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    9th Circuit Holds Expert Fees Incurred Preparing for a Deposition are Recoverable

    The decision in Miller v. Sawant, 114 F. 4th 1071 (9th Cir. 2024) affirmed the district court’s granting of defendant Sawant’s motion for recovery of expert witness deposition expenses, including fees for time spent in preparation for deposition.  The panel’s holding has resolved a split among district courts within the Ninth Circuit by broadly construing the scope of recoverable expert fees under Federal Rule of Civil Procedure 26 to include expenses incurred when preparing for a deposition, in addition to the time the expert spends in the deposition.

    While it has long been understood that “time spent in responding to discovery” under Rule 26(b)(4)(A) includes the time the expert spends in a deposition, prior to the Miller decision, courts within the Ninth Circuit were divided as to whether this also includes time spent preparing for the deposition.  The Ninth Circuit panel has made clear that the scope of recoverable fees should be broadly construed.  Rule 26 states that fees are recoverable for an “expert whose opinions may be presented at trial,” and thus:  the district court did not have to rule on the admissibility of an expert’s opinion before awarding fees, nor does the expert have to testify at trial for preparation fees to be recoverable.  The possibility that the expert might appear at trial is enough to recover such fees.   However, as a counterbalance to this broad construction of expert fee recovery which could arguably lead experts to doing more preparation work, the Miller opinion reiterates that only “reasonable” fees can be recovered where such an award does not result in “manifest injustice.’ Fed. R. Civ. P. 26(b)(4)(E).  Reasonableness of fees involves both an analysis of the time spent and the rate charged for that time.  It is also the party seeking reimbursement who bears the burden of establishing that the requested fee is reasonable – taking into account factors such as the complexity of the subject matter, the expert’s fees and qualifications, the length of the expert reports, and the volume of materials that the expert reviewed.

    Miller v. Sawant  has aligned the Ninth Circuit with the Fifth, Sixth, Seventh, and D.C. Circuits, which have all similarly rejected a narrow interpretation of Rule 26, and provides greater clarity to all parties in anticipating and allocating costs associated with expert witness discovery.

    AUTHORS

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    Gia Skoumbis

    Associate