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Almonte v. Averna Vision & Robotics Inc.

United States District Court, Second Circuit

January 24, 2014

CRISTINO ALMONTE, Plaintiff,
v.
AVERNA VISION & ROBOTICS INC., Defendant.

DECISION AND ORDER

H. KENNETH SCHROEDER, Jr., Magistrate Judge.

This matter was referred to the undersigned by the Hon. William M. Skretny, in accordance with 28 U.S.C. § 636(b), for all pretrial matters, including hearing and disposition of all nondispositive motions. Dkt. #6.

Currently before the Court is plaintiff's motion for an order directing the reasonable scheduling and compensation of plaintiff's expert witnesses for deposition. Dkt. #26.

BACKGROUND

Plaintiff commenced this personal injury action in New York State Supreme Court, Erie County, seeking compensation for personal injuries sustained in a workplace accident in Medina, New York on November 19, 2008. Dkt. #1. The defendant removed the matter to this Court based upon diversity jurisdiction. Dkt. #1. Defendant is a Canadian corporation. Dkt. #1.

In accordance with the Court's Case Management Order, plaintiff disclosed his expert witnesses on October 23, 2012. Dkt. #25.

By e-mail dated December 2, 2013, defendant's counsel requested proposed dates for the depositions of plaintiff's occupational safety expert, John Coniglio, and plaintiff's vocational rehabilitation expert, Alan Winship. Dkt. #29, p.12. Mr. Coniglio is charging plaintiff an hourly rate of $315 for his services and demands $2, 520 per day for an eight hour deposition, payment required in advance. Dkt. #26-2 & Dkt. #31, ¶ 10. Mr. Winship completed a vocational/earning capacity evaluation and report of plaintiff at a cost of $4, 200 and demands $1900 for 3.5 hours of deposition - an hourly rate of more than $540 - with an additional $1900 charged should the deposition extend beyond 3.5 hours, payment required in advance. Dkt. #25; Dkt. #26-2 & Dkt. #31, ¶¶ 11, 13 & 16.

On December 17, 2013, following discussions regarding availability, defendant noticed Alan Winship's deposition for January 16, 2014 and John Coniglio's deposition for January 20, 2014. Dkt. #29, pp.24 & 26. On December 19, 2013, Alan Winship's deposition was rescheduled to January 15, 2014. Dkt. #29, p.32.

By e-mail dated December 20, 2013, plaintiff's counsel requested advance payment of the deposition fees charged by Mr. Coniglio and Mr. Winship. Dkt. #29, p.35.

By letter dated December 20, 2013, counsel for defendant objected to advance payment and to the payment of a flat fee. Dkt. #29, p.37. Specifically, counsel noted that Mr. Winship's flat fee for a half day equated to an hourly rate of $475, [1] while the hourly rate Mr. Winship charged plaintiff was $250. Dkt. #29, p.37. Defendant proposed payment in advance of one hour of the hourly rate the expert charged plaintiff, with the remainder invoiced at that hourly rate for time actually expended. Dkt. #29, p.37.

By e-mail dated December 30, 2013, Mr. Coniglio's deposition was rescheduled to January 10, 2014. Dkt. #29, ¶ 28. In that e-mail, plaintiff's counsel objected to defendant's demand that plaintiff's expert witnesses reserve time for a deposition without confidence that the time reserved would be compensated. Dkt. #29, pp.44-45. Plaintiff's counsel suggested a commitment of two hours with an agreement to reschedule if additional time was needed. Dkt. #29, p.45. By e-mail dated January 2, 2014, plaintiff's counsel reiterated: "I am willing to address your request with the witnesses that payment be made within 30 days, but before I do, I am seeking an acknowledgment that you are going to pay them for the time you ask that they reserve." Dkt. #29, p.51. By letter dated January 2, 2014, plaintiff's counsel reiterated that if defendant did not wish to pay a flat fee, defendant's counsel should commit to payment for the number of hours it expected the deposition would require, with the understanding that additional time could be scheduled should that estimate prove insufficient, and requested confirmation that defendant would pay the expert within 30 days of the deposition. Dkt. #26-4.

By e-mail dated January 2, 2014, counsel for defendant responded:

I cannot guarantee how long the depositions will go. However, because you continue to demand that I do so, I estimate that Mr. Coniglio's deposition will last 3-4 hours, Mr. Winship's 2-3 hours.... These estimates are made in good faith, but we do not agree to be bound by them. If we cannot complete the depositions in the time estimated, we would expect to continue the depositions or reschedule them within the constraints of the existing scheduling order. We also will not agree to pay for unused ...

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