Fernandes v. Herjo
- Sarah Cave
- 1:23-cv-03078
- U.S. District Court · Southern District of New York
- 2
In Fernandes v. Herjo, Magistrate Judge Cave denied without prejudice a request to set a surgeon’s deposition fee before the deposition.
Gary A. Herjo, Alexandria Fernandes, and the surgeon whose deposition was at issue; the order directs defense counsel and the surgeon to discuss the fee after the deposition.
What happened
In Fernandes v. Herjo, Gary A. Herjo asked the court to set a reasonable fee for the remote deposition of Alexandria Fernandes’s surgeon. He said the surgeon’s attorney requested $5,000 for a deposition expected to last 60 to 90 minutes.
The court declined to set the fee before the deposition. It said the parties should address the fee after the deposition, when the work performed would be known.
Magistrate Judge Sarah L. Cave denied the request without prejudice to renewal, if appropriate, after the deposition. She directed defense counsel and the surgeon to discuss a reasonable fee, and allowed Herjo to renew the request with specific supporting authority if they could not agree.
The detailed version
- Fernandes v. Herjo · No. 1:23-cv-03078
- Sarah Cave
- Mar. 25, 2024
Background
The court considered Gary A. Herjo’s March 22, 2024 letter about his anticipated remote deposition of “plaintiff’s surgeon, Dr. Krosser.” Herjo stated that the surgeon’s attorney had advised him that the surgeon wanted $5,000 to appear. Herjo believed that amount was excessive for a deposition expected to last 60 to 90 minutes and asked the court to set a reasonable fee under Federal Rule of Civil Procedure 26(b)(4).
Ruling
The court denied the request without prejudice to renewal, if appropriate, after the deposition was completed. Citing prior decisions, the court explained that a request for court intervention to determine a reasonable fee for an expert deposition should generally be made after the deposition, rather than before it. The court also cited authority stating that an expert witness may charge a reasonable hourly fee but may not require advance payment or set a flat fee before knowing what the deposition will require.
After the deposition, defense counsel and Dr. Kosser must meet and confer about a reasonable fee. If they cannot agree, Herjo may renew the request and must provide citations to specific authority supporting the requested fee. Magistrate Judge Sarah L. Cave did not set a deposition fee in this order.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.