How will the courts determine reasonable fees for expert witness preparation time for a deposition?

The United States District Court for the District of Colorado recently spoke on the issue in Sterisil, Inc. v. Proedge Dental Products, Inc., civil action no. 13-cv-01210-REB (U.S. Dist. Ct. D. Colo. Mar. 29, 2019), a patent infringement case. The defendant challenged the reasonableness of the time that the plaintiff’s damages expert, Armando Chavez, spent preparing for his deposition. Chavez, whose hourly rate was $395, spent 27.5 hours preparing for his 7-hour deposition. The defendant did not challenge Chavez’s hourly rate, only his time spent.

The court agreed. It reasoned:

The deposition of Mr. Chavez took place less than one month before trial was scheduled to begin on May 21, 2018.  As an expert on damages, Mr. Chavez was required to review prior to deposition and trial, the damages report of the expert for ProEdge and his own report and calculations. In this context, some preparation for the deposition was reasonable. I find that it is reasonable for an expert witness to spend some time preparing for a deposition. Compensation for reasonable preparation time is reasonable. 

The court determined that 7.5 hours of the time was reasonable to characterize as deposition preparation time. It allocated the remaining 20 hours to trial preparation.

The court stated:

Sterisil contends none of the preparation time of Mr. Chavez should be attributed to trial preparation on behalf of Sterisil and all of the preparation time should be attributed to the deposition. I agree with ProEdge that deposition testimony of an opposing expert often serves, for the opposition, the purpose of a dress-rehearsal for trial. Thus, a deposition and preparation for a deposition reasonably can be treated partially as preparation for trial and partially as preparation for deposition, particularly when the deposition takes place when the beginning of trial is near.

In this case, attributing all of the preparation time of Mr. Chavez to the deposition and assigning none of the preparation time to trial, as Sterisil proposes, is not reasonable. Sterisil claims the deposition of Mr. Chavez, less than one month before trial, was “premature.”  This is true, Sterisil contends, because summary judgment was granted in favor of ProEdge after the deposition but before the trial began. Thus, Sterisil claims the deposition of Mr. Chavez should not be seen, even partially, as preparation for trial.

To claim it was “premature” for ProEdge to depose the opposing damages expert less than one month before the beginning of trial is indefensible. At the time of the deposition, neither Sterisil nor ProEdge had any idea if the motion for summary judgment of ProEdge would be granted or not. Further, given the complexity of the task undertaken by Mr. Chavez, preparation for both the deposition and trial was reasonable.

The Court awarded Chavez $5,727.50: 7.5 hours of preparation time plus 7 hours of deposition time at his regular hourly rate of $395.