Who Pays for Expert Discovery

What the rule says

The payment provision is short, and it is worth reading in full before anything is argued about it. FRCP 26(b)(4)(E):

“Unless manifest injustice would result, the court must require that the party seeking discovery: (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and (ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions.”

Three features do most of the work. Shifting is mandatory — the court “must require” it — rather than discretionary. It is subject to a single stated exception, manifest injustice. And what is shifted is a reasonable fee, which is not a synonym for the fee the expert charges.

The current text dates from the amendment effective 1 December 2010, which renumbered and expanded the expert provisions and moved the payment rule to subparagraph (E). Rule 26 was amended again effective 1 December 2025, but that amendment concerned the treatment of privilege claims in the discovery plan under Rule 26(b)(5)(A), alongside Rule 16 and the new Rule 16.1 for multidistrict litigation. It did not touch Rule 26(b)(4).

What it does not reach

Subparagraph (E)(i) shifts the fee only for “time spent in responding to discovery under Rule 26(b)(4)(A) or (D)” — that is, the deposition of a testifying expert, and court-ordered discovery from a non-testifying consultant in the exceptional case where FRCP 26(b)(4)(D) permits it.

It does not shift the cost of the expert's file review, the analysis, the report, trial preparation or trial testimony. Those remain the retaining party's expense, and in most engagements they are the larger share of the bill by a wide margin — the practitioner literature and the published fee data agree that the bulk of expert work is review, analysis and writing rather than testifying.

The idea that “the other side pays for the expert” circulates widely and is wrong in the way that matters to a budget. The other side pays for a slice of one day, at a rate a court may reduce, and only if a deposition is taken at all.

Subparagraph (E)(ii) is narrower still and often overlooked: where a court permits discovery from a non-testifying consultant under (D), the party seeking that discovery also pays the other party a fair portion of what it reasonably spent obtaining the consultant's facts and opinions. That is a contribution to the opponent's cost of developing the expert work, not merely a witness fee.

What makes a fee reasonable

The most-cited factor test comes from Jochims v. Isuzu Motors, Ltd., 141 F.R.D. 493, 495–96 (S.D. Iowa 1992), restated in Hose v. Chicago & North Western Transportation Co., 154 F.R.D. 222, 224–25 (S.D. Iowa 1994), and adopted widely since, including in Borel v. Chevron U.S.A. Inc., 265 F.R.D. 275 (E.D. La. 2010). Summarized rather than quoted, the seven considerations are the witness's area of expertise; the education and training required to provide the insight sought; the prevailing charges of comparably respected available experts; the nature, quality and complexity of the discovery responses provided; what the retaining party is itself being charged; what the expert has traditionally charged on related matters; and any other factor that helps the court balance the interests Rule 26 implicates.

The fifth consideration does most of the work in practice. Courts treat the figure the retaining party is paying as the natural benchmark, and reduce toward it. Documented reductions include a $600 hourly charge cut to the $200 the expert was charging the retaining party in Sublette v. Glidden Co.; a reduction from $500 to $250 in Jochims, where the amount claimed was double the highest hourly figure the plaintiff had paid; and a cut from $350 to the $250 charged the retaining party in Magee v. Paul Revere Life Insurance Co., 172 F.R.D. 627 (E.D.N.Y. 1997).

The lesson for a retaining party is that a deposition figure priced well above the engagement figure is not a windfall waiting to be collected. It is an argument the opposing party will make, with authority behind it.

Manifest injustice, and how little it has been defined

The exception has no settled content. It is not defined in the rule, and no controlling appellate decision construing it under this subparagraph was located. The scholarship treating the provision — Danielle M. Shelton's study of expert fee shifting in the Seton Hall Law Review is the fullest treatment — identifies exactly this as the problem: the phrase produces no consistent or uniform answers across the district courts, with no guidance on when it applies or which party carries the burden of invoking it.

In practice it is raised most often where the party seeking the discovery lacks the means to pay, including litigants proceeding without counsel or without funds, and the outcome is district-specific. Counsel intending to rely on it should research the forum rather than the rule.

Preparation time is a genuine split, not a settled question

Whether the deposing party must also pay for the expert's time preparing for the deposition is the live question under this rule, and district courts take four identifiable positions.

1. Compensable, subject to reasonableness. Collins v. Village of Woodridge, 197 F.R.D. 354, 357 (N.D. Ill. 1999); Fleming v. United States, 205 F.R.D. 188, 190 (W.D. Va. 2000); Bone Shirt v. Hazeltine, 2006 WL 1788307 (D.S.D. June 22, 2006).
2. Not compensable at all. Rock River Communications, Inc. v. Universal Music Group, 276 F.R.D. 633, 637 (C.D. Cal. 2011); Litecubes, LLC v. Northern Light Products, Inc., 2005 WL 6749422 (E.D. Mo. May 19, 2005).
3. Compensable except for time spent with the retaining attorney. Mock v. Johnson, 218 F.R.D. 680, 683 (D. Haw. 2003); Magee, 172 F.R.D. at 647.
4. Compensable only in complex cases or extenuating circumstances. M.T. McBrian, Inc. v. Liebert Corp., 173 F.R.D. 491, 493 (N.D. Ill. 1997); Brew v. Ferraro, 1998 WL 34058048 (D.N.H. Sept. 1, 1998); Eastman v. Allstate Insurance Co., 2016 WL 795881 (S.D. Cal. Feb. 29, 2016).

There is a rough regional pattern. Districts within the Second Circuit have consistently awarded preparation time — New York v. Solvent Chemical Co., 210 F.R.D. 462 (W.D.N.Y. 2002); Lamere v. New York State Office for the Aging, 223 F.R.D. 85 (N.D.N.Y. 2004); AP Links, LLC v. Russ, 2015 WL 9050298 (E.D.N.Y. Dec. 15, 2015). Districts within the Ninth Circuit have consistently declined — Rock River; Stevens v. CoreLogic, Inc., 2016 WL 8729928 (S.D. Cal. May 6, 2016); 3M Co. v. Kanbar, 2007 WL 2972921 (N.D. Cal. Oct. 10, 2007). Third, Seventh, Tenth and D.C. Circuit districts are mixed and trending toward awards, with Giuliani v. Springfield Township, 2017 WL 1382380 (E.D. Pa. Apr. 18, 2017), LK Nutrition, LLC v. Premier Research Labs, L.P., 2015 WL 4466632 (N.D. Ill. July 21, 2015), Boos v. Prison Health Services, 212 F.R.D. 578 (D. Kan. 2002) and Barnes v. District of Columbia, 274 F.R.D. 314 (D.D.C. 2011) on one side, and Durkin v. Paccar Inc., 2012 WL 12887769 (D.N.J. Dec. 28, 2012), Fait v. Hummel, 2002 WL 31433424 (N.D. Ill. Oct. 30, 2002) and United States ex rel. Fago v. M & T Mortgage Corp., 238 F.R.D. 3 (D.D.C. 2006) on the other.

Borel states that a majority of district courts award preparation fees; Brew v. Ferraro records the opposite impression. Both cannot be right, and the honest statement is that the answer is district-by-district and often judge-by-judge.

Why the split exists

The three arguments against shifting preparation time are worth stating, because they explain why courts that decline are not simply being ungenerous.

The text. Subparagraph (E)(i) shifts the fee for “time spent in responding to discovery under Rule 26(b)(4)(A) or (D),” and (A) is the deposition itself. Preparation precedes the discovery event rather than responding to it.

Control. The deposing party has no say in how much preparation the retaining lawyer directs. A rule that shifts the cost lets one party set a bill the other must pay.

Overlap. Preparation for a deposition substantially overlaps with preparation for trial, so shifting it can make one side subsidize the other's trial readiness.

The arguments the other way are equally practical: a deposition of a technical expert is not a useful exercise if the witness has not re-read the file, and an expert who has spent years away from a matter cannot answer usefully without doing so.

The 3:1 convention, and what the empirical work shows

Where preparation time is shifted, courts have converged on a ceiling expressed as a ratio of preparation hours to deposition hours. The convention is collected in Script Security Solutions, LLC v. Amazon.com, Inc., 2016 WL 6649721 (E.D. Tex. Nov. 10, 2016), and applied as a reduction in LG Electronics v. Whirlpool Corp., 2011 U.S. Dist. LEXIS 121361 (N.D. Ill. 2011), where claims at 4.2:1 and 6.4:1 were cut to 3:1. It is a convention rather than a rule, and no appellate court has adopted it.

The most useful empirical work on how these motions are actually decided is Kristine S. Slocum and Thomas R. Ireland's study of eight orders by six judges in the Northern District of Illinois between 1989 and 2017. Seven of the eight awarded recovery for deposition preparation time, at awarded ratios of preparation to deposition time ranging from 1.5:1 to 5.7:1, with decisions from about 2011 onward converging on 3:1 as the reasonable ceiling in complex cases. Travel time was awarded consistently. Time spent reviewing the deposition transcript was awarded but trimmed — in one instance an expert's nine hours were reduced to two and a half.

A study of eight orders in one district is a small sample and its authors present it as such. It is nonetheless the only systematic count located, and it points in the same direction as the case law: where preparation is shifted at all, it is shifted subject to a ratio.

Timing, travel and the state contrast

Payment follows the time spent. The obligation in subparagraph (E) is framed in the past tense, and at least one court has held that an expert may not insist on advance payment as a condition of going forward: Johnson v. Spirit Airlines, Inc., 2008 WL 1995117 (E.D.N.Y. May 6, 2008). A deposition can proceed with the fee dispute unresolved, and disputes are ordinarily resolved on motion afterward.

Travel time has no uniform treatment. Some courts apply a half-rate presumption; others allow the full rate. Courts generally disfavor flat deposition charges even though experts commonly quote them.

The federal rule is not the national rule. State discovery statutes allocate these costs on their own terms, and California's are the sharpest contrast. Under Cal. Code Civ. Proc. § 2034.430(b), a party deposing an expert “shall pay the expert's reasonable and customary hourly or daily fee for any time spent at the deposition from the time noticed in the deposition subpoena, or from the time of the arrival of the expert witness should that time be later than the time noticed in the deposition subpoena, until the time the expert witness is dismissed from the deposition, regardless of whether the expert is actually deposed by any party attending the deposition.” That statute resolves by legislation several things federal district courts litigate case by case, including compensation for time in which no questions are asked. Counsel in state court should read the forum's own discovery statute rather than assume the federal position.

Frequently Asked Questions

Published 2026-08-12