closing argument BY ROBERT M.

SWERDLOW

Does the Central District Improperly Award Expert Witness Fees to

Prevailing Parties?

FEDERAL RULE OF CIVIL PROCEDURE 26(b)(4)(C) requires that the 54-4.6 addresses the costs associated with depositions that are recov-
party deposing an expert witness pay the reasonable fees the expert erable by a prevailing party. Subsection c provides that such costs
incurs in attending a deposition unless manifest injustice will result. include: “Reasonable witness fees paid to a deponent, including any
In complex, multiparty litigation involving multiple experts, these fees fees actually paid to an expert witness deponent pursuant to F.R.Civ.P.
can run into tens of thousands of dollars—costs that normally must 26(b)(4)(C). However, such fees do not include expert witness fees paid
be borne by the party who took the discovery. But Local Rule 54-4.6(c) to a trial witness in excess of the statutory witness fee unless other-
of the U.S. District Court for the Central District of California, wise ordered by the Court.”
which provides for the recovery of fees paid to a deponent pursuant Local Rule 54-4.6(c) thus appears to authorize a prevailing party
to Federal Rules of Civil Procedure 26(b)(4)(C), suggests that these to recover expert fees it paid to the losing party’s expert in connec-
fees are recoverable from the losing party at the end of the litigation. tion with taking the expert’s deposition. Under this interpretation, a
If correct, the rule could shift a substantial
category of discovery expenses from the party
seeking the discovery to the losing party.
In the federal courts, a prevailing party
Courts interpreting Rule 26 have held that a party is entitled to
generally is entitled to recover its costs from the
losing party. This is often referred to as “tax-
ing” costs. Federal Rule of Civil Procedure 54
recover costs it advances to its expert even if it does not prevail.
governs applications to recover costs and pro-
vides that unless a statute, rule, or court order
provides otherwise, costs should be allowed to the prevailing party. prevailing defendant who paid the losing plaintiff’s expert $5,000 in
Unless authorized by contract or some other statute, recoverable expert witness fees at the time of the expert’s deposition could recover
costs are limited to those enumerated in 28 UJune 1821 and 1920.1 those costs from the plaintiff at the end of the suit.
Among the costs that are recoverable under Section 1920 are “fees If applied in this fashion, the local rule arguably conflicts with
and disbursements for…witnesses.”2 These fees are set out in 28 U.S.C. Crawford and later Supreme Court cases requiring a clear statutory
Section 1821, and include a daily attendance fee, travel expenses, and, authority for awarding expert witness fees.7 It is incongruous for Local
in some cases, a subsistence allowance.3 Rule 54-4.6(c) to rely on a statute designed to allocate expert discovery
Above and beyond these statutory witness fees are the hourly rates costs irrespective of who prevails as statutory authorization to shift
expert witnesses charge to prepare for and attend a deposition. In the costs to the losing party.
Crawford Fitting Co. v. J.T. Gibbons, Inc., the U.S. Supreme Court So what then can the Local Rule properly be understood to
addressed appeals from two cases raising the question of whether dis- authorize? One answer is that if a party pays its own expert in con-
trict courts have discretion to award these additional expert fees as nection with a deposition taken by another party, it may recover those
costs. The Court held that since expert witness fees are not enumer- costs from the party that was seeking the discovery as part of its bill
ated in Sections 1920 and 1821, district courts may not award them of costs. If this was all that Local Rule 54-4.6(c) was meant to autho-
as costs unless some other explicit statutory authority authorizes rize, the Central District should amend it to clarify its true purpose.
them to do so.4 Doing so would also ensure that it is consistent with the Supreme
Crawford thus forecloses taxing expert witness fees to the losing Court’s directive in Crawford that expert witness fees may only be
party absent some contractual or statutory authority. Local Rule taxed as costs against a losing party when there is a statute specifi-
54-4.6(c) relies on Federal Rule of Civil Procedure 26(b)(4)(C) as a cally authorizing the court to do so. ■
basis for awarding expert witness fees. But does that rule actually pro-
vide the district court with such authority? 1 Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445, 107 S. Ct. 2494,

Under Rule 26(b)(4)(C), a defendant who deposes the plaintiff’s 2497 (1987).
2
expert witness is required to pay the expert his or her reasonable fees 3 28 U.S.C. §1920(3).
See, generally, 10 MOORE’S FEDERAL PRACTICE §54.103[3][c][ii] (3d ed. 2007).
incurred in attending the deposition. Importantly, this is true whether 4
Crawford, 482 U.S. at 445.
or not the defendant prevails. Rule 26(b)(4)(C) is not a cost-taxing 5 Fed. R. Civ. P. 26, Advisory Committee Note to 1970 amendment.
statute in the same vein as Rule 54. Instead, as articulated in the 6 See, e.g., Louisiana Power & Light Co. v. Kellstrom, 50 F. 3d 319, 332-33 (5th
Advisory Committee Notes, its purpose is to require the party seek- Cir. 1995).
7 Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 126 S. Ct. 2455
ing discovery to bear the costs associated with the discovery.5 Thus,
(2006); West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 111 S. Ct. 1138 (1991).
courts interpreting Rule 26 have held that a party is entitled to
recover costs it advances to its expert even if it does not prevail.6
That brings us to Central District Local Rule 54-4.6(c). Local Rule Robert M. Swerdlow is counsel, O’Melveny & Myers LLP in Los Angeles.

52 Los Angeles Lawyer June 2008