United States District Court, D. Minnesota
Wing Enterprises, Inc. d/b/a Little Giant Ladder Systems, Plaintiff,
Tricam Industries, Inc., Defendant.
ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendant Tricam Industries,
Inc.'s (“Tricam” or “Defendant”)
Motion for Expert Fees (Dkt. No. 144) (“Motion”).
Tricam contends that Wing Enterprises (“Wing” or
“Plaintiff”) should pay for the travel costs
(travel time and expenses totaling just over $4, 500) for the
deposition of Tricam's expert, Jack Krafchick, P.E.,
which took place on October 23, 2018 in Minneapolis,
Minnesota. Wing contends that Tricam chose the location of
Mr. Krafchick's deposition and therefore Tricam should
bear the costs for his travel from Pennsylvania to Minnesota.
Wing also contends that Mr. Krafchick overbilled for his
deposition time because he included preparation time and
breaks. For the reasons stated below, the Motion is denied.
served Mr. Krafchick's expert report on Wing on September
19, 2018. (Dkt. No. 147 ¶ 6.) The following day,
Tricam's counsel's staff contacted Wing's counsel
to provide the availability of Tricam's experts for
depositions. (Dkt. No. 147-5, Ex. 5 at 2.) On September 21,
2018, Wing's counsel asked in response “Can you
provide locations for your experts as well as dates? Will
they all be in Minneapolis?” (Id. at 1.)
Tricam's counsel's staff responded that, of the three
experts, one deposition would be in Minneapolis, another
would be in Florida, and as to Mr. Krafchick, he “may
be out east but it's looking like it will be Minneapolis.
I haven't solidified that yet.” (Id.) Mr.
Krafchick is located near Philadelphia, Pennsylvania. (Dkt.
No. 147-1, Ex. 1.) Tricam's counsel's staff followed
up the same day, stating Mr. Krafchick “is available in
Minneapolis on Tuesday, October 23 through Thursday, October
25.” (Dkt. No. 147, Ex. 5 at 1.) On September 26, 2018,
Wing noticed Mr. Krafchick's deposition for October 23,
2018 at Tricam's counsel's offices in Minneapolis,
Minnesota. (Dkt. No. 147-2, Ex. 2 at 1.)
September 27, 2018, Tricam's counsel notified Wing's
counsel that it would not be deposing Wing's experts and
that “[p]ursuant to FRCP 26(b)(4)(E), Wing must pay
Tricam's experts for their depositions and preparation
time. . . . If we do not hear from you, we will assume that
Wing agrees and will instruct Tricam's experts to send
their invoices relating to their depositions directly to you
for payment.” (Dkt. No. 147-6, Ex. 6 at 2.) Wing's
counsel responded that he “[u]nderstood” and
“plan[s] to move forward as set forth in [the]
deposition notices and  will agree to pay for their
deposition time as well as a reasonable amount of preparation
time.” (Id. at 1.) Wing's counsel noted
that “preparation time is viewed as reasonable or
unreasonable in view of the complexity of the case and the
length of the deposition.” (Id.)
Krafchick's deposition took place as scheduled on October
23, 2018 in Minneapolis, Minnesota and commenced at 9:01 a.m.
and concluded at 5:37 p.m. (Dkt. No. 147-3, Ex. 3 at 3, 5.)
According to Wing, “[e]xcluding recesses, a lunch
break, and Tricam's redirect examination of Mr.
Krafchick, Wing deposed Mr. Krafchick for less than seven
(Dkt. No. 154 at 4.) After the deposition, Mr. Krafchick sent
an invoice to Tricam's counsel for $9, 951.00, the total
of $2, 518.75 in preparation time, $3, 412.50 in travel time,
and $2, 925 in deposition time, and $1, 094.75 in expenses
related to travel. (Dkt. No. 147-1, Ex. 1.) Mr.
Krafchick's time was itemized as shown in the following
Oct 20 - 21, 2018
Review file in advance of travel
Oct 22, 2018
Travel to Minneapolis
Oct 22, 2018
Meeting to prepare for [deposition] and additional
Oct 23, 2018
Deposition as requested by Att'y Hales.
Oct 23, 2018
Return travel to Philadelphia
counsel's staff sent Mr. Krafchick's invoice to
Wing's counsel. (Dkt. No. 147-4, Ex. 4 at 5.) Wing's
counsel responded that it would ask Wing to pay $5, 443.75,
representing “the time [Mr. Krafchick] recorded for the
deposition and preparation time.” (Id. at 4.)
He noted that “[a]lthough [Wing] take[s] issue with the
amount of preparation time [Mr. Krafchick] recorded, [Wing]
will not push back on that.” (Id.) Wing's
counsel instructed Wing to pay $5, 443.75 to Mr. Krafchick
(id.), which Wing has since paid. (Dkt. No. 155-1,
Ex. 6). The parties then went back and forth about the
remaining $4, 506.25 in travel time and expenses, eventually
reaching a stalemate in which Tricam demanded Wing pay an
additional $2000, while Wing was only willing to pay an
additional $1500. (Id. at 1-4.)
filed the present Motion on December 3, 2018, requesting that
Wing be ordered to pay the full $9, 951.00 for Mr.
Krafchick's deposition. (Dkt. No. 144.) In support of the
Motion, Mr. Krafchick filed a declaration stating (1) that he
flew from the Philadelphia International Airport to the
Minneapolis-St. Paul Airport and back on coach tickets, (2)
that he prepared for the deposition during his travel to the
Minneapolis-St. Paul Airport, and (3) that he arrived for the
deposition at approximately 8:30 the morning of the
deposition “and conferred with counsel.” (Dkt.
Rule of Civil Procedure 26(b)(4)(E) states that
“[u]nless manifest injustice 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 under Rule 26(b)(4)(A), ” which refers to
deposition of “an expert whose opinions may be
presented at trial.” Courts often
“‘permit recovery of fees for an expert's
preparation time and travel time in connection with his
deposition.'” Fee v. Great Bear Lodge of
Wisconsin Dells, LLC, No. 03-cv-3502 PAM/RLE, 2005 WL
1323162, at *3 (D. Minn. Mar. 3, 2005) (quoting
Emmenegger v. Bull Moose Tube Co., 33 F.Supp.2d
1127, 1136 (E.D. Mo. 1998) (citing cases) and citing Hose
v. Chicago & North Western Transp. Co., 154 F.R.D.
222, 228 (S.D. Iowa 1994); Hurst v. United States,
123 F.R.D. 319 (D.S.D. 1988)). “That is to say . . .
travel time [is] time spent ‘responding' to
discovery.” Handi-Craft Co. v. Action Trading,
S.A., No. 4:02 CV 1731 LMB, 2003 WL 26098543, at *16
(E.D. Mo. Nov. 25, 2003) (quoting Emmenegger, 33
F.Supp.2d at 1136). “In this manner, expenses incurred
during travel are compensable under Rule 26(b)(4)(C) so long
as they are reasonable.” Id. Courts have the
discretion to determine what costs are reasonable.
consider several non-exclusive factors in determining whether
a fee is reasonable under the rule, including:
(1) the witness's area of expertise; (2) the education
and training that is required to provide the expert insight
that is sought; (3) the prevailing rates for other comparably
respected available experts; (4) the nature, quality and
complexity of the discovery responses provided; (5) the cost
of living in the particular geographical area; (6) any other
factor likely to be of assistance to the court in balancing
the interests implicated by Rule 26; (7) the fee being