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Gonzales v. Marshall University Board of Governors

United States District Court, S.D. West Virginia, Huntington Division

April 2, 2019

ALICIA GONZALES, Plaintiff,
v.
MARSHALL UNIVERSITY BOARD OF GOVERNORS, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBER'S UNITED STATES DISTRICT JUDGE

         On January 31, 2018, Plaintiff Alicia Gonzales filed a complaint against Defendant Marshall University Board of Governors for allegedly violating 20 U.S.C. § 1681, et. seq., also known as Title IX.[1] On March 14, 2019, Plaintiff filed a Motion to Determine Reasonable Expert Fee, which is now pending before this Court. ECF No. 50. For the reasons below, the Court denies Plaintiff's motion.

         I. Facts

         As a result of this lawsuit, both Plaintiff and Defendant have retained expert witnesses to offer their opinions on Defendant's handling of the disciplinary process. See ECF No. 50, at 1. Relevant to this motion is Defendant's expert Brett Sokolow, who Plaintiff has scheduled a deposition for. See Id. Mr. Sokolow is an attorney, and currently resides in Los Angeles, California, but is licensed to practice law in Pennsylvania and New Jersey. See Id. at 4; ECF No. 53, at 2. Mr. Sokolow is also the President and CEO of the National Center for Higher Education Risk Management, the President of the Association of Title IX Administrators, and is the founder and Board Chair of the Advisory Board for the National Behavioral Intervention Team Association. See ECF No. 53, at 4.

         Defendant has advised Plaintiff that Mr. Sokolow will charge Plaintiff $700.00 per hour for his time, [2] and will only be deposed in Los Angeles, California. See ECF No. 50, at 2. Plaintiff finds this price unreasonable, and in violation of Rule 26 of the Federal Rules of Civil Procedure (“FRCP”). Thus, she has filed the above referenced motion, and requests this Court to enter an order limiting Mr. Sokolow's fees to $275.00 per hour for his deposition. ECF No. 54, at 5.

         II. Applicable Law

         Rule 26 of the FRCP states that, unless manifest injustice would result, a court must require a party seeking to depose an expert to pay the expert a “reasonable” fee. See FRCP 26(b)(4)(E)(i).

         To determine whether a fee is “reasonable, ” courts consider the following factors:

(1) the witness's area of expertise, (2) the education and training that is required to provide the expert insight that is sought, (3) the prevailing rates for other comparably respected available experts, (4) the nature, quality and complexity of the discovery responses provided, (5) the cost of living in the particular geographic area, (6) the fee being charged by the expert to the party who retained him, (7) fees traditionally charged by the expert on related matters, and (8) any other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26.

First S. Bank v. Fifth Third Bank, N.A., 2014 WL 3868000, at *4 (D.S.C. Aug. 6, 2014), aff'd sub nom. 631 Fed.Appx. 121 (4th Cir. 2015) (internal quotations omitted).

         Additionally, a guiding principle is that “the expert's fee should not be so high as to impair a party's access to necessary discovery or result in a windfall to the expert.” Id. (internal quotations omitted). Finally, the party seeking reimbursement of its expert witness' fee “has the burden of demonstrating to the court that the expert's rate and fee are reasonable.” Fint v. Brayman Constr. Corp., 2019 WL 124835, at *3 (S.D. W.Va. Jan. 7, 2019) (internal quotations omitted).

         III. Analysis

         Based on the factors above, the Court holds that Mr. Sokolow's fee of $700.00 per hour is reasonable. First, Mr. Sokolow is an attorney, President of both the National Center for Higher Education Risk Management and the Association of Title IX Administrators, and is the founder and Board Chair of the Advisory Board for the National Behavioral Intervention Team Association. Thus, Mr. Sokolow clearly has expertise relevant to this Title IX lawsuit, and the education and professional history that renders him a valuable expert is substantial. Additionally, Mr. Sokolow resides in Los Angeles, California, where the cost of living is near the highest in the United States.[3] Finally, Defendant submits to this Court that Mr. Sokolow is also charging it $700.00 per hour for his services, and that Mr. Sokolow has charged $700.00 per hour in various related matters. See ECF No. 53, at 2.

         Thus, only two factors can weigh in Plaintiff's favor: first, the prevailing rates for other comparably respected available experts, and second, the nature, quality and complexity of the discovery responses provided. Regarding the first factor, Plaintiff asserts that her own expert, Ms. Bullard, charges $275.00 per hour, is also a licensed attorney, owns and operates a consulting company that specializes in providing institutions guidance on Title IX compliance, was formerly counsel for a university, frequently speaks and presents on Title IX, and has served as an expert in litigation. See ECF No. 50, at 5-6. However, while Ms. ...


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