Hewitt v. The City of New York et al
Filing
51
AMENDED MINUTE ORDER re [42, 46] plaintiffs' motions to compel. Ordered by Magistrate Judge Marilyn D. Go on 7/19/2011. (Proujansky, Josh)
AMENDED MINUTE ORDER
Hewitt v. City of New York, 09-cv-214 (RJD)(MDG)
This order summarizes rulings made on the record during a
conference held on 7/15/11.
1.
Plaintiff moves for an order limiting the fee charged by
defendants’ expert, Dr. Steven Fayer for his appearance at a
deposition. Defendants seek a fee of $2,500 for Dr. Fayer to
appear at a deposition lasting no more than four hours.
Rule 26 (b)(4)(E) of the Federal Rules of Civil Procedure
requires that a party seeking discovery pay the opposing party’s
expert a “reasonable fee for time spent in” deposition. See Fed.
R. Civ. P. 26(b)(4)(E). The party seeking reimbursement bears the
burden of showing the reasonableness of the fee sought. See
Casiano v. Target, 2008 WL 3930558, at *1 (E.D.N.Y. 2008); Carafino
v. Forester, 2005 WL 1020982, at *1 (S.D.N.Y. 2005). Courts in the
Second Circuit consider several factors in determining
reasonableness: (1) the witness’s area of expertise; (2) the
education and training required for the expert insight sought; (3)
the prevailing rates for other comparably respected available
experts; (4) the nature, quality and complexity of the discovery
responses provided; (5) the cost of living in the geographical
area; (6) the fee being charged by the expert to the party who
retained him; (7) the fees charged by experts in similar matters;
and (8) any other factor likely to be of assistance to the court in
balancing the interests implicated by Rule 26. Casiano, 2008 WL
3930558, at *1.
The only information provided by the defendants is a brief
description of Dr. Fayer’s credentials. Dr. Fayer is board
certified in psychiatry and is an Assistant Professor of Psychiatry
and an Attending Physician at Mount Sinai Hospital. Although Dr.
Fayer appears very well qualified, the flat rate sought by
defendants is unreasonable under the circumstances. See id.
(recognizing that a flat fee for an expert’s appearance is
disfavored); Kreyn v. Gateway, 2008 WL 2946061, at *1 (E.D.N.Y.
2008). Based on my experience and the reported cases, I find that
a rate of $400 per hour is a reasonable fee for Dr. Fayer to appear
for a deposition, including up to one hour of preparation time.
See e.g., Broushet v. Target, 2011 WL 1750753, at *3 (E.D.N.Y.
2011) ($400/hr for orthopedic surgeon); Reit v. Post Properties,
2010 WL 4537044, at *10 (S.D.N.Y. 2010) ($400/hr for neurologist
and $250/hr for orthopedic surgeon); Kreyn v. Gateway Target, 2008
WL 2946061, at *2 ($400/hr for orthopedist). Any travel time may be
charged at a rate of $200 per hour.
2.
Plaintiff seeks an order compelling defendants to produce
certain recordings of KEL transmissions and corresponding
transcripts. Plaintiffs’ application to compel an inspection of
the original recordings and the production of “Tape No. C050061" is
denied without prejudice. Plaintiff has not offered any reason to
doubt the accuracy of the copies the defendants produced or
counsel’s representation that “Tape No. C050061" is unrelated to
the incident at issue in the litigation. However, defendant must
produce by 7/29/11 an affidavit certifying the accuracy of the
copies produced and any transcripts of the recordings kept by the
City in the ordinary course of business. Defendants are warned
that they will be precluded from using any recordings that have not
been produced to plaintiff.
3.
Plaintiff moves to compel production of all disciplinary
records regarding the defendant officers. Defendants have
consented to the production of records concerning allegations of
misconduct of a similar nature to that alleged in the complaint or
allegations of false statements within the scope of the officers’
employment going back 10 years from the date of plaintiff’s arrest.
Many courts have recognized that discovery of a defendant’s
disciplinary history must be limited to those that concern conduct
similar to that alleged in the complaint or that relate to the
officer’s propensity to tell the truth. See Gibbs v. City of New
York, 2008 WL 314358, at *1 (E.D.N.Y. 2008); Zhao v. City of New
York, 2007 WL 4205856, at *1 (S.D.N.Y. 2007); Barrett v. City of
New York, 237 F.R.D 39, 40 (E.D.N.Y. 2006); Frails v. City of New
York, 236 F.R.D. 116, 118 (E.D.N.Y. 2006). On the other hand,
disciplinary actions older than 10 years or those that post-date
plaintiff’s incident may still be relevant to pattern, intent or
absence of mistake. See Zhao, 2007 WL 4205856, at *1; Barrett, 237
F.R.D at 40; Frails, 236 F.R.D. at 118; Malsh v. NYC Police Dept.,
1995 WL 217507, at *2 (S.D.N.Y. 1995). However, since any such
actions are more removed in time from the claims in this action,
they may not be probative, particularly in the absence of similar
charges. Cf. Whiting v. The Old Brookville Bd. of Police
Commissioners, 4 Fed. Appx. 11, 13 (2d Cir. 2001) (affirming
prohibition on cross-examination concerning defendant’s 26 year old
disciplinary citations because of “extreme remoteness in time of
the conduct at issue”).
Accordingly, by 9/15/11, defendants must produce the records
described above going back 10 years from the present and any
disciplinary records concerning the officers’s lost memo books. In
addition, by 8/31/11, defendants must produce for in camera
inspection a summary of any disciplinary records they contend are
unrelated to the conduct alleged in the complaint or that are older
than ten years.
SO ORDERED.
Dated:
Brooklyn, New York
July 18, 2011
/s/
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE
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