IN
THE
UNITED
STATES
DISTRICT COURT
FOR
THE DISTRICT
OF
COLUMBIA
1
1
V.
)
1
GALE
A.
NORTON, Secretary
of
1
the Interior,
&
&,
)
1
Defendants.
1
ELOUISE PEPTON COBELL,
a
al.,
1
No. 1:96CV01285
Plaintiffs,
1
(Judge Lamberth)
DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ MOTION FOR
A
PROTECTIVE ORDER REQUIRING
DEFENDANTS TO
PAY
PLAINTIFFS’ EXPERT DEPOSITION FEES AND EXPENSES
Plaintiffs have moved for a “protective order” under Rule 26(b)(4)(C) and Rule 26(c) of
the Federal Rules
of
Civil Procedure concerning expert witness depositions that have already
been completed, when what Plaintiffs really want is reimbursement for
fees and expenses
purportedly related to
the
completed depositions
of
their experts, regardless
of
whether the costs
are reasonable or unconscionable, documented
or
entirely unsubstantiatcd. Rather than present a
cogent explanation
of
the charges and Plaintiffs‘ entitlement to them, most of Plaintiffs’ motion is
spent complaining that Defendants have not simply paid the bill
-
a
bill
totaling nearly
$71,000
for fewer than
40
hours of deposition, almost half
of
which is composed of blatant overcharges
and unsubstantiated expenses.’ Given these excesses, Plaintiffs‘ motion should be denied.
Defendants will not waste the Court’s time by refuting,
tit
for tat, every exaggeration and
misstatement Plaintiffs tender Concerning the “background” of the parties’ discussions about
reirnbursemcnt. Plaintiffs’ portrayal
is
not accurate, but none of it
is
pertinent
to
the ultimate
issue concerning the amount
of
reimbursement due. Suffice
it
to say that when Defendants
objected to Plaintiffs’ self-serving mischaracterizations of the parties’ discussions, Plaintiffs
chose to quarrel and accuse rather than focus on making certain that the materials they provided
to Defendants adequately explained and substantiated every dollar
of
their claim. Even upon
filing the instant motion, Plaintiffs have done nothing fiirther to substantiate
or
document their
Plaintiffs demand reimbursement for fees and expenses that are unreasonable,
unrecoverable and, in some cases, entirely undocumented. Defendants are not opposed to paying
Plaintiffs for the reasonable expenses, actually incurred, of their experts' depositions in
accordance with the Federal Rules, but nothing obligates Defendants to blindly pay whatever
amount Plaintiffs claim. Defendants object to Plaintiffs' claim to the extent it seeks
reimbursement for
(1)
unreasonably high witness fees,
(2)
overcharges for time,
(3)
exorbitant,
lavish expenses and
(4)
undocumented fees or costs.
In
turn, Defendants are also entitled to
setoff against the reasonable amount due Plaintiffs all corresponding reasonable fees and
costs
that Defendants incurred
in
producing their own experts for deposition by Plaintiffs. With these
adjustments, Plaintiffs are not due the
$70,990
their motion suggests, but an amount closer to
$25,780.
Plaintiffs basically contend that they have submitted a bill to Defendants and Defendants
must pay it, regardless
of
how unreasonable or questionable the charges are and without setoff
for any expenses due Defendants. Their position is as unreasonable as it is untenable. Had
Plaintiffs submitted a statement containing only reasonable and documented charges, the matter
could have been resolved more readily. Plaintiffs neglect to mention, however, that the amount
they seek is padded with excesses, such
as:
a
$1,000
hotel bill for a one-day deposition;
0
a lavish
$139
meal at an exclusive restaurant;
over
$100
of charges at
a
hotel lobby bar;
hourly fees of
$1,000
for testimony by one expert;
reimbursement claim.
2
time charged for attending another expert’s deposition;
charges for meeting with Plaintiffs’ counsel; and
what appears
to
be first class airfare.
These are just examples of the excesses behind Plaintiffs’ motion.
No
litigant should have to
cover such spending.
As
Plaintiffs note in their motion, the parties did discuss prior to the depositions whether
the government would pay for the experts’ travel time to Washington. The parties did reach an
agreement that such billable travel time would not exceed twelve to thirteen hours round trip per
witness. The parties, however, did not agree to abandon the prescription in the Federal Rules that
charges for expert fees and related travel must be reasonable to be reimbursable.
No
basis exists,
therefore, to assert that every dollar Plaintiffs claim is recoverable simply because the charge
appears
on
their list.
ARGUMENT
I.
A
Party Seekinp Reimbursement Under Rule
26
Bears
The
Burden
Of Proving Reasonable Expenses
A
party seeking reimbursement of deposition fees bears the burden of proving
reasonableness. Royal Maccabees Life
Ins.
Co.
v. Malachinski,
No.
96-C-6135,
2001 WL
290308,
at*
16
(N.D.
111.
Mar.
20,2001).
Unless Plaintiffs have documented each item of
expense for which they seek reimbursement with, for example, receipts, it necessarily follows
that they cannot discharge their burden of proving they were reasonable.
In
Part
I11
below,
Defendants identify those charges claimed by Plaintiffs that are unreimbursable because they are
not substantiated.
3
11.
A
Partv
Is
Not
Required
To
Pav More Than The Actual, Reasonable
Cost
Of
Expert Discovery
Rule 26 of the Federal Rules of Civil Procedure provides that
a
party deposing an
adversary’s expert should pay for the “reasonable” cost
of
providing that discovery. Fed.
R.
Civ.
P.
26(b)(4)(C) (“party seeking discovery [should] pay the expert
a
reasonable fee for time spent
responding to discovery”). The obligation is also reciprocal: Plaintiffs are equally obligated
under the same rule to pay the reasonable cost
of
producing Defendants’ experts for deposition.
The
key limitation to recovery of such fees and expenses, however, is that they be
“reasonable.” If one side decides to spend lavishly
on
an expert, the opposing side should not be
obligated to pay for that exorbitance.
As
one court put it, “[wlhile plaintiff may contract with
any
expert of plaintiffs choice and,
by
agreement, that expert may charge unusually high rates
for services, the discovery process will not automatically tax such unreasonable fees upon the
defendant.” Bowen v. Monahan,
163
F.R.D. 571, 574
(D.
Neb.
1995)
(ordering defendant to pay
half of expert’s proposed fee); accord
U.S.
Energy
COT.
v.
NUKEM,
Lnc., 163
F.R.D.
344,347
(D.
Colo.
1995)
(“[U]nless
the courts patrol the battlefield
to
insure fairness, the circumstances
invite extortionate fee setting.”).
In determining whether an expert’s fee
is
reasonable, courts consider the following
factors:
(1)
the witness’s area of expertise;
(2)
the education and training required to provide the
type of expert insight that is sought;
(3)
prevailing rates of other comparable experts;
(4)
the
nature, quality and complexity of the discovery responses provided;
(5)
the cost
of
living in the
particular area; and (6) any other factors likely
to
be
of
assistance to the court in balancing the
interests implicated by Rule 26.
a..
Bowen, 163 F.R.D. at
573;
accord Magee v. Paul Revere
4
Life
Ins.
Co., 172
F.R.D.
627,645 (E.D.N.Y. 1997) (commenting that none of these factors has
“talismanic qualities” but serve as a “guide for the Court”). The same test of reasonableness
applies to the recovery of related expenses. See,
e.g,
Frederick
v.
Columbia University, 212
F.R.D.
176,
177-78 (S.D.N.Y. 2003) (“defendants are not required to provide first class travel or
first class accommodations” for plaintiffs’ expert);
cf.
Mathis v. Nynex, 165 F.R.D. 23 (E.D.N.Y
1996) (deposing party not obligated to pay for expert’s copy
of
transcript).
Defendants identify below each fee charge and expense item that they challenge and
explain the basis for their objection. With but one exception, Defendants will not quarrel with
the professional rates applied by Plaintiffs’ experts, but Defendants do object where the experts
have padded their hours. In other instances, Plaintiffs have claimed reimbursement for expenses
that they do not bother even to document, much less itemize. These costs are all objectionable
because Plaintiffs have failed to prove these unsubstantiated expenses are reasonable. Finally,
other expenses, although documented, are just plain unreasonable.
Table
A,
submitted herewith as Exhibit
1,
summarizes Defendants’ objections and the
adjustments that the Court should make to Plaintiffs’ claim. Column one lists each
of
Plaintiffs’
experts and, for convenience
of
reference, notes each expert’s affiliated
firm
where one exists2
The second column lists the number of hours that the expert was depo~ed.~ (One expert, Dwight
Duncan, was deposed
in
excess of eight hours because he was deposed as both an affirmative and
rebuttal witness.) The next three columns summarize the fees and expenses that Plaintiffs appear
In
some
cases, documents provided
by
Plaintiffs bear letterhead
of
only the expert’s affiliated
firm.
The length of deposition
is
a
useful yardstick for considering whether certain claimed expenses
are reasonable (e.g.,
3
days of lodging are patently unreasonable for a 2-hour deposition).
5
to claim for each listed witness. The next three columns summarize the dollar value
of
the
various objections Defendants assert in connection with the claimed amounts. The last two
columns,
on
the far right, summarize the total amount of fees and expenses that should be
disallowed for each witness, and the dollar value of Plaintiffs’ claim after adjusting for
disallowed amounts. The bottom row provides a grand total for the major categories.
111.
Plaintiffs’ Claimed Fees
And
Expenses Require
-
Adjustment Because They
Are
Excessive And,
In
Several Cases, Unproven
Defendants set forth below their objections to the fees and expenses Plaintiffs have
claimed in connection with the deposition of each
of
their expert witnesses. For ease
of
reference, Defendants will address each objection, witness by witness.
1.
Richard Fasold
Mr. Fasold appeared for deposition
on
March
21,2003.
According to the transcript, his
deposition commenced about
9:30
a.m. and concluded shortly before
5:OO
p.m., with a break for
lunch.4 For this one day
of
deposition.
Mr.
Fasold submitted
an
invoice totaling
$14,416.77.
That invoice includes charges
of
$1,000
per hour for the time spent in deposition, and
$500
per
hour for exactly six hours travel
to
Washington and back home. It includes
$402.47
for
-
not one
-
but two nights of lodging, while other receipts for his trip clearly indicate that
Mr.
Fasold
All deposition times cited in
this
response are based on the time entries made by the
stenographer on the record for each session.
6
remained in Washington for several more days, presumably at Plaintiffs’ request5 For example,
his bill includes $1 14.30 in charges for
two
dinners.6
A.
Mr. Fasold’s Rate
Is
Unreasonable
A
professional fee of
$1,000
per hour for deposition testimony and a base rate
of
$500
per
hour is unconscionable. Mr. Fasold testified at trial that he is
a
business partner and friend of
Plaintiffs’ lead counsel, Dennis Gingold. He claims his customary rate is
$500
per hour, but that
he doubles the rate for time spent testifying. Phase 1.5 Trial Tr., May 14,2003 a.m., at 71:21-
72:9
(R.
Fasold) (attached at Exhibit
2).
Although Mr. Fasold is surely overpaid at
$500
an hour,
Mr. Fasold did charge
his
stated rate for travel time within the limits agreed to by Defendants last
March,
so
Defendants do not object here to paying
$500
per hour for travel. Defendants do,
however, object to paying anything more for his time spent in deposition.
&,
s,
Frederick,
212 F.R.D. at 177 (exorbitant $975 hourly deposition fee for toxicologist reduced to $375);
Edin
v. Paul Revere Life
Ins.
Co.,
188
F.R.D.
543,
547
(D.
Ariz.
1999) (refusing to condone under
Rule
26
an “extortionist practice” of charging multiples of usual rate for testimony).
B.
Some of Mr. Fasold’s Expenses Are Unreasonable
The records submitted by Plaintiffs indicate that Mr. Fasold traveled to Washington
several days early, presumably
to
observe depositions of other expert witnesses. Given that Mr.
Fasold’s
own
deposition was completed by
5:OO
p.m.
on
March 21, it
is
not reasonable
to
ask
Defendants did not request
Mr.
Fasold’s presence beyond his own deposition.
Based upon the receipts for the meals, it also appears that Mr. Fasold dined with another party
and then simply billed for one-half the amount of the total. Defendants cannot confimi whether
the bills reflect the actual cost
of
Mr.
Fasold’s meal
or
whether the amount claimed would
subsidize the meals
of
Mr. Fasold’s guest.
7
Defendants to pay for any of Mr. Fasold’s lodging or meals after his own deposition concluded.
At that time, as far as Defendants were concerned, he was free to return home. The charge for
his second night of lodging and second dinner should be disallowed as unreasonable.
2.
John
Wright
John
Wright’s deposition was held
on
March 13,2003. It began at about
1O:lO
a.m. and
ended shortly after 3:00, for
a
total duration just shy of five hours, including all breaks. Mr.
Wright’s bill
for
this part-day deposition is
$8,848.23.
Although Plaintiffs’ counsel agreed that
experts would not bill travel time in excess of six hours in either direction, Mr. Wright billed a
total of 13.3 hours for
his
trip to Washington and return travel home, exceeding the agreed
ceiling. Although the transcript shows that the deposition took less than five hours to complete,
Mr.
Wright billed for
5.4
hours. The time exceeding five hours is also unreasonable.
Once he amved in Washington, Mr. Wright treated himself to
a
$325 (plus taxes) per
night room at the Willard Hotel, one of the priciest hotels in Washington. Although his
deposition took less than five hours and was finished by three o’clock, Plaintiffs seek to recover
three
days lodging at the Willard. His hotel bill includes over
$100
in what appear to be charges
fiom
the hotel’s lobby bar.7 His invoice includes a $139 dinner at the Oceanaire restaurant and an
additional $230 unexplained charge from his travel agent.
Defendants do not object to paying for one night
of
lodging and related meals,
if
billed at
a reasonable amount. Defendants do object, however, to lavish spending on premium hotels,
exclusive restaurants, and for more than one day of accommodations. The Willard room
was
The Willard hotel bill lists three charges from “Round Robin Beverage.” When contacted to
explain the reference, the hotel identified it as being the lobby bar. The hotel’s web site also
gives a similar description.
8
$325
a night plus taxes; by comparison the government per diem for Washington,
D.C.
is
$200
per day for all meals and lodging. Defendants acknowledge that it may not be possible for non-
government contractors to obtain government rates, but when an opposing expert consciously
chooses premium accommodations, the taxpayers should not be compelled to underwrite the
frivolity. Defendants, therefore, object to paying more than
$200
per night for lodging and more
than
$50
for a dinner.
3.
Landy Stinnett
A. Mr. Stinnett’s Hours Are Wildly Overstated
Mr. Stinnett appeared for deposition on March 18,2002. It began at
9:55
a.m. and ended
by
1
:49
p-m., for a total duration of less than four hours including all breaks. Plaintiffs have
presented a bill
of
$5,368.77 in connection with this brief deposition. Although the deposition
lasted less than four hours, Mr. Stinnett has billed time
of
twenty-four hours. The bill lists a
charge of four hours of travel each way, plus a full eight-hour
day
for
“preparation”
in
Washington the day before his deposition, plus eight hours
of
time for less than four hours of
testimony. Such exorbitant billing is patentIy unreasonable and not reimbursable under Rule
26.
Defendants
do
not object to the travel time billed or to four hours for deposition time, but do
object to all other billed time as excessive.
Although there does not appear to be a
set
rule in this district concerning whether
“preparation” time
is
a reasonable charge under Rule 26, the better view is not to authorize
it.
Some courts have disallowed such fees absent compelling circumstances, while others have
allowed some preparation time in the belief that a deposition should proceed more efficiently
when the expert has refreshed his recollection. See Magee, 172
F.R.D.
at 646 (listing cases on
9
both sides); compare
M.T.
McBrian. Inc. v. Liebert
Corp.,
173 F.R.D. 491
(N.D.
111.
1997) (no
preparation fee allowed for contract case)
y&
S.A.
Healv
Co.
v. Milwaukee MetroDolitan
Sewerage Dist., 154 F.R.D. 212, 214
(E.D.
Wis.
1994)
(testimony required review of one
hundred schedules attached to expert report). The better approach is to prohibit recovery
of
such
costs absent clear proof that the expert had to undertake specific work to ready himself for
examination. In this case,
no
such independent work should have been necessary
-
each expert
had submitted his report just
two
to three weeks prior to his deposition.
In
Mr. Stinnett’s case,
his expert report was only four pages
long.
More important, authorizing recovery for preparation time opens the door to abuse. It
tempts adversaries to charge for time that the expert actually spent working with the attorney who
will defend his deposition. Defendants note that the full eight hours Mr. Stinnett charged for
“preparation” occurred
after
he traveled to Washington for the deposition, suggesting that this
time was likely far more beneficial
to
Plaintiffs’ counsel than to Defendants.
Courts
have
refused the invitation
to
shift the cost of conference time with defending counsel to the deposing
party. See Magee, 172 F.R.D. at 647 (approving of some reasonable preparation time for expert
but not that billed for time “preparing the attorney who retained him”). Thus, Defendants object
to paying more than 12 hours for Mr. Stinnett’s time
(8
hours travel and 4 hours in deposition).*
’
Should the Court determine that reasonable preparation time is recoverable, Defendants ask the
Court
to permit Defendants to amend their compensation claim to include preparation time spent
by Defendants’ own experts prior to deposition. Presently, Defendants do not include such
charges in calculating the amount of setoff to which Defendants are entitled. Preliminary inquiry
indicates that if such preparation time were included, it would add approximately $13,500 to
Defendants’ reimbursement claim because
of
the depositions
of
Edward Angel (42.5 preparation
hours at
$105
per hour); Alan Newel1 (34 preparation hours for two deposition days at $150 per
hour); and Dr. David Lasater (7.9 preparation hours for two deposition sessions at $500 per
hour).
10
B.
Expenses Relating To Mr. Stinnett’s Travel Are Unsubstantiated
Plaintiffs also seek compensation for related expenses in the amount of $1,768.77. The
bill
from Pincock Allen
&
Holt, Mr. Stinnett’s employer, merely lists two dollar figures,
$1,110.77 for “Expenses” and $658.00 with a label of “American Express“ without explanation.
No
receipts or other proof of the expenses have been provided. None of the papers Plaintiffs
submitted to Defendants or to the Court (with the motion) prove that these expenses were
incurred. Without receipts or other explanation to demonstrate these costs were actually incurred
and are reasonable, Defendants cannot properly be asked to pay them. Defendants, thus, object
to all expenses listed by Plaintiffs in connection with Mr. Stinnett’s deposition.
4.
Paul M. Homan
Paul Homan appeared for deposition on April 9,2003.
His
deposition commenced at
10:06
a.m. and concluded at 5:03 p.m., for a total duration of
7.2
hours, including all recesses.
Plaintiffs, however, seek to recover expert fees for twenty-five hours. At a billable rate of
$500
per hour, the total charge Plaintiffs seek to impose is $12,500 for less than one
full
eight-hour
day of deposition.
If
approved, Plaintiffs’ demand would ratchet Mr. Homan’s effective rate up
to more than $1,700 per
hour
of deposition. The amount they seek is patently unreasonable.
As noted above with respect
to
Mr. Stinnett’s bill,
it
is not prudent
to
allow a party to
charge its adversary for the expert’s “preparation” in this case.
Mr.
Homan testified on April
9,
a
scant 10 days after he completed his expert report. The material, therefore, should have been
completely fresh
in
his mind. Mr. Homan’s deposition revealed also that much of the material in
his “report” was merely a rehash
of
the strategic plan he submitted to Congress while Special
Trustee, see generally Homan Deposition Tr. at 58-61(April9,2003) (attached at Exhibit
3),
11
afong with some more current observations he had included in testimony to Congress.
So,
there
was not much of anything “new” that Mr. Homan needed to review before his deposition. Only
the fee for his actual time in deposition should be recoverable.’
5.
Matthew Gabriel
Matthew Gabriel’s only deposition, held on March
1
1,
2003,
was brief
-
it
lasted a mere
three hours and twenty-three minutes; it was the second expert deposition that day, and ended at
458
p.m.. The bill presented by Plaintiffs totals $4,227.36. This bill reflects 21.6 hours of
billable time: 2.3 hours of billable time for meeting with Plaintiffs’ counsel for a “briefing on
disposition [sic],” 12.4 hours
of
round-trip travel time, and 3.5 hours of time billed, not for
Mr.
Gabriel’s own deposition, but for observing the McQuillan deposition earlier in the day.
If
Plaintiffs’ counsel desire to confer with their expert to be “briefed” on his expected testimony,
that is their prerogative, but it should not be at Defendants’ expense.
lo
Likewise, if an expert
wants to watch another deposition, the time he devotes to that activity is not properly chargeable
to his adversary;
it
is for his own benefit and for his own client’s account.
Mr.
Gabriel’s invoice reflects expenses
of
$1,527.36, including
$1,038
for airfare,
$342.36 for hotels and $1 12.45 for cabs. While most
of
the charges appear reasonable, the hotel
Although Defendants will not here contest whether a fee of
$500 per hour for Mr. Homan is
reasonable, the rate is unquestionably expensive. His high price should be considered as a factor
against allowing recovery for any preparation time. Defendants submit that his
high
hourly
rate
already reflects
his
“preparation”
-
years as a
bank
regulator and Special Trustee.
E?
The same arguments that militate against recovery of “preparation” time for Messrs. Stinnett
and Homan, above, apply even more strongly here. The time billed was expressly for meeting
with Plaintiffs’ counsel, which
should
not be recoverable even if other “preparation” work were
allowed.
12
charge appears excessive.
As
noted above, Defendants should not be required to pay more than
$200 per night for lodging,
so
the expenses require an adjustment of $142.36.
6. Alan McQuillan
Professor McQuillan appeared for a brief deposition on the morning of March 1 1,2003.
The deposition commenced at 9:40 a.m. and concluded by 12:
15
p.m., for a total elapsed time of
two
hours and thirty-five minutes. According to the text of Plaintiffs’ motion, the fees and
expenses relating to this brief deposition total $5,907.57. Not one piece of paper submitted with
Plaintiffs’ motion shows that these charges are reasonable.” Indeed, it is not even clear whether
Plaintiffs mean
to
claim any fee or expenses for the professor. Their proposed order makes no
mention of Professor McQuillan and proposes no recovery in connection with his deposition.
Having failed to substantiate any charges relating
to
the McQuillan deposition or to propose an
amount for them in their form of order, Plaintiffs are entitled
to
no reimbursement
in
connection
with the McQuillan deposition.
7.
Dwight
J.
Duncan
Dwight Duncan played two roles
in
discovery: he gave an expert report as an affirmative
expert and a report as a rebuttal expert for Plaintiffs.
In
connection with his affirmative case role,
Plaintiffs seek payment of $13,284.19, and for his rebuttal deposition, Plaintiffs demand
$6,437.30. Plaintiffs agreed to produce Mr. Duncan for
a
day of deposition on March 19,2003,
at 9:30 a.m. When that day arrived, however, the witness advised that he had
to
leave by mid-
afternoon in order to travel home. Defendants accommodated Mr. Duncan’s personal schedule
Plaintiffs appear to rely entirely upon a summary memorandum sheet prepared by Plaintiffs,
office assistant, but that sheet merely lists a total for Professor McQuillan.
13
by allowing Mr. Duncan to recess his deposition on March
19
and to complete it
on
March
25,
2003. Plaintiffs now seek to have Defendants pay for
both
of his trips, including double the
amount of billable travel time (a total of twenty-four hours), or
$6,000
just for travel fees.
In
addition, Plaintiffs want Defendants to foot the bill for all expenses in connection with
Mr.
Duncan’s
two
trips for
one
day of deposition, including
two
round-trip airfare charges
of
$2,264
and two hotel stays at more than $350 per night. These multiple charges
for
travel expenses
are patently unreasonable, and each expense
is
excessive by itself.’*
Defendants have similar objections concerning
Mr.
Duncan’s travel expenses for his
rebuttal deposition in April. That deposition was held on April 8,2003, and was concluded in
little more than ninety minutes. Mr. Duncan’s fees and expenses, however, total $6,437.30.
Again, there
is
an excessive $2,264 airfare, and this time, not one, but
two
hotel nights, at
a
cost
of $659.96. By any standard of reasonableness, these expenses are plainly excessive, especially
when the deposition was over before
11
:00
a.m.. Defendants object to paying for more than one
night of accommodations for each deposition round, and to paying hotel costs in excess of
$200
per night. Likewise, his exorbitant airfare should be reduced by one-half, to bring it in line with
what other experts charged.
8.
Plaintiffs’ Claimed Fees And Expenses Should Be Limited
To
$38.059
Defendants should not be made to bear the cost of lavish travel accommodations or extra
costs associated with an expert’s personal schedule
or
other interests. These costs, if actually
The airfare for each
of
Mr. Duncan’s trips appears to be excessive on its face. Each ticket is
more than twice that incurred by any of Plaintiffs’ other experts. Plaintiffs did not provide a
copy of any travel receipt for Mr. Duncan,
so
Defendants question whether Mr. Duncan traveled
on first class tickets. If
so,
the charges are clearly excessive.
14
incurred, should be borne by Plaintiffs. Second, Plaintiffs are not entitled to be reimbursed for
costs that they cannot substantiate by a receipt or similar transaction record.
No
compensation
should be allowed for hours that are padded or fees that are excessive.
When excessive costs and fees are eliminated and unsubstantiated charges are ignored,
the amount of reimbursement to which Plaintiffs are legitimately entitled is substantially less
than the amount they seek. Table A represents a summary of Defendants’ adjustments to
Plaintiffs‘ claimed amounts. Plaintiffs’ claim reimbursable fees and expenses
of
$70,990. After
all of the adjustments set forth above are made, that number falls
to
$38,058.79. The analysis,
however, cannot end there. Like Plaintiffs, Defendants also produced several experts for
deposition at Plaintiffs’ behest. Because Defendants are entitled to reimbursement of reasonable
fees and expenses of these depositions under Rule
26,
these amounts should be setoff against
whatever amount the Court determines that Plaintiffs are entitled to recover. That final
adjustment is addressed in the next section.
IV.
Defendants
Are
Entitled
To
A
Setoff
As
Reimbursement
For
Plaintiffs’ Deposition
Of
Defendants’ Experts
Plaintiffs took four discovery depositions of Defendants’ experts. Edward Angel
appeared
on
March 17,2003 for
6.5
hours
of
examination. Alan Newcll appeared for almost
two
days of deposition,
on
March 20, 2003 for 7.9 hours, and again
on
April
28,
with
4.S
more
hours
of
examination. Plaintiffs deposed Dr. David Lasater twice, once as an affirmative witness
and later in his role
as
a rebuttal witness. Dr. Lasater appeared
on
March 12,
2003
for
7.2
hours
of
deposition and
on
April
8,2003
for
5
hours of deposition.
Based
on
the contract rates at which each of these experts charges the governlent, the
fees associated with each witness’s testimony are siniple
to
compute. Defendants are making
no
15
claim for reimbursement of any fees relating to travel time. Defendants also submit that no fees
should be charged by either side for so-called “preparation” time in this case, and
so
none is
included here. Based on the deposition time noted
by
the court reporter and each expert‘s
contract rate,13 Defendants request reimbursement for expert fees in the following amounts:
Expert Witness Deposition Hours Professional Rate Total
Cost
Edward Angel 6.5 $105
$
682.50
David Lasater 11.2
$500
$
5,600.00
Alan Newell 12.7
$150
$ 1,905.00
Grand Total (Fees):
$
8,187.50
With respect to travel expenses, only Mr. Newell and Dr. Lasater reside outside the
Washington area. The record of expenses relating to these witnesses’ travel are attached at
Exhibits
5
and 6, submitted herewith. The total expenses for Mr. Newell’s travel (two separate
days
of
deposition at Plaintiffs’ request) are $2,704.23, and
$
1,386.40 for Dr. Lasater’s
two
deposition^.'^
Thus, the total amount of reimbursement due Defendants is $12,278.13.’’ This is
the same amount that should be
sct
off against the reasonable reimbursement due Plaintiffs. After
all adjustments
are
made, Plaintiffs are due a payment of $25,780.66
from
Defendants.
gDocumentation showing each expert’s professional rates and, where applicable, related travel
expenses are attached at Exhibits
4,
5
and
6.
3Note that some expenses documented for Defendants’ experts may exceed the amount(s) for
which reimbursement is sought here. The difference reflects an adjustment to conform charges
to
Defendants’ position on reasonable reimbursement rates for lodging, meals and airfare.
Should the
Court
determine, however, that “preparation” time should be recouped, Defendants
would request additional reimbursement presently estimated
at
$I
3,500,
for
a
total setoff of
around $26,278. See supra note
8.
16
CONCLUSION
For these reasons, Defendant's motion for a protective order concerning expert witness
fees should
be
denied.
Instead, the
Court
should order Defendants to pay, and Plaintiffs to accept,
a payment
of
$25,780.66, representing the net amount due for fees and expenses of all expert
depositions conducted by either side
in
connection with discovery during Phase 1.5.
Dated: October 24,2003 Respectfully submitted,
ROBERT
D.
McCALLUM, JR.
Associate Attorney General
PETER
D.
KEISLER
Assistant Attorney General
STUART E. SCHFFER
Deputy Assistant Attorney General
J.
CHRISTOPHER
KOHN
Director
SANDRA
P.
SPOMER
D.C. Bar
No.
261495
Deputy Director
JOHN
T. STEMPLEWICZ
Senior Trial Counsel
MICHAEL
J.
QUI"
D.C.
Bar
No.
401376
Trial Attorney
Conimercial Litigation Branch
Civil Division
P.O. Box
875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
17
THE UNITED STATES DISTRICT COURT
FOR
THE DISTRICT
OF
COLUMBIA
ELOUISE
PEPION
COBELL,
3
&,
)
)
Plaint
i
ffs,
1
)
v.
)
Case
No.
1
:96CV01285
)
(Judge Lamberth)
GALE
A.
NORTON, Secretary of the Interior,
al.,)
1
Defendants.
1
ORDER
Upon
consideration
of
Plaintiffs' Motion for a Protective Order Requiring Defendants to
Pay Plaintiffs' Expert Deposition Fees and Expenses, Defendants' opposition thereto and request
for setoff, and the entire record herein, it is hereby
ORDERED,
that both Plaintiffs and Defendants are entitled to recover the reasonable
expenses relating to the production
of
their respective experts for deposition during discovery for
trial phase
1.5,
and that after all such reasonable expenses are calculated, Plaintiffs are due
a
net
sum
of
$25,780.66; and
it
is further
ORDERED, that Defendants' shall pay to Plaintiffs, within twenty (20) days of this order
Twenty-five Thousand Sewn Hundred Eighty dollars and Sixty-six cents ($25,780.66) to
reimburse them for the reasonable
costs
of presenting their experts for deposition, net of all
reasonable setoff to compensate Defendants' for their corresponding reasonable expenses of
producing their experts for deposition during trial phase 1.5; and it is further
ORDERED
that Plaintiffs motion for a protective order
is
denied as MOOT.
SO
ORDERED
this
day of
,2003.
ROYCE
C.
LAMBERTH
United States District
Judge
2
cc:
Sandra
P.
Spooner
John
T.
Stemplewicz
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington,
D.C.
20044-0875
Fax (202)
514-9163
Dennis
M
Gingold,
Esq.
Mark Brown,
Esq.
1275 Pennsylvania Avenue,
N.W.
Ninth Floor
Washington,
D.C.
20004
Fax (202)
3
18-2372
Keith Harper,
Esq.
Richard
A.
Guest,
Esq.
Native American Rights Fund
1712 N Street,
NW
Washington,
D.C.
20036-2976
Fax (202) 822-0068
Elliott
Levitas,
Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Earl
Old
Person
(Pro
se)
Blackfeet Tribe
P.O.
Box
850
Browning,
MT
59417
(406) 338-7530
CERTIFICATE
OF
SERVICE
I
declare under penalty of perjury that, on October 24,2003 I served the foregoing
Defendants
’
Opposition to Pluintiffs
’
Motion for
u
Protective Order Requiring Defendants to
Puy
Plainti&
’
Expert Deposition Fees and Expenses
by facsimile in accordance with their
written request
of
October 3
1,2001
upon:
Keith Harper,
Esq.
Richard A. Guest,
Esq.
Native American Rights Fund
1712
N
Street,
N.W.
Washington, D.C. 20036-2976
(202) 822-0068
Dennis M. Gingold,
Esq.
Mark Kester Brown,
Esq.
607
-
14th Street,
hW,
Box
6
Washington, D.C. 20005
(202)
3
18-2372
Per the Court’s Order
of
April 17,2003,
by facsimile and by
US.
Mail upon:
By
U.S.
Mail upon:
Earl Old Person
(Pro
se)
Blackfeet Tribe
P.O.
Box 850
Browning, MT 5941
7
(406) 338-7530
Elliott Levitas, Esq
1100
Peachtree Street, Suite
2800
Atlanta,
GA
30309-4530
Kevin P. ngston
