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The American Outdoorsman, Inc. v. Shadow Beverages and Snacks, LLC

United States District Court, Western District of Pennsylvania

September 23, 2014

THE AMERICAN OUTDOORSMAN, INC., Plaintiff,
v.
SHADOW BEVERAGES AND SNACKS, LLC, Defendant.

Re: ECF, 88

MEMORANDUM ORDER

Maureen P. Kelly Magistrate Judge

Presently before the Court is Plaintiff’s Motion to Compel Compensation for Expert Discovery Pursuant to Fed.R.Civ.P. 12(b)(4)(E), ECF No. 88, in which Plaintiff seeks compensation for its expert, Andrea Hein, relative to expert discovery produced at Defendant’s behest.

I. BACKGROUND

The record shows that Plaintiff retained Ms. Hein as an expert witness on or about November 15, 2013, to provide testimony regarding the economic damages sustained by Plaintiff as the result of Defendant’s breach of the Licensing Agreement entered into by the parties. The retention letter, pursuant to which Ms. Hein was hired, indicates that her fees were to be incurred on an hourly basis at the rate of $500.00 per hour for consultation, review and preparation, and at the rate of $750.00 per hour for testimony at deposition, arbitration or trial. ECF No. 88-2, p. 2.

Defendant noticed Ms. Hein’s deposition for February 18, 2014. In accordance with the subpoena issued to her with the Notice to Take Deposition Duces Tecum, Ms. Hein reviewed and prepared certain license agreements for production. Without voicing any objection to the subpoena or to Defendant’s request that she produce the requested license agreements, Ms. Hein produced only a portion of the requested license agreements citing “employee confidentiality” as to the others. ECF No. 43, ¶ 4. Further, according to Defendant, the license agreements that Ms. Hein did produce were so heavily redacted that they were of no use. Id.; ECF No. 90, ¶¶ 7-8.

Consequently, on February 24, 2014, following Ms. Hein’s deposition, Defendant filed a Motion to Compel asking that Ms. Hein be required to produce all of the documents responsive to the subpoena with the understanding that she could redact the names of the parties to the various licensing agreements and that she could mark any document as confidential thereby subjecting it to the protective order previously entered into by the parties. ECF No. 43, ¶ 8. Although Plaintiff generally objected to Defendant’s request for documents as overly broad and unduly burdensome, it nevertheless did not object to Ms. Hein producing any licensing agreements within her custody and control, provided that the names of the parties to the license agreements and the names of any specific people, products, entities or other proper nouns which could indicate the identities of the parties, be redacted prior to production. ECF No. 45. This Court granted Defendant’s Motion to Compel on February 28, 2014, and ordered Ms. Hein to produce the requested license agreements within her possession and control on or before March 7, 2014, with the proviso that she could mark as confidential any document so as to bring it within the protective order already in place, and that she could only redact any identifying information in the licensing agreements as set forth above. ECF No. 44.

It appears that Ms. Hein subsequently produced the requested license agreements in accordance with this Court’s Order and submitted an invoice to Defendant dated March 3, 2014, for her services relative to Defendant’s subpoena and her deposition testimony in the amount of $18, 279.55.[1] ECF No. 88-5. Specifically, Ms. Hein billed Defendant as follows:

1) $7, 125.00 for 14.25 hours (x $500/hr. fee) of subpoena and deposition preparation prior to her deposition;
2) $6000.00 for 8 hours (x $750/hr. fee) of time spent relative to her deposition, including travel time;
3) $5000.00 for 10 hours (x $500/hr. fee) of document preparation following her deposition in response to this Court’s Order compelling Ms. Hein to produce the properly redacted license agreements; and
4) $154.55 for miscellaneous expenses.

Id.

Defendant does not dispute Ms. Hein’s $6000.00 fee relative to her deposition or her claim for $154.55 in expenses. Defendant, however, does object to the remaining $12, 125.00 invoiced for the 14.25 hours Ms. Hein spent before her deposition reviewing and preparing the license agreements and the additional 10 hours spent after her deposition reviewing and preparing the same documents. Defendant suggests that 8 hours (x $500/hr. fee) in the amount of $4000.00 is more appropriate under the ...


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