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Experts’ travel costs awarded under new test

A Norfolk federal court has awarded reimbursement for experts’ travel time to depositions, but at a rate that is half the hourly charge for time actually spent in deposition.

Senior U.S. District Judge Norman K. Moon, who sits in Charlottesville, was called to Norfolk to hear the federal government’s condemnation case involving 1.604 acres in downtown Norfolk needed for an addition to the federal courthouse.

The defendant property owners won $13.4 million last May in U.S. v. 1.604 Acres of Land.

The defendant, 515 Granby LLC, wanted reimbursement of expenses for the plaintiff government’s depositions of four defense experts. But the plaintiff balked at paying travel time for the experts, which was charged at the same hourly rate as the experts charged for their time in the actual deposition.

Moon said he could order one side to pay the other side a “reasonable fee” for time spent responding to discovery, under the Federal Rules of Civil Procedure. Rule 26(b)(4)(E) allows a court to calibrate expert fees so the party seeking discovery won’t be hampered by unreasonably high fees that prevent discovery.

It’s up to the court to decide what’s “reasonable,” and the Norfolk court’s local rules do not address payment for travel time, Moon said, although other jurisdictions have awarded costs for experts’ travel time.

Moon surveyed the case law and came up with his own test to shift costs for travel time, which looks at the availability of local experts; whether one party chiefly benefited from the expert’s travel; the expert’s ability to make productive use of time in transit; and the cost of travel time relative to the expert’s total compensable costs.

The condemnation case needed valuation experts with specialized knowledge of the local real estate market, Moon said. So why did the owners in this case have to look beyond Hampton Roads?

Because the expert they hired had “particular experience in valuing partially developed properties,” the owners said. That point persuaded Moon, and because the experts traveled by air and could prepare for depositions while en route, the owners were entitled to reimbursement, Moon ruled.

But to strike a reasonable balance, Moon said the government only has to pay each expert’s travel time at an hourly rate that is 50 percent of the hourly deposition rate.
By Deborah Elkins

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