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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

MICHAEL ASBERRY,

Plaintiff,

v.

CITY OF SACRAMENTO, DOES 1-20

inclusive,

Defendants.

CIV. S-04-2467 LKK PAN

ORDER 

—NFN—

The Honorable Lawrence K. Karlton has extended the

discovery deadline to permit this court’s consideration of

plaintiff’s motion to establish a reasonable expert witness fee.

The parties have filed a joint stipulation pursuant to E.

D. Cal. L. R. 37-251. As oral argument is unnecessary to resolve

this matter, the hearing scheduled for September 21, 2005, is

vacated.

On August 17, 2005, defendant disclosed as one of its

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experts Jay M. Finkelman, Ph.D., Interim Systemwide Dean,

Professor and Program Director of Alliant International

University’s California School of Organization Studies. Dr.

Finkleman is an expert on employment practices and policies who

charges “a minimum fee of $2000.00 for deposition or courtroom

testimony up to 4 hours; $475.00 per hour thereafter.” 

Defendant’s August 17, 2005, Disclosure of Expert Witnesses, at

pp. 1-2. Mr. Finkleman’s hourly rate to his client for

consulting and document review is $325.00. Id. For depositions

taken outside of Los Angeles, Mr. Finkleman’s place of business,

he “has a minimum fee of $2900 per day for up to six hours of

deposition testimony, $475 per hour thereafter, plus travel time

and expenses.” Defendant’s August 23, 2005 Letter to plaintiff’s

counsel, at pp. 1-2.

The parties resolved that plaintiff would depose Dr.

Finkleman in San Francisco on Friday, September 23, 2005, at 3:30

p.m., for a period of 60 to 90 minutes, following Mr. Finkleman’s

attendance at a board of directors meeting at Alliant

University’s headquarters. Thus, plaintiff is not required to

pay Mr. Finkleman’s travel expenses or time devoted thereto. 

However, Mr. Finkleman insists on a flat fee of $2000 paid prior

to commencing his deposition. Plaintiff contends he should be

required to pay Mr. Finkleman no more than $325 per hour of

deposition.

Upon a showing of “good cause,” Fed. R. Civ. P. 26(c)

authorizes a court to protect a party from undue expense in

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discovery. Expert fees must be “reasonable,” as provided by Fed.

R. Civ. P. 26(b)(4)(C):

Unless manifest injustice would result, (I) the court shall

require that the party seeking discovery pay the expert a

reasonable fee for time spent in responding to discovery

under this subdivision; and (ii) with respect to discovery

obtained under subdivision (b)(4)(B) of this rule [includes

depositions] the court shall require the party seeking

discovery to pay the other party a fair portion of the fees

and expenses reasonably incurred by the latter party in

obtaining facts and opinions from the expert. 

“What constitutes a ‘reasonable fee’ for purposes of Rule

26(b)(4)(C) lies within the Court’s sound discretion.” Edin v.

The Paul Revere Life Insurance Company, 188 F.R.D. 543, 545 (D.

Ariz. 1999) (noting lack of Ninth Circuit authority and citing 8

Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure, Civil 2d, § 2034 at 469-470 (2d ed. 1994)). “[T]hose

cases addressing the issue have set forth seven factors to

consider in determining the reasonableness of a fee: (1) the

witness’s area of expertise; (2) the education and training

required to provide the expert insight which is sought; (3) the

prevailing rates of other comparably respected available experts;

(4) the nature, quality, and complexity of the discovery

responses provided; (5) the fee actually charged to the party who

retained the expert; (6) fees traditionally charged by the expert

on related matters; and (7) any other factor likely to assist the

court in balancing the interests implicated by Rule 26.” Edin,

188 F.R.D. at 546. 

Dr. Finkleman holds a Ph.D. in Industrial/Organizational Psychology and an M.B.A. in Industrial Psychology. He is

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licensed as an Industrial and Forensic Psychologist and is a

Certified Professional Ergonomist. He is widely experienced and

recognized as a professor, academic dean, manager and consultant. 

He is also a litigation expert–he has been retained over two

hundred times, deposed over one hundred times and has testified

at thirty trials. 

The discovery at issue requires Dr. Finkleman’s

professional opinion whether defendant’s articulated reason for

terminating plaintiff–failure to disclose his prior felony

convictions–was pretextual in light of plaintiff’s successful

discrimination suit against defendant. Dr. Finkleman’s opinion

will depend upon the facts relevant to plaintiff’s tenure with

defendant as well the tenure of defendant’s other employees with

criminal records. Dr. Finkelman’s expertise in ergonomics is not

relevant to the issues presented in this case, which are neither

technical nor particularly complex. Rather, Dr. Finkelman is

relied upon to assess all the facts of this case and determine

what individual and institutional assessments led to plaintiff’s

second termination. 

Plaintiff has submitted the resumes of four individuals

whose expertise he asserts is comparable to that of Dr.

Finkelman: (1) Carolyn Langenkamp, a local attorney and forensic

expert in employment law, including discrimination and

retaliation claims, whose hourly rate is $250; (2) Jan Duffy, an

attorney and consultant in employment and management matters,

including discrimination and retaliation, who has offices in San

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Francisco and London and an extensive record of academic

achievements, publications and speaking engagements, whose hourly

rate is $400 to $450; (3) Craig Pratt, who holds an M.S.W. in

Administration and has been a forensic expert in human resources

management in 550 state and federal cases and 50 trials, whose

hourly rate is $300; and (4) Brian K. Kleiner, Ph.D., M.B.A., a

professor of Human Resource Management at California State

University, Fullerton who has provided consulting services to

more than 100 organizations and expert testimony in over 40

trials, whose hourly rate is $295.

The court finds the expertise of these individuals

comparable to that of Mr. Finkelman as required by the facts of

this case. Imposition of a flat fee is unreasonable under these

circumstances. “Because a flat rate fee by its nature assumes

that the expert will devote an approximately equal amount of time

and skill for one event as another, the Court must examine the

proposition with respect to the particular case in front of it to

see if there is a rational basis for such a fee. . . . Some

[depositions] may last an hour, some may last days. For this

reason, a flat rate fee is not normally reasonable.” Massasoit

v. Carter, 227 F.R.D. 264, 267 (M.D.N.C. 2005). Plaintiff has

agreed to meet Mr. Finkelman at the end of a business day for no

more than two hours. This limited time frame together with Mr.

Finkelman’s ability to pursue his normal course of business until

mid-afternoon renders a flat fee unreasonable. 

////

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I conclude the reasonable fee for Mr. Finkelman’s

deposition is $325 per hour, the rate he charges his client for

consulting and document review. 

Accordingly, plaintiff’s motion is granted. Prior to

commencing Mr. Finkelman’s deposition, plaintiff shall pay Mr.

Finkelman $325 for the first hour of questioning; should the

deposition exceed one hour, plaintiff shall pay Mr. Finkelman at

the conclusion of the deposition the proportionate amount due.

So ordered.

Dated: September 21, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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