Ceglia v. Zuckerberg et al

Filing 551

MEMORANDUM in Opposition re 517 MOTION for Attorney Fees And For Recovery Of Expenses filed by Paul D. Ceglia. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Certificate of Service)(Boland, Dean)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,

Civil Action No. : 1:10-cv-00569-RJA

Plaintiff,
v.

MEMORANDUM IN
OPPOSITION TO DEFENDANTS’
MOTION FOR DEPOSITION
COSTS AND EXPENSES

MARK ELLIOT ZUCKERBERG, Individually, and
FACEBOOK, INC.
Defendants.

INTRODUCTORY STATEMENT
Defendants and Plaintiff reached an agreement regarding the reasonable
costs and expenses related to expert depositions. Declaration of Dean Boland at ¶2.
Neither party was required to conduct any depositions of the opposing witnesses.
Id. Defense Counsel Alex Southwell and Plaintiff’s Counsel reached an agreement
through a series of emails and phone conversations regarding which party would
bear which deposition costs and expenses. Id. That agreement included, only, the
following terms:
1.

The party taking any deposition would pay the reasonable deposition fee for
the witness’ time in deposition and reasonable travel expenses of the witness
attending that deposition. Id. at ¶4.
Neither Defense counsel nor Plaintiff’s counsel obtained or sought any other

terms regarding costs or expenses of deposition.

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Defendants noticed their depositions of Plaintiff’s experts and demanded
those depositions occur before Plaintiff would depose Defendants’ experts. Id. at ¶9.
Defendants noticed those depositions to occur at Defendants’ offices in New York.
Id.

Plaintiff noticed depositions of Defendants’ witnesses to occur in Cleveland,

Ohio, the location of his office. Id. at ¶10. Before Plaintiff’s noticed depositions of
Defendants’ experts could occur, Mr. Southwell requested a concession - namely,
that all Defendants’ witnesses be deposed at Mr. Southwell’s offices in New York.
Id. at ¶11.

Plaintiff’s counsel agreed to that concession with the qualification that

respect be given to scheduling of those depositions to account for Plaintiff’s counsel
having to bear the cost and time away from home for all depositions. Id. at ¶12.
Mr. Southwell agreed to be accommodating in this respect.
Most depositions of Defendants’ experts noticed by Plaintiff were conducted.
Some were postponed for reasons outside of Plaintiff’s counsel’s control, canceled
flights during travel to New York. Others were timely cancelled in good faith.
CANCELLED FLIGHT
Three depositions were scheduled, two on one day and one other on the
following day that were cancelled when Plaintiff’s flight to New York was cancelled
midway. Plaintiff’s counsel traveled from Cleveland to New York on a flight that
had a required stop in Philadelphia.

Id. at ¶17.

While in Philadelphia, at

approximately 11:45 PM that evening, Plaintiff’s counsel was informed that the
flight to New York was canceled. Id. at ¶18.

The next flight to New York was the

following day at 2:30 PM. Id. at ¶19. The train from Philadelphia had stopped
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running at that time and would not resume until 5:30 am the following morning.
Id. at ¶20. That train ride was approximately a two hour trip to New York followed
by a subway or cab ride from the train station to Mr. Southwell’s offices. Id. In
addition, the frequency of travel to New York, at Mr. Southwell’s request earlier in
the summer, had taken its toll on Plaintiff’s counsel and he became ill while resting
on seats at the gate in the Philadelphia airport waiting out the evening. Id. at ¶17.
Mr. Southwell was informed of this unexpected issue as soon as possible and
demanded that Plaintiff’s counsel, after sleeping in the terminal for a few hours, get
on a train to New York and conduct a full day of planned depositions anyhow. Id. at
¶21. Plaintiff’s counsel declined his demand. Id. at ¶22.
The depositions missed by that uncontrolled plane flight cancellation were
either re-scheduled or timely canceled.

Id.

Defendants’ have no reasonable

argument that either those postponements or cancellations were done in bad faith.
TIMELY CANCELLATIONS
As noted above, the parties agreement was sparse and negotiated by
experienced lawyers. Id. at ¶3. Neither party obtained or sought any transfer of
risk regarding cancellations of depositions they noticed.

Defendants’ case law

centers on attorneys who cancel depositions, untimely, when they are the noticed
party responsible to present themselves and their witness for a deposition. That
scenario is an obvious opportunity for strategic and inappropriate cancellations
merely to harass or exhaust resources of the opposing party.

Universally, the

depositions cancelled for which Defendants in this case complain, were those that
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the Plaintiff had noticed of Defendants’ witnesses. Again, there was no requirement
that either party take any depositions of the opposing witnesses. See above. There
is no reasonable argument that Plaintiff was cancelling depositions of Defendants’
experts in an attempt to exhaust the financial resources of the billionaire
Defendants. Such an argument is ludicrous.
DEFENDANTS DEMAND, BUT REFUSE TO MEET AND CONFER
Defendants made no authentic attempt to meet and Confer. Moreover, they
only began asserting their punitive expenses claim after their ambush attempt with
Mr. Lesnevich was serendipitously thwarted by Plaintiff’s timely cancellation of his
deposition.

Exhibit B.

Plaintiff had no need to depose a witness whose entire

expert analysis failed to determine the origin and integrity of the documents he
analyzed.

Mr. Argentieri’s declarations regarding the altered copies that Mr.

Lesnevich analyzed without inquiring as to their obviously not pristine nature,
destroyed entirely the usefulness of Lesnevich’s analysis and thereby his entire
report.

That left no reason to depose their uninformed expert.

In addition, the

comparison of Lesnevich’s report of March 26, 2012 and his previous declaration
further exposed him as willing to say anything to fit the moment, ignorant of the
record he had created contradicting himself at every important turn.
Plaintiff’s counsel reached out to Defendants on two occasions since receiving
Defendants’ unreasonable demands in their motion in an attempt to reasonably
resolve this dispute consistent with the parties agreement on deposition related
expenses. Defendants showed no interest in holding reasonable discussions, other
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than check the box that they had attempted to meet and confer.

First, Plaintiff

requested the details of what charges they were alleging were the responsibility of
Plaintiff.

Their initial demand letter offered very little detail on the specifics of

their demands. Second, Plaintiff offered to negotiate certain of the charges, while
not waiving the right of refusal, so long as Defendants acknowledged that others
were not Plaintiff’s responsibility.

Exhibit C.

Defendants ignored that

correspondence and filed this motion with the court. It represents no real interest
in meeting and conferring.
These falsities of forum, only serve Defendants as they go through the
motions of motion practice. Their claims to meet and confer are formulaic with no
intent to resolve problems informally but involve the court to manufacture a paper
trail to bolster their obviously unsuccessful dismissal evidence and strategy.
ADDING PHANTOM TERMS TO THE PARTIES’ AGREEMENT
Defendants are now seeking nearly $100,000 in costs and expenses, the bulk
of which are for expenses and costs that were never agreed to or even discussed as
part of the parties agreement as noted above. Neither party saw fit to shift the risk
of costs for witness preparation to the other party. Decl. of Dean Boland at ¶5-6.
Neither sought to shift the risk of attorney preparation time spent with our
respective witnesses to the other party. Id. Neither party sought to shift the risk of
cancellation to the party cancelling a deposition they had notice of the other party’s
expert. Id. at ¶14. Neither party sought to impose “cancellation fees” on the other
party in addition to the actual deposition fee that Defendants now seek from
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Plaintiff for depositions that never occurred. Id.
This is obviously a naked attempt by Defendants to crush a financially
weaker opponent.

This is a corrupt litigation tactic employed since the dawn of

litigation and it should be rejected by this court.
THE WINDFALL EFFECT
Each of the cancellations at issue occurred with more than sufficient time for
the respective witnesses to return, by air or land, to their offices and be ready to
work on the day that their now cancelled deposition was to take place. The obvious
import of this is that Defendants are seeking to obtain a windfall for their experts
and themselves.

Those experts easily returned to their offices and on their now

cancelled deposition day, were able to earn a full days income from their work while
simultaneously seeking their full deposition fee for a deposition that never occurred.
Meaning, had the deposition occurred, even a one question deposition that Plaintiff
concluded, Defendants’ unreasonable fee motion would have evaporated.
DEFENDANTS INFINITELY FLEXIBLE DEFINITION OF “REASONABLE”
The parties’ agreement only called for the payment of reasonable deposition
fees and reasonable travel expenses. It did not contemplate the payment of any and
all travel expenses and deposition fees regardless of the demanded fee.

Gus

Lesnevich’s scheduled half-day deposition for a fee of $6,400 equates to $1,829 per
hour. It is no wonder Defendants failed to find case law support for that being a
reasonable fee. Lesnevich refused to provide an hourly rate so that Plaintiff could
ask him the most basic of questions about his report. Defendants’ expert Gerald
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McManemin demanded $5,000 ($1,429 per hour) to be deposed for one half day and
was also unwilling to provide an hourly rate.

Defendants’ computer expert Eric

Friedberg, demanded $975 per hour.
Plaintiff agreed to hold all depositions in New York City, rather than in
Cleveland as a concession to Defendants’ counsel and Defendants experts.
Defendants’ counsel did not have to travel for any of the depositions. Defendants
should show Plaintiff the professional courtesy of understanding that flights are
sometimes cancelled, especially when Defendant compromised and agreed to do all
of the travel and have all of the burden associated therewith.
Defendants have refused to provide a reasonable level of detail to enable
Plaintiff to evaluate the reasonableness of the proposed charges. Plaintiff believes
it would have reasonable to travel into New York city the night before the
deposition, appear for the deposition and return home after the deposition
concluded.

That would yield travel expenses plus one night of accommodations.

However, Defendants are asking Plaintiff to cover $1,799 of hotel accommodations
for Gus Lesnevich.

The typical room rate in New York City at that time was

$250.00 per night. Regardless of whether Mr. Lesnevich was in New York for his
preparation or if he chose a lavish hotel, the charge is unreasonable. Defendants
are asking Plaintiff to pay $2,403 for a business class flight for Mr. McManemin, a
luxury that Plaintiff can not afford and is not within the “reasonable” travel
expenses that the parties agree to pay. The Ritz Carlton in New York charges less
for its rooms than Mr. Lesnevich is demanding.
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DOUBLE BILLINGS
Defendants are demanding that Plaintiff not only pay for expert depositions,
that were timely postponed or cancelled, but they are asking him to pay for some
depositions twice. This amounts to a windfall for Defendants’ experts. Defendants
have billed $5,000 for an appearance fee for a deposition, McMenamin, that never
occurred, plus an additional $5,000 as a “cancellation” charge.

Both of these

charges were not part of the agreement negotiated by two experienced lawyers who
could have easily inserted these terms if they desired. Dr. Lyter and Dr. Tytell’s
depositions had to be rescheduled due to cancellation of Plaintiff’s counsel’s flight
cancellation and subsequent illness. Both depositions of Dr. Lyter and Dr. Tytell
were subsequently taken by phone while Plaintiff’s counsel was home still
recovering from the illness requiring their postponement to begin with. Plaintiff
has already paid appearance fees for both Dr. Lyter and Dr. Tytell, but Defendants
have charged them a second appearance fee of $1,500 and $1,700 respectively.
Further and even more amazingly, Defendants are demanding that Plaintiff pay
$7,700 in witness and/or attorney preparation fees for Dr. Lyter, even though
Plaintiff took Dr. Lyter’s deposition.
THE ILLOGIC OF DEFENDANTS’ ARGUMENT
Essentially, Defendants’ argument to this court is that Plaintiff’s failure to
conduct depositions of Defendants’ witnesses ought to be met with a punishment
that is 75% or more of the cost of actually conducting them.

According to the

Defendants’ argument, had Plaintiff simply conducted all of the cancelled
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depositions and asked one question and then concluded them, Defendants’ entire
argument for punitive expenses and fees would evaporate.

The court will notice

that with one exception Defendants are not asking for witness or attorney
preparation time expenses for depositions that were actually conducted.

This

acknowledges the parties’ agreement did not include those expenses be borne by the
deposing party even with the well known possibility of a cancellation of a
deposition.
DEFENDANTS’ PATTERN AND PRACTICE OF ONLY PAYING FOR
ACTUAL DEPOSITION TIME
During Plaintiff’s expert Neil Broom’s deposition, it became apparent halfway
through the full day deposition, that Defendants’ repeatedly requested “fifteen
minute breaks” (lasting forty-five minutes on average) were going to require Mr.
Broom to stay at their offices for at least ten hours that day.

Plaintiff’s counsel

noted that the rules only entitled deposition of Mr. Broom for seven hours without
further permission of the court. F.R.Civ. P. 30(d)(1). Defendants’ countered that
the rule only contemplated the time actually in deposition. Decl. of Dean Boland
at ¶25-26. Meaning, Defendants felt it was appropriate to keep Plaintiff’s experts
at their offices for as long as they saw fit provided he was only on the record being
deposed for seven of those hours total. Id. Defendants continued with this practice
with witness Larry Stewart. Id. at ¶27-29. Their refusal to pay Mr. Stewart for any
time other than that spent in deposition further underlines this point. Mr. Stewart
billed Defendants for nine hours of time they required him to be present at their

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offices for his deposition. Id. Defendants refused to pay Mr. Stewart for one minute
beyond the seven hours he was actually in deposition. Id. Therefore, they reinforce
the practice started with witness Broom that only when a witness is being deposed
are they entitled to be paid for deposition time. Id.
Despite this repeated practice by Defendants, they now seek to have their
experts paid despite them not being deposed at all.

Even if this court were

sympathetic to the notion that the expert had to sit at the Defendants’ offices for a
period of time on a given day of their deposition without being deposed, Defendants
forcefully refused to pay Plaintiff’s witnesses for any time spent at their offices
outside of actual deposition time. They now expect Plaintiff to pay their witnesses
for time spent at their offices in opposition to their position they have acted on with
Plaintiff’s experts. It’s duplicity defined. In Defendants’ world, none of Plaintiff’s
experts deserve to be paid for merely being at Defendants’ offices for a noticed
deposition, they only get paid for time actually spent in deposition.
Defendants have filed this motion in bad faith.

They recognize a superior

financial advantage over Plaintiff and have sought these additional expenses, never
agreed to by the parties and not reasonably anticipated, as a means to further
attempt to wear Plaintiff down.
Mr. Southwell for Defendants and Plaintiff’s counsel reached an agreement,
negotiated between two experience lawyers, which assessed what costs and risks
would be borne by each party. Declaration of Dean Boland.
DEFENDANTS’ NOT SEEKING SANCTIONS
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Defendants are not, because they cannot, seek sanctions against Plaintiff.
There is no reasonable argument that Plaintiff’s conduct regarding the depositions
was anything other than in good faith. Defendants do not like that they lost an
opportunity, e.g. the timely cancelled Lesnevich deposition, to ambush Plaintiff with
new reports, but that irritation at a strategy thwarted is insufficient to prevail.
Defendants ask this court to override the parties carefully crafted agreement
for the payment of expenses. Yet no sanctions are requested in Defendants motion.
No egregious bad faith actions are claimed. In direct conflict to the “American Rule”
on legal fees, Defendants seek the payment of their legal fees. The exception to the
“American Rule” is a finding of bad faith conduct. Defendants’ do not even allege
bad faith conduct much less establish it. From the outset then it seems clear that
the request for legal fees is completely unsupported fantasy and ignores a complete
lack of support factually and legally. No request or argument for sanctions has been
made and no attorney fees therefor could possibly be awarded.
Defendants’ motivation for this motion is obvious.

Their factual and legal

claims are now illuminated to be insufficient to obtain the dismissal they seek.
Defendants know that their own experts have been discredited in deposition. Other
Defense experts have submitted new reports masquerading as supplemental
“‘findings” yet directly contradicting other Defense experts.

Defendants seek not

only to create a new legal argument of a two page forgery, but abandon as if it never
existed, their years long claim of a page one substitution, now bobbing out at sea
like a lone life raft, where their Facebook Battleship once patrolled.
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The court is now confronting the response to their supposed avalanche of
expert opinion which turns out to be the iceberg sinking their ship. The majority of
Plaintiff’s response is not reliant on Plaintiff’s experts. It relies on a comparison of
Defendants’ expert reports and Defendants’ experts’ depositions which are
incongruent in every key area that the court once regarded as part of Defendants’
avalanche of evidence. Heaped on top of that crumbled facade are Plaintiff’s experts
confirming the authenticity of the FB contract and emails disputing every key point
in Defendant’s experts’ reports. The unrefuted scientific evidence is that page one
of the Facebook Contract and page two originated on the same printer. The pages
are consistent with those from the same production run. Losing on the facts and
the law, Defendants are now exploiting the only remaining strategy - outspending
their opponent in hopes he will be bankrupted into defeat.
This intellectually dishonest argument now seeks to make Plaintiff pay for
costs that would never have been accrued had Defendants not so grossly
misrepresented the facts of this case that they now claim they never said. One
expert after another attested to the differences between page one and page two yet
Defendants now disclaim authorship of that argument, now discredited by their
own experts and Plaintiff’s, repeatedly made throughout this case.
The court does not award sanctions based on the time spent in
preparation for the deposition, as this time is not wasted. The court
also does not award the costs of the Motion or bar further deposition
of Grismer as the court sees no evidence that the deposition was
cancelled in bad faith. Barrett v. Brian Bernis Auto World, 230 FRD 535
(N.D. Ill. 2005).

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CANCELLATIONS WERE ALL IN GOOD FAITH
As opposed to the grossly misrepresented case law referenced by Defendants,
Plaintiff’s few cancellations were in good faith.
Defendants argue that Edmonds v. Seavey, No. 08 Civ. 5646(HB) (JCF), 2009
WL 1285526, at * 3 (S.D.N.Y. May 5, 2009) supports their position that they should
be awarded their costs.

Edmonds does not support their position at all.

In

Edmonds, the court awarded deposition costs and expenses not because of an
untimely cancellation, but only because the court found that in the unique
circumstances of that case, the cancellation could “only be construed as an attempt
to gain leverage with respect to unrelated discovery issues.” Id.
Defendants made no argument that that they were prejudiced by the
cancellations in any way. Defendants have not argued, because no facts support it,
that Plaintiff cancelled depositions of Defendants’ experts in an attempt to gain
leverage.
Rule 30(g) (1) of the Federal Rules of Civil Procedure provides:
If the party giving the notice of the taking of a deposition fails
to attend and proceed therewith and another party attends in person
or by attorney pursuant to the notice, the court may order the party
giving notice to pay to such other party the reasonable expenses
incurred by that party and the party's attorney, including
reasonable attorney's fees.
Plaintiff did not fail to attend any of the depositions in question.

Rather,

Plaintiff’s counsel gave timely notice to relieve Defendants’ experts of the burden of
deposition.

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Defendants were not, as often happens in sanctionable deposition
cancellations, left sitting in the deposition room wondering when opposing counsel
and the witness were going to appear.

They were given ample notice for

cancellation and at no point were Defendants left languishing warranting an award
under Rule 30 (g).

Defendants’ do not argue or have evidence to support the

essential elements under Rule 30(g). Despite not having supporting evidence, they
disregard their obligations not to bring frivolous motions and file this one in bad
faith.
THREE OF THE CANCELLATIONS WERE DUE TO WEATHER AND
ILLNESS
Plaintiff was forced to postpone, but not cancel, the depositions of Dr. Lyter,
Mr. Tytell and Dr. McManemin because Plaintiff’s counsel’s flights were cancelled
and because he subsequently became ill as a result of the travel strain.

These

circumstances beyond Plaintiff’s control caused the cancellation of three of the
depositions.

As soon as those plane flights were cancelled and no other way to

reasonably attend the day and a half of deposition existed, Plaintiff’s counsel
immediately contacted Defendants’ counsel by email.
It appears that both of the attorneys representing plaintiff in
this lawsuit became ill during the week of January 14, and that they
notified defendant's counsel by the afternoon or evening of January
15 that they could not appear for the deposition the next day.
(Affidavit of Malik Cutlar, Esq., sworn to Apr. 3, 1997, at ¶¶ 14–24;
Affidavit of Andrew J. Entwhistle, Esq., sworn to Mar. 17, 1997, at ¶¶
8–9 and Ex. F). That notice was undoubtedly sufficient to permit
defendant's attorney to cancel the reporter's appearance, and thus
avoid incurring any expense. Moreover, the proffered excuse was
surely sufficient to justify postponing the deposition, particularly in
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the absence of any demonstrated prejudice. Attorneys in this court
routinely extend, and are expected to extend, common courtesies to
their adversaries; whatever the frustrations of litigation—and they
should not be underestimated—counsel must not lose sight of the
fact that they are professionals acting in accordance with certain
accepted standards, and not gladiators fighting for their lives.
Tomlinson v. St. Paul Reinsurance Management Corp. 1998 WL 65996.
Two of the depositions (Dr. Lyter and Dr. Tytell) that were affected by
Plaintiff’s counsel’s cancelled flight and subsequent illness were rescheduled and
taken by telephone.

While those depositions were being re-scheduled, Plaintiff’s

counsel questioned the reasonableness of Mr. McMenamin’s fee for his scheduled
half-day deposition.

The deposition of Dr. McManemin was never rescheduled

because despite numerous attempts by the Plaintiff to discuss the matter with
Defendants, Defendants refused to provide an hourly rate for the witness. Exhibit
A. Dr. McManemin sought a five thousand dollar fee for a half day deposition, i.e.
3.5 hours. Once timely cancelled, Mr. McManemin now seeks a windfall additional
“cancellation fee” of five thousand dollars more. Finally, he was likely sitting in his
office on the day of his cancelled deposition earning even more income.

This

inappropriate gouging should be rejected by the court.
REMAINING CANCELLATIONS HAD SUFFICIENT NOTICE
Other than the short notice given for the flight cancelled due to
thunderstorms and the subsequent illness, Plaintiff provided timely notice of any
other deposition cancellations. See Declaration of Dean Boland.
“Thus it appears that plaintiff was provided oral notice of cancellation at
least two days prior to the deposition. I do not find that this constitutes insufficient
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notice of cancellation warranting the award of attorneys' fees and costs.” Donini
Intern., S.P.A. v. Satec (U.S.A.) LLC 2006 WL 695546 at *8.
The eventual cancellation of Defendants’ expert Mr. Friedberg (Stroz
Friedberg) and Novak’s depositions were reasonable. Stroz Friedberg’s offices are
in New York and Defendants’ counsel, Mr. Southwell, specifically sought to have
those experts’ depositions in New York, as opposed to Cleveland where they were
noticed, to minimize Defendants’ travel expenses and related logistics. At no time
was Plaintiff’s counsel informed that some of the Stroz witnesses did not live in
New York during those conversations that resulted in Plaintiff’s counsel
compromising to fly to New York for those depositions.

Now, as is obvious, that

compromise for Defendants’ counsel’s benefit has been returned to Plaintiff as
Defendants’ naked attempt to financially harm Plaintiff as a litigation tactic. Even
had Mr. Novak had to fly to New York, he surely, as a computer expert for Stroz,
could have continued to work from the secure environment of the main office of
Stroz,in New York City. He therefore could not have lost a days work as he was at
the main office of his employer.
Mr. Lesnevich’s cancelled deposition is the most egregious for which
Defendants seek compensation. Mr. Lesnevich drove to New York City through the
Tri-State area of Pennsylvania, the state where he lives, at least two days before his
deposition. Therefore, upon hearing of the cancellation of that deposition two days
beforehand, he could easily have returned to his residence in Pennsylvania putting
in a full day’s work on the previously scheduled day of his deposition. Mr. Romano
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came by train to New York, an accommodation of his deposition date was requested
by Defendants because of Mr. Romano’s refusal to fly to New York. He could have
left New York any time after learning of the cancellation of his deposition. Yet in
both these instances, Defendants sought to bring their experts in at least three days
in advance of the deposition for “Deposition Prep” Requiring the Plaintiff to pay for
three days of “prep” is unreasonable and unsupported by any case law.
PROPOSED PAYMENTS
Defendants’ expert Mr. McManemin spent three nights in the Hyatt hotel at
an average cost of $374 per night. Had Mr. McManemin been traveling for the sole
purpose of attending the deposition, one night would have been sufficient to enable
him to attend the deposition.

While Plaintiff believes that he has demonstrated

clearly that the expenses incurred by Defendants are the responsibility of the
Defendants, should the court agree in part with Defendants and believe that some
reasonable travel expenses should be borne by Plaintiff, he offers the following as a
reasonable response to Defendants’ outrageous demands:
The travel expenses proposed by Mr. Novak ($649.51) and Dr. Lyter ($1,286)
seem reasonable as presented. Plaintiff proposes to adjust the travel invoices of Mr.
Lesnevich and Dr. Romano down from $2,228.97 to $803.49 and from $1,599.52 to
$606.15, respectively to reflect the reduction of hotel costs down to the equivalent of
one night in the Hyatt at $374 per night.
Finally, Plaintiff proposes to reimburse Mr. McManemin for 50% of his
business class flight plus adjusting his hotel stays to one night for an adjustment
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from $3,665 to $1,714.50. Had Plaintiff been consulted in advance, he would not
have agreed that a $2,405 business class flight was a reasonable expense.

After

these adjustments, the total reasonable travel reimbursements would be $5,059.65.
Its unfortunate that Defendants were unwilling to have these basic discussions with
Plaintiff before addressing the court.
CONCLUSION
Defendants ask for three categories of fees.
Preparation Fees - Defendants ask for $68,661.75 of preparation fees for
hours spent by the experts and Defendants’ counsel preparing the experts for
depositions. Plaintiff never agreed to pay these mind boggling expenses of which
Plaintiff had no control over.
Appearance Fees - Defendants ask for $17,350.00 for expert fees that would
have been incurred had the Plaintiff taken deposition of the experts, plus the
duplicate cost of $3,200 for Dr. Tytell’s and Dr. Lyter’s rescheduled appearance fees.
Plaintiff should not be responsible for the appearance fees when no depositions were
taken.
Travel Expenses - Defendants ask for $9,429.00 for the travel and lodging
expenses incurred by their experts in connection with the cancelled depositions.
The experts could have avoided all of these costs if Defendants had not asked them
to come to New York City early for Defendants’ own reasons. However, if the Court
rules that Plaintiff should only be responsible for some of the travel expense, he
should only be responsible for the reasonable expense of $5,059.65.
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Respectfully submitted,
/s/Dean Boland
Paul A. Argentieri
188 Main Street
Hornell, NY 14843
607-324-3232 phone
607-324-6188
[e-mail]

Dean Boland
1475 Warren Road
Unit 770724
Lakewood, Ohio 44107
216-236-8080 phone
866-455-1267 fax
[e-mail]

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