James J. Polidoro v. The Law Firm of Jonathan D'Agostino, P.C

Background

This legal-malpractice case involved expert discovery concerning the plaintiff’s legal-malpractice expert, Jessica Di Bianca, Esq. The expert’s deposition was scheduled for February 15, 2022, the deadline for expert discovery to close. The defendant, D'Agostino & Associates, told the court that Di Bianca proposed charging a $7,500 flat fee for a deposition expected to last three to four hours. An invoice provided by the plaintiff listed $4,000 for “deposition preparation” and $3,500 for “deposition review.”

The defendant asked the court to require an invoice using a reasonable hourly rate and number of hours or, alternatively, to set the expert’s rates and compensable hours in advance. The plaintiff had previously withdrawn and amended Di Bianca’s original expert report after the court noted that the report appeared vulnerable to a motion to strike, but the order concerned the fee dispute rather than the report’s admissibility.

Legal standard

Federal Rule of Civil Procedure 26(b)(4)(E)(i) requires the party seeking discovery from an opposing party’s expert to provide reasonable compensation for the expert’s time spent preparing for and attending the deposition. The court explained that the party who retained the expert—in this case, the plaintiff—bore the burden of showing that the requested compensation was reasonable.

The court identified factors relevant to reasonableness, including the expert’s field, education and training, comparable experts’ rates, the nature and complexity of the discovery, local costs, the fee charged to the retaining party, and fees the expert traditionally charged in related matters. The court also explained that courts generally reject flat deposition fees and advance-payment demands because the reasonable amount may depend on what occurs during the deposition and how long the expert actually spends preparing and testifying.

Ruling

The court concluded that the defendant could not be required to pay a $7,500 flat fee for Di Bianca’s preparation and attendance at the deposition. The defendant also could not be required to prepay the expert’s deposition-related compensation. Instead, the court ordered the plaintiff to provide, no later than the start of the deposition, the hourly rate or rates sought for preparation, attendance, and travel time, if applicable.

The court stated that the defendant could question Di Bianca during the deposition about the basis for any quoted rate. It denied as premature the defendant’s request for an order determining the expert’s reasonable hourly rates or total deposition-related compensation. After the deposition, the parties could return to court if they could not agree on appropriate payment, and any later application should address the reasonableness factors identified by the court.

Judge Barbara Moses therefore granted the defendant’s letter-application to the limited extent that it required an hourly-rate disclosure and denied it to the extent it sought an advance determination of the expert’s reasonable rates or overall compensation. The clerk was directed to close the motion at Dkt. No. 116.