Ajasin v. Ortiz
- James Cott
- 1:19-cv-06814-JLR-JLC
- U.S. District Court · Southern District of New York
- 4
In Ajasin v. Ortiz, Magistrate Judge Cott granted an extension for Dr. Dassa’s deposition but rejected advance payment and a flat fee.
The defendants, the plaintiff, and Dr. Gabriel L. Dassa are affected. The defendants may take Dr. Dassa’s deposition during the extended discovery period, but the court did not approve his requested flat fee or advance payment.
What happened
In Ajasin v. Ortiz, the defendants asked the court to address Dr. Gabriel L. Dassa’s requested $5,000 deposition fee and to extend discovery so they could take his deposition. The plaintiff agreed to the extension and argued that the requested fee was reasonable.
The court said fee disputes about expert depositions ordinarily should be addressed after the deposition. It would not approve a flat fee or advance payment, but said the defendants should pay a reasonable amount for time reserved for and spent preparing for the deposition. The court found it was too early to calculate that amount.
Magistrate Judge James L. Cott granted the request to extend discovery for the limited purpose of taking Dr. Dassa’s deposition. He directed the parties to try to agree on a reasonable fee afterward, with a later court application permitted if they could not agree.
The detailed version
- Ajasin v. Ortiz · No. 1:19-cv-06814-JLR-JLC
- James Cott
- Apr. 16, 2021
Background
The defendants filed a letter-motion seeking a conference about the deposition fee requested by Dr. Gabriel L. Dassa, the plaintiff’s treating orthopedic surgeon. They also requested additional time to complete discovery for the limited purpose of taking Dr. Dassa’s deposition. Dr. Dassa had apparently requested a $5,000 flat fee, reduced from $7,500, and required payment at least 72 hours before the deposition. The plaintiff ultimately consented to the discovery extension and argued that the fee was reasonable.
The court treated Dr. Dassa as an expert entitled to a reasonable deposition fee because the defendants did not appear to dispute that he was owed a fee. The court noted, however, that the record did not establish whether the plaintiff had designated him as an expert. If he were serving only as a fact witness, the court explained, he would generally be limited to the statutory witness fee.
Fee ruling
The court stated that disputes over a reasonable expert-deposition fee should generally be presented after the deposition, not before it. It also explained that flat fees are generally disfavored because compensation should have a reasonable relationship to the services provided. The court would not approve either a flat fee for Dr. Dassa or any prepayment of fees.
The court said the defendants should compensate Dr. Dassa for the time reserved for the deposition and the time spent preparing for it. Because the deposition was expected to last no more than two to four hours, would occur remotely, and the preparation time was not yet known, the court found it premature to calculate the appropriate fee. The court also noted that the plaintiff’s argument based on Dr. Dassa’s alleged average daily revenue lacked supporting authority.
Disposition
The court granted the defendants’ request to extend discovery for the purpose of taking Dr. Dassa’s deposition and directed that the deposition proceed as soon as practicable. It directed the parties to try to resolve the fee issue after the deposition. If they could not agree, a party could apply to the court to determine the appropriate fee, supported by specific legal authority. The Clerk was directed to close Docket No. 54 and mark it as “granted.” No conference was held because the court found the issue straightforward.
Classification
This is a procedural order because it resolved a discovery and deposition-fee issue without deciding the underlying claims.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.