As a matter of first impression, a party may be compelled to pay an opposing party’s expert’s fees for the time the expert prepared for his deposition; however, the expert's preparation fees must be capped at the fee for the corresponding deposition.

This case arose out of a rear-end automobile collision, allegedly causing personal injuries to the plaintiff. The defendant hired an expert neurologist to examine the plaintiff and offer an opinion at trial regarding the plaintiff's alleged injuries. The plaintiff sought to depose the expert. The issue presented is the maximum fee the defendant’s expert may charge the plaintiff to prepare for his deposition. As a matter of first impression, the court cited to Delaware Superior Court Civil Procedure Rule 26(b)(4)(C)(i) and the underlying policy of fostering efficient discovery processes. The court noted that the defendant has little to gain from allowing the plaintiff an opportunity to depose its expert. Furthermore, taking time to prepare for a deposition will make the deposition more efficient. It is therefore reasonable to find that the plaintiff must reimburse the expert for his actual deposition preparation time at his deposition rate, up to the time taken to conduct the deposition itself. Charges incurred in “preparation” for a deposition, however, can only include time necessary to “refresh the expert’s recollection of facts already reviewed and opinions already expressed[,]” and not “time to conduct new research or to review new facts” or time spent strategizing with counsel.

Case Law Alert - 1st Qtr 2010