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Wing Enterprises, Inc. v. Tricam Industries, Inc.

United States District Court, D. Minnesota

February 11, 2019

Wing Enterprises, Inc. d/b/a Little Giant Ladder Systems, Plaintiff,
Tricam Industries, Inc., Defendant.



         This 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.

         I. BACKGROUND

         Tricam 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.)

         On 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.)

         Mr. 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 hours.”[1] (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 chart:





Oct 20 - 21, 2018

Review file in advance of travel



Oct 22, 2018

Travel to Minneapolis


$1, 625.00

Oct 22, 2018

Meeting to prepare for [deposition] and additional file review


$1, 787.50

Oct 23, 2018

Deposition as requested by Att'y Hales.


$2, 925.00

Oct 23, 2018

Return travel to Philadelphia


$1, 787.50


         Tricam's 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.)

         Tricam 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. No. 148.)


         Federal 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. Id.

         Courts 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 ...

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