Collins v. Village of Woodridge

197 F.R.D. 354, 1999 U.S. Dist. LEXIS 16523, 84 Fair Empl. Prac. Cas. (BNA) 787, 1999 WL 33219397
CourtDistrict Court, N.D. Illinois
DecidedOctober 18, 1999
DocketNo. 95 C 6097
StatusPublished
Cited by22 cases

This text of 197 F.R.D. 354 (Collins v. Village of Woodridge) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Collins v. Village of Woodridge, 197 F.R.D. 354, 1999 U.S. Dist. LEXIS 16523, 84 Fair Empl. Prac. Cas. (BNA) 787, 1999 WL 33219397 (N.D. Ill. 1999).

Opinion

[355]*355 MEMORANDUM OPINION AND ORDER

KENNELLY, District Judge.

Candy Frederiksen was a police officer with the Village of Woodridge. She committed suicide in February 1994. Plaintiff Cindy Collins, Frederiksen’s sister and the administrator of her estate, has sued the Village and several police officers, alleging that Frederiksen’s suicide was brought on by unlawful gender discrimination, including a work environment pervasively hostile to women. The case is set for trial in May 2000.

Collins has identified three expert witnesses whom she may call at trial. These include Thomas Walton, an expert in police practices; Linda Brubaker, an expert in human resources and equal employment opportunity issues; and Dr. Douglas Jacobs, a psychiatrist. On April 15, 1999, pursuant to an order entered by Judge Shadur, to whom this case was previously assigned, plaintiff disclosed the identity of these witnesses and provided defendants with extensive reports pursuant to Fed.R.Civ.P. 26(a)(2)(B). Mr. Walton’s report covered 28 single spaced pages in which he detailed the materials he reviewed, his conclusions, and the facts (with citations to the record) upon which he had based his conclusions. Ms. Brubaker’s report was 46 single spaced pages long and likewise described in detail her opinions, the facts upon which she based them (again with citations), and the materials that she had reviewed. Dr. Jacobs’ report was 11 single spaced pages long and followed a format similar to the other reports.

Within about two weeks after receiving the reports, defendants’ attorney contacted plaintiffs attorney to request dates on which the experts would be available for deposition. On May 6, 1999,' plaintiffs attorney advised defendant’s attorney in writing that in view of the amount of detail in the reports, he believed that depositions would be an unnecessary waste of time, and that if the defense chose to go ahead, under Fed.R.Civ.P. 26(b)(4) defendants would be responsible for paying the experts’ fees for the depositions, including preparation time. Defendants’ attorney did not object or otherwise respond to this statement but instead pressed on to schedule the depositions. Defendants eventually took the depositions in July (Walton and Dr. Jacobs) and September (Brubaker).

Following the depositions, plaintiffs attorney received bills from the experts, which he forwarded to defendant’s attorney with a request for payment. Walton’s bill was for[356]*356warded to defendants’ attorney on July 21, 1999; Dr. Jacobs’ bill was forwarded on August 5, 1999.1 Defendants’ attorney did not make any payment at all. This led Collins to move the Court, on September 16, 1999, to order defendants to pay the expenses. Defendants have conceded that they are responsible for the experts’ fees during the depositions but object to payment of fees for the experts’ preparation time. The amounts involved are significant. Mr. Walton’s deposition lasted 8 hours. His preparation time included 20 hours during which he reviewed portions of 53 depositions, 207 exhibits, and his 28 page expert report, as well as 7 hours in which he met with plaintiffs’ attorneys. At $125 per hour, the expense for Mr. Walton’s preparation time totals $3,375. Dr. Jacobs’ deposition lasted 7 hours; his preparation time included 22^ hours, during which he reviewed portions of 42 depositions, as well as voluminous medical and other records and his 11 page expert report. At $350 per hour, the expense for Dr. Jacobs’ preparation time totals $7,875. Ms. Brubaker’s deposition lasted 6 hours; plaintiff has not yet detailed her preparation time, but it is reasonable to believe that, as with the other witnesses, it exceeded the length of her deposition.

Plaintiffs motion is made pursuant to Federal Rule of Civil Procedure 26(b)(4)(C)(i). Rule 26(b)(4) provides as follows:

(4) Trial Preparation: Experts.

(A) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided.
(B) A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
(C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasomble fee for time spent in responding to discovery under this subdivision; and (ii) with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

Fed.R.Civ.P. 26(b)(4) (emphasis added). Ordinarily, we would first have to determine whether “time spent in responding to discovery under this subdivision” includes time spent preparing for a deposition. When plaintiffs motion was initially presented on September 21,1999, the Court pointed out to both parties that this was a debatable proposition and referred the parties to authorities discussing the point. However, at the October 12, 1999 hearing on plaintiffs motion, defendants stated, in response to a direct question by the Court, that they were not contending that a party cannot recover for an expert’s deposition preparation time. Rather, defendants stated, their contention is that under the particular circumstances of this case, it is unreasonable to award the requested compensation.

In the Court’s view, the issue that defendants have conceded is a close one. The Rule is somewhat ambiguous; the term “responding to discovery” is not clear on its face. The Advisory Committee Notes from 1970, when this particular subdivision of Rule 26(b) was added, and from 1993, when Rule 26(a)(2) was amended to require expert reports of the type furnished here and Rule 26(b)(4) was amended to conform with the new Rule 26(a)(2) requirement, do not speak directly to this point. Yet because defendants have conceded that a court may award fees for deposition preparation time in an [357]*357appropriate case, there is no need to engage in extended analysis of the issue.

We must, however, visit the issue briefly, as defendants have argued that fees should be denied based on decisions holding that the Rule does not permit fees to be awarded in any ease other than an exceptional one. See S.A. Healy Co. v. Milwaukee Metropolitan Sewerage District, 154 F.R.D. 212, 214 (E.D.Wis.1994) (holding that Rule 26(b)(4)(C) does not require payment for deposition preparation time but recognizing an exception for complex eases); EEOC v. Sears, Roebuck & Co.,

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Bluebook (online)
197 F.R.D. 354, 1999 U.S. Dist. LEXIS 16523, 84 Fair Empl. Prac. Cas. (BNA) 787, 1999 WL 33219397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-village-of-woodridge-ilnd-1999.