United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
Stephanie A. Gallagher United States Magistrate Judge
Prem Mathi (“Mr. Mathi”) sued Defendant and
Third-Party Plaintiff Federal Reserve Bank of Richmond
(“Federal Reserve Bank”) for injuries allegedly
sustained as a business invitee on Federal Reserve Bank's
property in June, 2013. See [ECF No. 2]. On October
20, 2016, Federal Reserve Bank brought a third-party claim
against Third-Party Defendant Boon Edam, Inc. (“Boon
Edam”). See [ECF No. 16]. Presently pending is
the Joint Motion to Order the Reduction of C.J. Abraham's
Fee for the Taking of His Deposition (“Joint
Motion”), filed jointly by Mr. Mathi and Boon Edam.
See [ECF No. 52]. I have reviewed the Joint Motion,
Federal Reserve Bank's Response to the Joint Motion
(“Response to Joint Motion”), [ECF No. 54], and
Mr. Mathi and Boon Edam's Reply to the Response to Joint
Motion (“Reply”), [ECF No. 55]. No hearing is
necessary. See Loc. R. 105.6 (D. Md. 2016). For the
reasons set forth herein, Mr. Mathi and Boon Edam's Joint
Motion will be GRANTED.
Mathi alleged that, on June 4, 2013, while he was legally on
Federal Reserve Bank's property as a business invitee, he
was hit in the head by a revolving door. Pl.'s Compl.
¶¶ 9-12. According to the Complaint, Mr. Mathi
“incurred significant physical injuries [including a
concussion with loss of consciousness, post-traumatic
headache development, and cerebral arteriosclerosis],
accompanying pain and suffering, permanent injuries, and loss
of wages and other economic losses as a direct and proximate
result of the aforesaid occurrence.” Id.
¶¶ 15-16. In the course of investigating these
allegations during the discovery period, Federal Reserve Bank
retained Dr. C. J. Abraham, a liability expert. Joint Mot.,
Mathi and Boon Edam requested to depose Dr. Abraham remotely
for approximately two hours on January 24, 2018. Id.
at Ex. 2. Based on his fee schedule, Dr. Abraham bills a
flat-rate fee for depositions, amounting to “$4, 500.00
per day or any part thereof plus preparation time and
consultation prior to deposition.” Id. at Ex.
3. Additionally, Dr. Abraham bills at the following rate for
the preparation of a report: “$4, 500 maximum plus
prior time for research and review of all the documents at
$350 per hour.” Id. On December 5, 2017, Mr.
Mathi and Boon Edam asked Federal Reserve Bank for a
reduction of Dr. Abraham's flat-rate fee for his
deposition. Id. at 8. On December 11, 2017, Federal
Reserve Bank informed Mr. Mathi and Boon Edam that Dr.
Abraham was unwilling to reduce his deposition fee.
Id.; see also Id. at Ex. 2. Mr. Mathi and
Boon Edam filed the Joint Motion, seeking judicial relief, on
December 21, 2017. [ECF No. 52].
Rule of Civil Procedure 26 requires courts to order the party
seeking an expert witness's deposition to “pay the
expert a reasonable fee for time spent in responding”
to the deposition request, “unless manifest injustice
would result.” Fed.R.Civ.P. 26(b)(4)(E). The goal of
Rule 26(b)(4)(E) is “to calibrate the fee so that one
party will not be hampered in efforts to hire quality
experts, while the opposing party will not be burdened by
unfairly high fees preventing feasible discovery and
resulting in windfalls to the expert.” Anthony v.
Abbot Labs, 106 F.R.D. 461, 465 (D.R.I. 1985);
Fleming v. United States, 205 F.R.D. 188, 189 (W.D.
Va. 2000). The party seeking reimbursement bears the burden
of demonstrating that the expert's requested fees and
expenses are reasonable. See Packer v. SN Servicing
Corp., 243 F.R.D. 39, 42 (D. Conn. 2007).
keeping with the “paucity of authority” on this
issue, see 8A Charles A. Wright & Arthur R.
Miller, et al., Federal Practice &
Procedure § 2034 (3d ed.), this Court has not
directly determined what constitutes a “reasonable
fee” under Rule 26(b)(4)(E). However, Local Rule
104.11, titled “Interpretation of Fed.R.Civ.P.
26(b)(4)(E), ” is instructive here, mandating that
“[t]he expert may not charge an opposing party for a
discovery deposition a fee at any hourly rate higher
than the rate he or she charges for the preparation of his or
her report.” Loc. R. 104.11.a (D. Md. 2016) (emphasis).
Moreover, Guideline 3 of the Local Rules list the following
as factors that “may be considered” in
determining whether a fee is reasonable: “(1) the
expert's area of expertise; (2) the expert's
education and training; (3) the fee being charged to the
party who designated the expert; and (4) the fees ordinarily
charged by the expert for non-litigation services, such as
office consultations with patients or clients.”
Guideline 3.a of the Discovery Guidelines for the United
States District Court for the District of Maryland, Loc. R.
App. A (D. Md. 2016).
other federal district courts, both within and outside of the
Fourth Circuit, have set forth factors to be considered in
determining whether or not a fee is reasonable:
(1) the witness's area of expertise; (2) the education
and training that is required to provide the expert insight
which is sought; (3) the prevailing rates of other comparably
respected available experts; (4) the nature, quality and
complexity of the discovery responses provided; (5) the fee
actually being charged to the party who retained the expert;
(6) fees traditionally charged by the expert on related
matters; and (7) any other factor likely to be of assistance
to the court in balancing the interests implicated by Rule
See, e.g., Massasoit v. Carter, 227 F.R.D.
264, 265 (M.D. N.C. 2005) (noting the seven factors and
citing cases which use and address them); U.S. Energy
Corp. v. NUKEM, Inc., 163 F.R.D. 344, 345-46 (D. Colo.
1995) (same); Jochims v. Isuzu Motors, Ltd., 141
F.R.D. 493, 495 (S.D. Iowa 1992) (same). Both the United
States District Court for the District of Columbia and the
United States District Court for the District of Connecticut
omit the seventh “catch-all” factor, and
substitute the “cost of living in a particular
geographic area” as a factor to be considered in the
reasonableness analysis. See Barnes v. District of
Columbia, 274 F.R.D. 314 (D.D.C. 2011); Goldwater v.
Postmaster Gen. of U.S., 136 F.R.D. 337, 340 (D. Conn.
Joint Motion, Mr. Mathi and Boon Edam argue that Dr.
Abraham's deposition rate is patently unreasonable and
must be reduced. Specifically, the parties contend that,
under Local Rule 104.11, Dr. Abraham's hourly deposition
rate may not exceed the hourly rate for the preparation of
his report, and therefore should total no more than $350.00
per hour. Joint Mot. 5-6. Mr. Mathi and Boon Edam also argue
that “the fact that Dr. Abraham seeks to charge a
flat-rate fee should be immediately suspect to the
Court.” Id. at 6. In response, Federal Reserve
Bank argues that Dr. Abraham charged a flat-rate fee of $4,
500.00 for both the deposition and report preparation, and
that his deposition fee therefore does not contravene the
requirements set forth in Local Rule 104.11. Def.'s Resp.
To support this contention, Federal Reserve Bank submitted an
invoice showing that Dr. Abraham did not provide an hourly
breakdown of his report preparation fee. See Id. at
Rule 104.11 indeed mandates a fee reduction in the instant
case. In considering the parties' exhibits, this Court is
more persuaded by the language set forth in Dr. Abraham's
Fee Schedule. See Joint Mot., Ex. 3. Based on the
Fee Schedule, Dr. Abraham's flat-rate deposition fee
unambiguously requires $4, 500.00 per day, plus additional
costs for preparation and consultation. Id.
(“DEPOSITIONS & TESTIMONY[:] $4, 500 per day or
any part thereof[.]”) (emphasis added). Thus, Dr.
Abraham's hourly rate would amount to $562.50 for an
eight-hour deposition, and could amount to $2, 250.00 for a
two-hour deposition. It appears, however, that the hourly
rate for the preparation of a report amounts only to $350.00,
with a maximum fee of $4, 500.00. See Id. (Reports,
affidavits[:] . . . $4, 500 maximum plus prior time
for research and review of all the documents at $350 per
hour.”) (emphasis added). The Fee Schedule's
language regarding report preparation indicates the use of an
hourly rate and appears to set a ceiling, rather than a
flat-rate fee. Since Local Rule 104.11 does not permit
experts to charge a higher rate for deposition testimony than
for the preparation of their reports, Dr. Abraham's
deposition rate of $4, 500.00 is conclusively ...