United States District Court, District of Columbia
CHIMWALA F. ENGLISH, Plaintiff,
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.
MEMORANDUM OPINION AND ORDER
M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE.
before the Court is Defendant Washington Metropolitan Area
Transit Authority's (“Defendant” or
“WMATA”) Motion to Compel Payment of Expert Fees
for Preparation for Discovery Deposition [ECF No. 27], which
seeks to compel Chimwala F. English (“Plaintiff”
or “Ms. English”) to pay fees for an expert
witness's deposition preparation time. Ms. English
opposes the motion. The District Judge presiding over this
case has referred all discovery disputes to the undersigned
Magistrate Judge pursuant to Local Civil Rule 72.2(a).
See Order, ECF No. 21. Having reviewed the
parties' submissions, the Court will deny without
prejudice WMATA's Motion to Compel Payment of Expert Fees
for Preparation for Discovery Deposition (“Motion to
Compel Fees”) [ECF No. 27] for the reasons set forth
case is a wrongful death and survival action arising from a
September 3, 2015 accident in which Reginald Burrell was
dragged under the rear portion of a WMATA bus and injured.
See Compl. ¶¶ 7-13, ECF No. 1. Mr. Burrell
was hospitalized after the accident and died five days later.
Id. ¶ 17. Ms. English alleges that the WMATA
employee who operated the bus that injured Mr. Burrell acted
negligently, and that the driver's negligence was the
direct, sole, and proximate cause of Mr. Burrell's
injuries and subsequent death. Id. ¶¶ 21,
51, 58, 87. WMATA admits that at all relevant times the bus
driver was acting within the scope of his employment as a
WMATA bus operator, but denies that it or the driver was
negligent. Answer at 2-3, ECF No. 5.
English deposed WMATA's medical expert, Dr. Romergryko G.
Geocadin, on June 9, 2017. See Def.'s Mot. to
Compel Payment of Expert Fees for Preparation for Discovery
Dep. (“Def.'s Mot. to Compel”) ¶¶
2-4, ECF No. 27. Dr. Geocadin testified regarding the
conscious pain and suffering that Mr. Burrell experienced
prior to his arrival at Washington Hospital Center.
See Pl.'s Opp'n to Def.'s Mot. to
Compel, Ex. 4 at 22:4-21 (“Pl.'s Opp'n”),
ECF No. 29-4. Ms. English paid Dr. Geocadin for the
deposition. See Pl.'s Opp'n at 10, ECF No.
29; see also Def.'s Mot. to Compel ¶ 4, ECF
No. 27. On June 14, WMATA sent Ms. English an invoice seeking
$5, 950 for the time Dr. Geocadin spent preparing for the
deposition. Def.'s Mot. to Compel ¶¶ 5-6, ECF
No. 27; Def.'s Mot. To Compel, Ex. 2, ECF No. 27-3. Ms.
English has not yet paid this invoice. See
Def.'s Mot. To Compel ¶ 6, ECF No. 27.
now seeks a Court order compelling Ms. English to pay for the
time that Dr. Geocadin spent preparing for the deposition.
See Id. at 1. Ms. English opposes the motion on two
grounds, arguing: first, that WMATA failed to meaningfully
confer as required under Local Civil Rule 7(m); and second,
that WMATA has not proven that the time Mr. Geocadin spent on
deposition preparation, or the hourly fee he charged, is
reasonable. See generally Pl.'s Opp'n. WMATA
filed no reply.
Motion to Compel Expert Fees for Deposition
Rule of Civil Procedure 26(b)(4)(E) provides that
“[u]nless manifest injustice would result, the court
must require that the party seeking discovery . . . pay the
expert a reasonable fee for time spent in responding to
discovery under Rule 26(b)(4)(A) or (D).” Time spent
“responding to discovery” includes the time an
expert uses to prepare for a deposition. See Barnes v.
Dist. of Columbia, 272 F.R.D. 135');">272 F.R.D. 135, 137 (D.D.C. 2011);
Schmidt v. Solis, 272 F.R.D. 1, 1-3 (D.D.C. 2010).
The party seeking reimbursement bears the burden of
establishing that the fee is reasonable. Barnes v. Dist.
of Columbia, 274 F.R.D. 314, 316 (D.D.C. 2011) (citing
Guantanamera Cigar Co. v. Corporaction Habanos,
S.A., 729 F.Supp.2d 246, 255-56 (D.D.C. 2010).
“[T]he party who noticed the deposition, must
compensate the expert accordingly.” Barnes,
272 F.R.D. at 137.
Local Civil Rule 7(m)
Court's Local Rules require that “[b]efore filing
any nondispositive motion in a civil action, counsel shall
discuss the anticipated motion with opposing counsel in a
good-faith effort to determine whether there is any
opposition to the relief sought and, if there is, to narrow
the areas of disagreement.” Local Civ. R. 7(m). This
rule was adopted “to promote the resolution of as many
litigation disputes as possible without court intervention,
or at least to force the parties to narrow the issues that
must be brought to the court.” Ellipso, Inc. v.
Mann, 460 F.Supp.2d 99, 102 (D.D.C. 2006) (citing
United States ex rel. Pogue v. Diabetes Treatment Ctrs.
of Am., Inc., 235 F.R.D. 521, 529 (D.D.C.
2006)); see also Dist. Hosp. Partners, L.P. v.
Sebelius, 971 F.Supp.2d 15, 21 (D.D.C. 2013);
Fed.R.Civ.P. 37(a)(1) (requiring that a motion to compel
discovery “include a certification that the movant has
in good faith conferred or attempted to confer with the
person or party failing to make . . . discovery in an effort
to obtain it without court action”). Parties'
“obligation to confer may not be satisfied by
perfunctory action, but requires a good faith effort to
resolve the non-dispositive disputes that occur in the course
of litigation.” Pogue, 235 F.R.D. at 529.
English urges the Court not to reach the merits of the Motion
to Compel Fees, arguing that the motion should be denied
because WMATA's counsel failed to confer to the degree
required by Rule 7(m). See Pl.'s Opp'n at
1-6, ECF No. 29. Local Civil Rule 7(m) requires parties to
make a “good-faith effort to determine whether there is
any opposition to the relief sought and, if there is, to
narrow the areas of disagreement.” Local Civ. R. 7(m).
A “good-faith” effort means that parties must
take “real steps to confer.” Ellipso,
Inc., 460 F.Supp.2d at 102 (quoting United States ex
rel. K & R Ltd P'ship v. Mass. Hous. Fin.
Agency, 456 F.Supp.2d 46, 52 (D.D.C. 2006)) (internal
quotation marks omitted). Courts in this District have
previously denied non-dispositive motions for failure to
comply with Local Civil Rule 7(m). See, e.g.,
Ellipso, Inc., 460 F.Supp.2d at 102 (denying
parties' discovery motions “because the parties
have not complied with Local Civil Rule 7(m).”);
Pogue, 235 F.R.D. at 529 (denying defendants'
motion to compel for failure “to confer with opposing
counsel in an attempt to resolve the dispute before filing a
non-dispositive motion” under both the Federal Rules
and Local Civil Rule 7(m)); see also Equal Rights Ctr. v.
Post Properties, Inc., 246 F.R.D. 29, 31 (D.D.C. 2007)
(noting that “[f]ailure to comply with the duty to
confer requirement . . . is grounds for dismissing a motion
to compel.”) (citing cases); Walker v. Dist. of
Columbia, 317 F.R.D. 600, 605 (D.D.C. 2016) (noting
“similar cases where movants have overlooked their
duties under . . . the Local Rules” and “judges
in this Circuit have . . . denied the motion to
it does not appear that WMATA has meaningfully conferred with
Ms. English regarding the expert fee dispute. Exhibit 3 to
the Motion to Compel Fees contains three emails reflecting
counsel's communications regarding this issue.
See Def.'s Mot. to Compel, Ex. 3, ECF No. 27-4.
The first email, sent by WMATA's counsel on June 14, 2017
at 4:30 p.m., advises Ms. English of Dr. Geocadin's
supplemental invoice and seeks payment. See Id. The
second email, sent by Plaintiff's counsel on June 14,
2017 at 5:37 p.m. responds in the negative to the request.
See Id. The third email, sent by WMATA's counsel
on June 19, 2017 at 2:55 p.m., asserts that the email
constitutes “an effort to avoid going to the Court with
a motion to compel your payment of Dr. Geocadin's
preparation for deposition fees” ...