How much time are expert witnesses testifying at deposition permitted to charge for preparation time? In the absence of time sheets documenting the actual time spent, some courts have adopted a rule of thumb (i.e. 3 hours preparation for each hour expert testifies.)
The court, in EL CAMINO RESOURCES, LTD. v. Huntington National Bank, Dist. Court, WD Michigan 2012 explained:
The documentation provided by plaintiffs’ experts is generally insufficient to identify time truly spent in preparation for depositions — time that would not have been spent but for defendant’s discovery efforts. Witness Levko, for example, requests 66 hours — a solid week and a half — to prepare for a three-hour deposition. Mr. Levko’s time records (docket # 661-5 at ID# 9298) are exceedingly vague and make no effort, on their face, to identify time spent in preparation for his deposition. The allocation of time to deposition preparation appears to be pure guesswork The only time in the records of Mr. Djinis identified as spent in preparing for his deposition appears on the entry for 10/29/2008 and is lumped in with the time spent in travel and in the deposition itself. (Id. at ID# 9300). This witness’s time records do not remotely support the claim for 29.9 hours preparation time.
The burden of showing reasonableness under Rule 26(b)(4)(E) is on the party seeking reimbursement. Barnes v. Dist. of Columbia, 274 F.R.D. 314, 316 (D.D.C. 2011). The documentation presented by plaintiffs fails to establish the reasonableness of the preparation time sought. In such circumstances, a denial of all claims for preparation time would be justified. Defendant suggests as an alternative that the court adopt the approach applied by some courts, pursuant to which a ratio of three hours of preparation time to one hour of deposition time is deemed reasonable in complex cases. See, e.g., L.G. Elec. U.S.A., Inc. v. Whirlpool Corp., No. 08-C-0242, 2011 WL 5008425, at * 5 (N.D. Ill. Oct. 20, 2011). Plaintiffs object to this approach, asserting that it is unique to the Northern District of Illinois and has not been adopted in other jurisdictions. Plaintiffs are incorrect in labeling this approach as idiosyncratic — a number of district courts apply a ratio-based approach, and many adopt a ratio lower than three-to-one. See Packer, 342 F.R.D. at 42-43 (collecting cases and applying a 1-to-1 ratio). Beyond that, this rule of thumb provides at least a fair measure of reasonableness in an area subject to a “great risk of abuse,” Packer, 342 F.R.D. at 42, if not carefully monitored. Given the inadequacy of the time records presented by plaintiffs’ experts and the apparently arbitrary amounts of time claimed for “deposition preparation,” I find that the 3-to-1 ratio applied in the Northern District of Illinois and other courts provides a fair and reasonable approximation of the time that an expert witness should have expended in this case.
There are no “extreme circumstances” that would render this award unjust.
For additional information or deposition preparation, see the text Preparing Your Expert Witness for Deposition
