English v. Washington Metropolitan Area Transit Authority ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
CHIMWALA F. ENGLISH, )
)
Plaintiff, )
)
v. ) Civil Action No. 16-02335 (ABJ/RMM)
)
WASHINGTON METROPOLITAN AREA )
TRANSIT AUTHORITY, )
)
Defendant. )
)
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Washington Metropolitan Area Transit
Authority’s (“Defendant” or “WMATA”) Renewed Motion to Compel Payment of Expert Fees
for Preparation for Discovery Deposition (“Renewed Motion”), which seeks to compel
Chimwala F. English (“Plaintiff” or “Ms. English”) to pay fees for an expert witness’s deposition
preparation time. See ECF No. 38. Ms. English opposes the motion. The District Judge
presiding over this case has referred all discovery disputes to the undersigned Magistrate Judge
pursuant to Local Civil Rule 72.2(a). See Order, ECF No. 21. Having reviewed the parties’
submissions,1 the Court will deny without prejudice WMATA’s Renewed Motion for the reasons
set forth below.
BACKGROUND
The factual background relevant to this Motion is set forth in the Court’s November 9,
2017 Memorandum Opinion and Order which denied Defendant’s initial request to compel fees
1
Def.’s Renewed Mot. to Compel Payment of Expert Fees for Preparation for Disc. Dep.
(“Def.’s Mot.”), ECF No. 38; Pl.’s Opp’n to Def.’s Renewed Mot. (“Pl.’s Opp’n”), ECF No. 39.
for the preparation time invoiced by Dr. Romergryko G. Geocadin (“Dr. Geocadin”) for an
expert witness deposition. See English v. Wash. Metro. Area Transit Auth., 293 F. Supp. 3d 13,
14 (D.D.C. 2017). In that decision, the Court denied without prejudice WMATA’s initial fee
request because WMATA had failed to meaningfully confer with Plaintiff’s counsel as required
by Local Civil Rule 7(m). See id. at 14–17.
WMATA now renews its motion and continues to seek a Court order compelling Ms.
English to pay for the time that Dr. Geocadin spent preparing for the deposition. See Def.’s Mot.
at 1. Ms. English again opposes the motion on two grounds, arguing: first, that WMATA failed
to meaningfully confer as required under Local Civil Rule 7(m); and second, that WMATA has
not proven that the time Mr. Geocadin spent on deposition preparation, or the hourly fee he
charged, is reasonable. See generally Pl.’s Opp’n. WMATA filed no reply.
LEGAL STANDARD
I. Motion to Compel Expert Fees for Deposition Preparation
Federal Rule of Civil Procedure 26(b)(4)(E) provides that “[u]nless manifest injustice
would result, the court must require that the party seeking discovery . . . pay the expert a
reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D).” See
also Barnes v. District of Columbia, 272 F.R.D. 135, 137 (D.D.C. 2011) (“[T]he party who
noticed the deposition must compensate the expert accordingly.”). Time spent “responding to
discovery” includes the time an expert uses to prepare for a deposition. Id.; see Schmidt v. Solis,
272 F.R.D. 1, 1–3 (D.D.C. 2010). The party seeking reimbursement bears the burden of
establishing that the fee is reasonable. Barnes v. District of Columbia, 274 F.R.D. 314, 316
(D.D.C. 2011) (citing Guantanamera Cigar Co. v. Corporacion Habanos, S.A., 729 F. Supp. 2d
2246, 255–56 (D.D.C. 2010)). To determine whether the requested fee is reasonable, courts
weigh several factors including:
(1) the witness’s area of expertise; (2) the education and training that are required
to provide the expert insight that is sought; (3) the prevailing rates for other
comparably respected available experts; (4) the nature, quality, and complexity of
the discovery responses provided; (5) the cost of living in the particular geographic
area; (6) the fee actually being charged by the expert to the party who retained him;
and (7) fees traditionally charged by the expert on related matters.
Id.II. Local Civil Rule 7(m)
This Court’s Local Rules require that “[b]efore filing any nondispositive motion in a civil
action, counsel shall discuss the anticipated motion with opposing counsel in a good-faith effort
to determine whether there is any opposition to the relief sought and, if there is, to narrow the
areas of disagreement.” LOCAL CIV. R. 7(m). This rule was adopted “to promote the resolution
of as many litigation disputes as possible without court intervention, or at least to force the
parties to narrow the issues that must be brought to the court.” Ellipso, Inc. v. Mann, 460
F. Supp. 2d 99, 102 (D.D.C. 2006) (citing United States ex rel. Pogue v. Diabetes Treatment
Ctrs. of Am., Inc., 235 F.R.D. 521, 529 (D.D.C. 2006)); see also Dist. Hosp. Partners, L.P. v.
Sebelius, 971 F. Supp. 2d 15, 21–22 (D.D.C. 2013). Parties’ “obligation to confer may not be
satisfied by perfunctory action, but requires a good faith effort to resolve the non-dispositive
disputes that occur in the course of litigation.” Pogue, 235 F.R.D. at 529.
DISCUSSION
I. Local Civil Rule 7(m)
Ms. English argues that the Court should deny WMATA’s Renewed Motion for failure to
comply with Local Civil Rule 7(m). See Pl.’s Opp’n at 1, 3–7. Local Civil Rule 7(m) requires
parties to make a “good-faith effort to determine whether there is any opposition to the relief
3
sought and, if there is, to narrow the areas of disagreement.” LOCAL CIV. R. 7(m). A “good-
faith” effort means that parties must take “real steps to confer.” Ellipso, 460 F. Supp. 2d at 102(quoting United States ex rel. K & R Ltd. P’ship v. Mass. Hous. Fin. Agency, 456 F. Supp. 2d 46,
52 (D.D.C. 2006)) (internal quotation marks omitted). The Court denied without prejudice
WMATA’s prior motion seeking to compel the same expert fees that it seeks through this
Renewed Motion, for failure to meaningfully confer as required by Local Civil Rule 7(m). See
English, 293 F. Supp. 3d at 14–17. In so ruling, the Court noted that “WMATA’s efforts to
confer with Plaintiff’s counsel are too perfunctory to satisfy Local Civil Rule 7(m),” and noted
that “the abrupt and premature end to the discussion falls short of the meaningful and ‘real
steps’” required by Local Civil Rule 7(m). Id. at 17.
The exhibits submitted by the parties — consisting of emails and attachments —
demonstrate that the parties have conferred. See Def.’s Mot., Ex. C, ECF No. 38-3; Pl.’s Opp’n,
Exs. 3–6, ECF Nos. 39-3–39-6. Ms. English asserts that the substantive deficiencies in
WMATA’s communications evince a failure to confer in good faith. See Pl.’s Opp’n at 4–5
(noting failures to provide further relevant information). Although the information provided by
Defense counsel may have lacked the detail sought by Plaintiff’s counsel, each side appears to
have attempted to identify its respective positions regarding the request for expert fees. See
Def.’s Mot., Ex. C; Pl.’s Opp’n, Exs. 3–6; see also Pl.’s Opp’n at 4–6. Accordingly, in the
interest of judicial efficiency, the Court will reach the merits of WMATA’s Renewed Motion
and will not deny the Renewed Motion for failure to comply with Local Civil Rule 7(m).
II. Reasonableness of Expert Fees for Deposition Preparation
Ms. English disputes both the reasonableness of Dr. Geocadin’s expert rate and the
amount of time he spent preparing for his deposition. See Pl.’s Opp’n at 7–11. As earlier
4
outlined, the Court considers several factors in evaluating the reasonableness of requested expert
fees:
(1) the witness’s area of expertise; (2) the education and training that are required to
provide the expert insight that is sought; (3) the prevailing rates for other comparably
respected available experts; (4) the nature, quality, and complexity of the discovery
responses provided; (5) the cost of living in the particular geographic area; (6) the fee
actually being charged by the expert to the party who retained him; and (7) fees
traditionally charged by the expert on related matters.
Barnes, 274 F.R.D. at 316. Ms. English does not contest the first and second factors — Dr.
Geocadin’s area of expertise, and education and training. Pl.’s Opp’n at 8. However, Ms.
English argues that WMATA presents no information regarding the third, fourth, sixth, and
seventh factors, which consider: the prevailing rates for other comparably respected available
experts; the nature, quality, and complexity of the discovery responses provided; the fee actually
being charged by the expert to the party who retained him; and fees traditionally charged by the
expert on related matters. See id. Neither party addresses the fifth factor — the cost of living in
the particular geographic area.
Ms. English urges the Court to deny WMATA’s Renewed Motion because “Defendant
did not provide any evidence as to reasonableness.” Id. at 9. The Court concurs. WMATA
submitted Dr. Geocadin’s declaration and the copy of Dr. Geocadin’s report, but has largely
failed to satisfy its burden of establishing the reasonableness of the fee sought. See Barnes, 274
F.R.D. at 316 (“The party seeking reimbursement for the fee . . . bears the burden of establishing
reasonableness.”).
The record lacks evidence regarding most of the factors that are relevant to the
reasonableness analysis. WMATA has failed to provide sufficient evidence regarding factors
three, six, and seven, i.e., evidence of the prevailing rates for other comparably respected
available experts, the fee actually being charged by the expert to the party who retained him, and
5
the fees traditionally charged by the expert on related matters. WMATA has submitted no
evidence of prevailing rates for other comparably respected available experts nor evidence of the
fee that Dr. Geocadin actually charged WMATA in this case. Cf. Guantanamera Cigar Co., 729
F. Supp. 2d at 256 (noting that “the market for experts who possess that unique knowledge
should be the focus analysis of the third factor” and seeking the rates of comparable experts).
WMATA’s briefing also lacks sufficient information regarding the fees traditionally charged by
Dr. Geocadin on related matters. WMATA and Dr. Geocadin both note that Dr. Geocadin
charges $700 per hour for preparation time, but fail to provide any additional context. See Def.’s
Mot. ¶ 5; id. at Ex. A (“Geocadin Decl.”) ¶ 8, ECF No. 38-1 (“I charge $700.00 per hour for
consultation and review.”). The Court cannot evaluate the reasonableness of that rate without
additional information establishing whether Dr. Geocadin typically charges the same rate for
related matters and what rates comparable experts charge. Cf. Barnes, 274 F.R.D. at 317
(evaluating the reasonableness of a fee where the expert witness “did not provide information on
the fee she charged in other cases,” but “did provide information on the fees that comparable
experts charge”).
Turning to the fourth factor, Dr. Geocadin’s declaration, in conjunction with his report,
provides some information about the nature, quality, and complexity of the discovery responses
provided. See generally Geocadin Decl. However, WMATA’s briefing fails to connect that
evidence to the legal standard or the nature, quality, and complexity of the discovery responses.
See Pl.’s Opp’n at 8 (“Defendant makes no effort to explain how the nature, quality, and
complexity of Dr. Geocadin’s testimony warrants the fee charged or preparation undertaken.”).
Even if the Court were inclined to independently assess the nature, quality, and complexity of the
6
discovery responses, the lack of evidence regarding the other factors identified above makes it
impossible to fully evaluate the reasonableness of the fee requested.
It bears noting that WMATA has been on notice, since at least the last round of briefing
on WMATA’s initial request for Dr. Geocadin’s expert preparation fees, that it carries the burden
of establishing reasonableness and the factors relevant to the Court’s evaluation of the requested
fee. See English, 293 F. Supp. 3d at 15; see also Pl.’s Opp’n, Ex. 4, ECF No. 39-4 (email from
Plaintiff’s counsel attaching Plaintiff’s Opposition to Defendant’s initial motion for expert fees
for preparation); Def.’s Mot., Ex. B, ECF No. 38-2 (same email without attachment); see
generally Pl.’s Opp’n to Def.’s Mot. to Compel Payment of Expert Fees for Preparation for Disc.
Dep., ECF No. 29. It is therefore remarkable that the Renewed Motion suffers the same
deficiencies as the initial motion and fails to provide sufficient information to permit the Court to
fully evaluate the reasonableness of the requested fee. The Court must therefore deny the
Renewed Motion.
CONCLUSION
For the foregoing reasons, the Court concludes that WMATA has failed to meet its
burden of establishing that the fee requested is reasonable, and therefore ORDERS that
Defendant’s Renewed Motion to Compel Payment of Expert Fees for Preparation for Discovery
Deposition [ECF No. 38] is hereby DENIED without prejudice. WMATA may file a renewed
motion, which would provide a third opportunity to demonstrate the reasonableness of the fees
7
requested. The Court is disinclined to give WMATA a fourth bite at the apple, and therefore
strongly recommends that any renewed submission fully address the factors discussed above.
SO ORDERED.
2018.09.27
12:28:56
September 27, 2018
Dated: -04'00'
ROBIN M. MERIWEATHER
UNITED STATES MAGISTRATE JUDGE
8