United States District Court, D. South Dakota, Southern Division
FLANDREAU SANTEE SIOUX TRIBE, a federally-recognized Indian Tribe, Plaintiff,
ANDY GERLACH, Secretary of the State of South Dakota Department of Revenue; and DENNIS DAUGAARD, Governor of the State of South Dakota, Defendants.
MEMORANDUM OPINION AND ORDER ON PLAINTIFF'S
VERIFIED BILL OF COSTS AND DEFENDANT'S EXCEPTION TO
PLAINTIFF'S VERIFIED BILL OF COSTS
LAWRENCE L. PIERSOL, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiffs Verified Bill of Costs, Doc.
163, and Defendant's Exception to Plaintiffs Verified
Bill of Costs, Doc. 165. Submitted pursuant to the
Court's Judgment, Doc. 158, stating that the Tribe, as
prevailing party, is entitled to recover its costs, the Tribe
asks for expert witness costs claimed as a "reasonable
fee for time spent in responding to discovery" pursuant
to Fed.R.Civ.P. 26(b)(4)(E). Plaintiffs expert witness,
Jonathan Taylor, was deposed by Defendants on September 6,
2016, in Sioux Falls, SD. Defendants have already paid Mr.
Taylor's $1, 750 fee for the five-hour long deposition.
Defendants take exception, however, to the additional $22,
147.26 worth of billed time spent preparing for and reviewing
Mr. Taylor's deposition. Plaintiffs Verified Bill of
Costs sets out 33.7 hours of Mr. Taylor's time, billed at
an hourly rate of $350; 38.1 hours of "Research
Assistance 1" time, 67% of 16 hours of "Research
Assistance 2" time, both at an hourly rate of $140; and
20% of 33 hours of Mr. Taylor's time, again billed at the
rate of $350 an hour, for review of the deposition.
Taylor's expert report, completed six weeks prior to his
deposition, is 35 pages long, includes another 39 pages of
illustrative exhibits as well as a few dozen pages of
appendices. The report explains economic principles and
applies them to the facts of the case within the context of
the federal, state, and tribal interests at play. In his
deposition, Mr. Taylor identifies his research assistants by
name, but it is unclear from the record what the
qualifications of the assistants are. Further, Mr. Taylor
describes the work performed by his assistants as well as
himself in anticipation of the deposition:
Q. What did each one of those individuals do?
A. Under my direction and supervision they gathered data,
they collated data and put data into spreadsheets. They used
a computer program called Stata to transform and clean and
analyze that data. They produced exhibits. They, under my
direction, would take a sketch and produce an exhibit, and
then I would get it back and revise it. They conducted phone
calls of various kinds to talk to people in the marketplace
about is this gas station owned by this casino or this tribe
or something like that. They gathered data from the
state's websites, from the Census Bureau. They read-read
material and preprocessed academic articles and gave me a
collection of academic articles. They checked each
Q. Thank you. What, Mr. Taylor, did you do to prepare for
this deposition today?
A. I reread my report, I read the draft of the transcript of
Mr. Terwilliger's deposition. I read my deposition in the
prior litigation between the Flandreau Santee Sioux Tribe and
the State of South Dakota. I reread the motion to exclude me
from that. And I reread the response to the motion to exclude
me from that. I also had a meeting yesterday evening with the
Doc. 168-1, 4-5.
February 5, 2018, the Court asked for additional information
regarding the deposition of Mr. Taylor. From the supplemental
declaration submitted by Plaintiff, the Court now understands
that there would have been some additional work to collect,
arrange, annotate, and otherwise clarify Mr. Taylor's
work papers so that a third party could reproduce them. The
Amended Notice of Deposition did include, among other things,
a request for the production of Mr. Taylor's work papers.
26(b)(4)(E) of the Federal Rules of Civil Procedure provides
"[u]nless manifest injustice would result, the court
must require that the party seeking discovery: (i) pay the
expert a reasonable fee for time spent in responding to
discovery... ." The rule seeks to "calibrate the
fee so that plaintiffs will not be hampered in efforts to
hire quality experts, while defendants will not be burdened
by unfairly high fees preventing feasible discovery and
resulting in windfalls of the expert." Hurst v.
United States, 123 F.R.D. 319, 321 (D.S.D. 1988) (citing
Anthony v. Abbott Laboratories, 106 F.R.D.
"461, 465 (D.R.I. 1985). Defendants argue that
"[t]here is nothing reasonable about the amount of time
Plaintiffs are claiming for Mr. Taylor's preparation for
his deposition." Defendants argue that a reasonable
amount of time spent preparing for his deposition is limited
to five hours of his own time, the amount of time spent on
the deposition itself, and "[a]ll hours in addition to
that No. are patently unreasonable."
expert may not charge an excessive amount of preparation
time, and if an expert does so, a court may reduce that time
to a 'reasonable' amount of time." Benson v.
Wells Fargo Bank, N.A., CIV. 16-5062-JLV, 2017 WL
2772119, at *19 (D.S.D. June 26, 2017) (quoting
Handi-Craft Co. v. Action Trading, S.A., No. 4:02 CV
1731, 2003 WL 26098543, at *17 (E.D. Mo. Nov 25, 2003)). The
Court has discretion on this issue, and often exercises it.
See e.g., Benson, 2017 WL 2772119, at *19 (determining ten
hours and fifteen minutes preparation and not sixteen hours
and fifteen minutes compensable for a complex case);
Handi-Craft Co., 2003 WL 26098543, at *17
(determining two days compensable and not the three days an
expert spent preparing for a one-day deposition); Borel
v. Chevron U.S.A. Inc., 265 F.R.D. 275, 278 (E.D. La. -
2010) (determining one-and-a-half hours preparation and not
three hours compensable for a three-hour deposition);
N.Y. v. Solvent Chem. Co., Inc., 210 F.R.D. 462,
471-72 (W.D.N.Y. 2002) (determining three hours--not
seventeen hours and forty-five minutes-reasonable for a
nine-hour deposition in a complex case); E.E.O.C. v.
Johnson & Higgins, Inc., No. 93 Civ. 5491 LBS AJP,
1999 WL 32909, at *2, n. 2 (S.D.N.Y. Jan. 21, 1999)
(determining nine hours of preparation time for a 2.25-hour
deposition was reasonable).
do not challenge Mr. Taylor's hourly rate of $350, but
merely seek to challenge the number of hours of preparation
and review time that they must compensate Mr. Taylor for at
that hourly rate, as well as the number of hours of research
assistance billed at $140 per hour. In total, Mr.
Taylor's fees include 33.7 hours of his own time
preparing for the deposition, 48.8 hours of his research
assistants' time preparing for the deposition, and 6.6
hours ' of Mr. Taylor's time for review of the
deposition and to make corrections.
deposition lasted five (5) hours and the errata sheet showed
that there were few corrections. In this case, with what was
a transcript with few corrections, three (3) hours is a
reasonable time for that review. Further, the deposition
preparation time claimed by Mr. Taylor and his assistants is
not reasonable. Getting the files in order for anticipated
production is one thing, but given the amount of time spent
after an expert report had already been prepared, some of the
deposition preparation time looks to have been actually spent
doing additional work on the case. Accordingly, a reasonable
preparation time for Mr. Taylor is 10 hours, plus the three
(3) hours for review, for a total of 13 hours billed at $350
supplemental declaration requested by the Court by its Order
of February 5, 2018 did not supply the Court with any
information regarding the qualifications of Mr. Taylor's
research assistants. Without knowing more concerning the
qualifications, the Court will analogize the research
assistants to qualified legal assistants and allow their time
at the rate of $100 per hour, rather than the $140 per hour
rate billed by Plaintiff. Once again, having reviewed the
supplemental declaration, the Court concludes that some of
the work done by the research assistants was supplemental
work on the file in addition to preparing the work papers for
production. The Court finds that a reasonable amount of time
for production of the work papers is 10 hours for Research
Assistance 1 and three (3) hours for Research Assistance 2
for a total of 13 hours billed at ...