If you want to depose the opposing expert, but do not want to pay the exorbitant fee demanded for a deposition, what do you do? The response is to file a motion to set the fee, as discussed in a prior post.
This topic arose again in Gustin v. Plano Molding Co. The defendant wanted to depose Plaintiff’s retained neuropsychologist James Loong, Ph.D. but argued against his fee schedule and other conditions Dr. Loong wanted to impose.
Dr. Loong initially provided to Defendant Doskocil a retainer agreement stating that he charged a rate of $800.00 per hour for evaluation and recommendation and $1,000.00 per hour for depositions. The agreement states that Dr. Loong requires pre-payment of fees. Dr. Loong subsequently provided to Defendant Doskocil an updated agreement with an increased deposition fee of $1,500.00 per hour as well as an invoice for all seven hours of his deposition time, totaling $10,500.00. Dr. Loong charged Plaintiff $800.00 per hour for work on Plaintiff’s case.
Rule 26(b)(4)(E)(I) allows for a reasonable fee, but determining what that fee is can be difficult.
In determining what constitutes a reasonable fee, courts consider factors such as “(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 geographic area, (6) the fee being charged by the expert to the party who retained him, (7) fees traditionally charged by the expert on related matters, and (8) any other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26.”
The briefing did not address all of these factors, however it provided some information. The court set Dr. Loong’s rate at $800 per hour for deposition. It then required pre-payment for two hours of time and that Dr. Loong be available for a minimum of four hours. “Finally, neither Defendant Doskocil nor its attorney are required to execute a contract with Dr. Loong regarding his deposition; rather, the Federal Rules of Civil Procedure and this Court’s orders govern the conditions under which the deposition is taken.”
 No. 2:14-cv-700, 2016 U.S. Dist. LEXIS 30115 (D. Nev. Mar. 9, 2016).
 Id. (quoting Axelson v. Hartford Ins. Co. of the Midwest, No. 2:11-cv-1827, 2013 U.S. Dist. LEXIS 43335, 2013 WL 1261757 (D. Nev. Mar. 26, 2013)).