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Anthony Conte v. Newsday

January 9, 2012

ANTHONY CONTE, PLAINTIFF,
v.
NEWSDAY, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

The issue here is what is a "reasonable fee" under Rule 26(b)(4)(E)(i), Fed. R. Civ. P., to reimburse plaintiff's expert on damages for the deposition taken by the Newsday and Consumer Warehouse defendants.

Facts

On October 3, 2011, the Newsday defendants' counsel deposed plaintiff's expert witness, Barry Pulchin, a certified public accountant from the firm Metis Group, LLC in Plainview, New York, who provided a valuation report of plaintiff's business, I Media. The deposition was conducted at the courthouse in Central Islip and lasted approximately seven hours. Mr. Pulchin's colleague, Olga Averin, also attended the deposition but was not deposed. Thereafter, Mr. Pulchin submitted an invoice to the Newsday defendants totaling $48,781.50, for monies owed for the preparation and attendance at the deposition and responding to defendants' document subpoena. (Def. Letter dated Nov. 14, 2011, Ex. A.) The fees sought are broken down as follows: (1) 65.59 hours preparing for the deposition at a billing rate of $350 per hour, totaling $22,956.50; (2) 58.6 hours responding to defendants' document subpoena at varying billing rates of $150 and $350 per hour,*fn1 totaling $19,350.00; and (3) 18.50 hours traveling to and attending the deposition at a rate of $350 per hour, totaling $6,475.00.

The defendants dispute the reasonableness of the fee charged. The defendants do not oppose Mr. Pulchin's hourly rate of $350; however, they challenge the number of hours spent preparing for and attending the deposition. In addition, the defendants take issue with charges billed for the time spent by Mr. Pulchin's colleague, Ms. Averin, for preparing and attending the deposition since she was not deposed and since plaintiff represented to the Court that defendants would not be charged for the time that Ms. Averin attended the deposition.

It is further noted that Pulchin and Averin previously prepared virtually the same expert report in Conte v. County of Nassau, et al., a related case in which Mr. Conte is also a pro se plaintiff. (Def. Letter dated Nov. 14, 2011.) Therefore, the fee allocable to this action is approximately $12,000. Thus, the total reimbursement fee sought by the plaintiff herein is approximately four times the allocable cost billed to plaintiff for the report in this action. It is undisputed that the pro se plaintiff still owes this expert $18,720 on the $24,720 bill. It is undisputed that "no significant work was done to amend the report for this particular action." (Newsday defendants opposition, dated Nov. 14, 2011). It is further not disputed that despite the defendants' request for supplemental information to describe the 65 1/2 hours of services, none has been provided.

Discussion

Federal Rule of Civil Procedure 26(b)(4)(A)provides that "a party may depose any person who has been identified as an expert whose opinions may be presented at trial." Fed. R. Civ. P. 26. In his letter to the court dated November 11, 2011, plaintiff identifies Mr. Pulchin as one of the expert witnesses with the C.P.A. firm, Metis Group, LLC in Plainview, New York, who prepared a valuation report of his business relevant to the issue of damages. Defendants are entitled to seek discovery from Mr. Pulchin pursuant to Rule 26(b)(4)(A), provided that Mr. Pulchin receives "a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A)." Fed. R. Civ. P. 26(b)(4)(E). A "reasonable fee" includes compensation for the expert's time during a deposition," but the potential compensability of other related costs is not clearly defined. 6James Wm. Moore et al., Moore's Federal Practice § 26.80(3)(d) (3d ed. 2011) ("Even less certain is whether other expenses such as preparation time, lodging, and travel costs should be included in the "reasonable fee" determination.").

"The determination of a reasonable fee and for what services, including preparation, falls solely within [the court's] province." Reit v. Post Properties, Inc., No. 09 Civ. 5455, 2010 WL 4537044, at *2 (S.D.N.Y. Nov. 4, 2010) (quoting Lamere v. N.Y. Office for the Aging, 223 F.R.D. 85, 93 (N.D.N.Y. 2004)) (alteration in original). No clear standard exists for making a determination of reasonableness when it comes to expert fees. See Goldwater v. Postmaster General, 136 F.R.D. 337, 339 (D. Conn. 1991) ("There is very little authority as to what is meant by the term 'a reasonable fee.'"). "The party seeking reimbursement of deposition fees bears the burden of proving reasonableness. . . . If the parties provide little evidence to support their interpretation of a reasonable rate, the court may use its discretion to determine a reasonable fee."

New York v. Solvent Chem. Co., Inc., 210 F.R.D. 462, 468(W.D.N.Y. 2002) (citations omitted).

An expert request for deposition fees is somewhat analogous to a request for attorney's fees as both attorneys and experts are relying on the court to use its discretion in fashioning a reasonable fee. Here, the plaintiff has failed to provide any description of the hours spent by his experts in preparation for the deposition, simply listing the time. See (Def. Letter dated Nov. 14, 2011, Ex. A.) Defendants requested that Mr. Pulchin supplement his invoice with, "related descriptions of the time spent. . . . [but] he has refused." (Def. Letter dated Nov. 14, 2011.) A determination of a reasonable fee is made by comparing the fees charged with the following factors:

(1) the witness' area of expertise; (2) the education and training that is required to provide the expert insight that is sought; (3) the prevailing rates for other comparably respected available experts; (4) the nature, quality and complexity of the discovery responses provided; (5) the cost of living in the particular geographic area; and (6) any other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26.

Mathis, 165 F.R.D. at 24 (quoting Goldwater, 136 F.R.D. at 340). "In addition, courts look to (1) the fee actually being charged to the party who retained the expert; and (2) fees traditionally charged by the expert on related matters." Mathis, 165 F.R.D. at 25 (citation omitted). Factors 1-5 above would appear to be incorporated within the rate charged by Mr. Pulchin - $350 per hour - which is not disputed by the defendants.

The text of Federal Rule of Civil Procedure 26(b)(4)(E) provides no instruction as to what "responding to discovery" entails. "[D]istrict courts in the Second Circuit have consistently held that time spent by an expert preparing for a deposition," as well as the "time spent traveling to and from the deposition, and the expenses incurred during travel," are compensable, provided the fees are "reasonable." Reit, 2010 WL 4537044, at *2 (quoting Solvent Chem.Co., 210 F.R.D. at 471-72). "The general rule . . . is ...


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