Opinion
04 Civ. 7395 (RWS).
September 12, 2007
Attorneys for Plaintiff, BECKER MEISEL LLC, Livingston, NJ, By: JOSEPH G. HARRAKA, JR., ESQ., JAMES M. MCCARRICK, ESQ.
Attorneys for Defendants, LAW OFFICES OF ALLAN H. CARLIN, New York, NY, By: ALLAN H. CARLIN, ESQ.
MEMORANDUM OPINION ORDER
Plaintiff has moved pursuant to Rule 37(d), Fed.R.Civ.P., for an order striking the report of Defendants' designated expert witness, Ken Meissner ("Meissner"), and precluding Meissner from testifying at trial due to Defendants' failure to produce the witness for his deposition; or, in the alternative, pursuant to Rule 37(a), Fed.R.Civ.P., for an order compelling Meissner to submit to a deposition. Defendants have opposed Plaintiff's motion and cross-moved for an order requiring Plaintiff to conduct any deposition of Meissner within 15 days of the entry of this Order; requiring Plaintiff to pay Meissner's reasonable fees for preparing for, traveling to, and attending his deposition in accordance with Rule 26(b)(4)(C)(i), Fed.R.Civ.P, irrespective of any claims that may exist for the Defendants to reimburse Plaintiff's expert witness, Leonard Rosen ("Rosen"); and for any other appropriate relief. Both parties have moved for an award of costs and fees incurred as a result of the instant motions.
Prior Proceedings
Prior proceedings in this action have been outlined in previous opinions. See Sea Carriers Corp. v. Empire Programs Inc., No. 04 Civ. 7935(RWS), 2007 WL 2493573, at *1 (S.D.N.Y. Aug. 21, 2007);Sea Carriers Corp. v. Empire Programs. Inc., 488 F. Supp. 2d 375, 377-78 (S.D.N.Y. 2007). Of some relevance here is Defendants' motion to compel Plaintiff's expert, Rosen, to answer certain questions at his deposition, which was filed on November 17, 2006. The motion was granted by memo endorsement on April 20, 2007, but no award of fees and costs associated with the motion was granted.
Plaintiff's instant motion to strike or compel was dated August 8, 2007, and Defendants' opposition and cross-motion was dated August 24, 2007. The motions were marked fully submitted on September 5, 2007.
Discussion
As a general rule, "a party may obtain discovery of any non-privileged matter that is relevant to a claim or defense of any party." Jones v. Hirschfeld, 219 F.R.D. 71, 74 (S.D.N.Y. 2003) (citing FED. R. CIV. P. 26(b)(1)). Where a party has failed to respond to a discovery request, the party seeking discovery, "upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery. . . ." FED. R. CIV. P. 37(a). Motions to compel brought pursuant to Rule 37, Fed.R.Civ.P., "are entrusted to the sound discretion of the district court." United States v. Sanders, 211 F.3d 711, 720 (2d Cir. 2000); accord In re Fitch. Inc., 330 F.3d 104, 108 (2d Cir. 2003). This principle "is in keeping with the traditional rule that `[a] trial court enjoys wide discretion in its handling of pre-trial discovery. . . .'"In re Fitch, 330 F.3d at 108 (quoting In re DG Acquisition Corp., 151 F.3d 75, 79 (2d Cir. 1998) (internal quotation marks omitted)).
Accordingly, pursuant to Rule 37(a), Fed.R.Civ.P., Meissner is ordered to appear for a deposition by Plaintiff at a date and time agreed to by the parties, but no later than October 1, 2007. In addition, pursuant to Rule 26(b)(4)(C)(i), Fed.R.Civ.P, Plaintiff is ordered to pay Meissner "a reasonable fee for time spent in responding" to this discovery, FED. R. CIV. P. 26(b)(4)(C)(i), including reasonable fees for preparing for, traveling to, and attending his deposition. See, e.g., Tunick v. Kornfeld, 151 F.R.D. 534, 536 (S.D.N.Y. 1993) ("plaintiff shall pay . . . (1) the costs incurred by the Experts in attending their deposition . . . plus (2) the hourly fees, if any, that the Experts are charging defendants for time spent (i) in deposition or traveling thereto. . . ."); Am. Steel Prods. Corp. v. Penn Cent. Corp., 110 F.R.D. 151, 153 (S.D.N.Y. 1986) (citing FED. R. CIV. P. 26(b)(4)(C)(i)) ("Defendants shall pay plaintiff's accounting expert a reasonable fee for his time spent in giving and in preparing for his deposition.").
This order is made without prejudice to any motion by Plaintiff regarding the reasonableness of Meissner's fee or any reasonable fee owed by Defendants to Plaintiff's expert, Rosen. No award of costs or fees associated with the instant motions will be granted.
It is so ordered.