Cohen et al v Jaffe Raitt Heuer & Weiss, P.C., et al

Filing 52

ORDER granting in part and denying in part Plaintiff's 45 Motion to Compel--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NEAL COHEN, et al.,
Plaintiffs,
v.

Case No. 2:16-cv-11484
District Judge George Caram Steeh
Magistrate Judge Anthony P. Patti

JAFFE, RAITT, HEUER, AND
WEISS, P.C., et al.,
Defendants.
___________________________________/
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’
MOTION TO COMPEL EXPERT FEES (DE 45)
This legal malpractice case is before the Court for consideration of
Plaintiffs’ motion to compel payment of expert fees (DE 45), Defendants’ response
(DE 48), Plaintiffs’ reply (DE 50), and the parties’ joint list of unresolved issues
(DE 51). At issue in this motion is whether Defendants are required to compensate
Plaintiffs’ expert witnesses for the time spent preparing for their depositions and, if
so, how much compensation is reasonable. The parties, through counsel, came
before me for a hearing on August 16, 2017. For the reasons outlined below,
Plaintiffs’ motion is GRANTED IN PART AND DENIED IN PART.
I.

BACKGROUND
Defendants noticed the depositions of three of Plaintiffs’ expert witnesses:

Andrew Stumpff, Dwight Duncan, and Timothy Geddes. Mr. Stumpff is Plaintiffs’

standard of care expert, Mr. Duncan is Plaintiffs’ expert on damages, and Mr.
Geddes is the actuarial expert.
Prior to the depositions, counsel engaged in an email exchange, wherein
Plaintiffs informed Defendants that they expected them to pay their experts for
time spent preparing for the depositions. Specifically, Plaintiff’s counsel wrote
that, “In addition to whatever time you take with them in deposition, we anticipate
that each expert will have an additional 3 hours of time for preparing for and
traveling to the depositions.” (DE 45-2 at 3.) Defendants responded that they
would pay for time spent taking the depositions, but not for preparation or travel
time. (Id. at 2.) In any event, the depositions went forward. Mr. Stumpff’s
occurred on February 9, 2017 and lasted from 8:02 a.m. to 10:28 a.m. (R. at 48-3.)
Mr. Geddes’ occurred on the same day and lasted from 10:34 a.m. to 11:09 a.m.
(R. at 48-4.) The record gives no indication that Mr. Geddes should have
anticipated that his deposition would take less than an hour, or at least no such
portion of the record has been brought to the Court’s attention. Mr. Duncan’s
deposition occurred on March 21, 2017 and lasted from 9:00 a.m. to 11:24 a.m.
(DE 48-5.)
When the depositions concluded, Plaintiffs sent reimbursement requests to
Defendants, outlining the time spent preparing for the depositions, travel, and

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deposition testimony. (DE 45-3.)1 All told, Plaintiffs sought fees in the amount of
$20,489.50. (Id. at 3.) Defendants paid for a portion of the fees—by agreement
covering the time spent being deposed—leaving the $12,892 for deposition
preparation in dispute. (DE 50 at 7.)
Plaintiffs assert that Defendants are responsible for the entirety of their
experts’ preparation: 8.6 hours for Mr. Stumpff; 9.3 hours for Mr. Geddes; and 5.9
hours for Mr. Duncan. Defendants counter that they are not responsible for any
preparation fees. In the alternative, they assert that the number of hours of
preparation is unreasonable in light of the relatively short depositions. They
further take issue with the reasonableness of Mr. Geddes’ $715 per hour rate.
II.

STANDARD
Federal Rule of Civil Procedure 26(b)(4)(E) provides as follows:
(E) Payment. Unless manifest injustice would result, the court must
require that the party seeking discovery:
(i) pay the expert a reasonable fee for time spent in responding
to discovery under Rule 26(b)(4)(A) [experts who may testify]
or (D) [experts employed only for trial preparation]; and
(ii) for discovery under (D), also pay the other party a fair
portion of the fees and expenses it reasonably incurred in
obtaining the expert’s facts and opinions.

1

The list also includes costs related to Randall Smith, but Plaintiffs later dropped
their argument with respect to Mr. Smith’s time. (DE 50 at 7.)

3

For purposes of this motion, only subpart “i” is at issue, as the experts whose
time is at issue have all been designated as potential trial witnesses. (DE 2123.)
III.

ANALYSIS
A.

Plaintiffs are entitled to reasonable compensation.

Both parties concede that there is no controlling authority as to whether
Rule 26(b)(4)(E) contemplates payment for deposition preparation, and each points
to conflicting and non-binding authority to support their respective positions.
Indeed, “[t]his issue has divided the federal courts.” Eastman v. Allstate Ins.Co.,
No. 14-cv-00703, 2016 WL 795881, at *1 (S.D. Cal. Feb. 29, 2016). At least one
court has expressed its cognizance “of the deliberately vague language of Rule
26(b)(4)(E)(i) and [pointed out] the relevant Advisory Committee Note that states
without further elaboration, ‘Concerns regarding the expense of such depositions
should be mitigated by the fact that the expert’s fees for the deposition will
ordinarily be borne by the party taking the deposition.’” Stevens v. CoreLogic, Inc.,
No. 14-cv-1158, 2016 WL 8729928, at *2-3 (S.D. Cal. May 6, 2016) (emphasis
added) (collecting cases and discussing the different actions taken by district courts
on this issue) (citing Fed. R. Civ. P. 26 advisory committee’s note to 1993
amendments). Without explicitly examining the issue, cases in this district have
allowed for compensation of deposition preparation time. See Barrett v. Nextel

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Commc’ns, Inc., No. 04-cv-74556, 2006 WL 374757, at *2 (E.D. Mich. Feb. 16,
2006) (allowing for payment of one hour of preparation time); see also Craft v.
Allstate Ins. Co., No. 2:07-cv-11631, 2008 WL 2224122, at *2 (E.D. Mich. May
29, 2008) (awarding “$110/hour for reasonable preparation time and time spent
traveling to and from the deposition.”); Stokes v. Xerox Corp., No. 05-cv-71683,
2007 WL 2080290, at *2 (E.D. Mich. July 19, 2007) (finding “one hour of
preparation time” to be reasonable); Leonardson v. Peek, No. 05-40046, 2007 WL
436126, at *4 (E.D. Mich. Feb. 6, 2007), report and recommendation adopted,
2009 WL 102536 (E.D. Mich. Jan. 13, 2009) (ordering compensation for
“preparation time equal to half the length of [the experts’] respective
depositions.”).
Defendants argue that the plain language of the procedural rule supports
their position. Specifically, they point to the phrase “time spent in responding to
discovery” to demonstrate that the rule covers only time spent by the expert in the
deposition, and not in preparation for it. However, the rule itself does not specify
that the parameters for “responding” to this form of discovery are limited to the
actual time spent under oath in a deposition. Nor does it state that the “discovery”
to which one is responding commences at the moment when the witness raises his
or her right hand, as opposed to commencing when the deposition notice is
received. Moreover, focusing on the word responding through such a narrow lens

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and taking it to its logical, even narrower conclusion would lead to an absurd
result: allowing payment only for time spent answering questions during a
deposition.2
The word respond must be read more broadly, as Defendants seem to
concede by apparently paying for the time Plaintiffs’ experts were simply listening
to the questions posed and for time spent traveling to and from the depositions.3
The more sensible ambit of what is encompassed by the act of responding includes
activities which go beyond just voicing answers or being under oath. Preparation,
travel, listening to questions and answering them are all part and parcel of the act
of “responding” to discovery posed in the form of a deposition. Similarly, if an
expert were responding to interrogatories, his or her compensable time would
clearly include more than just the time spent actually writing, dictating or typing
out the answers; it would also include the time spent reading the questions,
compiling or searching for the information needed to assure the accuracy of the
responses, and ultimately, meeting with a notary.
The Court thus concludes that the word responding is broad enough to
encompass reasonable deposition preparation time. The cases cited above from

2

This conjures up an image of a deposition at which an individual is tasked with
operating a stopwatch to time the length of the deponent’s “responses.”

3

This is never directly stated by either party but is presumed, because the
$3,622.50 in attendance/travel time is no longer in dispute in this matter. (DE 51.)

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this district seem to presume that a limited amount of preparation time is
compensable under the rule. This is likely so because it is a “such a certainty” that
“a lawyer will prepare the expert” that it “should always be considered a form of
‘responding to discovery’….” Schmidt v. Solis, 272 F.R.D. 1, 2-3 (D.D.C. 2010).4
Moreover, this particular case involves complex issues for which some preparation
would be required and expected prior to the depositions. See Stevens, 2016 WL
8729928 at *3; Eastman, 2016 WL 795881 at *1. Informed by the totality of the
circumstances, the Court concludes that Plaintiffs are entitled to compensation for
the time their experts spent preparing for their depositions. See 6 James Wm.
Moore et al., Moore’s Federal Practice ¶ 26.80(3)(3) (3d ed. 2017) (“The better
approach is to compensate experts for time preparing to testify in a deposition as
experts, in the discretion of the district court, informed by the totality of the
circumstances[.]”). However, the amount of time and the experts’ rates must be
reasonable and not manifestly unjust to Defendants.
B.

The amount of compensable time requested by Plaintiffs is not
reasonable.

Plaintiffs assert that Mr. Stumpff prepared 8.6 hours for his 2.5 hour
deposition, that Mr. Geddes prepared 9.3 hours for his 42 minute deposition, and

4

Even cases from other districts disallowing payment for preparation time have
acknowledged that preparation time is all but expected and may lead to a more
efficient deposition. See, e.g., Rock River Commc’ns, Inc. v. Universal Music
Grp., 276 F.R.D. 633, 635-636 (C.D. Cal. 2011) (internal citations omitted).

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Mr. Duncan prepared 5.9 hours for his 2.5 hour deposition. There is no bright-line
test as to what ratio between preparation time and deposition length is reasonable;
nevertheless, applying the case law from this district, not to mention common
sense, the proportionality of preparation to deposition time for these witnesses is
deemed to be unreasonable. See, e.g., Leonardson, 2007 WL 436126 at *4
(requiring compensation for half the length of the experts’ depositions). Moreover,
the Court agrees that it would be unfair to require Defendants to compensate
Plaintiffs for the time spent by the experts meeting with Plaintiffs’ own attorneys,
as their discussions are (except perhaps in exceptional circumstances) privileged
and therefore not discoverable by Defendants. (See DE 51 at 3.) Requiring
Defendants to pay for time spent in conversations that are not discoverable would
likely represent manifest injustice as contemplated by Rule 26.
Furthermore, as correctly observed by the Rock River court, such time might
well include activities for which an opposing party could hardly be expected to
pay, “such as educating an expert about the retaining party’s strategy, instructing
the expert about how to behave during the deposition, employing mock crossexamination to prepare the expert to testify persuasively during the deposition,
preparing the expert for testimony at trial, etc.” Id., 276 F.R.D. at 636.
Additionally, if all preparation time is compensable, as opposed to a “reasonable”
amount, the party retaining the expert would be incentivized to prolong the

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process, since it would be “on someone else’s dime.” The deposing party can
control the length of the deposition, but it cannot control the length of the
preparation.
As conceded by both parties at oral argument, it is in the Court’s discretion
to reduce the amount of compensable time to that which is reasonable. The Court
concludes that the following are reasonable amounts of compensable preparation
time in light of the issues and complexities of this particular case: (1) 1.7 hours for
Mr. Stumpff; (2) 2.4 hours for Mr. Geddes; and (3) 2.0 hours for Mr. Duncan.
These amounts are commensurate with: the actual and reasonably anticipated
lengths of their depositions; the likely complexity of their particular expertise,
assigned tasks, and testimony; and Plaintiffs’ initial estimate that the experts would
require about three hours each for preparation and travel. The Court also took into
account the likely overlap between deposition and trial preparation.
C.

Mr. Geddes’ rate is not reasonable.

Defendants’ objection to Mr. Geddes’ rate of $715 per hour is sustained.
Plaintiffs contend that this rate is presumptively reasonable because that is the
amount they are paying Mr. Geddes. Even if that were the case, the Court is the
ultimate arbiter of reasonableness and is not bound to force what may have been
one party’s foolish bargain upon its adversary. In any case, Plaintiffs provide the
Court with no evidence as to the reasonableness of this rate, such as a copy of their

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retainer agreement with Mr. Geddes, his curriculum vitae, a supporting affidavit
bearing his signature, or even any comparison of the prevailing rates in the
community for actuarial experts. Even if the Court had received any of these
things, as noted from the bench, Mr. Geddes’ hourly rate would still be somewhat
“eye popping.”
Plaintiffs’ counsel asserted at the hearing that it was Defendants’ burden to
rebut the presumption of the reasonableness of Mr. Geddes’ rates, basing this
position on burden-shifting in attorney fee cases. However, even in such cases, the
Sixth Circuit explains that “the party seeking attorney’s fees bears the burden of
proof on the number of hours expended and the rates claimed.” Granzeier v.
Middleton, 173 F.3d 568, 577 (6th Cir. 1999). Plaintiffs have not met their burden
in this instance. Defendants have informed the Court that they are paying a similar
expert $295 per hour, which is the only comparative brought to the Court’s
attention and which the Court considers to be a reasonable rate. Accordingly, with
respect to the 2.4 hours of compensable preparation time for Mr. Geddes, that time
shall be awarded at a rate of $295 per hour.
IV.

ORDER
Plaintiffs’ motion is therefore GRANTED IN PART AND DENIED IN

PART. Specifically, the Court concludes that Plaintiffs are entitled to some
amount of compensation for their experts’ deposition preparation time. However,

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the amount of time proposed by Plaintiffs is unreasonable, as is Mr. Geddes’
proposed rate of $715 per hour. As such, of the $12,892 to which Plaintiffs assert
that they are entitled, they are granted only $680 for Stumpff, $708 for Geddes,
and $950 for Duncan, for a total of $2,338.
IT IS SO ORDERED.

Dated: August 23, 2017

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on August 23, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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