Little Giant Ladder Systems, LLC. v. Tricam Industries, Inc.

Background

Tricam asked the court to require Wing to pay $9,951 for the deposition of Tricam’s expert, Jack Krafchick, P.E. The invoice included $2,518.75 for preparation, $3,412.50 for travel time, $2,925 for deposition time, and $1,094.75 in travel expenses. The travel-time and travel-expense portion totaled $4,506.25.

Krafchick was located near Philadelphia, Pennsylvania, and his deposition took place in Minneapolis, Minnesota, on October 23, 2018. The parties’ correspondence showed that Tricam’s counsel’s staff identified Minneapolis as the likely location and later stated that Krafchick was available there. The court rejected Tricam’s argument that Wing had selected Minneapolis, finding that the correspondence showed Wing had not requested that location.

Wing agreed to pay for the expert’s deposition time and a reasonable amount of preparation time. It paid $5,443.75. Wing disputed the travel time and expenses, and also argued that Krafchick billed nine hours for the deposition even though Wing’s actual questioning, excluding breaks and redirect testimony, lasted less than seven hours. Because Wing had already paid the nine hours and did not seek a refund, the court did not address that argument.

Legal standard

Federal Rule of Civil Procedure 26(b)(4)(E) generally requires the party seeking discovery from an expert witness to pay a reasonable fee for the expert’s time responding to the discovery. Courts may allow reasonable preparation time, travel time, and travel expenses. The party seeking reimbursement bears the burden of showing that the requested fee is reasonable.

In evaluating reasonableness, courts may consider factors such as the expert’s expertise and training, comparable expert rates, the complexity of the work, geographic costs, the fee charged to the retaining party, and other circumstances relevant to balancing the parties’ interests.

Court’s analysis

The court concluded that Tricam’s travel costs were not reasonable reimbursement costs under Rule 26(b)(4)(E). It considered that the party seeking reimbursement had selected the location that required the travel. It also considered that the parties’ discussions about reimbursement referred to deposition and preparation time but did not identify travel costs, and Wing had not agreed to pay those costs.

The court separately considered whether Krafchick’s five hours of travel to Minneapolis could be treated as preparation time because he stated that he prepared during the trip. His declaration did not show how much of the five hours was spent preparing rather than driving to the airport, passing through security, or performing other travel-related activities. Because Tricam did not provide enough evidence to establish the actual preparation time during the trip, the court declined to require Wing to pay any of that travel time as preparation.

Disposition

The court found that Krafchick’s reasonable deposition and preparation fees totaled $5,443.75. It denied Tricam’s motion insofar as it sought $4,506.25 for travel time and expenses. It denied the motion as moot insofar as it sought reimbursement for the preparation and deposition time that Wing had already paid.

The order’s numbered disposition refers to the already-paid amount as $5,443.85, while the opinion’s factual discussion and conclusion state $5,443.75. The opinion does not explain this difference.