Opinion
03 Civ. 6140 (LAK)
February 11, 2004
ORDER
This order will memorialize a ruling made this day in a conference telephone call with counsel for all parties.
Plaintiff seeks to take the deposition of an expert witness engaged by defendants Starline Cab Corp. and Milord (collectively, "Starline"). Starline or the witness is insisting on the payment in advance of $3,500 as a fee for plaintiff's deposition of the witness.
Under Rule 26(b)(4), an expert witness is entitled to a reasonable fee for time spent in responding to discovery. It does not require payment in advance. Moreover, it is difficult or impossible to determine in advance of the deposition what fee might be reasonable, as that may turn, in part, on evidence adduced during and the duration of the deposition.
Accordingly, the deposition is to go forward without advance payment of or advance agreement on the amount of the fee. Following the deposition, the Court will fix a reasonable fee payable to the witness by the plaintiff in the event those concerned cannot reach agreement. In the event Starline or the witness declines to go forward on this basis, defendants are precluded from calling the witness at trial.
SO ORDERED.