Waters v. City of Chicago
| Decision Date | 28 December 2007 |
| Docket Number | No. 02 C. 4762.,02 C. 4762. |
| Citation | 526 F.Supp.2d 899 |
| Parties | Daniel WATERS, Plaintiff, v. CITY OF CHICAGO, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Daniel Edward O'Brien and Sean C. Burke, Burke & O'Brien, Chicago, IL, for Plaintiff.
Torrick Alan Ward and Timothy L. Swabb, City of Chicago, Law Department, and Selvyn William Fletcher, Barack Ferrazzano Kirschbaum & Nagelberg, LLP, Chicago, IL, for Defendants.
Among the numerous issues on which the litigants have crossed swords, the most recent has to do with the appropriate application of Fed.R.Civ.P. ("Rule") 26(b)(4)(C), which requires a party—in this case the City of Chicago ("City")—to "pay the expert a reasonable fee for time spent in responding to discovery." When City chose to take the deposition of Gary Skoog ("Skoog':), the opinion witness who was retained by Daniel Waters ("Waters") to provide testimony as to his claimed damages, Skoog itemized his expenditure of 12.87 hours as his "time spent in responding to discovery"—and at $290 per hour1 that amounts to a total fee of approximately $3,731. As City would have it, however, Skoog is not entitled to be paid for his preparation time and travel time—only for 4.32 hours attributable to the deposition time itself, for a total fee of $1,252.80.
There are mixed judicial rulings on this subject—see the discussions in 8 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure: Civil 2d § 2034 at 471 (2d ed.1994) [hereafter cited "Wright & Miller"]and 6 Moore's Federal Practice § 26.80[3] at 26-236.11 to 26-236.13 (3d ed.2007). Although City says that only one reported opinion by one of this Court's colleagues— the thoughtful treatment by Honorable Matthew Kennelly in Collins v. Village of Woodridge, 197 F.R.D. 354 (N.D.Ill. 1999)—supports Waters' position, the citations in Wright & Miller to and including its 2007 pocket part reflect that the majority view in cases decided around the country is that preparation time of the sort challenged by City is compensable. This Court comes down on the same side of the issue, in substantial part for a reason that City's counsel has failed to grasp.
This Court frequently reminds counsel in cases before it that an important consequence of the Rule 26(a)(2)(B) and (C) requirement of a comprehensive report from every opinion witness who is expected to testify is that the witness' trial testimony is circumscribed by that report. Indeed, the Advisory Committee Note to the 1993 amendments that introduced the present form of that requirement, coupled with creating the potential for deposing such persons, expressly states:
Concerns regarding the expense of such depositions should be mitigated by the fact that the expert's fees for the deposition will ordinarily be borne by the party taking the deposition. The requirement under subdivision(a)(2)(B) of a complete and detailed report of the expected testimony of certain forensic experts may, moreover, eliminate the need for some such depositions or at least reduce the length of the depositions.
6 Wright & Miller § 2034 at 468 echos that expectation:
If, as is hoped, these disclosures serve to avoid the need for some experts' depositions, or at least to shorten the depositions, that may mean that there will be fewer occasions for payment of expert fees pursuant to Rule 26(b)(4)(C).
It is for just that reason that this Court' often calls the attention of lawyers to the excellent article by Gregory Joseph, Expert Approaches, 28 Litig. No. 4 at 20-22 (2002), which makes the powerful argument that the knowledgeable lawyer, comfortable with the realization that the expert is locked into the required report, will not lightly take the risk of opening...
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...Shadur observed, “[t]here are mixed judicial rulings” on the recoverability of an expert's preparation time. Waters v. City of Chicago, 526 F.Supp.2d 899, 900 (N.D.Ill.2007); see also, 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2034 (3d ed. ......
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