, Plaintiffs did not object to Mr. Caylor’s deposition

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fee. However, at Mr. Caylor’s deposition, Plaintiffs learned that

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Mr. Caylor charged Defendants $35 per hour for his work for them.

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After the deposition was taken, Plaintiffs refused to pay $300 per

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hour for Mr. Caylor’s deposition testimony.

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In Jochims v. Isuzu, 141 F.R.D. 493 (S.D. IA 1992), the court

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listed the following factors that courts should consider in deciding

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whether to reduce an expert witness’ fee for deposition testimony:

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(1) witness’ area of expertise;
(2)

education

and

training

required

to

provide

expert

insight;

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(3) prevailing rates of other comparable experts;

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(4) nature, quality and complexity of discovery responses

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provided;
(5) the fee actually being charged by the party who retained
the expert;
(6) fees traditionally charged by an expert on related
matters;
(7) any other factor likely to be of assistance to the court
in balancing the interests of the parties.

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Jochims has been cited approvingly in SEC v. Berry, 2011 WL

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2149088 (N.D. Cal. 2011) and Beecham v. City of W. Sacramento, 2009

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WL 689729 (E.D. Cal. 2009).

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Courts have reduced an expert’s deposition fees for twice and

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three times more than they charge for work for the party who

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retained them. Sublette v. Glidden, 1998 WL 398156 (E.D. PA 1998),

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Ohuche V. British Airways, 1998 WL 240481 (S.D. NY 1998).

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Here,

Plaintiffs

ask

for

a

reduction

of

Mr.

Caylor’s

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deposition fee, which is almost ten times more than what he charged

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Defendants for work for them.

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The Court’s analysis of the Jochims factors is as follows:

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A. Witness Area of Expertise

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Defendants stated that Mr. Caylor’s expertise was in the

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analysis of Sonicview’s receivers firmware and software and related

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Sonicview products, Sonicview’s free-to-air marketing, uses and

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services, inability of Sonicview receivers installed with factory

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firmware to pirate encrypted Dish Network satellite programming,

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satellite piracy and efforts to combat it.

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B. Education/Training

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Mr. Caylor has never been retained, nor qualified, as an

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expert. His testimony is based on his experience in the satellite

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television industry. He does not hold a post-high school degree. He

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does not have any professional licenses or certifications. His

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experience includes working for Defendants as a paid consultant. It

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is alleged that he operates or operated a business through which he

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sells or sold allegedly infringing Sonicview receivers. The Court

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questions whether he will be qualified as an expert witness at

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trial.

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C. Prevailing Rates of Comparable Experts

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Neither Plaintiffs nor Defendants provide the Court with any

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information regarding this factor.

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D. Nature/Quality/Complexity of Expert Testimony

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Neither Plaintiffs nor Defendants provide the Court with any

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information regarding this factor.

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E. Fee Charged By Retaining Party

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Mr. Caylor agreed to a lump sum payment from Defendants of

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$2,500 for his report, which he claims took him over 100 hours of

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work and includes reimbursement for $920 in travel expenses. If the

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travel expenses are subtracted from the $2,500, Mr. Caylor actually

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performed

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Plaintiff offered to reimburse Mr. Caylor for his deposition time at

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$35 per hour.

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for

Defendants

at

approximately

$16

per

hour.

F. Fees Charged By Experts in Related Matters

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work

Neither Plaintiffs nor Defendants supply the Court with any
information regarding this factor.

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The Court’s analysis of the Jochims factors leads to the

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conclusion that $300 per hour for Mr. Caylor’s deposition testimony

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is clearly excessive and unwarranted. Therefore, the Court finds

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that Defendants shall pay Mr. Caylor $35 per hour for his deposition

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testimony. On or before October 20, 2011, such payment shall be paid

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directly to Mr. Caylor.

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IT IS SO ORDERED.

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DATED:

October 13, 2011

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Hon. William V. Gallo
U.S. Magistrate Judge

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