IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPTON COBELL, al., a 
Plaintiffs, 
1 
1 
1 
1 
V. 
GALE A. NORTON, Secretary of 
the Interior, & &, 
Defendants. 
1 
1 
1 
1 
) 
) 
DEFENDANTS OPPOSITION TO 
PLAINTIFFS MOTION FOR A PROTECTIVE ORDER REQUIRING 
DEFENDANTS TO PAY PLAINTIFFS EXPERT DEPOSITION FEES AND EXPENSES 
Plaintiffs have moved for a protective order under Rule 26(b)(4)(C) and Rule 26(c) of 
the Federal Rules of Civil Procedure concerning expert witness depositions that have already 
been completed, when what Plaintiffs really want is reimbursement for fees and expenses 
purportedly related to the completed depositions of their experts, regardless of whether the costs 
are reasonable or unconscionable, documented or entirely unsubstantiatcd. Rather than present a 
cogent explanation of the charges and Plaintiffs entitlement to them, most of Plaintiffs motion is 
spent complaining that Defendants have not simply paid the bill - a bill totaling nearly $71,000 
for fewer than 40 hours of deposition, almost half of which is composed of blatant overcharges 
and unsubstantiated expenses. Given these excesses, Plaintiffs motion should be denied. 
Defendants will not waste the Courts time by refuting, tit for tat, every exaggeration and 
misstatement Plaintiffs tender Concerning the background of the parties discussions about 
reirnbursemcnt. Plaintiffs portrayal is not accurate, but none of it is pertinent to the ultimate 
issue concerning the amount of reimbursement due. Suffice it to say that when Defendants 
objected to Plaintiffs self-serving mischaracterizations of the parties discussions, Plaintiffs 
chose to quarrel and accuse rather than focus on making certain that the materials they provided 
to Defendants adequately explained and substantiated every dollar of their claim. Even upon 
filing the instant motion, Plaintiffs have done nothing fiirther to substantiate or document their 
No. 1:96CV01285 
(Judge Lamberth) Plaintiffs demand reimbursement for fees and expenses that are unreasonable, 
unrecoverable and, in some cases, entirely undocumented. Defendants are not opposed to paying 
Plaintiffs for the reasonable expenses, actually incurred, of their experts' depositions in 
accordance with the Federal Rules, but nothing obligates Defendants to blindly pay whatever 
amount Plaintiffs claim. Defendants object to Plaintiffs' claim to the extent it seeks 
reimbursement for (1) unreasonably high witness fees, (2) overcharges for time, (3) exorbitant, 
lavish expenses and (4) undocumented fees or costs. In turn, Defendants are also entitled to 
setoff against the reasonable amount due Plaintiffs all corresponding reasonable fees and costs 
that Defendants incurred in producing their own experts for deposition by Plaintiffs. With these 
adjustments, Plaintiffs are not due the $70,990 their motion suggests, but an amount closer to 
$25,780. 
Plaintiffs basically contend that they have submitted a bill to Defendants and Defendants 
must pay it, regardless of how unreasonable or questionable the charges are and without setoff 
for any expenses due Defendants. Their position is as unreasonable as it is untenable. Had 
Plaintiffs submitted a statement containing only reasonable and documented charges, the matter 
could have been resolved more readily. Plaintiffs neglect to mention, however, that the amount 
they seek is padded with excesses, such as: 
a $1,000 hotel bill for a one-day deposition; 
0 a lavish $139 meal at an exclusive restaurant; 
over $100 of charges at a hotel lobby bar; 
hourly fees of $1,000 for testimony by one expert; 
reimbursement claim. 
2 time charged for attending another experts deposition; 
charges for meeting with Plaintiffs counsel; and 
what appears to be first class airfare. 
These are just examples of the excesses behind Plaintiffs motion. No litigant should have to 
cover such spending. 
As Plaintiffs note in their motion, the parties did discuss prior to the depositions whether 
the government would pay for the experts travel time to Washington. The parties did reach an 
agreement that such billable travel time would not exceed twelve to thirteen hours round trip per 
witness. The parties, however, did not agree to abandon the prescription in the Federal Rules that 
charges for expert fees and related travel must be reasonable to be reimbursable. No basis exists, 
therefore, to assert that every dollar Plaintiffs claim is recoverable simply because the charge 
appears on their list. 
I. 
ARGUMENT 
A Party Seekinp Reimbursement Under Rule 26 Bears The Burden 
Of Proving Reasonable Expenses 
A party seeking reimbursement of deposition fees bears the burden of proving 
reasonableness. Royal Maccabees Life Ins. Co. v. Malachinski, No. 96-C-6135, 2001 WL 
290308, at* 16 (N.D. 111. Mar. 20,2001). Unless Plaintiffs have documented each item of 
expense for which they seek reimbursement with, for example, receipts, it necessarily follows 
that they cannot discharge their burden of proving they were reasonable. In Part I11 below, 
Defendants identify those charges claimed by Plaintiffs that are unreimbursable because they are 
not substantiated. 
3 11. A Partv Is Not Required To Pav More Than The Actual, Reasonable 
Cost Of Expert Discovery 
Rule 26 of the Federal Rules of Civil Procedure provides that a party deposing an 
adversarys expert should pay for the reasonable cost of providing that discovery. Fed. R. Civ. 
P. 26(b)(4)(C) (party seeking discovery [should] pay the expert a reasonable fee for time spent 
responding to discovery). The obligation is also reciprocal: Plaintiffs are equally obligated 
under the same rule to pay the reasonable cost of producing Defendants experts for deposition. 
The key limitation to recovery of such fees and expenses, however, is that they be 
reasonable. If one side decides to spend lavishly on an expert, the opposing side should not be 
obligated to pay for that exorbitance. As one court put it, [wlhile plaintiff may contract with 
any expert of plaintiffs choice and, by agreement, that expert may charge unusually high rates 
for services, the discovery process will not automatically tax such unreasonable fees upon the 
defendant. Bowen v. Monahan, 163 F.R.D. 571, 574 (D. Neb. 1995) (ordering defendant to pay 
half of experts proposed fee); accord U.S. Energy COT. v. NUKEM, Lnc., 163 F.R.D. 344,347 
(D. Colo. 1995) ([U]nless the courts patrol the battlefield to insure fairness, the circumstances 
invite extortionate fee setting.). 
In determining whether an experts fee is reasonable, courts consider the following 
factors: (1) the witnesss area of expertise; (2) the education and training required to provide the 
type of expert insight that is sought; (3) prevailing rates of other comparable experts; (4) the 
nature, quality and complexity of the discovery responses provided; ( 5 ) the cost of living in the 
particular area; and (6) any other factors likely to be of assistance to the court in balancing the 
interests implicated by Rule 26. a.. Bowen, 163 F.R.D. at 573; accord Magee v. Paul Revere 
4 Life Ins. Co., 172 F.R.D. 627,645 (E.D.N.Y. 1997) (commenting that none of these factors has 
talismanic qualities but serve as a guide for the Court). The same test of reasonableness 
applies to the recovery of related expenses. See, e.g, Frederick v. Columbia University, 212 
F.R.D. 176, 177-78 (S.D.N.Y. 2003) (defendants are not required to provide first class travel or 
first class accommodations for plaintiffs expert); cf. Mathis v. Nynex, 165 F.R.D. 23 (E.D.N.Y 
1996) (deposing party not obligated to pay for experts copy of transcript). 
Defendants identify below each fee charge and expense item that they challenge and 
explain the basis for their objection. With but one exception, Defendants will not quarrel with 
the professional rates applied by Plaintiffs experts, but Defendants do object where the experts 
have padded their hours. In other instances, Plaintiffs have claimed reimbursement for expenses 
that they do not bother even to document, much less itemize. These costs are all objectionable 
because Plaintiffs have failed to prove these unsubstantiated expenses are reasonable. Finally, 
other expenses, although documented, are just plain unreasonable. 
Table A, submitted herewith as Exhibit 1, summarizes Defendants objections and the 
adjustments that the Court should make to Plaintiffs claim. Column one lists each of Plaintiffs 
experts and, for convenience of reference, notes each experts affiliated firm where one exists2 
The second column lists the number of hours that the expert was depo~ed.~ (One expert, Dwight 
Duncan, was deposed in excess of eight hours because he was deposed as both an affirmative and 
rebuttal witness.) The next three columns summarize the fees and expenses that Plaintiffs appear 
In some cases, documents provided by Plaintiffs bear letterhead of only the experts affiliated 
firm. 
The length of deposition is a useful yardstick for considering whether certain claimed expenses 
are reasonable (e.g., 3 days of lodging are patently unreasonable for a 2-hour deposition). 
5 to claim for each listed witness. The next three columns summarize the dollar value of the 
various objections Defendants assert in connection with the claimed amounts. The last two 
columns, on the far right, summarize the total amount of fees and expenses that should be 
disallowed for each witness, and the dollar value of Plaintiffs claim after adjusting for 
disallowed amounts. The bottom row provides a grand total for the major categories. 
- 111. 
1. 
Plaintiffs Claimed Fees And Expenses Require Adjustment Because They 
Are Excessive And, In Several Cases, Unproven 
Defendants set forth below their objections to the fees and expenses Plaintiffs have 
claimed in connection with the deposition of each of their expert witnesses. For ease of 
reference, Defendants will address each objection, witness by witness. 
Richard Fasold 
Mr. Fasold appeared for deposition on March 21,2003. According to the transcript, his 
deposition commenced about 9:30 a.m. and concluded shortly before 5:OO p.m., with a break for 
lunch.4 For this one day of deposition. Mr. Fasold submitted an invoice totaling $14,416.77. 
That invoice includes charges of $1,000 per hour for the time spent in deposition, and $500 per 
hour for exactly six hours travel to Washington and back home. It includes $402.47 for - not one 
- but two nights of lodging, while other receipts for his trip clearly indicate that Mr. Fasold 
All deposition times cited in this response are based on the time entries made by the 
stenographer on the record for each session. 
6 remained in Washington for several more days, presumably at Plaintiffs request5 For example, 
his bill includes $1 14.30 in charges for two dinners.6 
Mr. Fasolds Rate Is Unreasonable 
Some of Mr. Fasolds Expenses Are Unreasonable 
A. 
A professional fee of $1,000 per hour for deposition testimony and a base rate of $500 per 
hour is unconscionable. Mr. Fasold testified at trial that he is a business partner and friend of 
Plaintiffs lead counsel, Dennis Gingold. He claims his customary rate is $500 per hour, but that 
he doubles the rate for time spent testifying. Phase 1.5 Trial Tr., May 14,2003 a.m., at 71:21- 
72:9 (R. Fasold) (attached at Exhibit 2). Although Mr. Fasold is surely overpaid at $500 an hour, 
Mr. Fasold did charge his stated rate for travel time within the limits agreed to by Defendants last 
March, so Defendants do not object here to paying $500 per hour for travel. Defendants do, 
however, object to paying anything more for his time spent in deposition. &, s, Frederick, 
212 F.R.D. at 177 (exorbitant $975 hourly deposition fee for toxicologist reduced to $375); Edin 
v. Paul Revere Life Ins. Co., 188 F.R.D. 543, 547 (D. Ariz. 1999) (refusing to condone under 
Rule 26 an extortionist practice of charging multiples of usual rate for testimony). 
B. 
The records submitted by Plaintiffs indicate that Mr. Fasold traveled to Washington 
several days early, presumably to observe depositions of other expert witnesses. Given that Mr. 
Fasolds own deposition was completed by 5:OO p.m. on March 21, it is not reasonable to ask 
Defendants did not request Mr. Fasolds presence beyond his own deposition. 
Based upon the receipts for the meals, it also appears that Mr. Fasold dined with another party 
and then simply billed for one-half the amount of the total. Defendants cannot confimi whether 
the bills reflect the actual cost of Mr. Fasolds meal or whether the amount claimed would 
subsidize the meals of Mr. Fasolds guest. 
7 Defendants to pay for any of Mr. Fasolds lodging or meals after his own deposition concluded. 
At that time, as far as Defendants were concerned, he was free to return home. The charge for 
his second night of lodging and second dinner should be disallowed as unreasonable. 
2. John Wright 
John Wrights deposition was held on March 13,2003. It began at about 1O:lO a.m. and 
ended shortly after 3:00, for a total duration just shy of five hours, including all breaks. Mr. 
Wrights bill for this part-day deposition is $8,848.23. Although Plaintiffs counsel agreed that 
experts would not bill travel time in excess of six hours in either direction, Mr. Wright billed a 
total of 13.3 hours for his trip to Washington and return travel home, exceeding the agreed 
ceiling. Although the transcript shows that the deposition took less than five hours to complete, 
Mr. Wright billed for 5.4 hours. The time exceeding five hours is also unreasonable. 
Once he amved in Washington, Mr. Wright treated himself to a $325 (plus taxes) per 
night room at the Willard Hotel, one of the priciest hotels in Washington. Although his 
deposition took less than five hours and was finished by three oclock, Plaintiffs seek to recover 
three days lodging at the Willard. His hotel bill includes over $100 in what appear to be charges 
fiom the hotels lobby bar.7 His invoice includes a $139 dinner at the Oceanaire restaurant and an 
additional $230 unexplained charge from his travel agent. 
Defendants do not object to paying for one night of lodging and related meals, if billed at 
a reasonable amount. Defendants do object, however, to lavish spending on premium hotels, 
exclusive restaurants, and for more than one day of accommodations. The Willard room was 
The Willard hotel bill lists three charges from Round Robin Beverage. When contacted to 
explain the reference, the hotel identified it as being the lobby bar. The hotels web site also 
gives a similar description. 
8 $325 a night plus taxes; by comparison the government per diem for Washington, D.C. is $200 
per day for all meals and lodging. Defendants acknowledge that it may not be possible for non- 
government contractors to obtain government rates, but when an opposing expert consciously 
chooses premium accommodations, the taxpayers should not be compelled to underwrite the 
frivolity. Defendants, therefore, object to paying more than $200 per night for lodging and more 
than $50 for a dinner. 
3. Landy Stinnett 
Mr. Stinnetts Hours Are Wildly Overstated A. 
Mr. Stinnett appeared for deposition on March 18,2002. It began at 9:55 a.m. and ended 
by 1 :49 p-m., for a total duration of less than four hours including all breaks. Plaintiffs have 
presented a bill of $5,368.77 in connection with this brief deposition. Although the deposition 
lasted less than four hours, Mr. Stinnett has billed time of twenty-four hours. The bill lists a 
charge of four hours of travel each way, plus a full eight-hour day for preparation in 
Washington the day before his deposition, plus eight hours of time for less than four hours of 
testimony. Such exorbitant billing is patentIy unreasonable and not reimbursable under Rule 26. 
Defendants do not object to the travel time billed or to four hours for deposition time, but do 
object to all other billed time as excessive. 
Although there does not appear to be a set rule in this district concerning whether 
preparation time is a reasonable charge under Rule 26, the better view is not to authorize it. 
Some courts have disallowed such fees absent compelling circumstances, while others have 
allowed some preparation time in the belief that a deposition should proceed more efficiently 
when the expert has refreshed his recollection. See Magee, 172 F.R.D. at 646 (listing cases on 
9 both sides); compare M.T. McBrian. Inc. v. Liebert Corp., 173 F.R.D. 491 (N.D. 111. 1997) (no 
preparation fee allowed for contract case) y& S.A. Healv Co. v. Milwaukee MetroDolitan 
Sewerage Dist., 154 F.R.D. 212, 214 (E.D. Wis. 1994) (testimony required review of one 
hundred schedules attached to expert report). The better approach is to prohibit recovery of such 
costs absent clear proof that the expert had to undertake specific work to ready himself for 
examination. In this case, no such independent work should have been necessary - each expert 
had submitted his report just two to three weeks prior to his deposition. In Mr. Stinnetts case, 
his expert report was only four pages long. 
More important, authorizing recovery for preparation time opens the door to abuse. It 
tempts adversaries to charge for time that the expert actually spent working with the attorney who 
will defend his deposition. Defendants note that the full eight hours Mr. Stinnett charged for 
preparation occurred after he traveled to Washington for the deposition, suggesting that this 
time was likely far more beneficial to Plaintiffs counsel than to Defendants. Courts have 
refused the invitation to shift the cost of conference time with defending counsel to the deposing 
party. See Magee, 172 F.R.D. at 647 (approving of some reasonable preparation time for expert 
but not that billed for time preparing the attorney who retained him). Thus, Defendants object 
to paying more than 12 hours for Mr. Stinnetts time (8 hours travel and 4 hours in deposition).* 
 Should the Court determine that reasonable preparation time is recoverable, Defendants ask the 
Court to permit Defendants to amend their compensation claim to include preparation time spent 
by Defendants own experts prior to deposition. Presently, Defendants do not include such 
charges in calculating the amount of setoff to which Defendants are entitled. Preliminary inquiry 
indicates that if such preparation time were included, it would add approximately $13,500 to 
Defendants reimbursement claim because of the depositions of Edward Angel (42.5 preparation 
hours at $105 per hour); Alan Newel1 (34 preparation hours for two deposition days at $150 per 
hour); and Dr. David Lasater (7.9 preparation hours for two deposition sessions at $500 per 
hour). 
10 B. Expenses Relating To Mr. Stinnetts Travel Are Unsubstantiated 
Plaintiffs also seek compensation for related expenses in the amount of $1,768.77. The 
bill from Pincock Allen & Holt, Mr. Stinnetts employer, merely lists two dollar figures, 
$1,110.77 for Expenses and $658.00 with a label of American Express without explanation. 
No receipts or other proof of the expenses have been provided. None of the papers Plaintiffs 
submitted to Defendants or to the Court (with the motion) prove that these expenses were 
incurred. Without receipts or other explanation to demonstrate these costs were actually incurred 
and are reasonable, Defendants cannot properly be asked to pay them. Defendants, thus, object 
to all expenses listed by Plaintiffs in connection with Mr. Stinnetts deposition. 
4. Paul M. Homan 
Paul Homan appeared for deposition on April 9,2003. His deposition commenced at 
10:06 a.m. and concluded at 5:03 p.m., for a total duration of 7.2 hours, including all recesses. 
Plaintiffs, however, seek to recover expert fees for twenty-five hours. At a billable rate of $500 
per hour, the total charge Plaintiffs seek to impose is $12,500 for less than one full eight-hour 
day of deposition. If approved, Plaintiffs demand would ratchet Mr. Homans effective rate up 
to more than $1,700 per hour of deposition. The amount they seek is patently unreasonable. 
As noted above with respect to Mr. Stinnetts bill, it is not prudent to allow a party to 
charge its adversary for the experts preparation in this case. Mr. Homan testified on April 9, a 
scant 10 days after he completed his expert report. The material, therefore, should have been 
completely fresh in his mind. Mr. Homans deposition revealed also that much of the material in 
his report was merely a rehash of the strategic plan he submitted to Congress while Special 
Trustee, see generally Homan Deposition Tr. at 58-61(April9,2003) (attached at Exhibit 3), 
11 afong with some more current observations he had included in testimony to Congress. So, there 
was not much of anything new that Mr. Homan needed to review before his deposition. Only 
the fee for his actual time in deposition should be recoverable. 
Matthew Gabriel 5. 
Matthew Gabriels only deposition, held on March 1 1, 2003, was brief - it lasted a mere 
three hours and twenty-three minutes; it was the second expert deposition that day, and ended at 
4 5 8 p.m.. The bill presented by Plaintiffs totals $4,227.36. This bill reflects 21.6 hours of 
billable time: 2.3 hours of billable time for meeting with Plaintiffs counsel for a briefing on 
disposition [sic], 12.4 hours of round-trip travel time, and 3.5 hours of time billed, not for Mr. 
Gabriels own deposition, but for observing the McQuillan deposition earlier in the day. If 
Plaintiffs counsel desire to confer with their expert to be briefed on his expected testimony, 
that is their prerogative, but it should not be at Defendants expense. l o Likewise, if an expert 
wants to watch another deposition, the time he devotes to that activity is not properly chargeable 
to his adversary; it is for his own benefit and for his own clients account. 
Mr. Gabriels invoice reflects expenses of $1,527.36, including $1,038 for airfare, 
$342.36 for hotels and $1 12.45 for cabs. While most of the charges appear reasonable, the hotel 
Although Defendants will not here contest whether a fee of $500 per hour for Mr. Homan is 
reasonable, the rate is unquestionably expensive. His high price should be considered as a factor 
against allowing recovery for any preparation time. Defendants submit that his high hourly rate 
already reflects his preparation - years as a bank regulator and Special Trustee. 
E? The same arguments that militate against recovery of preparation time for Messrs. Stinnett 
and Homan, above, apply even more strongly here. The time billed was expressly for meeting 
with Plaintiffs counsel, which should not be recoverable even if other preparation work were 
allowed. 
12 charge appears excessive. As noted above, Defendants should not be required to pay more than 
$200 per night for lodging, so the expenses require an adjustment of $142.36. 
Alan McQuillan 6. 
Professor McQuillan appeared for a brief deposition on the morning of March 1 1,2003. 
The deposition commenced at 9:40 a.m. and concluded by 12: 15 p.m., for a total elapsed time of 
two hours and thirty-five minutes. According to the text of Plaintiffs motion, the fees and 
expenses relating to this brief deposition total $5,907.57. Not one piece of paper submitted with 
Plaintiffs motion shows that these charges are reasonable. Indeed, it is not even clear whether 
Plaintiffs mean to claim any fee or expenses for the professor. Their proposed order makes no 
mention of Professor McQuillan and proposes no recovery in connection with his deposition. 
Having failed to substantiate any charges relating to the McQuillan deposition or to propose an 
amount for them in their form of order, Plaintiffs are entitled to no reimbursement in connection 
with the McQuillan deposition. 
7. Dwight J. Duncan 
Dwight Duncan played two roles in discovery: he gave an expert report as an affirmative 
expert and a report as a rebuttal expert for Plaintiffs. In connection with his affirmative case role, 
Plaintiffs seek payment of $13,284.19, and for his rebuttal deposition, Plaintiffs demand 
$6,437.30. Plaintiffs agreed to produce Mr. Duncan for a day of deposition on March 19,2003, 
at 9:30 a.m. When that day arrived, however, the witness advised that he had to leave by mid- 
afternoon in order to travel home. Defendants accommodated Mr. Duncans personal schedule 
Plaintiffs appear to rely entirely upon a summary memorandum sheet prepared by Plaintiffs, 
office assistant, but that sheet merely lists a total for Professor McQuillan. 
13 by allowing Mr. Duncan to recess his deposition on March 19 and to complete it on March 25, 
2003. Plaintiffs now seek to have Defendants pay for both of his trips, including double the 
amount of billable travel time (a total of twenty-four hours), or $6,000 just for travel fees. In 
addition, Plaintiffs want Defendants to foot the bill for all expenses in connection with Mr. 
Duncans two trips for one day of deposition, including two round-trip airfare charges of $2,264 
and two hotel stays at more than $350 per night. These multiple charges for travel expenses 
are patently unreasonable, and each expense is excessive by itself.* 
Defendants have similar objections concerning Mr. Duncans travel expenses for his 
rebuttal deposition in April. That deposition was held on April 8,2003, and was concluded in 
little more than ninety minutes. Mr. Duncans fees and expenses, however, total $6,437.30. 
Again, there is an excessive $2,264 airfare, and this time, not one, but two hotel nights, at a cost 
of $659.96. By any standard of reasonableness, these expenses are plainly excessive, especially 
when the deposition was over before 11 :00 a.m.. Defendants object to paying for more than one 
night of accommodations for each deposition round, and to paying hotel costs in excess of $200 
per night. Likewise, his exorbitant airfare should be reduced by one-half, to bring it in line with 
what other experts charged. 
Plaintiffs Claimed Fees And Expenses Should Be Limited To $38.059 8. 
Defendants should not be made to bear the cost of lavish travel accommodations or extra 
costs associated with an experts personal schedule or other interests. These costs, if actually 
The airfare for each of Mr. Duncans trips appears to be excessive on its face. Each ticket is 
more than twice that incurred by any of Plaintiffs other experts. Plaintiffs did not provide a 
copy of any travel receipt for Mr. Duncan, so Defendants question whether Mr. Duncan traveled 
on first class tickets. If so, the charges are clearly excessive. 
14 incurred, should be borne by Plaintiffs. Second, Plaintiffs are not entitled to be reimbursed for 
costs that they cannot substantiate by a receipt or similar transaction record. No compensation 
should be allowed for hours that are padded or fees that are excessive. 
When excessive costs and fees are eliminated and unsubstantiated charges are ignored, 
the amount of reimbursement to which Plaintiffs are legitimately entitled is substantially less 
than the amount they seek. Table A represents a summary of Defendants adjustments to 
Plaintiffs claimed amounts. Plaintiffs claim reimbursable fees and expenses of $70,990. After 
all of the adjustments set forth above are made, that number falls to $38,058.79. The analysis, 
however, cannot end there. Like Plaintiffs, Defendants also produced several experts for 
deposition at Plaintiffs behest. Because Defendants are entitled to reimbursement of reasonable 
fees and expenses of these depositions under Rule 26, these amounts should be setoff against 
whatever amount the Court determines that Plaintiffs are entitled to recover. That final 
adjustment is addressed in the next section. 
IV. Defendants Are Entitled To A Setoff As Reimbursement For 
Plaintiffs Deposition Of Defendants Experts 
Plaintiffs took four discovery depositions of Defendants experts. Edward Angel 
appeared on March 17,2003 for 6.5 hours of examination. Alan Newcll appeared for almost 
two days of deposition, on March 20, 2003 for 7.9 hours, and again on April 28, with 4.S more 
hours of examination. Plaintiffs deposed Dr. David Lasater twice, once as an affirmative witness 
and later in his role as a rebuttal witness. Dr. Lasater appeared on March 12, 2003 for 7.2 hours 
of deposition and on April 8,2003 for 5 hours of deposition. 
Based on the contract rates at which each of these experts charges the governlent, the 
fees associated with each witnesss testimony are siniple to compute. Defendants are making no 
15 claim for reimbursement of any fees relating to travel time. Defendants also submit that no fees 
should be charged by either side for so-called preparation time in this case, and so none is 
included here. Based on the deposition time noted by the court reporter and each experts 
contract rate,13 Defendants request reimbursement for expert fees in the following amounts: 
Expert Witness 
Edward Angel 
David Lasater 
Alan Newell 
Total Cost 
$ 682.50 
$ 5,600.00 
$ 1,905.00 
$ 8,187.50 
With respect to travel expenses, only Mr. Newell and Dr. Lasater reside outside the 
Washington area. The record of expenses relating to these witnesses travel are attached at 
Exhibits 5 and 6, submitted herewith. The total expenses for Mr. Newells travel (two separate 
days of deposition at Plaintiffs request) are $2,704.23, and $ 1,386.40 for Dr. Lasaters two 
deposition^.'^ Thus, the total amount of reimbursement due Defendants is $12,278.13. This is 
the same amount that should be sct off against the reasonable reimbursement due Plaintiffs. After 
all adjustments are made, Plaintiffs are due a payment of $25,780.66 from Defendants. 
gDocumentation showing each experts professional rates and, where applicable, related travel 
expenses are attached at Exhibits 4, 5 and 6. 
3Note that some expenses documented for Defendants experts may exceed the amount(s) for 
which reimbursement is sought here. The difference reflects an adjustment to conform charges 
to Defendants position on reasonable reimbursement rates for lodging, meals and airfare. 
Should the Court determine, however, that preparation time should be recouped, Defendants 
would request additional reimbursement presently estimated at $I 3,500, for a total setoff of 
Deposition Hours Professional Rate 
$105 6.5 
$500 11.2 
$150 12.7 
Grand Total (Fees): 
around $26,278. See supra note 8. 
16 Dated: October 24,2003 
CONCLUSION 
For these reasons, Defendant's motion for a protective order concerning expert witness 
fees should be denied. Instead, the Court should order Defendants to pay, and Plaintiffs to accept, 
a payment of $25,780.66, representing the net amount due for fees and expenses of all expert 
depositions conducted by either side in connection with discovery during Phase 1.5. 
Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
SANDRA P. SPOMER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
MICHAEL J. Q U I " 
D.C. Bar No. 401376 
Trial Attorney 
Conimercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
17 THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, 3 &, 
Plaint i ffs, 
v. Case No. 1 :96CV01285 
(Judge Lamberth) 
GALE A. NORTON, Secretary of the Interior, al.,) 
) 
1 
) 
) 
) 
) 
1 
1 Defendants. 
sum of $25,780.66; and it is further 
ORDER 
Upon consideration of Plaintiffs' Motion for a Protective Order Requiring Defendants to 
Pay Plaintiffs' Expert Deposition Fees and Expenses, Defendants' opposition thereto and request 
for setoff, and the entire record herein, it is hereby 
ORDERED, that both Plaintiffs and Defendants are entitled to recover the reasonable 
expenses relating to the production of their respective experts for deposition during discovery for 
trial phase 1.5, and that after all such reasonable expenses are calculated, Plaintiffs are due a net 
ORDERED, that Defendants' shall pay to Plaintiffs, within twenty (20) days of this order 
Twenty-five Thousand Sewn Hundred Eighty dollars and Sixty-six cents ($25,780.66) to 
reimburse them for the reasonable costs of presenting their experts for deposition, net of all 
reasonable setoff to compensate Defendants' for their corresponding reasonable expenses of 
producing their experts for deposition during trial phase 1.5; and it is further 
ORDERED that Plaintiffs motion for a protective order is denied as MOOT. day of ,2003. SO ORDERED this 
ROYCE C. LAMBERTH 
United States District Judge 
2 cc: 
Sandra P. Spooner 
John T. Stemplewicz 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Fax (202) 514-9163 
Dennis M Gingold, Esq. 
Mark Brown, Esq. 
1275 Pennsylvania Avenue, N.W. 
Ninth Floor 
Washington, D.C. 20004 
Fax (202) 3 18-2372 
Keith Harper, Esq. 
Richard A. Guest, Esq. 
Native American Rights Fund 
1712 N Street, NW 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530 CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on October 24,2003 I served the foregoing 
Defendants  Opposition to Pluintiffs  Motion for u Protective Order Requiring Defendants to 
Puy Plainti&  Expert Deposition Fees and Expenses by facsimile in accordance with their 
written request of October 3 1,2001 upon: 
Keith Harper, Esq. 
Richard A. Guest, Esq. 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 822-0068 
Per the Courts Order of April 17,2003, 
by facsimile and by U S . Mail upon: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 5941 7 
(406) 338-7530 
Dennis M. Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, hW, Box 6 
Washington, D.C. 20005 
(202) 3 18-2372 
By U.S. Mail upon: 
Elliott Levitas, Esq 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Kevin P. ngston