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ORDER DENYING MOTION 

FOR A PROTECTIVE ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

PETER TILTON, 

Plaintiff,

v.

THE MCGRAW-HILL COMPANIES, INC.,

et al.,

Defendants.

Case No. C06-0098RSL

ORDER DENYING MOTION 

FOR A PROTECTIVE ORDER

I. INTRODUCTION

This matter comes before the Court on a motion for a protective order filed by third party

witness Dr. Brian DesRoches, who counseled plaintiff for a period of time both before and after

publication of the relevant Business Week article. (Dkt. #41). It is undisputed that Dr.

DesRoches has relevant information. Dr. DesRoches seeks to be reimbursed for the time he

spent in his deposition. 

For the reasons set forth below, the motion is denied.

II. DISCUSSION

A. Background Facts.

Defense counsel requested to interview Dr. DesRoches, but he declined. On October 31,

2006, he received via mail a deposition subpoena and subpoena duces tecum from defendants’

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 The documents electronically filed by Dr. DesRoches’ counsel, particularly the e-mails

at Docket #52-2, are difficult to read. If necessary, counsel may contact this district’s CM/ECF

help desk for assistance in filing more legible copies in the future.

ORDER DENYING MOTION 

FOR A PROTECTIVE ORDER - 2

counsel.1 On the same day, Dr. DesRoches sent an e-mail to defense counsel confirming his

intention to appear for his deposition, scheduled for November 13, 2006 at 9:00 a.m. On

November 1, 2006, Dr. DesRoches retained counsel to represent him in the matter. The next

day, his counsel contacted defense counsel to request that the deposition be rescheduled to

accommodate her schedule. They subsequently agreed to reschedule the deposition for

November 15, 2006 at 9:00 a.m. On November 8, 2006, Plaintiff’s counsel explained that he

was unavailable on the morning of November 15.

Defense counsel and Dr. DesRoches’ counsel held a telephone conference on November

9, 2006 and agreed to begin the deposition on November 15 at noon. Dr. DesRoches’ counsel

states that during that conversation, she learned for the first time that defendants intended to

depose Dr. DesRoches for a full day. The subpoena did not list an ending time for the

deposition. Dr. DesRoches’ counsel requested that Dr. DesRoches be reimbursed for the income

he lost rescheduling two patient appointments on the afternoon of November 15.

Dr. DesRoches filed this motion on November 13, 2006. Dr. DesRoches appeared for his

deposition on November 15, 2006 and was deposed from approximately 12:15 p.m. to 7:20 p.m.,

including several breaks of unspecified duration. When defense counsel concluded the

deposition, plaintiff’s counsel requested to continue it at a later date. Dr. DesRoches does not

object to continuing the deposition to allow plaintiff’s counsel to question him.

B. Analysis.

Because Dr. DesRoches has already appeared for his deposition, some of the issues that

his counsel raises, including whether the subpoena was properly served, are now moot. Dr.

DesRoches requests that the Court order defendants to compensate him at a rate of $165 per

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 Dr. DesRoches charges his patients $110 per hour. He has not explained why he has

demanded a higher fee from defendants.

ORDER DENYING MOTION 

FOR A PROTECTIVE ORDER - 3

hour2 for his time spent in the deposition. He argues that the payment is warranted for two

reasons. First, Dr. DesRoches argues that defendants violated their duty to avoid imposing an

undue burden on him pursuant to Federal Rule of Civil Procedure 45(c)(1). He contends that

defense counsel’s conduct precluded the Court from considering his motion for a protective

order until after his deposition had occurred. However, as set forth above, Dr. DesRoches

agreed on October 31, 2006 to appear for his deposition on November 13, counsel agreed to

reschedule the deposition to accommodate his counsel, and he failed to file a motion for a

protective order until just two days prior to his deposition. Under those circumstances and given

the quickly approaching deadlines in this case, defendants did not act inappropriately in refusing

to reschedule the deposition again. Furthermore, Dr. DesRoches has not shown that he lost any

income as a result of appearing for the November 15 deposition. Although he had two patient

appointments scheduled for that afternoon, he does not dispute defendants’ argument that he was

able to reschedule both of them. While rescheduling the appointments may have been

inconvenient, it does not represent an undue burden.

Second, Dr. DesRoches argues that he is entitled to his hourly fee as an expert witness. 

Although Dr. DesRoches concedes that he was subpoenaed as a fact witness and fact witnesses

are not typically entitled to be paid an hourly fee, he argues that defendants spent a portion of

the deposition asking him about expert witness topics. Specifically, defense counsel questioned

Dr. DesRoches about the book he authored on family patterns in the workplace, and about

whether plaintiff’s conduct fits certain patterns described in his book. Certainly, the line

between an “expert” opinion and a treating counselor’s factual observations is not always clear. 

In this case, the referenced inquiries are more closely related to Dr. DesRoches’ own treatment

and knowledge of plaintiff rather than to knowledge acquired or developed in anticipation of

litigation or for trial. See, e.g., Baker v. Taco Bell Corp., 163 F.R.D. 348 (D. Colo. 1995). The

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ORDER DENYING MOTION 

FOR A PROTECTIVE ORDER - 4

brief questioning on those topics did not transform Dr. DesRoches’ deposition into an expert

deposition. Accordingly, Dr. DesRoches is not entitled to a fee other than the statutory witness

fee, which he has already received.

III. CONCLUSION

For all of the foregoing reasons, Dr. DesRoches’ motion for a protective order (Dkt. #41)

is DENIED. Dr. DesRoches’ request to be reimbursed for his time is denied. As a matter of

professional courtesy, if plaintiff’s counsel seeks to reconvene Dr. DesRoches’ deposition and

has not already done so, he must cooperate with Dr. DesRoches’ counsel to continue the

deposition on a day and time when Dr. DesRoches either does not have patient appointments

scheduled or when he can reschedule the appointments. 

 

DATED this 6th day of December, 2006.

A

Robert S. Lasnik

United States District Judge

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