Ceglia v. Zuckerberg et al

Filing 615

DECISION and ORDER granting in part and denying in part 517 Motion for Attorney Fees. Signed by Hon. Leslie G. Foschio on 11/29/2012. (SDW)

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

Plaintiff,
v.
MARK ELLIOT ZUCKERBERG, and
FACEBOOK, INC.,

10-CV-00569A(F)

Defendants.

APPEARANCES:

PAUL A. ARGENTIERI, ESQ.
Attorney for Plaintiff
188 Main Street
Hornell, New York 14843
BOLAND LEGAL LLC
Attorneys for Plaintiff
DEAN M. BOLAND, of Counsel
18123 Sloane Avenue
Lakewood, Ohio 44107
GIBSON, DUNN & CRUTCHER, LLP
Attorneys for Defendants
ALEXANDER H. SOUTHWELL, and
THOMAS H. DUPREE, of Counsel
200 Park Avenue, 47th Floor
New York, New York 10166-0193
HARRIS BEACH LLP
Attorneys for Defendants
TERRANCE P. FLYNN, of Counsel
Larkin at Exchange
726 Exchange Street, Suite 1000
Buffalo, New York 14210
JURISDICTION

This case was referred to the undersigned by Honorable Richard J. Arcara on
May 27, 2011 for pretrial matters. It is presently before the court on Defendants’
Application for Recovery of Expenses (Doc. No. 517), filed September 7, 2012.

BACKGROUND and FACTS1
Plaintiff Paul D. Ceglia (“Plaintiff” or “Ceglia”), filed the original complaint in this
action on June 30, 2010, in New York Supreme Court, Allegany County. On July 9,
2010, Defendants Mark Elliot Zuckerberg (“Zuckerberg”) and Facebook, Inc.
(“Facebook”) (together, “Defendants”) removed the action to this court asserting subject
matter jurisdiction based on diversity. In an Amended Complaint filed April 11, 2011
(Doc. No. 39), Plaintiff asserts seven claims for relief based on alleged breaches of a
purported contract with Zuckerberg and the partnership established thereunder.
Defendants deny the purported contract’s authenticity, asserting it is a forgery.
Because the authenticity of the purported contract is critical to this action, in lieu
of general discovery the parties agreed to participate in discovery limited to the
purported contract’s authenticity. In connection with such limited discovery, Plaintiff, on
June 21, 2012, noticed depositions of ten of Defendants’ expert witnesses, including
Eric Friedberg (“Friedberg”), Bryan Rose (“Rose”), Michael McGowan (“McGowan”),
Jason Novak (“Novak”), Gerald LaPorte (“LaPorte”), Peter Tytell (“Tytell”), Albert Lyter
(“Lyter”), Gerald McMenamin (“McMenamin”), Gus Lesnevich (“Lesnevich”), and Frank
Romano (“Romano”), for the last week of July and the first week of August 2012.
Plaintiff’s attorney Dean M. Boland, Esq. (“Boland”), and Defendants’ attorney
Alexander H. Southwell, Esq. (“Southwell”), had coordinated the deposition schedules
to allow the parties’ experts to attend the depositions of the opposing parties in the
same field. Boland advised Southwell he intended to depose LaPorte and Lesnevich

1

The Facts are taken from the pleadings and m otion papers filed in this action.
2

for seven hours each, but that Defendants’ remaining eight experts would be scheduled
for half-day depositions with two depositions conducted per day. In a telephone
conversation on June 21, 2012, Boland and Southwell also agreed that the deposing
party would pay the deposed expert’s deposition appearance fees on the scheduled
day for the deposition, and would reimburse each expert for reasonable travel and
lodging fees incurred, but that the deposed experts’ travel time would not be
reimbursed. This “Deposition Expense Agreement” was memorialized in a June 22,
2012 letter (“June 22, 2012 Letter”),2 from Southwell to Boland.
Despite confirming each of the ten depositions scheduled, Plaintiff eventually
canceled seven of the depositions with less than 48 hours’ notice, three with less than
24 hours’ notice. Only two of the seven canceled depositions were rescheduled.
On September 7, 2012, Defendants filed the instant Application for Recovery of
Expenses (Doc. No. 517) (“Defendants’ motion”), seeking payment from Plaintiff of all
expenses incurred in connection with Plaintiff’s cancellation of seven of ten depositions
of Defendants’ experts noticed by Plaintiff, with less than 48 hours’ notice. Included in
the expenses Defendants seek to recover are expenses for their experts’ travel and
lodging, appearance fees, and preparation time, as well as time Defendants’ attorneys
spent preparing each expert for their respective depositions and preparing the instant
application for expenses. In support of the motion, Defendants filed Defendants’
Application for Recovery of Expenses (Doc. No. 518) (“Defendants’ Memorandum”),
and the Declaration of Alexander H. Southwell, Esq. (Doc. No. 519) (“Southwell

2

Defendants’ Exh. C.
3

Declaration”), with exhibits A through S (“Defendants’ Exh(s). __”). On September 24,
2012, Plaintiff filed the Memorandum in Opposition to Defendants’ Motion for
Deposition Costs and Expenses (Doc. No. 551) (“Defendants’ Response”), and the
Declaration of Dean Boland, Esq. in Opposition to Defendants’ Motion for Deposition
Costs and Expenses (Doc. No. 552) (“Boland Declaration”). On September 28, 2012,
Defendants filed Defendants’ Reply Memorandum in Support of Their Application for
Recovery of Expenses (Doc. No. 559) (“Defendants’ Reply”), and the Supplemental
Declaration of Alexander H. Southwell, Esq. (Doc. No. 560) (“Southwell Reply
Declaration”), with attached exhibit A (“Defendants’ Reply Exh. A”). Oral argument was
deemed unnecessary.
Based on the following, Defendants’ motion is GRANTED in part and DENIED in
part.

DISCUSSION
Defendants seek to recover from Plaintiff expenses incurred for the travel,
lodging, expert preparation time, and attorney preparation time, as well as expert
appearance fees for those Defendants’ experts whose depositions Plaintiff noticed and
scheduled, but then canceled with less than 48 hours’ notice. Defendants maintain that
Plaintiff’s late cancellation of the depositions caused Defendants to needlessly incur
costs and expenses, including time spent by the attorneys and the witnesses preparing
for the depositions, appearance fees to which each witness was entitled for being
available on the date of the scheduled depositions, and the travel and lodging expenses
incurred by those witnesses who do not reside in New York City where the canceled
4

depositions were to take place. Defendants’ Memorandum at 1-6. In total, Defendants
request $ 98,640.75 in reimbursement of witness, attorney, and appearance fees, as
well as travel and lodging expenses. Id. at 7.
In opposition to Defendants’ motion, Plaintiff argues that the agreement reached
with Defendants prior to scheduling depositions of Defendants’ expert witnesses was
that the party taking the deposition would pay the reasonable deposition fee for the
witness’s time in the deposition, and the reasonable travel expenses incurred by the
witness to attend the deposition, but that the parties never agreed that any other costs
or expenses of depositions would be borne by the deposing party. Plaintiff’s
Memorandum at 1-2. Plaintiff maintains that although the depositions of Defendants’
experts were noticed for Cleveland, Ohio, where Boland’s law office is located, Plaintiff
agreed to Southwell’s request that all Defendants’ witnesses be deposed in New York
City with the qualification that in scheduling Defendants’ expert witnesses’ depositions,
consideration be given to Boland’s need to travel and the attendant travel and lodging
costs incurred by Plaintiff. Id. at 2. Plaintiff further asserts that an unanticipated flight
cancellation required the postponement of some depositions, id. at 2-3, depositions
were timely canceled in good faith, id. at 3-4, Defendants have refused to meet and
confer with Plaintiff regarding the instant dispute, id. at 4-5, that Plaintiff never agreed to
pay the costs Defendants seek to recover such that allowing Defendants to recover
such costs is based on “double billings” resulting in a financial windfall to Defendants,
id. at 5-6, and 8, that Defendants’ arguments in support of their motion adheres to an
“infinitely flexible definition of ‘reasonable,’” id. at 6-7, that Defendants’ request is
illogical, id. at 8-12. Plaintiff further maintains the cancellations were timely and made
5

in good faith under Fed.R.Civ.P. 30(g) (“Rule 30(g)”), pursuant to which the court may
order the party who notices a deposition to pay the reasonable expenses incurred by
the noticed party where the party who gave notice fails to attend the deposition. Id. at
13-17. Alternatively, Plaintiff challenges as excessive the travel and lodging costs
incurred by Defendants’ experts. Id. at 17-18.
In further support of their motion, Defendants maintain Plaintiff’s opposition to
Defendants’ motion relies on unsupported and self-serving assertions about the
applicability of Rule 30(g) and the reasonableness of Defendants’ requests.
Defendants’ Reply at 1. In particular, Defendants maintain the seek reimbursement not
pursuant to Rule 30(g) but, rather, pursuant to caselaw. Id. at 2. Defendants also
reiterate they seek reimbursement not pursuant to the Deposition Expense Agreement,
but pursuant to the Federal Rules of Civil Procedure and caselaw within the Second
Circuit. Id. at 2-3. Defendants argue in disputing Plaintiff’s assertion that the
cancellations of the depositions of Novak, Friedberg, Lesnevich, and Romano were
reasonable because each of these witnesses could have returned home and worked a
full day that such assertion ignores the fact that the experts and Defendants’ attorneys
expended time preparing for the canceled depositions. Id. at 3. According to
Defendants, Boland’s assertion that an unanticipated flight cancellation and illness
required him to cancel the depositions of Tytell, Lyter, and McMenamin is disingenuous
given that number other flights and trains were available for Boland and Defendants
offered to delay the start of the subject depositions. Id. at 3-4. Finally, Defendants
draws the court’s attention to Plaintiff’s failure to reference any legal authority for
Plaintiff’s assertion that the costs for which Defendants’ seek reimbursement are
6

unreasonable. Id. at 4-5.
To assist the reader, the court provides a detailed discussion of the
circumstances under which the depositions for which Defendants seek reimbursement
were scheduled and canceled. On June 25, 2012, the depositions of representatives
from Defendants’ digital forensics experts, Stroz Friedberg, LLC (“Stroz Friedberg”),
Novak and Friedberg, were scheduled for July 18 and 19, 2012. Defendants’
Memorandum at 2. By letter dated July 5, 2012 (“July 5, 2012 Letter”),3 Southwell
advised Boland that the expert fees for those experts whose depositions Plaintiff had
noticed (“appearance fees”) included:
Novak
Friedberg
Lyter
Tytell
Lesnevich
McMenamin
Romano

$ 1,662.50
$ 3,412.50
$ 1,500.00
$ 3,400.00
$ 6,400.00
$ 5,000.00
$ 875.00

Plaintiff does not deny receiving the July 5, 2012 Letter and nothing in the record
establishes Plaintiff raised any objection at that time to the amount of the appearance
fees requested by Defendants’ experts.
Although Boland confirmed the depositions of Novak and Friedberg on July 15,
2012, on July 16, 2012, Boland canceled both depositions, neither of which has been
rescheduled. Id. at 2-3. In connection with the late cancellations of the depositions of
Nowak and Friedberg, Defendants seek to recover witness and attorney fees for
witness preparation, witness appearance fees, and travel and lodging expenses. Id.

3

Defendants’ Reply Exh. A.
7

Specifically, Defendants seek reimbursement for the time counsel spent on July 6, 13,
and 16 preparing Novak for deposition, incurring $ 12,695 in witness and related
attorney fees, Novak’s appearance fee of $ 1,662.50, and $ 649.51 incurred in travel
and lodging expenses. Id. at 3. Defendants also seek reimbursement for the time
counsel spent time on July 6, 12, and 13 preparing Friedberg for deposition, incurring $
12,593.75 in witness and attorney fees, and Friedberg’s appearance fee of $ 3,412.50.
Id. Because Friedberg lives in New York City, Defendants do not seek travel and
lodging expenses for him. Id.
On July 12, 2012, Boland confirmed the depositions of Lyter and Tytell for July
25, 2012. Defendants’ Memorandum at 3-4. On July 16, 2012, Boland notified
Defendants’ counsel of a conflict requiring the rescheduling of both depositions for
August 2, 2012, which Boland confirmed on July 19, 2012. Id. On August 1, Boland
canceled Lyter’s and Tytell’s depositions. Id. On August 2, 2012, Tytell’s deposition
was rescheduled for August 3, 2012, and Lyter’s deposition was rescheduled for August
10, 2012. Id. Because Tytell’s deposition was quickly rescheduled, and Tytell lives in
New York City, Defendants seeks only Tytell’s cancellation fee of $ 1,700. Id. at 4.
The postponement of Lyter’s deposition for more than one week, however, caused
Defendants to spend additional time on August 9, 2012, preparing Lyter for his rescheduled deposition. Id. As such, Defendants seek $ 7,700 in witness and attorney
preparation fees, an appearance fee of $ 1,500, and $ 1,286 in travel and lodging
expenses incurred in connection with the canceled deposition. Id.
On June 25, 2012, the deposition of McMenamin was scheduled for August 3,
2012, which Boland confirmed on July 19, 2012, and on August 1, 2012, as well as on
8

August 2, 2012. Defendants’ Memorandum at 5. Later on August 2, 2012, however,
Boland canceled McMenamin’s deposition less than 14 hours prior to its scheduled
commencement, and did not seek to reschedule the deposition. Id. Defendants seek
to recover for time spent preparing for the canceled deposition on July 30 and 31, and
August 2, 2012, requesting $ 19,273 in witness and attorney fees, McMenamen’s
appearance fee of $ 5,000, and $ 3,665 travel and lodging expenses. Id.
Also scheduled on June 25, 2012 was the deposition of Lesnevich for August 2,
2012. Defendants’ Memorandum at 5. On July 16, 2012, Boland advised Defendants’
counsel of conflicts requiring rescheduling Lesnevich’s deposition for August 8, 2012,
which Boland confirmed on July 19, 2012. Id. On August 6, 2012, however, Boland
canceled Lesnevich’s deposition less than 48 hours prior to its scheduled
commencement, and which Boland did not seek to reschedule. Id. Defendants seek
reimbursement for time spent on August 6, 2012, preparing Lesnevich for the
deposition, including $ 6,560 in witness and attorney fees, Lesnevich’s appearance fee
of $ 6,400, and $ 2,228.97 in travel and lodging expenses. Id.
On June 27, 2012, Boland confirmed the deposition of Romano for August 14,
2012. Defendants’ Memorandum at 6. In an email dated August 13, 2012, Boland
advised he was cancelling Romano’s deposition less than 20 hours prior to its
scheduled commencement. Id. and Defendants’ Exh. L. Romano’s deposition has not
been rescheduled, and Defendants seek to recover witness and attorney fees, witness
appearance fees, and travel and lodging expenses incurred on August 10 and 13,
2012, in preparing Romano for the canceled deposition. Defendants’ Memorandum at
6. Defendants seek witness and attorney fees of $ 9,840, Romano’s appearance fee of
9

$ 875, and $ 1,599.52 incurred in travel and lodging expenses. Id.
To summarize, Defendants seek to recover as follows:
Expert
Witness

Witness
Preparation

Attorney
Appearance Travel and
Preparation
Fee
Lodging

Friedberg
$ 6,093.75 $ 6,500.00 $ 3,412.50
n/a
Lesnevich
4,000.00
2,560.00
6,400.00 $ 2,228.97
Lyter
4,200.00
3,500.00
1,500.00
1,286.00
McMenamin
8,188.00
11,085.00
5,000.00
3,665.00
Novak
6,925.00
5,770.00
1,662.50
649.51
Romano
2,500.00
7,340.00
875.00
1,599.52
Tytell
n/a
n/a
1,700.00
n/a
__________ __________ __________ _________
Totals:
$ 31,906.75 $ 36,755.00 $ 20,550.00 $ 9,429.00

Total
$ 16,006.25
15,188.97
10,486.00
27,938.00
15,007.01
12,314.52
1,700.00
__________
$ 98,640.75

Defendants’ Memorandum at 7.
The undisputed facts thus establish that the seven canceled depositions were
canceled with less than 48 hours’ notice, and five were never rescheduled, including the
depositions of Friedberg, Lesnevich, McMenamin, Novak, and Romano. The late
cancellations, however, did not allow the seven experts to avoid travel and lodging
expenses given that those experts who do not live in New York City had to travel there
and such travel occurred several days prior to their respectively scheduled depositions
to accommodate the experts’ need to prepare with Defendants’ attorneys for such
depositions.

1.

Attorney and Witness Fees and Appearance Fees
District courts within the Second Circuit have awarded the costs of canceled

depositions, including travel and lodging expenses, as well as expenses for the time
expended by the experts and attorneys preparing for the canceled depositions. See,

10

e.g., Carlson v. Geneva City School District, 2011 WL 3957524, at * 4-5 (W.D.N.Y.
Sept. 7, 2011) (denying defendants’ objection filed to magistrate judge’s award of costs
of deposition canceled less than four days prior to its scheduled commencement); Star
Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 2010 WL 3420730, at *3-4
(W.D.N.Y. Aug. 23, 2010) (denying plaintiff’s objections to magistrate judge’s award of
costs, including attorney fees, and expenses incurred in connection with deposition
canceled less than 48 hours before its scheduled commencement); and Edmonds v.
Seavey, 2009 WL 1285536, at * 3-4 (S.D.N.Y. May 5, 2009) (granting defendants’
motion for costs, including attorneys’ fees, incurred in connection with cancellation of
deposition with less than 24 hours’ notice), aff’d, 2009 WL 2150971 (S.D.N.Y. July 20,
2009) (denying plaintiff’s objections to earlier award of costs of untimely canceled
deposition), aff’d, 379 Fed. Appx. 62 (2d Cir. 2010). Where the deposition canceled is
of an expert witness, the cancelling party may also be required to reimburse the costs
of the expert’s time and appearance fee. See Roger Dubuis North America, Inc. v.
Thomas, 2006 WL 3199141, at *3-4 (M.D.Pa. Nov. 3, 2006) (awarding plaintiff attorney
fees and witness fees incurred in preparing for canceled depositions for time which was
wasted but not for time which was not wasted given that witness preparation was used
in cross-examination at preliminary injunction hearing); and Barrett v. Brian Bemis Auto
World, 230 F.R.D. 535, 537 (N.D.Ill. 2005) (awarding plaintiff reasonable expenses
covering travel and deposition time for plaintiff’s counsel and expert where deposition
was canceled without notice). Such costs may be awarded pursuant to Fed.R.Civ.P.
30(g) (“Rule 30(g)”). Edmonds, 2009 WL 1285526, at * 3 & n. 3.
In the instant case, there is no merit to Plaintiff’s argument, Plaintiff’s Response
11

at 13-14, that Rule 30(g) permits the recovery of expenses only where the party to be
deposed appears, but the party who noticed the deposition does not. According to
Plaintiff, Defendants cannot recover the costs of the canceled depositions because
none of the experts whose depositions were canceled appeared for the canceled
depositions. Id. Defendants assert in further support of their motion that their request
is consistent with caselaw from district courts within the Second Circuit. Defendants’
Reply at 2.
As relevant, Rule 30(g) provides that a party who notices a deposition yet fails to
attend and proceed with the deposition, may be ordered to pay to such other party “the
reasonable expenses for attending, including attorney’s fees . . . .” Fed.R.Civ.P.
30(g)(1). Plaintiff’s cancellation of the depositions with short notice did not allow the
experts and Defendants’ attorneys to avoid spending time preparing the experts for the
depositions, the very circumstances under which courts have allowed the recovery of
expert witness and attorney fees, regardless of Rule 30(g)(1). See Carlson, 2011 WL
3957524, at * 4-5; Star Direct Telecom, Inc., 2010 WL 3420730, at *3-4; Edmonds,
2009 WL 1285536, at * 3-4.
As for Plaintiff’s assertion that the August 2, 2012 depositions of Lytel and Tytell,
and the August 3, 2012 deposition of McMenamin, were canceled in good faith after
Boland’s connecting flight in the evening of August 1, 2012, from Philadelphia to New
York was canceled, and Boland was unable to secure travel on an alternate flight that
would allow him to arrive in New York City in time for the scheduled depositions, and
Boland subsequently became ill at the Philadelphia airport, is undermined by Plaintiff’s
failure to explain why travel on a different flight or by train the following morning could
12

not have been reasonably accomplished given that Defendants had offered to delay the
start time of the depositions. Although Boland rescheduled Tytell’s deposition for
August 3, 2012, Boland fails to explain why he did not also reschedule Lyter for August
3, 2012, but instead re-scheduled Lyter for August 10, 2012. Given that all three
experts were scheduled to be deposed only for half-day, as opposed to full-day
depositions, there is no apparent reason why McMenamin’s deposition, which had been
scheduled for a half-day on August 3, 2012, was canceled and never rescheduled.
Accordingly, the unanticipated cancellation of Plaintiff’s connecting flight from
Philadelphia to New York City on August 1, 2012, and Plaintiff’s vaguely asserted
illness4 do not excuse Plaintiff’s late cancellation of the depositions of Tytell, Lyter, and
McMenamin.
Such late cancellation also entitles Defendants to be reimbursed for the
appearance fee the experts would have received had the canceled depositions taken
place. See Roger Dubuis North America, Inc., 2006 WL 3199141, at *3-4. Nor is there
any merit to Plaintiff’s assertion, Plaintiff’s Response at 6, 16, that upon the cancellation
of the various depositions, Plaintiff should not be required to pay the canceled experts
the appearance fees to which the experts would have been entitled but for their
canceled depositions as such payment would be a windfall to the experts because the
cancellation of such depositions left the experts able to perform work according to their
regular work schedule. This argument ignores the reality of the situation, i.e., the
4

Boland asserts that, despite feeling ill, he spent the night of August 1 to 2, 2012, in the airport in
Philadelphia. Boland Declaration ¶ 17. Other than asserting a lack of sleep based on “a few hours” of
sleep in the airport term inal, Plaintiff’s Response at 3, Boland does not explain why a train scheduled to
depart Philadelphia at 5:30 A.M. on August 2, 2012, which would have arrived in New York City two hours
later, i.e., 7:30 A.M. on August 2, 2012, was not an acceptable alternative.
13

experts, in arranging their own schedules to accommodate the scheduled depositions,
were required to pass on other business opportunities that may have arisen during the
time each expert was to be deposed, as well as during the time the experts spent
traveling to New York City both to prepare for and to participate in their scheduled
depositions. Although Plaintiff, in opposing Defendants’ motion, argues the experts’
appearance fees are unreasonable, Plaintiff’s Response at 6-7, significantly, Plaintiff
never objected to the experts’ fees, of which Plaintiff was advised by Southwell in his
July 15, 2012 Letter. Accordingly, Defendants’ experts are entitled to be paid their
stated for the late-canceled deposition.
Finally, Plaintiff’s assertion that Defendants’ conduct when deposing Plaintiff’s
experts, including their refusal to pay Plaintiff’s experts for any break times during which
the expert was not actually being deposed, Plaintiff’s Response at 9-10, is merely a red
herring, having no relevance to Defendants’ motion.
As such, Plaintiff is required to pay the costs of Defendants’ attorneys and expert
witnesses time spent preparing for the canceled depositions, as well as the appearance
fees for those experts whose depositions were cancelled as follows:
Expert
Witness

Witness
Preparation

Attorney
Appearance
Preparation
Fee

Total

Friedberg
$ 6,093.75 $ 6,500.00 $ 3,412.50 $ 16,006.25
Lesnevich
4,000.00
2,560.00
6,400.00
12,960.00
Lyter
4,200.00
3,500.00
1,500.00
9,200.00
McMenamin
8,188.00
11,085.00
5,000.00
24,273.00
Novak
6,925.00
5,770.00
1,662.50
14,357.50
Romano
2,500.00
7,340.00
875.00
10,715.00
Tytell
n/a
n/a
1,700.00
1,700.00
__________ __________ __________ _________
Totals:
$ 31,906.75 $ 36,755.00 $ 20,550.00 $ 89,211.75

14

Plaintiff is required to reimburse Defendants for $ 89,211.75 in attorney and expert fees
incurred in preparing for and appearance fees for the canceled depositions.

2.

Travel and Lodging Expenses
Despite the determination that Defendants may recover the costs of their

expert’s appearance fees and attorney and witness fees for the time spent preparing for
the canceled deposition, Plaintiff’s opposition to the travel and lodging expenses
requested by Defendants is not entirely without merit. It is undisputed that the parties
agreed in the Deposition Expense Agreement that the party requesting a deposition
would pay the requested expert’s travel and lodging expenses incurred in connection
with the deposition. Deposition Expense Agreement. As such, because the late notice
of cancellation was insufficient to allow these experts to avoid travel and lodging
expenses, Plaintiff is responsible for paying these costs pursuant to the Deposition
Expense Agreement reached with Defendants in June 2012, as well as pursuant to
Rule 30(g). See Star Direct Telecom, Inc., 2010 WL 3420730, at * 3-4 (plaintiff required
to pay costs, including attorney fees, and travel and lodging expenses incurred in
connection with deposition canceled less than 48 hours before its scheduled
commencement).
Plaintiff’s untimely cancellation of the depositions resulted in unnecessary travel
and lodging expenses for those experts who do not reside in New York City, including
Lesnevich, Lyter, McMenamin, Novak, and Romano. Although Plaintiff is responsible
for such costs under the Deposition Expense Agreement, Deposition Expense
Agreement, neither Plaintiff nor Defendants have submitted sufficient documentation of
15

the travel costs and lodging expenses incurred by Defendants’ experts in connection
with their canceled depositions. Plaintiff’s statements in opposition to Defendants’
motion, however, establish that Plaintiff is in possession of a detailed accounting of the
travel and lodging expenses incurred by Defendants’ experts. Plaintiff’s Response at 7,
17-18.
In particular, Plaintiff objects to the fact that McMenamin traveled to New York
City in business class at a cost of $ 2,403, and Lesnevich’s hotel stay for an unspecified
number of nights totaled $ 1,799 which Plaintiff asserts far exceeds the typical rate for a
New York City hotel of $ 250. Plaintiff’s Response at 7. Plaintiff later asserts, Plaintiff’s
Response at 17, that McMenamin spent three nights in the Hyatt hotel at an average
rate of $ 374, which Plaintiff also finds reasonable. According to the court’s research,
quality hotel rooms are available in midtown New York City, whether booked for the
summer months or in mid-December 2012, for the $ 374 rate Plaintiff maintains is
reasonable, Plaintiff’s Response at 17, including the Grand Hyatt New York ($ 219 in
December 2012, $ 329 in summer 2013, rated “excellent”). See Hotels.com, available
at: http://www.hotels.com/search.do?destination=New=York, last checked November
28, 2012. Plaintiff’s earlier suggested rate of $ 250 is a bit low, given that in 2008, at
least one court in the Southern District of New York considered $ 275 a reasonable
price for a hotel room in New York. See J.S. Nicol, Inc. v. Peking Handicraft, Inc., 2008
WL 4613752, at * 14 (S.D.N.Y. Oct. 17, 2008) (finding $ 275 per night reasonable rate
for hotel in New York City).
Defendants do not deny Plaintiff’s descriptions of the travel and lodging
expenses challenged by Plaintiff, other than asserting that the $ 1,799.48 in hotel
16

expenses incurred by Lesnevich were for Lesnevich and his assistant, Khody Detweiler,
for two rooms for two nights, yielding an average daily room rate of $ 450, in excess of
the $ 374 Plaintiff maintains is reasonable, which is consistent with the court’s research.
As such, Defendants’ recovery of Lesnevich’s lodging expenses are reduced by $ 76
per room per day, for a total reduction of $ 304.
Plaintiff also objects to the costs of McMenamin’s flight in business-class for $
2,405, suggesting reimbursing only one-half the price of such ticket, equivalent to a
ticket in coach. Plaintiff’s Response at 17-18. Defendants attempt to justify the
business-class ticket on the basis that McMenamin’s age, 68, rendered McMenamin in
need of the additional comfort provided by the enhanced travel conditions on the sixhour flight each way from California to New York to attend the canceled deposition, and
McMenamin’s “contractual terms and conditions also entitle him to business-class
travel, a common accommodation for experts . . . .” Defendants’ Reply at 5 n. 3. No
copy of McMenamin’s contract containing the terms as represented by Defendants,
however, is in the record, nor is there any indication that Defendants’ other experts
traveled by business-class, despite Defendants’ characterization of business-class
travel as “a common accommodation for experts. . . .” Id. Absent more details, the
court finds this insufficient to justify McMenamin’s business-class ticket. Accordingly,
McMenamin’s business-class flight request is reduced by 50 % from $ 2,405 to $
1,202.50.
Plaintiff also seeks to reduce the lodging expenses for Romano by $ 993.37 to
reflect a reasonable reduction in the costs of Romano’s hotel. Defendants have not
opposed this request. Accordingly, Romano’s lodging expenses are reduced by
17

$ 993.37.
To summarize, Defendants may recover for their experts’ travel and lodging
expenses as follows:
Expert
Travel and
Witness
Lodging
Friedberg
n/a
Lesnevich $ 1,924.97
Lyter
1,286.00
McMenamin
2,462.50
Novak
649.51
Romano
606.15
Tytell
n/a
__________
Totals:
$ 6,929.13
Accordingly, Plaintiff must reimburse Defendants’ experts $ 6,929.13 for travel and
lodging expenses incurred in connection with their untimely canceled depositions.

CONCLUSION
Based on the foregoing, Defendants’ Application for Recovery of Expenses (Doc.
No. 517) is GRANTED in part and DENIED in part. Plaintiff is ORDERED to reimburse
Defendants for $ 89,211.75 in attorney fees, expert fees and appearance fees, and
$ 6,929.13 for travel and lodging expenses incurred in connection with Plaintiff’s
untimely cancellation of Defendants’ expert witness’s depositions, for a total of
$ 96,140.88.
SO ORDERED.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

November 29 , 2012
Buffalo, New York

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