Flynn v. Cable News Network, Inc.
- Sarah Cave
- 1:21-cv-02587
- U.S. District Court · Southern District of New York
- 3
In Flynn v. Cable News Network, Inc., Judge Cave denied the Flyns’ expert-fee motion without prejudice and denied their request for motion-related fees.
John P. “Jack” Flynn and Leslie A. Flynn’s request for payment of Dr. Sophia Moskalenko’s deposition-related time and their request for attorneys’ fees and costs; CNN opposed the request.
What happened
In Flynn v. Cable News Network, Inc., John P. “Jack” Flynn and Leslie A. Flynn asked the court to require Cable News Network, Inc. to pay their proposed expert, Dr. Sophia Moskalenko, a reasonable fee for preparing for and participating in her deposition. They also requested attorneys’ fees and costs for filing the motion.
CNN argued that the request was premature because it planned to ask the court to bar Dr. Moskalenko from giving expert testimony. The amount she could receive depended on whether the court classified her as an expert witness, entitled to a reasonable fee, or only as a fact witness, entitled to a statutory witness fee.
Judge Sarah L. Cave ruled that the request was premature. She denied the motion without prejudice, allowing the plaintiffs to renew it after the court decides whether Dr. Moskalenko will testify as an expert or fact witness, and denied the plaintiffs’ request for attorneys’ fees and costs.
The detailed version
- Flynn v. Cable News Network, Inc. · No. 1:21-cv-02587
- Sarah Cave
- July 13, 2023
Background
John P. “Jack” Flynn and Leslie A. Flynn filed a letter-motion seeking a discovery conference and an order requiring Cable News Network, Inc. (CNN) to pay Dr. Sophia Moskalenko a reasonable fee for time spent responding to discovery. The request focused on Dr. Moskalenko’s deposition, including preparation time. The plaintiffs intended to offer her as an expert witness under Federal Rule of Civil Procedure 26(b)(4)(A). They also sought attorneys’ fees and costs incurred in filing the motion.
CNN opposed the request. It stated that it intended to file a motion under Daubert v. Merrell Dow Pharmaceuticals, Inc. asking the court to prevent Dr. Moskalenko from offering expert testimony at trial. CNN argued that the fee request was therefore premature.
Legal standard
Rule 26(b)(4)(E)(i) generally requires the party seeking discovery from an expert witness to pay a reasonable fee for the expert’s time spent responding to discovery, unless doing so would cause manifest injustice. The court noted that preparation time for a deposition, as well as reasonable travel time and travel expenses, can be compensable under that rule. By contrast, a person serving only as a fact witness is generally limited to the statutory witness fee provided by 28 U.S.C. § 1821.
Reasoning
The court concluded that the amount Dr. Moskalenko could receive depended on the outcome of CNN’s anticipated motion to exclude her expert testimony. If she qualified as an expert witness, she could be entitled to a reasonable fee under Rule 26(b)(4)(E)(i). If she served only as a fact witness, she would be entitled only to the statutory witness fee. Because that classification had not yet been decided, the plaintiffs’ motion was premature.
Disposition
Judge Sarah L. Cave denied the motion without prejudice to renewal after the court determines whether Dr. Moskalenko will serve as an expert or fact witness in the action. The court denied the plaintiffs’ request for attorneys’ fees. The Clerk was directed to close the motion docket entry, ECF No. 153.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.