Wonch v. Meyer et al

Filing 103

ORDER granting 94 Motion to Compel as more fully stated in the order. Defendant's 99 Motion to Strike is granted. Plaintiff shall pay half of the invoice, $750.00. Defendant shall pay half of the invoice, $750.00 Ordered by Magistrate Judge Cheryl R. Zwart. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEREMY J. WONCH,
Plaintiff,

8:14CV166

vs.
MEMORANDUM AND ORDER
DEREK K. MEYER, AND Individually; and
NAVAJO EXPRESS, INC., a Colorado
Corporation;
Defendants.
This matter is before the court on Defendants’ Motion to Compel Plaintiff’s payment of
an expert deposition fee, (filing no. 94), and Motion to Strike. (Filing No. 99).

BACKGROUND

On December 14, 2015, counsel for Plaintiff requested a deposition of Dr. Crabb,
Defendants’ testifying expert.

Counsel for Defendants determined and informed Plaintiff’s

counsel that Dr. Crabb’s first availability was February 9, 2016. On December 18, 2015,
Plaintiff’s counsel responded tentatively scheduling the deposition for February 9th.

On

December 28, 2015, counsel for Defendants emailed Plaintiff’s counsel advising that Dr. Crabb
had not yet confirmed the February 9, 2016 deposition date. This was the last communication
from Defendants’ counsel regarding the deposition until February.

On December 30, 2015, a pre-payment invoice for the deposition was sent to Plaintiff’s
counsel. (See Filing No. 96-2 ¶ 5 at CM/ECF p. 1). However, Plaintiff’s counsel did not receive
the invoice. (See Filing No. 98-2 ¶ 15 at CM/ECF p. 3). Defendants’ counsel did not make
further efforts to confirm the deposition with the plaintiff, nor did Plaintiff’s counsel seek further
confirmation.
On February 5, 2016, counsel for Defendants emailed Plaintiff’s counsel asking if
Plaintiff still intended to depose Dr. Crabb on February 9th. Counsel for Plaintiff responded on

February 8th stating that he believed both attorneys “dropped the ball” and indicated the
deposition would not go forward. Because the deposition was cancelled on such short notice, Dr.
Crabb was unable to fill the time set aside for the deposition and he demands payment for that
time. To date, neither party has claimed responsibility for the cancelled deposition and the
invoice has not been paid. Defendants now move for an order compelling Plaintiff to pay the
invoice.
Defendants also move to strike a portion of the affidavit of counsel filed in Plaintiff’s
Response in Opposition. This portion states neither Plaintiff nor Plaintiff’s counsel received the
December 30th invoice and states “in checking with Dr. Crabb’s office [I] determined that no
such letter was EVER sent to the Plaintiff or his Counsel by Dr. Crabb’s office.” (Filing No. 982 ¶ 16 at CM/ECF p. 3). Defendants argue the statement must be stricken as hearsay.

ANALYSIS

Federal Rule of Civil Procedure 26 governs the payment of experts and states in relevant
part “Unless manifest injustice would result, the court must require that the party seeking
discovery: . . . pay the expert a reasonable fee for time spent in responding to discovery under
Rule 26(b)(4)(A)[.]” Fed. R. Civ. P. 26(b)(4)(E).

Plaintiff was seeking to depose Dr. Crabb as an expert who may testify at trial under Rule
26(b)(4)(A). However, Plaintiff “tentatively” scheduled the deposition for February 9, 2016. All
communications between counsel on the matter ended after Defendants’ counsel informed
Plaintiff’s counsel on December 28th that the deposition was not yet confirmed. Between the
attorneys, the deposition was not addressed again until three days before it was to take place.
There is a question regarding when Plaintiff’s counsel knew the deposition was
scheduled. Even if this court strikes the portion in the affidavit, the affidavit still indicates that
Plaintiff’s counsel never received the December 30th invoice and did not know the deposition
had been confirmed (See Filing No. 98-2 ¶ 15 at CM/ECF p. 3). And the court notes, even if
Plaintiff’s counsel had received the invoice, an invoice receipt should not be the only

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confirmation of a scheduled deposition:

Defendants’ counsel should have confirmed the

deposition personally.
Both attorneys made missteps and “dropped the ball” in confirming the expert deposition
and as such the court will not place the full responsibility on one party or the other. Therefore
the court orders the deposition cost must be split equally between the parties.
IT IS ORDERED
1)

Defendants’ motion to compel, (Filing No. 94), is granted as more fully stated in
the order.

2)

Defendants’ motion to strike, (Filing No. 99), is granted.

3)

Plaintiff shall pay half of the invoice, $750.

4)

Defendants shall pay half of the invoice, $750.

Dated this 26th day of April, 2016
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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