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Challenging Expert Deposition Fees

Experts are one of the most expensive aspects of civil litigation.  They are also an integral part of the litigation process, as a majority of lawsuits require expert opinions for the prosecution and defense of claims. That being said, in California state civil cases, a party need not be held hostage by an opposing expert’s exorbitant deposition fees. Such fees may be challenged by way of a motion for an order setting expert fees pursuant to Code of Civil Procedure § 2034.470.

While a deposing party must pay an opposing expert’s hourly fee to obtain his or her deposition testimony, that fee must be reasonable. (Code Civ. Proc., § 2034.430 subd. (b); Rancho Bernardo Dev. v. Sup. Ct., (1992) 2 Cal.App.4th 358, 363.) If you are questioning the reasonableness of an expert’s deposition rate, there are certain things that must be done before a motion to set expert fees may be filed. To begin, your attorney must meet and confer with the attorney for the party who retained the expert about the possibility of adjusting the deposition rate.  Your attorney should also formally request from counsel the following information, all of which must be provided:

  • Evidence of the hourly fee regularly charged by, and paid to, the expert for his deposition in other lawsuits;
  • The total number of times the expert charged, and was paid, the deposition fee at issue; and
  • Proof of the regularity with which the expert charged, and was paid, the subject deposition fee over the last two years.

(Code Civ. Proc., § 2034.470, subd. (b).)

Although the above-noted information should partially inform a decision on whether to file a motion to set expert fees, the inquiry should not stop there. As the party questioning the reasonableness of an expert’s hourly deposition rate, it would be well advised to review an ample sampling of deposition fees charged by similar experts within the same county of the case venue, the same state of the case venue as a whole, and the state where the expert resides (if out of state).  It is important to consider this additional data for two reasons. First and foremost, it should provide a more realistic understanding of whether there truly is good cause to file the motion.  Second, you will need this information to support the motion.

Should your attorney’s attempt to negotiate a lower hourly deposition rate with opposing counsel prove unsuccessful, the next step would be to file the motion.  One should, however, be judicious in waging expert fee battles, as an unsuccessful motion could result in sanctions for the moving party and his or her attorney. (Code Civ. Proc., §§ 2023.010, 2034.470 subd. (g).)

On a motion for an order setting expert fees, the Court must consider the above-noted information provided by opposing counsel. What the subject expert customarily charges for deposition is, however, just one of many factors that the Court will consider in determining whether the fee is reasonable. (Marsh v. Mountain Zephyr, Inc., (1996) 43 Cal.App.4th 289, 304 (“Marsh”).) The Court may also consider “the ordinary and customary fees charged by similar experts for similar services within the relevant community and any other factors the court deems necessary or appropriate to make its determination.” (Code Civ. Proc., § 2034.470, subd. (e).) For this very reason, the moving party should check the court’s local rules for possible directives on additional evidence that may be considered.

If the Court finds the expert’s fee is unreasonable and sets a new rate, the remaining portion of that rate will then become a topic for negotiation and agreement between the expert, the party who retained him or her, and that party’s counsel. (Marsh, supra, 43 Cal.App.4th at 300-301.)  Accordingly, depending on the circumstance, it may be prudent to address this sort of issue in an expert’s retainer agreement so as to avoid (a) liability for unexpected overhead fees, and/or (b) the need for expert de-designation.

ABOUT THE AUTHOR
Ms. Straub is a graduate of Duquesne University School of Law in Pittsburgh, PA. The focus of her practice is business litigation, professional liability, and catastrophic personal injury litigation. Contact her at estraub@tysonmendes.com.

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