Because City does not quarrel with Skoog’s $290 hourly 1

rate, this memorandum opinion and order will address only the

time-related dispute.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Daniel Waters, )

)

Plaintiff, )

)

v. ) No. 02 C 4762

)

City of Chicago, )

Defendant.

MEMORANDUM OPINION AND ORDER

Among the numerous issues on which the litigants have

crossed swords, the most recent has to do with the appropriate

application of Fed.R.Civ.P. (“Rule”) 26(b)(4)(C), which requires

a party--in this case the City of Chicago (“City”)--to “pay the

expert a reasonable fee for time spent in responding to

discovery.” When City chose to take the deposition of Gary

Skoog (“Skoog”), the opinion witness who was retained by Daniel

Waters (“Waters”) to provide testimony as to his claimed damages,

Skoog itemized his expenditure of 12.87 hours as his “time spent

in responding to discovery”--and at $290 per hour that amounts 1

to a total fee of approximately $3,731. As City would have it,

however, Skoog is not entitled to be paid for his preparation

time and travel time--only for 4.32 hours attributable to the

deposition time itself, for a total fee of $1,252.80.
2

There are mixed judicial rulings on this subject--see the

discussions in 8 Wright, Miller & Marcus, Federal Practice &

Procedure: Civil 2d § 2034 at 471 (2d ed. 1994) [hereafter cited

“Wright & Miller”]and 6 Moore’s Federal Practice § 26.80 [3] at

26-236.11 to 26-236.13 (3d ed. 2007). Although City says that

only one reported opinion by one of this Court’s colleagues--the

thoughtful treatment by Honorable Matthew Kennelly in Collins v.

Village of Woodridge, 197 F.R.D. 354 (N.D. Ill. 1999)--supports

Waters’ position, the citations in Wright & Miller to and

including its 2007 pocket part reflect that the majority view in

cases decided around the country is that preparation time of the

sort challenged by City is compensable. This Court comes down on

the same side of the issue, in substantial part for a reason that

City’s counsel has failed to grasp.

This Court frequently reminds counsel in cases before it

that an important consequence of the Rule 26(a)(2)(B) and (C)

requirement of a comprehensive report from every opinion witness

who is expected to testify is that the witness’ trial testimony

is circumscribed by that report. Indeed, the Advisory Committee

Note to the 1993 amendments that introduced the present form of

that requirement, coupled with creating the potential for

deposing such persons, expressly states:

Concerns regarding the expense of such depositions should be

mitigated by the fact that the expert’s fees for the

deposition will ordinarily be borne by the party taking the

deposition. The requirement under subdivision(a)(2)(B) of a
3

complete and detailed report of the expected testimony of

certain forensic experts may, moreover, eliminate the need

for some such depositions or at least reduce the length of

the depositions.

6 Wright & Miller § 2034 at 468 echos that expectation:

If, as is hoped, these disclosures serve to avoid the need

for some experts’ depositions, or at least to shorten the

depositions, that may mean that there will be fewer

occasions for payment of expert fees pursuant to Rule 26

(b)(4)(C).

It is for just that reason that this Court often calls the

attention of lawyers to the excellent article by Gregory Joseph,

Expert Approaches, 28 Litig. No. 4 at 20-22 (2002), which makes

the powerful argument that the knowledgeable lawyer, comfortable

with the realization that the expert is locked into the required

report, will not lightly take the risk of opening the door to the

opinion witness’ curing of some flaws or gaps in the report

through answers that may be invited by the deposition questions. 

Ironically, it appears that something very much along those lines

occurred here, as Skoog testified during his Dep. 16-17:

I did an extensive amount of preparation for this deposition

today in the sense of looking at the details and the

calculations and I also read the entire pension plan book

that we discussed earlier before the deposition started, and

I noted something that either escaped my attention or blew

my mind, depending on how you look at it. I’ve never seen

this before in anybody else’s pension plan. It is that if

the pensioner dies and the pensioner’s spouse then takes

over the pension at 50 percent that she does not get the 3

percent cost of living increases which the spouse was

getting, and this is very much unlike Social Security and

its very much unlike other pension plans that I’ve seen, so

if I take that into account, the calculations on the

spouse’s side get more sophisticated.
If that had been the case, any change in Skoog’s 2

calculations based on that discovery would of course have had to

be disclosed to City’s counsel in advance of trial (see Rules

26(a)(2)(C), 26(a)(3) and 26(e)(1)).

4

On that score it is unclear whether, if Skoog’s deposition had

not been taken and if he had thereafter engaged in an extensive

review (noncompensable under Rule 26(b)(4)) in preparing for his

testimony shortly before trial, he would have made the same

discovery or, if not, whether City’s counsel would even have 2

caught the error. 

This Court does not at all agree with the view of another of

its respected colleagues, Honorable Charles Norgle, that an

opinion witness’ “deposition is in part a dress rehearsal for his

testimony at trial and thus his preparation is part of trial

preparation” (Rhee v. Witco Chem. Corp. 126 F.R.D. 45, 47 (N.D.

Ill. 1989)). Instead the literal language of Rule 26(b)(4)(C),

as interpreted and applied by the cases that reflect the

prevailing view, is that a party that exercises its free choice

to depose such a witness has created a need for that witness to

prepare twice--once for the deposition and then again for his or

her trial testimony--so that no unfairness is involved in that

majority view. It may be an overstatement to characterize what

City complains of as a self-inflicted wound--but not by much. 

In sum, just as is true with awards of attorney’s fees that

take an opportunities-cost approach to the subject, all but a
5

minor portion of the time reflected by Skoog’s itemization is

compensable. This Court eliminates from Skoog’s claim only the

one hour that his time records show he spent in telephone

conversations with Waters’ counsel before the deposition. Hence

City is ordered to pay Skoog the sum of $3,441.

________________________________

Milton I. Shadur

Senior United States District Judge

Dated: December 28, 2007