In February 2016, Plaintiffs-Appellants Scott Miller and Michael Spaulding, two Seattle Police officers, fatally shot Che Andre Taylor, a Black man, as they tried to arrest him. Four days after the shooting, Defendant-Appellee Kshama Sawant, then a member of the Seattle City Council, told a crowd of protestors in front of the Seattle Police Department Headquarters that Taylor’s shooting was a “blatant murder at the hands of the police.” Following an inquest into Taylor’s killing, prosecutors declined to file criminal charges against Miller and Spaulding on the ground that there was insufficient evidence to prove that they killed Taylor with the requisite “malice” to be guilty of criminal homicide, as required by Washington law. Roughly three months after the inquest concluded, Sawant told a crowd of protestors that Taylor was “murdered by the police.”
Miller and Spaulding filed suit in federal court, alleging state law claims for defamation and outrage (i.e., intentional infliction of emotional distress), as well as “federal defamation,” against Sawant.
The district court dismissed the “federal defamation” claim when it granted Sawant’s motion for partial judgment on the pleadings, but chose to exercise supplemental jurisdiction over the remaining state law defamation and outrage claims. The district court granted Sawant’s motion for summary judgment as to the state law defamation and outrage claims, and Miller and Spaulding appealed the district court’s grant of that motion.
The appellate court affirmed the district court’s grant of Sawant’s motion for summary judgment but considered whether the district court erred when it granted Sawant’s motion for recovery of expert witness deposition expenses, which included fees for time spent in preparation for deposition.
Law Enforcement Expert Witness
Professor Gregory Gilbertson (Ret.) is an expert witness in police practices. He specializes in police use of force, false arrest, officer misconduct, criminal and self-defense casework. He is also a former SWAT team officer, senior patrolman, stakeout squad officer, juvenile investigator, school resource officer, private investigator, and Guardian ad Litem.
Law Expert Witness
Lisa Daugaard is an American criminal justice reform activist. She is the director of the nonprofit organization Public Defender Association and a commissioner of the Community Police Commission in Seattle. She received a 2019 MacArthur Fellowship for her criminal justice reform work.
Discussion by the Court
Sawant sought payment of the fees her expert witnesses had incurred in responding to Miller and Spaulding’s discovery
In December 2022, Miller and Spaulding deposed two witnesses who Sawant identified as experts in her initial disclosures. Sawant had retained the identified experts as potential defense witnesses. That same month, Sawant sent Miller and Spaulding the experts’ invoices and requested payment for the fees her expert witnesses had incurred in responding to Miller and Spaulding’s discovery, including time spent preparing for the deposition. Sawant sought payment of the fees pursuant to Federal Rule of Civil Procedure 26(b)(4)(E).
However, Miller and Spaulding failed to provide payment. Sawant covered the costs after Plaintiffs refused to pay, and filed a motion to compel payment.
As relevant here, the expert witness deposition fees Sawant sought included compensation for time the witnesses had spent preparing for their depositions.
Specifically, Sawant sought $1,367.50 for Professor Gregory Gilbertson’s expert witness deposition fees and $1,770.00 for Lisa Daugaard’s expert witness deposition fees.
In June 2023, the district court granted Sawant’s motion, noting there is no clear guidance from the Ninth Circuit regarding whether the reimbursement of preparation time is permitted under Rule 26, but concluding that Sawant’s request was reasonable, that awarding the fees “falls squarely within the ambit of Rule 26(b)(4)(E),” and that no manifest injustice would result from awarding the fees.
Miller and Spaulding’s objected to the admissibility of Daugaard’s opinions
Miller and Spaulding argued that the district court erred when it granted Sawant’s motion for Daugaard’s expert witness deposition expenses without first assessing whether she qualified as an expert under the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
To begin with, the plain text of Rule 26 provides that a district court “must require” that a deposing party pay “a reasonable fee for time spent in responding to discovery” by “an expert whose opinions may be presented at trial.” The Court held that Miller and Spaulding’s objection to the admissibility of Daugaard’s opinions did not obviate their obligation to pay Daugaard a reasonable fee under Rule 26.
Expert witness deposition preparation fees that were awarded to Sawant were reasonable and their award did not result in manifest injustice
Miller and Spaulding also argued that the district court erred when it granted Sawant’s motion for expert witness deposition fees for Gilbertson’s and Daugaard’s time spent preparing for their depositions. That is, Miller and Spaulding maintained that Rule 26(b)(4)(E) permitted expert fees only for time spent during a deposition, and not for time spent preparing for a deposition.
The Court held that Miller and Spaulding’s suggestion that such fees are never recoverable cannot be squared with Rule 26’s plain text, which requires the “party seeking discovery” to “pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A).”
Moreover, Miller and Spaulding raised several policy concerns based on “costs and incentives” and “the potential for abuse” if deposition preparation fees are recoverable. But the policy concerns they raised are addressed by Rule 26’s existing textual limitations on recoverable fees: namely, that fees must be “reasonable,” and their award must not result in “manifest injustice.” Gilbertson spent only 2.5 hours preparing and Daugaard only 2.2 hours, and Miller and Spaulding did not contest the fairness of Gilbertson’s and Daugaard’s hourly rates.
Held
In conclusion, the appellate court concluded that the district court did not err when it granted Sawant’s motion for recovery of her expert witnesses’ deposition fees.
Key Takeaway:
Therefore, the plain text of Federal Rule of Civil Procedure 26 allows for the recovery of reasonable expenses for the time an expert witness, whose opinions may be presented at trial, spends preparing for a deposition. Plaintiffs’ objection to the admissibility of the expert’s opinions did not obviate their obligation to pay the expert a reasonable fee under Rule 26.
Case Details:
| Case Caption: | Scott Miller V. Kshama Sawant |
| Docket Number: | 2:18cv506 |
| Court: | United States Court of Appeals for the Ninth Circuit |
| Order Date: | August 22, 2024 |
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