We are seeing an increasing number of opposing experts requesting advance payment of an estimated amount of fees/expenses in exchange for the expert agreeing to appear for the deposition as scheduled. As lawyers, bloggers, and lawyer bloggers, we take issue with this approach for a number of reasons. First and foremost, how can anyone possibly know how long a deposition is going to take before you take it? What if the expert agrees out of the gate with your position and the deposition takes five minutes? What if the expert digs in and offers only evasive testimony, and the deposition takes twice as long as it should? Also, how can you estimate the expert’s actual travel time to/from the deposition without knowing traffic and weather conditions, et cetera? Basically, there does not appear to be any reasonable way to estimate fees and expenses until the deposition has concluded and the expert has arrived back home from the deposition. But we have nonetheless searched for support for the argument that an expert is entitled to prepayment, and we are unable to find any authority on the issue.
While most state rules follow the federal rules and require the party deposing the expert to pay the expert’s reasonable hourly rate and expenses for the deposition, we are unable to find any requirement that the deposing party pay in advance, and the case law we have found suggests that deposing parties are not required to do so. See, e.g., Regions Bank v. Kaplan, No. 8:12-CV-1837-T-17MAP, 2015 U.S. Dist. LEXIS 108820, at *6 (M.D. Fla. Aug. 18, 2015) (finding that “Fed. R. Civ. P. 26(b)(4)(E) does not require payment in advance of the deposition of the expert.”).
If anyone has any support for the proposition that experts are entitled to prepayment, we would appreciate you passing it along, but until then, we will continue to refuse to prepay for expert depositions, and we will take the position that an expert must be present and prepared to give the deposition as noticed without prepayment.