Ross-Hime Designs, Inc. v. United States

In the United States Court of Federal Claims
No. 11-201C
(Filed: November 3, 2015)1
************************** *
* Patent Infringement; Deposition
ROSS-HIME DESIGNS, INC., * Fee of Expert Witness; Rule
* 26(b)(4)(E)(i); Rule 30(e); Rule
Plaintiff, * 37(a); Reasonable Expert Rate;
* Deposition Preparation Time;
v. * Review of Transcript and
* Preparation of Errata Sheet;
THE UNITED STATES, * Cost of Deposition Transcript;
* Attorney’s Fees for Preparing
Defendant. * Motion to Compel.
*
************************** *
Vytas M. Rimas, Rimas Law Firm, PLLC, 18281 Minnetonka Blvd., Suite E,
Minneapolis, MN 55391, for Plaintiff.
Benjamin Mizer, John Fargo, and Conrad J. DeWitte, Jr., U.S. Department of Justice,
Civil Division, Commercial Litigation Branch, P.O. Box 480, Ben Franklin Station, Washington,
D.C. 20044, for Defendant. Kurt G. Hammerle, Office of the Chief Counsel, NASA Johnson
Space Center, for Defendant.
_________________________________________________________
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL
EXPERT FEES IN PART
_________________________________________________________
WILLIAMS, Judge.
This matter comes before the Court on Plaintiff’s motion to compel payment of expert
deposition fees and Defendant’s cross-motion to disallow these fees in part. At issue in this case
is Defendant’s alleged infringement of U.S. Patent Nos. 5,967,580 (the “’580 Patent”) and
6,658,962 (the “’962 Patent”).
Plaintiff proffered Theodore F. Neils as a technical expert in “the operation of robotic
manipulators in the embodiments of the asserted Patents in Suit,” and Defendant deposed Mr.
1
The Court issued this opinion under seal on October 23, 2015, and directed the parties to
file proposed redactions by October 30, 2015. The parties have not requested any redactions.
Neils on April 17, 2015. Neils Report ¶8; Neils Dep. 1. Plaintiff requests that the Court order
Defendant to pay Mr. Neils for deposition services in the amount of $13,683.60, and award
Plaintiff its attorney’s fees expended in connection with this motion to compel. Defendant
challenges Plaintiff’s expert’s fee as unreasonable and requests the Court to disallow fees of
$11,001.10, reducing Plaintiff’s expert’s payment to $2,682.50.
For the reasons stated below, the Court orders Defendant to pay $5,610 for Plaintiff’s
expert’s deposition fees, and does not award attorney’s fees for Plaintiff’s motion to compel.
Background
Mr. Neils is a retired patent attorney and former practicing engineer. He holds a
Bachelor of Science degree in electrical engineering from the University of Minnesota. Neils
Report, Ex. 1. After graduation, Mr. Neils worked as an electrical engineer at Honeywell, Inc.
(“Honeywell”) from 1963 to 1970, where he primarily focused on “general electrical and
electromechanical components that could have been used in a mechanical manipulator.” Id.; Pl.’s
Mot. 4. In 1970, Mr. Neils returned to the University of Minnesota to attend law school while he
also assisted the patent group of Honeywell’s legal department. After receiving his juris doctor
degree in 1972, Mr. Neils worked as an in-house attorney at Honeywell until 1986, when he
practiced law as a partner at the firm Kinney & Lange until 2012. In 2010, Mr. Neils retired
from the practice of law. Since 2012, Mr. Neils has provided consulting services. By January
31, 2013, Mr. Neils had also stopped practicing before the United States Patent and Trademark
Office.
Mr. Neils represented in his opening Expert Report and two amended reports that his
hourly rate was $500. Defendant deposed Mr. Neils on April 17, 2015. Mr. Neils did not testify
as a legal expert in his deposition in this case – his fee for his deposition covered his services as a
technical expert. Plaintiff sent Defendant an invoice for Mr. Neils’ services testifying in
deposition in the amount of $12,183.60, representing 23 hours at $500 per hour plus $683.60 for
the deposition transcript. Defendant responded that the invoice amount was unreasonable. After
the parties further discussed Mr. Neils’ fees, Plaintiff submitted a revised invoice to Defendant
on June 11, 2015, that increased the total dollar amount by $1,500 to account for his entire
deposition time and travel time to attend the deposition.
In this second invoice, Plaintiff requested Defendant compensate Mr. Neils at a rate of
$500 per hour for the following eight line items:
M. Rosheim U.S. Patent 5,967,580 for “ROBOTIC
1. MANIPULATOR” Review descriptions and claims, and 3.5 hours $1750.00
file history thereof. 4/6/15.
M. Rosheim U.S. Patent 6,658,962 for “ROBOTIC
2. MANIPULATOR” Review descriptions and claims, and 2.5 hours $1250.00
file history thereof. 4/7/15.
Meeting with inventor and counsel for upcoming
deposition. Review descriptions and claims, and file 2.5 hours $1250.00
3. histories of, U.S. Patents 5,967,580 and 6,658,962 and
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my Amended Expert Report. 4/10/15.
Expert reports. Review my Amended Expert Report and
1.5 hours $750.00
4. Defendant’s Expert’s Report. 4/14/15.
Meeting with inventor and counsel for upcoming
5. deposition. Review descriptions and claims, and file
3.0 hours $1500.00
histories of, U.S. Patents 5,967,580 and 6,658,962, and
my Amended Expert Report. 4/15/15.
Deposition. Participate in deposition proceeding.
11.0 hours $5500.00
6. 4/17/15.
Deposition Record. Deposition transcript charge.
$683.60
7. 4/22/15.
Deposition Record Review. Review transcript of
2.0 hours $1000.00
8. deposition proceeding and prepare errata listing. 4/27/15.
Total 26.0 hours $13,683.60
Pl.’s Mot. Ex. 6.
Discussion
Plaintiff asks the Court to compel Defendant to pay Mr. Neils’ claimed $13,683.60 fee,
and Defendant challenges Plaintiff’s expert fees invoice in four respects. First, Defendant
challenges Mr. Neils’ rate of $500 per hour as unreasonably high, arguing that an hourly rate of
$145 better reflects the customary expert rate for an engineer with Mr. Neils’ experience.
Second, Defendant argues that Mr. Neils cannot be compensated for his time preparing for
deposition with Plaintiff and Plaintiff’s counsel (line items 3 and 5). Third, Defendant
challenges any fees associated with Mr. Neils’ review of his deposition transcript and preparation
of his errata sheet, which was rejected by the Court as improper in scope (line item 8). Fourth,
Defendant asserts that it is not obligated to reimburse Mr. Neils for a copy of his deposition
transcript (line item 7). Defendant asserts that total payment in the amount of $2,682.50
representing 18.5 hours based on an adjusted hourly rate of $145 is appropriate.
A party that deposes another party’s expert is required to pay the expert a reasonable fee
for the expert’s time spent in preparing and participating in the deposition. Schmidt v. Solis, 272
F.R.D. 1, 2 (D.D.C. 2010). Rule 26(b)(4)(E)(i) is identical to Rule 26 of the Federal Rules of
Civil Procedure and provides:
Unless 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 RCFC 26(b)(4)(A) [depositions of expert witnesses whose
opinions may be presented at trial] . . . .
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RCFC 26(b)(4)(E)(i). The party seeking reimbursement bears the burden of showing that the fee
sought is reasonable. Feliciano v. Cty. of Suffolk, 246 F.R.D. 134, 137 (E.D.N.Y. 2007). The
Court has broad discretion to determine what constitutes a reasonable fee for expert services,
including whether such fee may include preparation time. Lamere v. N.Y. State Office for the
Aging, 223 F.R.D. 85, 93 (N.D.N.Y. 2004).
Mr. Neils’ Rate of $500 Per Hour is Unreasonable
Plaintiff argues that Mr. Neils is entitled to a rate of $500 per hour based on the
customary rate paid to a patent attorney consulting in an electrical engineering matter.
Defendant counters that Mr. Neils can only be compensated in his capacity as a technical expert,
not as an attorney. Defendant submits that based on the hourly fees paid to comparable experts
and the cost of living in Mr. Neils’ geographic area – Minneapolis, Minnesota – Mr. Neils’
appropriate hourly rate is $145.
Courts have considered variations of the following list of nonexclusive factors to
determine whether an expert’s hourly rate is reasonable under Rule 26:
1. The witness’ area of expertise;
2. The education and training required to provide the expert insight which is
sought;
3. The prevailing rates of other comparably respected available experts;
4. The nature, quality and complexity of the discovery response provided;
5. The cost of living in the particular geographic area;
6. The fee actually being charged to the party who retained the expert;
7. Fees traditionally charged by the expert on related matters; and
8. Any other factor likely to be of assistance to the court in balancing the
interests implicated by Rule 26.
See Se-Kure Controls, Inc. v. Vanguard Prods. Grp., Inc., 873 F.Supp.2d 939, 955 (N.D. Ill.
2012); Jochims v. Isuzu Motors, Ltd., 141 F.R.D. 493, 496 (S.D. Iowa 1992); Goldwater v.
Postmaster Gen. of the United States, 136 F.R.D. 337, 340 (D. Conn. 1991).
To determine the hourly rates of other comparably respected available experts, Plaintiff
relied heavily on Mr. Neils’ years of experience as a patent attorney and the $500 per hour fee
typically charged by a Minneapolis patent attorney testifying as an expert according to rates
published by the American Intellectual Property Law Association (“AIPLA”) in 2012. Plaintiff
further compared Mr. Neils’ rate to the hourly fees of Defendant’s expert, Dr. J. Kenneth
Salisbury, Jr., who was paid $350 per hour for his services in this matter – but had charged $520
per hour in other patent infringement actions. Defendant challenges the comparison of Mr. Neils
to Dr. Salisbury because Dr. Salisbury holds a master’s degree and a doctorate degree in
mechanical engineering, and has spent his entire career as a robotics engineer.2
2
Dr. Salisbury is currently a Research Professor at Stanford University’s Department of
Computer Science & Surgery in the Schools of Engineering and Medicine. He holds a B.S. in
Electrical Engineering and an M.S. and Ph.D. in Mechanical Engineering from Stanford
University. Dr. Salisbury has worked as a research and development engineer, and a technical
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In this Court’s view, Mr. Neils is entitled to reasonable expert fees based on his technical
background as an electrical engineer, his experience in prosecuting technical patents, and the
complex technical nature of his deposition testimony. As Mr. Neils did not testify as a legal
expert, he is not entitled to be compensated at the rate typically charged by a Minneapolis patent
attorney. See Goldwater, 136 F.R.D. at 340 (adjusting downward to $200 per hour the expert fee
of a physician who also had a law degree stating that a medical doctor’s possession of a law
degree alone did not justify an hourly rate of $450). At the time of his deposition, Mr. Neils was
not a practicing patent attorney, and he had no license to practice law in a state or before the
United States Patent Office. Although Mr. Neils did prosecute several patents for Mr. Rosheim –
including the patents-in-suit, his testimony and expertise focused on technical aspects of the
robotic hand at issue.
Mr. Neils’ opinion testimony was based on his experience as an engineer, as the
following colloquy during his deposition indicates:
QUESTION (MR. DEWITTE): So is it your contention that by reading the
patents and by having prosecuted the
patents, you are an expert in the technology
disclosed in the patents?
ANSWER (MR. NEILS): My expertise in the technology isn’t based
on providing the patents, but in the subject
matter that’s in them, yes.
QUESTION: So are you saying you’re a technical expert
or an expert in patent law?
ANSWER: I am a technical expert for this proceeding
based on the listings in the back where it
gives a summary of the resume. And I am
an expert in the contents of these [patent]
applications for the purposes of the suit.
Neils Dep. 23.
Indeed, during Mr. Neils’ deposition, Plaintiff’s counsel objected to questions posed on
patent law as being outside the scope of Mr. Neils’ proffered expertise. For example, when
asked about whether a model of the claimed invention constituted a reduction to practice to
determine the date of invention, Plaintiff’s counsel interjected:
MR. RIMAS: I would also like to interpose an objection
that counsel is going beyond the scope of a
advisor for approximately 40 years at companies such as Hewlett-Packard, APD, SRI
International, and for the NASA/Ames Research Center, and the Robotic Ventures Fund. He
also was the President and Founder of his own company, Salisbury Robotics, Inc. Dr. Salisbury
has an extensive consulting record, is a named inventor in 35 United States Patents and Patent
Applications, and has co-authored five books on robotics and 34 papers on various electrical and
mechanical engineering topics. ECF No. 109, Ex. A.
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technical expert deposition. I’ve given him
some latitude and would encourage him to
focus his examination on the expert claim
construction portion for which Mr. Neils has
been presented for expert deposition
testimony.
MR. DEWITTE I will get back on track in just a second.
QUESTION (MR. DEWITTE): Would you characterize the model provided
for the ’580 patent as an embodiment of a
conception of the invention?
MR. RIMAS: And I will just make my previous objection
a standing objection to this line of questions.
Neils Dep. 68-69.
Plaintiff cannot obtain expert fees for Mr. Neils in the amount that would be awarded to a
patent attorney, after objecting to his testimony on patent law as outside the scope of his
expertise. The applicable base compensation standard for Mr. Neils is that of an electrical
engineer.
Defendant provided rates from a 2011 USA Consultants Fee Survey Report of the
Institute of Electrical and Electronics Engineers (“IEEE”) to arrive at its baseline figure of $125
– adjusted to $145 for inflation and locality – typical for a consultant from Minnesota holding a
Bachelor of Science degree in electrical engineering. Def.’s Cross Mot. Ex. E at 20, 22. The
Court accepts the IEEE survey as a relevant standard for determining an acceptable base rate.
The IEEE survey reflects hourly rates of engineering consultants based on experience in the
profession, highest degree held, and industry sector or “line of business.” Id. The IEEE survey
provides the lowest 10% and highest 10% industry rates for engineer consultants, along with the
lower quartile, median, and upper quartile rates.
The IEEE numbers also give credit for degrees not in the relevant field, such as a
consultant with an MBA. Although no dollar amount is listed for engineers holding a juris
doctor degree, the Court credits this advanced degree and Mr. Neils’ 40 years of legal expertise
in prosecuting technical patents involving complex electronic and mechanical devices in
determining the appropriate hourly rate. Given Mr. Neils’ background and experience, the Court
adopts the IEEE survey’s upper quartile hourly rate of $175 for an engineer with less than 15
years plus an additional $35 per hour to account for Mr. Neils’ years of experience prosecuting
technical patents for a total of $210 per hour. After accounting for inflation from 2011 to early
2015, the hourly rate increases to $220. The Court thus finds $220 per hour to be a reasonable
rate for Mr. Neils’ deposition services.
Defendant argues that the fee should be adjusted downward because Mr. Neils lives in
Minnesota where the cost of living is less than other localities. Def.’s Mot. at 9. The Court
declines to reduce Mr. Neils’ rate on this basis given that Mr. Neils testified in connection with a
proceeding in a national court and Mr. Neils was a former patent prosecutor before the United
States Patent and Trademark Office.
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Plaintiff asks the Court to upwardly adjust Mr. Neils’ rate based on Plaintiff’s agreement
to pay Mr. Neils $500 per hour. However, Mr. Neils only has an oral agreement to be
compensated in any amount contingent on Plaintiff succeeding in this matter. Plaintiff has,
however, already paid Mr. Neils $1400 for time spent for inspection of the accused device, the
Robonaut 2, for a “half a day” of work according to Mr. Neils. Neils Dep. 17-18.3 There is no
hourly breakdown of this $1400 fee, and the Court cannot consider Mr. Neils’ compensation for
a half day of work to be indicative of his overall expert fees charged to Plaintiff. Plaintiff has not
shown that a $500 hourly rate for Mr. Neils’s deposition testimony would be reasonable.
Plaintiff further argues that the Court should upwardly adjust Mr. Neils’ rate based on Dr.
Salisbury’s $350 hourly rate in the instant matter, and Dr. Salisbury’s previous expert fees of
$520 in other patent infringement actions, because that rate evidences Defendant’s understanding
of the applicable rate for an expert in robotics. This argument is misplaced. Defendant’s choice
in hiring an expert with vastly different credentials than Plaintiff’s expert does not at all inform
this Court on the proper rate of compensation for Plaintiff’s expert. As such, Dr. Salisbury’s rate
has no bearing on Mr. Neils’ expert fee.
In sum, the Court finds Mr. Neils’ reasonable rate for his deposition expert services to be
$220 per hour.
Mr. Neils is Entitled to Compensation for Time Spent Preparing for his Deposition
Defendant argues that it is not obligated to pay Mr. Neils for the 5.5 hours he spent
preparing for his deposition in meetings with the inventor and Plaintiff’s counsel. Mr. Neils
described his preparation during these meetings as “[m]eeting with inventor and counsel for
upcoming deposition – Review descriptions and claims, and file histories of, U.S. Patents
5,967,580 and 6,658,962, and my Amended Expert Report. 4/15/15.” Pl.’s Mot. Ex. 6.
Defendant asserts that Mr. Rosheim’s presence at the meetings necessarily means that the
preparation time was for the claim construction hearing and not Defendant’s deposition of Mr.
Neils on claim construction. Defendant thus characterizes Mr. Neils’ preparation time as a
nonreimburseable fee related to the hearing on claim construction. Rhee v. Whitco Chem. Corp.,
126 F.R.D. 45, 47-48 (N.D. Ill. 1989). This Court has no basis to speculate on what the
preparation sessions entailed solely based on the presence of the Plaintiff inventor.
The preparation time reflected on the June 11, 2015 invoice totaled 5.5 hours on two days
during which Mr. Neils reviewed descriptions, claims, and file histories of the patents-in-suit and
his third amended expert report. See Pl.’s Cross Mot. Ex. 6. Mr. Neils expressly noted in his
invoice that these activities were for deposition preparation. Id. These activities are routine, and
expected in the ordinary course of preparing for an expert deposition in a patent infringement
action. See Nordock Inc. v. Sys. Inc., 2013 Markman 694702, 2013 WL 694702, *1-2 (E.D.
Wis. 2013); see also Schmidt, 272 F.R.D. at 2 (“Any lawyer worthy of his name is going to
3
Plaintiff argued that its payment of $3,000 for Mr. Neils’ half day of work inspecting the
Robonaut 2 during his deposition testimony was relevant to deriving his hourly compensation
rate. Mr. Neils, however, corrected himself during the claim construction hearing and confirmed
that he was compensated $1,400, not $3,000, for inspecting the Robonaut 2. Compare Neils
Dep. 17 with Tr. 43-46 (May 27, 2015).
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prepare the witness for the deposition by reviewing with the expert, and making sure the expert
can articulate the conclusion and methodology of the report clearly and effectively.”).
Mr. Neils’ time spent in preparation reasonably relates to the amount of time an expert
normally would require to prepare for cross examination, which in this case lasted from 9:00
a.m. to 7:00 p.m. excluding breaks. See Collins v. Vill. of Woodridge, 197 F.R.D. 354, 357-58
(N.D. Ill. 1999) (listing cases finding fees for expert deposition preparation reasonable, and
finding a ratio of 3:1 preparation to deposition time to be generally appropriate); Fee v. Great
Bear Lodge of Wis. Dells, LLC, No. 03-3502, 2005 WL 1323162, *2-4 (D. Minn. Mar. 3, 2005)
(finding unreasonable 46 hours of preparation for a 4.75 hour deposition). Moreover, this
infringement action involves highly technical matters, and preparation time is clearly
appropriate. Rhee, 126 F.R.D. at 47-48. In sum, the Court finds Mr. Neils’ 5.5 hours of
deposition preparation to be reasonable.
The Court Reduces Plaintiff’s Expert’s Claimed Fee for Preparing his Errata Sheet
Mr. Neils submitted a four-page errata sheet containing extensive revisions to his
deposition testimony – not mere corrections of court reporting transcription errors. A deponent’s
ability to submit an errata sheet is limited to reviewing the content for a court reporter’s
transcription and typographical errors under Rule 30(e)(1). E.I. du Pont de Nemours and Co. v.
Kolon Indus. Inc., 277 F.R.D. 286, 297 (E.D. Va. 2011). It is not an opportunity to alter
deposition testimony after the fact. Id. Rule 30(e)(1) provides:
Review; Statement of Changes. On request by the deponent or a party before
the deposition is completed, the deponent must be allowed 30 days after being
notified by the officer that the transcript or recording is available in which (A) to
review the transcript or recoding; and (B) if there are any changes in form or
substance, to sign a statement listing the changes and the reasons for making
them.
RCFC 30(e)(1).
While Mr. Neils was entitled to review the transcript for transcription errors, his
extensive annotation of his deposition was inappropriate. For example, Mr. Neils made material
changes when discussing the direction of the rotation axis of a joint in relation to the rotation
axis of sector plates controlled by ball bearings in the “wrist” of the robotic hand as described in
figure 13 of the patent specification. Specifically, Mr. Neils sought to explain the phrase “one
along the sector plates, no” with the following:
Although 144 is rotatable, it does not itself have a surface in, or a surface
extending from a surface in, a rotatable joint. The rotation axis of yolk 144 is
instead set by shafts 142 and 143 fixedly press fitted into yolk 144 on either side
thereof with the shaft other ends press fitted into the inner races of ball bearing
assemblies 140 and 141. These ball bearing assemblies are preloaded into
accommodational openings 139 providing cavities in drive housing framing
blocks 123 and 126 to thereby together form the rotatable connection arrangement
for yolk 144. The rotation axis for yolk 144 along shafts 142 and 143 intersects
the interior cavity surface provided in drive housing framing block 123 holding
8
therein bearing assembly 141 in providing the outer surface of one of the rotatable
connections for yolk 144 embodied by bearing assembly 141 on shaft 143 in drive
housing framing block 123.
Dep. Errata Sheet. Further, Mr. Neils did not provide a statement explaining why this type of
explanation was necessary as required by Rule 30(e)(1)(B).
Given Mr. Neils’ extensive annotations to his testimony, his charge for two hours for
preparing his errata sheet is excessive. The Court ruled to that effect orally during a telephonic
status conference on May 21, 2015, stating:
I’m not accepting the errata sheet. Anything other than what is strictly court
reporter’s error in transcription is not permitted. That’s my ruling. You can have
the witness elucidate on his deposition and explain it away during the hearing if
you like, and so can [Defendant’s counsel], but that errata sheet is not appropriate.
Tr. 23, 28 (May 21, 2015).
After the Court struck Mr. Neils’ errata sheet, the deponent did not submit any revised
version. Nonetheless, preparing an errata sheet should be part and parcel of an expert’s time
spent responding to discovery under Rule 26(b)(4)(E)(i), and a reasonable fee related to
reviewing the deposition for transcription errors is reimbursable. Because the Court does not
require Defendant to pay Plaintiff’s expert for his revisions or explanations of his deposition
testimony, the Court deducts 25% from the expert’s claimed two hours for reviewing the
deposition transcript. Given that the deposition spanned 7 hours and 23 minutes resulting in a
transcript containing 236 pages of complex technical testimony, the Court deems 1.5 hours for
reviewing the transcript to be reasonable.
Plaintiff is Not Entitled to Recover the Cost of his Deposition Transcript
Plaintiff argues that because its expert has the right to review his deposition transcript
under Rule 30(e), Defendant must supply the expert with a transcript of his deposition at
Defendant’s cost. Defendant counters that it is under no obligation to supply Mr. Neils with a
transcript under Rule 26(b)(4)(E). In this Court’s view, the cost of obtaining a deposition
transcript is not part of a fee to be reimbursed under Rule 26(b)(4)(E)(i) for “time spent
responding to discovery,” but rather is a cost of litigation. RCFC 26(b)(4)(E)(i). As
commentators have noted, a “party taking a deposition does not have to provide free copies of
transcripts to counsel for the opposing party.” See Dennis R. Suplee, Nicole Reimann, & H.
Justin Park, The Deposition Handbook 254 (5th ed. 2011) (citing Rich v. Maue, Case No. 03-cv-
152, 2008 U.S. Dist. LEXIS 73728 (S.D. Ill. Aug. 19, 2008) (finding that a defendant is under no
legal obligation to provide an indigent plaintiff a copy of his deposition)). As such, the Court
denies Plaintiff’s motion to compel reimbursement for the cost of its expert’s deposition
transcript.
Plaintiff is Not Entitled to Attorney’s Fees under Rule 37
In a footnote, Plaintiff seeks attorney’s fees for time spent preparing its motion to compel
under Rule 37(a) claiming it was forced to file the instant motion to obtain payment of
reimbursable expert fees from Defendant. Pl.’s Mot. 12, n.7. Defendant counters that it was
9
substantially justified in not paying Mr. Neils’ fees and thus cannot be subject to sanctions under
Rule 37(a)(5)(A)(ii). Def.’s Reply 6-7. Rule 37(a)(5)(A)(ii) provides:
If the Motion is Granted (or Disclosure or Discovery Is Provided After
Filing). If the motion is granted – or if the disclosure or requested discovery is
provided after the motion was filed – the court must, after giving an opportunity
to be heard, require the party or deponent whose conduct necessitated the motion,
the party or attorney advising that conduct, or both to pay the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees. But the court
must not order this payment if . . . the opposing party’s nondisclosure, response or
objection was substantially justified . . . .
RCFC 37(a)(5)(A)(ii).
Rule 37(a)(5)(A) only applies if the Court grants a party’s motion to compel in full.
RCFC 37(a)(5)(A)(ii); Confidential Informant 59-05071 v. United States, 121 Fed. Cl. 36, 49
(2015) (“Rule 37(a)(5)(A) governs cases where a motion to compel is either granted in full or
where the discovery sought in the motion is provided after the motion is filed.”); New Orleans
Reg’l Physician Hosp. Org., Inc. v. United States, 122 Fed. Cl. 807, 820 (2015). This Rule is
inapplicable where, as here, the motion to compel is granted in part. Confidential Informant 59-
05071, 121 Fed. Cl. at 49. Therefore, the Court need not decide whether Defendant has met the
statutory exception that its “nondisclosure, response, or objection was substantially justified” to
overcome Rule 37(a)(5)(A)’s provision requiring that the Court grant the prevailing party’s
reasonable attorney’s fees. Id.; RCFC 37(a)(5)(A)(ii).
Rule 37(a)(5)(C) governs the award of attorney’s fees following a motion to compel that
is granted in part and denied in part. This rule provides:
If the Motion Is Granted in Part and Denied in Part. If the motion is granted
in part and denied in part, the court may issue any protective order authorized
under RCFC 26(c) and may, after giving an opportunity to be heard, apportion the
reasonable expenses for the motion.
RCFC37(a)(5)(C). Under this rule, the Court has broad discretion to determine which party
should bear the reasonable expenses of preparing the instant motion. Confidential Informant 59-
05071, 121 Fed. Cl. at 49 (“[U]nder RCFC 37(a)(5)(C) . . . where a motion to compel is granted
in part and denied in part, the award of expenses is discretionary.”). As discussed above,
Defendant was warranted in challenging the reasonableness of Mr. Neils’ hourly rate, his costs
for a deposition transcript, and his time drafting a four-page errata sheet. In a similar vein,
Plaintiff reasonably requested payment for its expert’s deposition services. As both motions
were justified, an award of attorney’s fees under Rule 37(a)(5)(C) is not appropriate.
Confidential Informant 059-05071, 121 Fed. Cl. at 51.
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Conclusion
Plaintiff’s motion to compel expert deposition fees is GRANTED IN PART.
Defendant’s cross-motion to disallow fees invoice is GRANTED IN PART. Defendant shall
reimburse Mr. Neils $5,610 for his deposition services. Plaintiff’s request for attorney’s fees
under Rule 37(a) is DENIED.
s/Mary Ellen Coster Williams
MARY ELLEN COSTER WILLIAMS
Judge
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