Page 1 of 4

 THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

THE BARTRAM, LLC,

a Delaware limited liability company,

Plaintiff,

v. CASE NO. 1:10-cv-00028-SPM-GRJ

LANDMARK AMERICAN INSURANCE

COMPANY, an Oklahoma corporation, 

ROCKHILL INSURANCE COMPANY, 

an Arizona corporation, and 

WESTCHESTER SURPLUS LINES 

INSURANCE COMPANY, a Georgia 

corporation,

Defendants.

_____________________________/

O R D E R

The matter is before the Court on Plaintiff’s Motion To Compel Defendants To

Produce Documents/Information Trial Experts Considered And To Prevent Defendants 

From Conditioning Deposition Of Their Trial Experts On Retainers. (Doc. 76.)

Defendants have filed a response (Doc. 78) and, therefore, the motion is ripe for

consideration. 

Plaintiff requests the Court to enter an order: (i) compelling Defendants to

produce the documents and information that Defendants’ trial experts utilized in

reaching their opinions; and (ii) permitting the depositions of Defendants’ trial experts to

go forward without requiring prepayment of a retainer by Plaintiff before the depositions

commence. In their Response Defendants represent that on February 8, 2011 counsel

served copies of the requested documents and information as well as privilege logs
Page 2 of 4

upon Plaintiff’s counsel. Accordingly, that part of Plaintiff’s motion is no longer in issue.

Turning to the remaining issue of whether Defendants’ experts may condition

their appearance for deposition upon prepayment of their fees, the starting point is the

applicable rule. Rule 26(b)(4)(E) of the Federal Rules of Civil Procedure provides in

relevant part that: [U]nless manifest justice would result, the court must require that the

party seeking discovery: ... (i) pay the expert a reasonable fee for time spent in

responding [to discovery] ..” The Rule is silent as to whether the party seeking

discovery from the opposing party’s expert witness must pre-pay the expert’s fee. The

plain language of the Rule is, however, instructive. The Rule provides that the party

deposing the expert must reimburse the expert for the “time spent” in responding to

discovery. The Rule thus contemplates payment for services that have occurred and

not for services that will take place – absent of course a situation which would result in

manifest injustice. As such, the Rule contemplates payment after the services have

been incurred. Indeed, that is the only way the Rule would make sense. Logic dictates

that until the deposition is completed the party responsible for payment would not know

how much to pay. Conceivably, requiring a prepayment could result in an overpayment

if the deposition only lasted a short period of time. 

While there is a dearth of case law addressing the issue the few courts which

have addressed the issue have concluded the expert’s fee does not have to be paid in

advance. See, e.g., Harris v. Costco Wholesale Corp., 226 F.R.D. 675, 676 (S.D. Cal.

2005)(internal citations omitted)(“The rule does not state, however, that the expert’s

fees must be paid in advance of the deposition absent agreement to do so. To the

contrary, ‘unlike ordinary witness fees, no rule requires that an opposing expert’s

Case No: 1:10-cv-00028-SPM -GRJ
Page 3 of 4

deposition fees be tendered to the witness in advance ...’”). 

Accordingly, consistent with the plain wording of the Rule and consistent with the

case law on this issue, the Court concludes that Plaintiff is not required to pay

Defendants’ expert witnesses in advance of their depositions. Plaintiff, of course, is

required to reimburse Defendants’ expert witnesses a reasonable fee for their time 1

spent during their depositions and time spent preparing for their depositions. 

2

In light of the foregoing, it is ORDERED that:

(1) Plaintiff’s Motion To Compel Defendants To Produce

Documents/Information Trial Experts Considered And To Prevent

Defendants From Conditioning Deposition Of Their Trial Experts On

Retainers (Doc. 76) is GRANTED. 

(2) To the extent that Defendants have not already done so Defendants shall

promptly provide Plaintiff with the documentation of Defendants’ trial

experts requested by Plaintiff in its subpoenas previously served. 

(3) Plaintiff shall not be required to pay Defendants’ experts in advance of

their depositions but instead shall be required to pay the expert’s fees

after the conclusion of the depositions and within the time frame for

Although there does not appear to be any dispute about the hourly rate charged by Defendants’

1

experts, what constitutes a “reasonable fee is within the discretion of the Court. Putnal v. Guardian Life

Ins. Co. of America, 2005 W L 3532381 (M.D. Ga. 2005). The fee being charged to the party who retained

the expert and the fees traditionally charged by experts on related matters, should be considered in setting

a reasonable fee. Goldwater v. Postmaster General of U.S., 136 F.R.D. 337 (D .Conn. 1991); New York v.

Solvent Chemical Co., Inc., 210 F.R.d. 462, 468 (W.D.N.Y. 2002).

W hile the Rule does not expressly state whether an expert’s time preparing for a deposition is

2

“time spent in responding to discovery” the clear trend is that expert witnesses may be entitled to at least

some compensation for time spent in preparation for a deposition, particularly if the expert is testifying in a

complex case. See, e.g. Collins v. Village of W oodridge, 197 F.R.d. 354 (N.D. Ill. 1999); Boos v. Prison

health Services, 212 F.R.D. 578 (D. Kan. 2002).

Case No: 1:10-cv-00028-SPM -GRJ
Page 4 of 4

payment consistent with the agreement for payment entered into between

Defendants and their experts

DONE AND ORDERED this 16 day of February, 2011. 

th

s/ Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

Case No: 1:10-cv-00028-SPM -GRJ