Steven Babitsky, Esq.

The U.S. District Court Montana, dealt with an election campaign expert who charged a modest $150 per hour and $200 per hour for deposition time.

Surprisingly, plaintiff counsel challenged the fee request for the extra $50 per hour for deposition time.

The court found that it was reasonable to charge a higher hourly rate for deposition time and for reasonable travel time.

The court stated:

Experts are permitted to charge for their travel time, in addition to their time spent being deposed. See Rock River Communications v. Universal Music Group, 276 F.R.D. 633, 637 (C.D. Cal. 2011). At least three district courts in this circuit have held that experts may also be compensated for their time spent preparing for a deposition. Peterson v. Direct Coast to Coast, LLC, 2016 U.S. Dist. LEXIS 147601, *10-11 (D. Or. 2016). This Court need not address the issue because Mr. Pearson chose not to seek payment for his preparation time.

Courts faced with the issue of deciding what constitutes a reasonable expert fee consider the following factors: “(1) the witness’s area of expertise; (2) the education and training required to provide the expert insight which is sought; (3) the prevailing rates of other comparably respected available experts; (4) the nature, quality, and complexity of the discovery responses provided; (5) the fee actually charged to the party who retained the expert; (6) fees traditionally charged by the expert on related matters; and (7) and any other factor likely to assist the court in balancing the interests implicated by Rule 26.” Edin v. Paul Rever Life Ins. Co., 188 F.R.D. 543, 546 (D. Ariz. 1999).

In applying those factors in this case, the Court has reviewed Mr. Pearson’s expert report and his deposition testimony. Mr. Pearson has spent the last 45 years working for various non-profit public interest groups and has advocated for campaign finance reform in Montana for many of those 45 years. Since 1999, he has served as Senior Vice-President and Montana Office Director for M+R Strategic Services. M+R is a for-profit business that works with non-profits.

Mr. Pearson has provided expert testimony in a number of cases, including one case presided over by the undersigned. See Montana Chamber of Commerce v. Argenbright, CV 97-6-H-CCL. Between 1988 and 2016, he served as the campaign manager or senior strategist for passage of nine initiative campaigns and one constitutional referendum in Montana. He also served as the campaign manager for the Helena Smokefree Policy Referendum in 2004 and as the senior strategist for passage of a constitutional amendment in North Dakota.

In this case, Mr. Pearson is charging $150 per hour for research and writing and $200 per hour for deposition and trial testimony. There is no question that Mr. Pearson’s training and experience in this field warrants the $150 fee for research and writing. Indeed, Plaintiffs’ counsel admit that he is entitled to compensation at the rate of $150 per hour. Charging a slightly higher fee for testimony is reasonable. Whether testifying at trial or in a deposition, an expert is expected to provide “thoughtful and precise answers.” Edin, 188 F.R.D. at 547. Depositions taken by the opposing party “are, at times, stressful and, unfortunately, usually adversarial in nature.” Id. For the most part, the deposition in this case was collegial; however, there were portions of the depositions that were contentious and the Court finds that Mr. Pearson’s hourly fee of $200 was reasonable.

NOTE: Litigation must be slow in Montana for this $600 fee dispute to reach a federal judge. For more information, the case can be viewed here: