Memo from Stone and Tegeler to Counsel with Draft Order Governing Expert Depositions and Memorandum; Correspondence between Calvert and Tegeler

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DRAFT 

SUPERIOR CQURT 

JUDICIAL DISTRICT QF 

AT HARTFORD 

MARCH 26, 1992 

ORDER GOVERNING DEPOSITIONS OF EXPERT WITNESSES 

The parties to the above captioned case having come 

the Court seeking an order 

ragarding the deposition of expart 

following orders pursuant to 

insure the expeditious cond 

ghall be 

  

formal fprocess beyond the issuance of a 

an expert witness to produce that expert 

  

pursuant to Practice Book §220(A) (2) 
i 

witnesses and the Court having 

parties, the Court now enters the 

Practice Book $£220(C) in order to 

uct of the depositions of expert 

notice of 

in order to oblige the party 

witness for 

els that it is necessary to issue 

conjunction with a notice of 

TALE PFO Se az 

 



     

  

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deposition, counsel for the party identifying the expert will 

accept service of that subpoena on behalf of the expert witness. 

2. With regard to expert witnesses who reside in states 

other than Connecticut, the party who intends to c¢all that 

witness at trial will determine whether the deposition will be 

taken in Connecticut or in the witness’‘s home state. Any costs 

incurred by the witness {for travel, lodging, meals or other 

similar expenses incident to the appearance at the deposition 

shall be the exclusive responsibility of the party who intends to 

call that witness at trial. 

3. The party teéeking the deposition of an expert under this 

Order shall pay the expert at his regular dally or hourly rate 

or all time spent in the deposition and for a reasonable amount 

of preparation tims, not to exceed 8 hours of preparation. The 

week prior to the scheduled deposition of the rate proposed be 

charged for each expert's time, and shall submit an invoice after 

the deposition that includes the expert's affidavit regarding 

hours worked and stating the basis for the expert's rate, 

4. A party who believes that the hourly rate calculated 

pursuant to subpara¢raphs (a) and (b) of Paragraph 3 is not 

reasonable may apply to the coart for an order setting a 

different hourly rate. Said application must be accompanied by 

an affidavit and/or other material necessary to support the 

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and (b) of Paragraph 3 is not reasonable. 

52. Reimbursement for the costs associated wit 

attendance of expert witnesses at depositions shall 

within three (3) weeks of submission of the invoice set 

Paragraph 3. 

6. The defendsntz may not seek reimbursement 

department 

fr i = a = TI He w- 3 3 8 

Sh   

claim that 

or the tim spent in preparation 

ition by any individual who is an employee 

Of Education at the time of thei 

ad a. ey ” diess of whether the 

em PP RJ ~ axpert witness or 

SO ORDERED « 50 ORDERED: 

  

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SUPERIOR COURT 

Plaintiffs 

v JUDICIAL DISTRICT OF 
HARTFORD/NEW BRITAIN 
AT HARTFORD 

- 

VILLIAM A. O'NEILL, ot al. 

Defendants MARCH 26, 1992 

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MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER GOVERNING DEPOSITIONS QF EXPERT WITNESSES, AND IN OPPOSITION 
TQ DEFENDANT'S PROPOSED ORDER 

  

  

    

  

The Pretrial Orcler submitted to this Court on March 13, 1992 

grants the parties the right, pursuant to Practice Book 

$220(A)(2) to take depositions of expert witnesses anticipated to 

estify at trial. Tie Pretrial Order does not, however, provide 

for procedures regarding payment of expert witnesses pursuant to 

ractice Book §220(C). Instead, paragraph 5 of the order 

provides that “[t]he terms and conditions under which these 

depositions will be taken shall ba established by agreement of 

the parties, or by order of the Court if the parties cannot 

At the present time, after good faith but unsuccessful 

efforts to negotiate a stipulation, the parties are submitting 

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competing proposec orders governing payment of expert 

depositions. The remaining ar2as of dispute include the 

following points: 

#19 
a. Defendants!’ proposed order, submitvted on 1%... , 1592, 

does not provide for contemporaneous payment of expert 
witnesses on or close to the time of their depositions. 

b. Defendants’ proposed order does not provide adequate 
deposition preparation time for experts. 

LF
 Defendants’ proposed order does not provide adequate 

compensation for experts at their regular hourly rates. 

The parties are in agreement on the principles that outside 

expert witnesses must be paid for their deposition time, and that 

Department of Education employees identified as experts are not 

entitled to be paid. The parties have also reached agreement on 

the procedure for location of depositions, and the procedure for 

payment of expenses, if any. These areas of agreement are 

reflected in paragraphs 1, 2, and 6 of plaintiffs’ and 

defendants’ proposed orders, Plaintiffs will now address the 

areas in dispute, 

Practice Book $220(C) requires that “the court shall require 

that the party seeking discovery pay the expert a reasonable fes 

for time spent in responding to discovery” and that in addition, 

the Court may require payment of “a fair portion of the fees and 

expenses reasonably incurred...in obtaining facts and opinions 

from the expert.” Although plaintiffs have found no Connecticut 

caselaw construing this provision, the Connecticut rule is based 

= PAL = ETO Ta A 

 



  

on identical language in Rule 26(h)(4), Federal Rules of Civil 

Procedure, In construing the discovery provigiong of the 

Connecticut Practice book, Connecticut courts should look to 

federal caselaw interpreting similar provisions under the Federal 

Rules. Saea Moller and Horton, Connecticut Practice Annotated at F 
EE AR— Tyre 

  

  

For the reasons set out below, under standards established 

by federal caselaw, defendants’ proposed order does not provide 

5 

te compensation for plaintiffs’ experts, and should not be i £1 im = f= fw ot 

1. Plaintiffs sare entitled to contemporaneous payment for 
expert depositions 
    

  

Defendants’ proposed order would pay plaintiffs’ experts 

for their time long efter their depositions have taken place, up 

toc three months after the conclusion of trial. Although ‘mrr——   

plaintiffs understand defendants’ desire to delay payment, there 

is no legal basis for defendants position, and plaintiffs!’ 

experts should be paid at or near the time of the deposition. In 

ct, some cases have: even required payment of expert deposition 

fees and expenses prior to taking of the expert deposition. In 

an analogous situation, in In re “Agent Qrange” Product Liability 
  

  

ation, 105 F.R.DII. 577 (E.D.N.Y. 1985), the court construed 

Fed. R. Civ. Pro. 45{z) to require payment of fees in advance for 

one day's attendance and expenses incurred by subpoenaed witness 

in travelling to a deposition. Likewise, the court in Wright v. 
  

  

20d TALE LPO EEE 

 



    

Jeep Corp., 547 F.Supp. 871, 876 (E.D. Mich. 1982), held that 

Jeep Corp. was not entitled to the benefit of a vehicle crash 

researcher's research without advancing a reasonable fee, 

2. Plaintiffs’ experts are entitled to pavment for a 
reasonable amount of preparation in advance of their 
deposition. 

  

    

  

Defendants’ proposed order provides compensation for 

only 2 hours of preparation for each deposition, Again, this is 

unsupported by the caselaw, which clearly requires payment for a 
  

    

reasonable amount o©f preparation time. ¥ In 4 case such as this, 
¥ 

two hours is clearly not sufficient time to adeguately prepare 
    

  
  

    

for a deposition lasting a minimum of 3-8 hours. / See Hurst Yo | 

a—— 

  

  

g i { 
SI 

{ united States, 123 F.R.D. 319, 321 (D, 8.D. 1988). f 
        i aren En sme 

  

  

3. Plaintiffs’ experts are entitled to be compensated at 
their regular hourly rate 
  

  

The most problematic aspect of defendants’ proposed 

order is thelr attempt, in paragraph 3, to avoid payment of 

plaintiffs’ experts at thelr regular hourly rate. Defendants’ 

proposal would limit payment to the hourly rate actually being 

paid by the party engaging the expert, rather than the expert's 

regular hourly or daily rate. This is inconsistent with caselaw 

construing Federal Rule 26(Dh} (4). 

There 1s little dispute in the caselaw that experts are 

entitled to reasonable fees under Fed. R. Civ. Pro. 26(b)(4). 

=e In re “Agent Oranje’ Product Lisbility Litigation, 105 F.R.D.   

277 (E.D.N.Y., 1985), (“Because plaintiff's discovery request is 

E00 J MA LEI PO EE CQ ED) rm 

 



® S65 S32 "HEY 

  

covered in large part by Rule 26()(4)(B), they are required by 

that Rule to pay reasonable fees and expensas.”) See also Bosse 

v, Litton Unit Handling Systems, 646 F.2d £83, 693 (lst Cir.   

  

  

1981); Marine Petroleum Co. v. Champlin Petroleum Co., 457 F.2d   

  

641, 646-47 (6th Cir. 1972); Reith v. Van Dorn Plastic Machjperv   

Co., B6 F.R.D. 458, 460 (E.D. Pa. 1980). 

The determination of a reasonable fee iz not difficult, 

In Goldwater v. Pos:master General of the United States, 136   

    

F.R.D. 337, 339-49 (DI, Conn. 1331), the Court considered several 

factors. It looked at the area of the witness's expertise, the 

education and training required to provide the expert insight, 

the prevalling rates of other comparably respected available 

experts, the nature, quality, and complexity of discovery 

responses provided and the cost of living in the particular 

geographic area. 

In the present case, plaintiffs are willing to submit 

the anticipated hourly rates for various experts to defendants in 

advance, and if defendants object to a particular rate, the 

proposed order sets out a procedure for such objection. 

It is possible that plaintiffs are paying varying rates 

to different experts retained in this matter. It may also be the 

case that, in some instances, the rate of payment is determined 

on some basis other tran hourly rate. It might also be possible, 

in a case such as this, that certain plaintiffs’ experts would be 

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working at a rate less than their regular hourly rate, Feiss 

aleo—pessible-Lthat—ialfendantai—enporto maybe —charging--highes- 

then reagorable—-rate— Nene of these factors would be relevant 

to a determination of the rate to be paid to an expert attending 

3 

deposition under Practice Book §220 or under Federal Rule 26. LA
 

As submitted, defendants’ proposal could force plaintiffs to bear 

the cost of defendants! expert discovery, in contravention of 

Practice Book £220. 

  

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 oing reasons, plaintiffs’ proposed Order 

Governing Depcsitions of Expert Witnesses should be entered by 

the Court. 

Respectfully Submitted, 

  

ON THE BRIEF: 

Barbara Q/Brien, Philip D. Tegeler 
Law Student Intern Martha Stone 

Connecticut Civil iibeveies 
Union Funan |) 

32 Gran treet 
Hartford, OO 06106 

Wesley W. Horton Ronald L. Ellis 
Kimberly A. Knox Julius L. Chambers 
Moller, Horton, & Rice Marianne Engelman Lado 
90 Gillett Street NAACP Legal Defense & 
Hartfovd, CT Del05 Educational Fund, Inc. 

99 Hudson Street 

New York, NY 10013 

 



  

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MacKenzie [Hall 

110 Sherman Strect 

Hartford, CT 06105 

RDI CTIADIY TPT T° CATT 
RICIIARD BLUMENTHAL 

LETT A 
VETGIRNEY GENERAL 

  

FAX (203) 323-5336 

Office of The Attorney General Tels 566-7173 

State of Connecticut 

March 19, 1992 

Philip Tegeler, Esq. 

Connecticut Civil Liberties Union 

32 5rand Street 

Hartford, CT. 06106 

Dear Phil: 

Enclosed you will find a copy of the resume of G. Donald 

Ferree, Jr. and a copy of the resume of Thomas E. Steahr to add 

as exhibits 19(d) and 19(e) respectively in Defendants’ 

supplemental response to Plaintiffs' Fourth Request for 

Production of Documents. 

Very truly yours, 

RICHARD BLUMENTHAL 

ATTORNEY GENERAL 

oo Teloryd. Coaloent 
Lloyd Calvert 
Educational Consultant 

LC/mu 

Enclosure 

COs John R. Whelan 

 



  

MacKenzie Hall 

110 Sherman Street 

Hartford, CT 06105 

RICHARD BLUMENTHAL 
ATTORNEY GENERAL 

  

FAX (203) 523-5536 

Office of The Attorney General Tel: 566-7173 

Stage of Gonnggticut 

Philip Tegeler, Esq. 
Connecticut Civil Liberties Union 

32 Grand Street 

Hartford, CT 06106 

Dear Phil: 

The enclosed documents are submitted as supplemental 
responses to Plaintiffs' requests for production as noted: 

First Request 
23(]J) Connecticut Mastery Test Results 

Grade 4-School Year: 1991-92 
23(k) Connecticut Mastery Test Results 

Grade 6-School Year: 1991-92 
23(1) Connecticut Mastery Test Results 

Grade 8-School Year: 1991-92 

Second Request 
12(k) State Department of Education Research Bulletins 

Teacher Turnover and New Hires: 1990-91 

Very ‘truly yours, 

RICHARD BLUMENTHAL 

ATTORNEY GENERAL 

ay: Loyd Caloendt 
Lloyd Calvert 
Educational Consultant 

LC/mu 
Enclosure 

cc: John R. Whelan