Trombetta v. Novocin
- Laura Swain
- 1:18-cv-00993
- U.S. District Court · Southern District of New York
- 4
Trombetta v. Novocin: Judge Cave denied WorthPoint’s request to set an expert’s deposition fee without prejudice.
WorthPoint Corp., Annamarie Trombetta, and Patrick O’Leary were affected. The order left the amount of O’Leary’s deposition fee unresolved until the court determines whether he is an expert or fact witness.
What happened
In Trombetta v. Novocin, WorthPoint asked the court to decide how much it should pay Patrick O’Leary for his deposition. O’Leary was identified as a possible expert for pro se plaintiff Annamarie Trombetta on the structure of internet webpages.
WorthPoint had sent O’Leary a $40 witness-fee check, but after a roughly five-hour deposition, O’Leary requested $15,911.08 for preparation, the deposition, a hearing, and travel expenses. The court explained that the proper fee depended on whether O’Leary was ultimately treated as an expert witness or only as a fact witness.
Judge Sarah L. Cave denied WorthPoint’s request without prejudice, meaning it could be renewed after the court determined whether O’Leary would testify as an expert or fact witness. The clerk was directed to close the fee request and mail the order to Trombetta.
The detailed version
- Trombetta v. Novocin · No. 1:18-cv-00993
- Laura Swain
- Mar. 20, 2023
Background
Fact discovery had closed on December 19, 2022, and expert discovery had closed on March 1, 2023. WorthPoint Corp. asked the court to determine a reasonable fee for Patrick O’Leary’s deposition, questioning whether any fee was warranted.
Annamarie Trombetta, who was representing herself, planned to offer O’Leary as an expert on the general structure of internet webpages. O’Leary prepared an affidavit, rather than a report, for Trombetta. WorthPoint subpoenaed him and sent a $40 payment. His video deposition lasted about five hours on February 28, 2023. Afterward, he sent WorthPoint three invoices totaling $15,911.08: 24 hours of preparation, eight hours for the deposition, eight hours for a hearing concerning the deposition, and $911.08 in travel-related expenses. Trombetta had paid O’Leary less than $1,000 for his services in the case.
Legal standard
Federal Rule of Civil Procedure 26 generally requires the party seeking an expert’s deposition to pay the expert a reasonable fee for time spent responding to the discovery. A witness serving only as a fact witness, however, receives the statutory witness fee under 28 U.S.C. § 1821. The court explained that fees for expert deposition preparation and reasonable travel time can be compensable, but flat fees are generally disfavored. Courts consider factors including the expert’s field, education and training, prevailing rates for comparable experts, the complexity of the discovery, the geographic cost of living, the fee charged to the retaining party, and fees charged in related matters. The party seeking reimbursement bears the burden of showing that the requested fee is reasonable.
Ruling
The court noted that the amount O’Leary could receive depended on whether he was an expert witness entitled to a reasonable fee under Rule 26 or a fact witness entitled only to the statutory fee. WorthPoint had also indicated that it might seek to prevent O’Leary from testifying at trial.
Judge Sarah L. Cave denied WorthPoint’s request for a fee determination without prejudice to renewal after the court decided whether O’Leary would serve as an expert or fact witness. The clerk was directed to close the filing associated with the request and mail a copy of the order to Trombetta.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.