*1 This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment made in accordance with the provisions of 28 U.S.C. § 636, and upon the parties’ Joint Motion to Amend the Scheduling Order, [Docket No. 46]; Defendant's Motion to Compel, [Docket No. 51]; and Plaintiff's Motion to Compel Expert Deposition for a Reasonable Fee. [Docket No. 57]. The Court took the parties’ Motions under advisement on the written submissions of the parties. (Order [Docket No. 68]).

For the reasons discussed below, the parties’ Joint Motion to Amend the Scheduling Order, [Docket No. 46], is GRANTED; Defendant's Motion to Compel, [Docket No. 51], is DENIED; and Plaintiff's Motion to Compel Expert Deposition for a Reasonable Fee, [Docket No. 57], is GRANTED in part and DENIED in part, as set forth herein.

I. Background

Plaintiff was formerly employed by Defendant as an “African-American Cultural Liaison.” (Compl., [Docket No. 1], at 1). In her Complaint, she alleges that shortly after Defendant hired her in August 2016, she became aware that Defendant's students of color were regularly subjected to racial taunting and physical assaults from both students and staff. (Id.). She also alleges that she made repeated complaints to the administration, including reports of racial bullying, disparate disciplining of students of color, and retaliation against students of color for reporting racial discrimination. (Id. at 2, 5–14).

Plaintiff alleges that on March 16, 2018, she was given a letter of reprimand for simply doing the actions described in her job description. (Id. at 12). Plaintiff sought to discuss this reprimand with school officials, but those efforts were rebuffed. (Id. at 12–13).

On June 5, 2018, school officials provided Plaintiff with a performance evaluation without discussing the evaluation with her. (Id. at 14). On June 8, 2018, she provided a response that reiterated her complaints of mistreatment based on race. (Id. at 15). Shortly thereafter she was terminated. (Id.).

Based on the allegations in her Complaint, Plaintiff asserts seven causes of action. Count I of her Complaint raises a claim asserting Reprisal in Violation of Title VII of the Civil Rights Act of 1964 based on the allegation that Defendant discharged her based on her reporting and opposing race discrimination and harassment. (Id. at 16–17). In Count II, Plaintiff alleges Reprisal in Violation of the Minnesota Human Rights Act. (Id. at 17). In Count III and Count IV, respectively, Plaintiff alleges counts of racial discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Minnesota Human Rights Act. (Id. at 18–19). In Count V, Plaintiff raises a claim of Wrongful Termination in violation of 42 U.S.C. § 1981. (Id. at 19–20). In Count VI and Count VII, respectively, Plaintiff asserts a claim of Retaliation in violation of 42 U.S.C. § 1981 and the Minnesota Whistleblower Act. (Id. at 20–22).

In Counts I, III, V, and VI of her Complaint, Plaintiff alleges that she “has suffered and will continue to suffer injuries, including the loss of past, present, and future income and benefits; mental anguish, emotional distress, humiliation, embarrassment, loss of reputation; and other injuries.” (Id. at 16, 18, 20–21). In Counts II and IV, Plaintiff alleges that she “has suffered and continues to suffer loss of income, mental anguish and suffering, emotional distress, and other damages.” (Id. at 17, 19). In Count VII, Plaintiff alleges that she “has suffered loss of income, mental anguish and emotional distress, humiliation, loss of reputation and other damages.” (Id. at 22).

II. Defendant's Motion to Compel. [Docket No. 51].

*2 Through this most recent Motion to Compel, Defendant seeks an Order of this Court compelling Plaintiff to fully respond to Defendant Requests for Production Nos. 17, 18, 21, 22, 23, 26, and 27. (Def.’s Mot. [Docket No. 51]).[1] Each of these discovery requests relates to “records pertaining to prior claims asserted by Plaintiff, including prior racial discrimination claims asserted before the EEOC or [Minnesota Department of Human Rights], as well as Plaintiff's prior workers’ compensation claims.” (Def.’s Mem., [Docket No. 53], at 10). In support of its Motion, Defendant argues that “the prior claims share important facts and at the very minimum provide context to Plaintiff's claims against” Defendant. (Id. at 12).

A. Standard of Review

Federal Rule of Civil Procedure 26(b)(1) states:

However, “discovery may not be had on matters irrelevant to the subject matter involved in the pending action.” Miscellaneous Docket Matter #1 v. Miscellaneous Docket Matter #2, 197 F.3d 922, 925 (8th Cir. 1999); Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); see also, Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (Rule 26 “is liberal in scope and interpretation, extending to those matters which are relevant”). The party seeking discovery bears the initial responsibility for making the threshold showing of relevance before the production of information is required. See, e.g., Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). If that threshold showing is meet, the party resisting production then bears the burden of establishing a lack of relevancy or undue burden. See, Mallak v. Aitkin Cnty., No. 13-cv-2119 (DWF/LIB), 2016 WL 9088760, at *5 (D. Minn. Dec. 22, 2016).

Federal Rule of Civil Procedure 37(a)(3) provides for various motions to compel disclosure or compel discovery depending on the nature of the failure by the other party. Specifically, the Court may compel a discovery response if “a party fails to answer an interrogatory submitted under Rule 33,” or if “a party fails to produce documents or fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iii)–(iv).

B. Analysis

As observed above, Defendant seeks an Order of this Court compelling Plaintiff to provide complete responses to Requests for Production Nos. 17, 18, 21, 22, 23, 26, and 27. Defendant's RFP Nos. 17, 18, 21, 22, 23, 26, and 27, and Plaintiff's responses thereto are as follows:

(Exhibit 2 [Docket No. 54-2]; Exhibit 4 [Docket No. 54-4]). Plaintiff has produced no documents in response to these at issue discovery requests, although Plaintiff did previously disclose that she had been a party to three other civil actions: an arbitration involving a former employer, the Human Development Center; a personal injury suit involving an automobile collision; and “a no-fault claim.” (Def.’s Mem., [Docket No. 53], at 3).

Through its own investigation, Defendant also “learned that Plaintiff made a workers’ compensation claim after she was attacked by a client prior to her employment with” Defendant. (Id. at 3). Defendant asserts that, as part of this workers’ compensation claim, Plaintiff participate in an IME and deposition. (Id.).

*5 Defendant also asserts that it has learned that Plaintiff previously “asserted allegations of racial discrimination against employers both before and after [her] employment with” Defendant. (Id. at 5). Specifically, Defendant asserts that “Plaintiff made a claim with the EEOC in 2014 against [her] former employer, Accend Services, alleging discrimination and retaliation on the basis of her race”; “a claim with the EEOC in 2016 against [her] former employer, Community Action Duluth, alleging discrimination on the basis of race, disability, and/or retaliation for opposing discrimination”; and a claim “that she was discriminated against by Human Development Center, [her] employer following her time” in Defendant's employ. (Id. at 4–5).

Defendant contends that it is entitled to discovery into Plaintiff's prior legal proceedings, including her prior personal injury case, her administrative claims, and her workers’ compensation claims. (Id. at 7–16). In support of this contention, Defendant asserts that “the prior claims share important facts and at the very minimum provide context to Plaintiff's claims against” Defendant. (Id. at 12). Defendant also asserts that other “federal courts have held that such records are discoverable,” and Defendant conclusorily asserts that the “requested documents at issue are analogous to employment records from other employers, which courts have held to be discoverable.” (Id.).

Defendant argues that the at issue documents are relevant and proportional to the claims and defenses in this case. (Id. at 13–15). In support of this argument, Defendant asserts that the records will provide supplementation to Plaintiff deposition testimony, including “a more complete picture of Plaintiff's medical history and providers”; the records are “relevant to determining whether any alleged damages were caused by [Defendant], or were instead caused by another actor or actors”; the records are “relevant to the apparent [pattern or habit] that Plaintiff has exhibited when confronted by prior and subsequent employers regarding performance deficiencies” which is “germane to ... the issue of whether Plaintiff was meeting [Defendant's] legitimate employment expectations”; and the “records will allow [Defendant] the opportunity to verify the veracity and completeness of information provided in Plaintiff's discovery responses to date.” (Id.).

Defendant seeks an Order of this Court compelling Plaintiff to provide executed records release authorizations for all records from the Equal Employment Opportunity Commission (hereinafter “EEOC”) related any claim Plaintiff made to the EEOC; all records from the Minnesota Department of Human Rights (hereinafter “MDHR”) related to any claim Plaintiff made to the MDHR; and all records, including deposition transcripts, for any workers’ compensation claim Plaintiff has ever made.

As relevant to the present Motion, Rule 34 provides that “[a] party may serve on any other party a request within the scope of Rule 26(b) ... to produce and permit the requesting party or its representative to inspect, copy, test, or sample ... any designated documents or electronically stored information ... stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” Fed. R. Civ. P. 34(a). In response to such a request, a responding party may execute an appropriate authorization giving the requesting party access to the documents sought. See, gen., R.S. by & through S.S. v. Minnewaska Area Sch. Dist. No. 2149, No. 12-cv-588 (MJD/LIB), 2013 WL 12149247, at *9 (D. Minn. Oct. 1, 2013).

As the Court has already explained to the parties in a prior Order, Rule 34 does not have any provision by which a Court may require a party to sign a release or authorization where the requesting party has not requested the underlying documents before seeking the blanket release authorization. See, Fed. R. Civ. P. 34. Other Courts, including Courts in this District, have reached this same conclusion: Rule 34 lacks any provision requiring a responding party to sign a release authorization so that the requesting party may contain all records from a non-party. See, e.g., Afremov v. Sulloway & Hollis, P.L.LC., No. 9-cv-3678 (PJS/JSM), 2011 WL 13199154, at *3 (D. Minn. Dec. 2, 2011) (“In addition, Rule 34 contains no provision requiring a party to sign a release or authorization so that the requesting party may obtain documents from a non-party.”); Klugel v. Clough, 252 F.R.D. 53, 55 (D.D.C. 2008) (“Upon consideration of these authorities, this court now holds that a request for production of documents pursuant to Rule 34 of the Federal Rules of Civil Procedure cannot be utilized as a vehicle by which to compel a party to sign an authorization for the release of medical records.”).[2]

*6 Simply put, under the circumstances of this case, the Court is without authority to require Plaintiff to execute record release authorizations for all records from the Equal Employment Opportunity Commission (hereinafter “EEOC”) related to any claim Plaintiff made to the EEOC; all records from the Minnesota Department of Human Rights (hereinafter “MDHR”) related to any claim Plaintiff made to the MDHR; and all records, including deposition transcripts, for any workers’ compensation claim Plaintiff has ever made. For that reason, to the extent Defendant's Motion seeks an Order of this Court compelling Plaintiff to mandatorily produce executed authorizations in response to Request for Production Nos. 17, 18, and 21, Defendant's Motion to Compel, [Docket No. 51], is DENIED.

Defendant also seeks an Order of this Court compelling Plaintiff to provide complete responses to Defendant's RFP Nos. 22, 23, and 26. RFP No. 22 seeks all records from the EEOC related to any claim Plaintiff has ever made to the EEOC. RFP No. 23 seeks all records from the Minnesota Department of Human Rights related to any claim Plaintiff has ever made to the MDHR. RFP No. 26 seeks all records, including deposition transcripts, related to any workers’ compensation claim Plaintiff has ever made.

As observed above, discovery is permitted only on matters relevant to the claims and defense in the case at issue. See, e.g., Miscellaneous Docket Matter #1 v. Miscellaneous Docket Matter #2, 197 F.3d 922, 925 (8th Cir. 1999); Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). The party seeking discovery, here Defendant, is responsible for making the threshold showing of relevance before production of information is required. See, Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992).

Defendant generically argues that records about Plaintiff's prior legal proceedings, including her prior personal injury case, her administrative claims, and her workers’ compensation claims are relevant because these claims purportedly “share important facts and at the very minimum provide context to Plaintiff's claims against” Defendant. (Id. at 7–16). Defendant asserts that the records are “relevant to determining whether any alleged damages were caused by [Defendant], or were instead caused by another actor or actors” and the “records will allow [Defendant] the opportunity to verify the veracity and completeness of information provided in Plaintiff's discovery responses to date.” (Id.). The Court finds each of these arguments to be unpersuasive.[3]

*7 Defendant's generalized assertion that the at issue documents are relevant to determining whether the alleged damages were caused by Defendant or some other actor is the exact type of fishing expedition that the Federal Rules of Civil Procedure are intended to prevent. If this was a sufficient basis to permit discovery into a particular area, then each of these reasons would be a sufficient basis to permit discovery into any area of Plaintiff's history. Defendant's generalized assertion here would support discovery into information related to any actor in Defendant's history.

More importantly, RFP Nos. 22, 23, and 26 as drafted are overbroad in the type of claim records sought. The Court has, in an earlier Order, previously explained that in this case only Plaintiff's emotional health is at issue; Plaintiff has not placed her physical health at issue. Yet Defendant's RFP Nos. 22, 23, and 26 are not limited to claims involving Plaintiff's emotional health. Defendant argues that the information sought is relevant to this action because the at issue records could provide a more complete medical history, but Defendant's requests are in no way limited to Plaintiff's relevant medical history.[4]

Moreover, RFP Nos. 22, 23, and 26 as drafted are also overbroad in their temporal scope. Neither RFP No. 22, 23, or 26 contains any temporal limitation whatsoever. Defendant has failed to articulate how any EEOC, MDHR, or workers’ compensation claims from throughout Plaintiff's entire work history are relevant to the present action.

The Court also notes that it finds unpersuasive Defendant's assertion that the at issue historical records are somehow relevant to determining whether or not Defendant was meeting Defendant's legitimate employment expectations at the time of her termination at issue in this case. Other than its simply, blank assertion of relevance, Defendant fails to articulate any specific basis for how these historical claim records could be relevant to the issue of whether Plaintiff was meeting Defendant's legitimate employment expectations.[5] On the record now before the Court, there is no basis to find that Plaintiff's conduct at her other places of employment could have any bearing on whether Plaintiff was meeting Defendant's legitimate employment expectations at the time of her termination giving rise to the present case.

*8 In summary, Defendant's RFP Nos. 22, 23, and 26 are overbroad in temporal scope, and the Defendant has failed to show the information sought to be relevant to the claims and defense at issue in this present case. While it is conceivable that RFP Nos. 22, 23, and 26, might be limited to seek only relevant information which could hypothetically exist, Defendant has failed to limit its discovery request to such relevant information. It is Defendant's obligation to establish relevancy under Federal Rule of Civil Procedure 26(b)(1). See, Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). The Court will not endeavor to redline Defendant's discovery requests to a point where they seek only temporally reasonable and relevant information.

Thus, to the extent Defendant's Motion seeks an Order of this Court compelling Plaintiff to further respond to RFP Nos. 22, 23, and 26, Defendant's Motion to Compel, [Docket No. 51], is DENIED.

C. RFP No. 27

Defendant also seeks an Order of this Court requiring Plaintiff to respond to RFP No. 27 which seeks all IME reports involving Plaintiff which are based on an IME conducted in the past ten years. Defendant fails to offer any specific argument as to how such IME reports are relevant to the claims and defenses in the present case.

To the extent Defendant intends its arguments related to the other Requests for Production to also apply to RFP No. 27, Defendant's arguments fail for the same reasons as discussed above. Most importantly, RFP No. 27 is not limited to Plaintiff's relevant emotional health which is what has been placed at issue in the present case.

As discussed above, Plaintiff has not placed her physical health at issue. Defendant, however, seeks reports for any and all IMEs regardless of whether or not the underlying IME involved Plaintiff's mental or emotional health. Defendant has failed to limit its overly broad discovery request to relevant information. It is Defendant's obligation to establish relevancy under Federal Rule of Civil Procedure 26(b)(1). See, Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). The Court will not endeavor to redline Defendant's discovery request to a point where it seeks only relevant information.

Therefore, Defendant's Motion to Compel, [Docket No. 51], is DENIED.

III. Plaintiff's Motion to Compel Expert Deposition for a Reasonable Fee. [Docket No. 57].

By her Motion, Plaintiff seeks an Order of this Court limiting the per hour “deposition rate” charged by Defendant's retained expert, Dr. Jennifer Service, to $500.00 per hour; limiting the fees Dr. Service may charge Plaintiff to time actually spent in the deposition and excluding preparation time; and requiring Dr. Service to refund any unused portion of the deposit previously paid by Plaintiff to Dr. Service.[6]

A. Relevant Facts

On October 31, 2020, Defendant produced its expert disclosures identifying Dr. Service as Defendant's expert. (Def.’s Expert Disclosure [Docket No. 60-1]). Defendant's expert disclosure provided that “Dr. Service charges a rate of $500.00 per hour for her examination and review of records, and $4,000.00 per day for deposition or live testimony.” (Id.). Dr. Service later complete a Rule 35 examination of Plaintiff.

Thereafter, Plaintiff's counsel contacted Dr. Service's office to schedule her deposition. (Exhibit [Docket No. 60-2]). Dr. Service's office purported to inform Plaintiff's counsel that her time at the deposition would be billed at a rate of $1325.00 per hour with a two-hour minimum. (Id.). Her office requested a prepayment of $2650.00 which “covers up to two hours (pre-deposition conference & deposition).” (Id.). Plaintiff's counsel paid the requested deposit amount.

*9 The present Motion followed.

B. Analysis

Plaintiff argues that Dr. Service's requested rate of $1325.00 per hour of deposition testimony is unreasonable, and that Dr. Service should only be permitted to bill for time testifying at the deposition as opposed to time preparing for the deposition. Plaintiff asserts that Dr. Service should be permitted to charge only $500.00 per hour. Plaintiff also argues that Dr. Service should be required to refund any unused portion of the $2650.00 prepaid deposit.

Defendant asserts that Plaintiff's Motion should be denied because “Plaintiff has failed to show that the costs associated with Dr. Service's deposition as disclosed by [Defendant] are unreasonable.” (Def.’s Mem., [Docket No. 65], at 1–2). Defendant does not provide any argument regarding the reasonableness of the $1,325.00 per hour fee conveyed by Dr. Service. (Id.). In fact, Defendant specifically asserts that “it had no knowledge of the $1,325.00 fee reference by Plaintiff's counsel, which was not the rate disclosed by [Defendant] in its expert disclosure.” (Id. at 3).

Rule 26 of the Federal Rules of Civil Procedure provides that “[u]nless manifest injustice would result, the court must require that the party seeking discovery” from an expert to “pay the expert a reasonable fee for time spent in responding to discovery.” Fed. R. Civ. P. 26(b)(4)(E). Such discovery includes the deposition of an expert. See, Fed. R. Civ. P. 26(b)(4)(A).

The party seeking to be reimbursed bears the burden of establishing the reasonableness of said fee. See, e.g., Smith v. Bradley Pizza, Inc., No. 17-cv-2032 (ECT/KMM), 2018 WL 5920626, at *7 (D. Minn. Nov. 13, 2018), objections overruled, 2019 WL 2448575 (D. Minn. June 12, 2019), aff'd, 821 F. App'x 656 (8th Cir. 2020). In other words, “[t]he burden of proving reasonableness falls on the party whose expert fee is in question.” Bartlett v. Barbes, No. 3:18-cv-87-RGJ, 2020 WL 6785104, at *2 (W.D. Ky. Nov. 18, 2020).

In the present case, Dr. Service is Defendant's expert, and thus, Defendant bears the burden of demonstrating the reasonableness of Dr. Service's fee.[7] Defendant has wholly failed to establish the reasonableness of Dr. Service's newly requested fee of $1,325.00 per hour. In fact, Defendant fails to even argue that Dr. Service's newly requested fee of $1,325.00 per hour of deposition testimony is reasonable.

*10 Instead, Defendant argues that a rate of $575.00 per hour or $4,000.00 per day is reasonable. (Def.’s Mem., [Docket No. 65], at 1–2, 7, 8).[8] Defendant argues that Dr. Service's rate, as disclosed by Defendant, is reasonable the given the circumstances of the present case and Dr. Service's qualifications. (Id.).

Plaintiff does not proffer any argument regarding the reasonableness of the rate of $575.00 per hour of deposition testimony. (See, Plf.’s Mem. [Docket No. 59]). Instead, Plaintiff argues that the $1,325.00 per hour rate is unreasonable. (Id.).[9]

On the limited record provided by the parties, the Court finds that the $575.00 rate per hour for deposition testimony, as provided for in Defendant's expert disclosure, is the reasonable rate at which Plaintiff must reimburse Defendant for Dr. Service's time. Plaintiff may provide this payment directly to Dr. Service.

This does not end this Court's analysis of this issue.

In its memorandum, Defendant often discusses Dr. Service's rate in the terms of an hourly rate, however, in its expert disclosure, Defendant disclosed Dr. Service's rate as $4,000.00 per day of deposition testimony without references to an hourly rate. Defendant's disclosure thus implies a minimum daily fee of $4,000.00. At the $575.00 per hour rate the Court has now approved as reasonable, this implies a minimum fee representing approximately 6.95 hours of deposition testimony time.

Although in some cases it is reasonable to charge a minimum daily fee for deposition testimony, a minimum fee representing nearly the entirety of the permitted time is not reasonable. This is all the more true because Dr. Service's office stated to Plaintiff's counsel that the Dr. Service billed deposition testimony at a two-hour minimum. (Emails [Docket No. 60-2]).

*11 Although there is scant law on the number of hours an expert may set as the minimum number of billing hours for deposition testimony, at least one other Court has found a four-hour minimum to be reasonable. See, Vaughn v. United States, 4:19-cv-120-CDP, 2021 WL 199348, at *3 (E.D.Mo. Jan. 20, 2021). This Court agrees that a minimum billing amount of four hours is reasonable. Although Plaintiff's counsel asserts that he does not intend Dr. Service's deposition to take a full day, Dr. Service will not be able to rely on that assertion in scheduling the rest of her day. In fact, Plaintiff's counsel specifically reserves the right to use the entirety of the seven hour time provided for by the Rules if the need arises. (Delbridge Decl., [Docket No. 60], ¶ 9). Thus, regardless of the length of time Dr. Service's deposition ultimately takes, she must clear her schedule for the entire day.

In summary, the Court finds that the reasonable rate at which Plaintiff must reimburse Defendant for Dr. Service's deposition testimony is $575.00 per hour for a minimum of four hours.

Finally, Plaintiff also argues that Dr. Service should not be compensated for time she spends preparing for her deposition. The Court finds this argument to be unpersuasive.

The majority of Courts in this District have found that “the weight of authority holds that” experts may charge for a reasonable amount of time in preparing for their depositions. See, e.g., Brown v. Thompson, No. 8-cv-6323 (ADM/RLE), 2009 WL 10711895, at *7 (D. Minn. Dec. 15, 2009); Fee v. Great Bear Lodge of Wisconsin Dells, LLC, No. 3-cv-3502 (PAM/RLE), 2005 WL 1323162, at *3 (D. Minn. Mar. 3, 2005). The undersigned finds these cases to be persuasive. An expert should be compensated for her time preparing for a deposition, as long as the time expended is reasonable. To hold otherwise would provide fertile ground for unprepared expert deponents.

Thus, Plaintiff must reimburse Defendant for the reasonable time Dr. Service expends preparing for her deposition. Pursuant to Defendant's expert disclosures, this deposition preparation time will be reimbursed to Defendant at a rate of $500.00 per hour. (See, Def.’s Expert Disclosures [Docket No. 60-1]) (providing that Dr. Service “charges a rate of $500.00 per hour for her examination and review of records”).

Therefore, Plaintiff's Motion to Compel Expert Deposition for a Reasonable Fee, [Docket No. 57], is GRANTED in part and DENIED in part. The reasonable rate at which Plaintiff must reimburse Defendant for Dr. Service's deposition testimony is $575.00 per hour for a minimum of four hours. Plaintiff must also reimburse Defendant at a rate of $500.00 per hour for Dr. Service's reasonable time preparing for her deposition.

IV. Joint Motion to Amend the Scheduling Order. [Docket No. 46].

Through their Joint Motion, the parties seek an Order of this Court modify the operative scheduling Order “solely with respect to the deadline for expert witness depositions” which is currently December 21, 2020. (Mot. [Docket No. 46]). The parties assert that good cause exists to extend the deadline for expert witness depositions because the COVID-19 pandemic has complicated the scheduling of expert depositions given that the experts have active medical practices and because the parties wished to submit this matter to private mediation which could not be scheduled until December 18, 2020. (Mem. [Docket No. 48]).

Based on the record now before the Court, the undersigned finds good cause to modify the Amended Pretrial Scheduling Order, [Docket No. 18], with respect to only the deadline by which the parties must complete expert depositions. The deadline by which the parties must complete all expert depositions is amended to be April 15, 2021.[10]

V. Conclusion

*12 For the foregoing reasons, and based on all the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:

Defendant's Motion also seeks to amend the scheduling Order to extend the nondispositive motions deadline to hear the present Motion. Plaintiff does not oppose this request. Nevertheless, Defendant's request will be denied as moot. Defendant called the undersigned's chambers in sufficient time to have the present Motion heard before the nondispositive motions deadline, i.e., Defendant contacted the undersigned's chambers more than fourteen days before the nondispositive motions deadline. Thus, no extension of the nondispositive motions deadline is necessary. It was solely an operation of this Court's calendar which required the hearing on the present Motion to be scheduled for after the nondispositive motions deadline. Because Defendant filed the present Motion in compliance with the operative scheduling Order, the Court will consider Defendant's Motion. There is no need to amend the scheduling Order.

This does not mean the Court is without the authority to order a party to sign record release authorizations under any circumstance. For example, if a party improperly refused to produce certain documents in response to a request for documents under Rule 34, then the Court has the authority under Rule 37 to require a party to executed record releases. See, Fed. R. Civ. P. 37. The critical difference in the present case is that Defendant sought blanket record releases in the first instance; Defendant did not first request the relevant underlying documents from Plaintiff.

Defendant also asserts that other “federal courts have held that such records are discoverable,” and Defendant conclusorily asserts that the “requested documents at issue are analogous to employment records from other employers, which courts have held to be discoverable.” (Id.). The Court also finds these arguments to be unpersuasive. First, in support of its assertion that Courts have found such information to be “discoverable” Defendant relies on several cases which predate the 2015 amendments to the Federal Rules of Civil Procedure, and those cases rely on the proposition that certain information is “reasonably calculated to lead to admissible evidence.” (See, Def.’s Mem., [Docket No. 53], at 12). This is, however, not the standard in Rule 26 of the Federal Rules of Civil Procedure, and this Court is of the mind that even before the 2015 amendments to the Rules, this was not the proper standard. In any event, it is beyond dispute that the language which Defendant relies on is no longer in Rule 26. The “reasonably calculated to lead to admissible evidence” standard is not the current standard governing discovery in this Court. Second, much of Defendant's argument stems from its conclusory assertion that the at issue documents “are analogous to employment records”; however, Defendant fails to articulate any basis for this assertion. No such analogy is supported by the record.

Although Defendant's counsel generically asserts Plaintiff sought to offer testimony related to her history of depression and anxiety, and therefore, Plaintiff mental health was at issue in her prior personal injury case, Defendant fails to offer any evidence in support of the assertion that Plaintiff actually sought to offer evidence related to her mental or emotional health. The assertions of counsel are not evidence. If Defendant's counsel is interpreting some records to reach the conclusion that Plaintiff emotional health was at issue in her personal injury case related to an automobile collision, Defendant's counsel has failed to present those records to this Court.

In support of this assertion, Defendant relies on Batiste-Davis v. Lincare, Inc., 526 F.3d 377 (2008), but this reliance is misplaced. Batiste-Davis did not deal with the discovery of records underlying prior civil claims; instead, it dealt only with the admissibility of the existence of prior civil claims. See, Id. at 380. The admissibility of the existence of a prior civil claim in a particular case is markedly different that the discoverability of all records from every previous civil or administrative claim in all cases. Batiste-Davis is simple inapplicable to Defendant's present Motion.

Plaintiff was scheduled to depose Dr. Service on February 15, 2021; however, it appears that Dr. Service's deposition was postponed pending the outcome of the present Motion. Plaintiff's counsel asserts that Dr. Service's deposition is not anticipated to “take anywhere near a full day (though counsel cannot, of course, be certain of that).” (Plf.’s Mem., [Docket No. 59], at 3).

The issue in the present Motion is not the reasonable rate at which Dr. Service may bill for her time. The issue is the rate at which Plaintiff must reimburse Defendant for Dr. Service's time. In other words, a party may choose any expert it wishes that charges any rate regardless of reasonableness, but when the opposing party must reimburse the choosing party for deposing the choosing party's expert, the opposing party need only reimburse the choosing party at a reasonable rate. See, Bartlett v. Barbes, No. 3:18-cv-00087-RGJ, 2020 WL 6785104, at *5 (W.D. Ky. Nov. 18, 2020) (citing Grady v. Jefferson Cnty. Bd. of Cnty. Comm'rs, 249 F.R.D. 657, 662 (D. Colo. 2008) (noting that while parties are free to contract with any expert they choose, the Court will not “automatically tax the opposing party with unreasonable fees charged by the expert”)).

Defendant references both an hourly rate $500.00 per hour and a $4,000.00 per day rate. (Id. at 1–8). Defendant appears to reach the $500.00 rate by dividing the $4,000.00 daily rate by eight hours. (See, Id. at 8). This is, however, based on the improper presumption that a day of deposition testimony consists of eight hours of testimony. The Federal Rules of Civil Procedure provide that “[u]nless otherwise stipulated or ordered by the court, a deposition is limited to one day of 7 hours.” Fed. R. Civ. P. 30(d)(1). Dr. Service's daily rate of $4,000.00 per day of deposition or live testimony, as disclosed by Defendant, amounts to approximately $575.00 per hour of deposition testimony given the temporal limitations on depositions prescribed by the Federal Rules of Civil Procedure. Because Defendant's reasonableness arguments largely reference the $4,000.00 per day rate, the Court assumes Defendant intended to also argue the reasonableness of Dr. Service's hourly rate as calculated by dividing the $4,000.00 daily rate by the seven hours of permitted deposition testimony.

Plaintiff does argue that Dr. Service should only be required to charge Plaintiff $500.00 per hour of deposition testimony because that is the rate “she charged Defendant for her work.” (Id. at 1). This argument, however, mischaracterizes the record. Although Dr. Service may have charged Defendant “$500.00 per hour for examination and review of records,” (Expert Disclosure [Docket No. 60-1]), the record now before the Court, as presented by Plaintiff, reflects that if Defendant utilizes Dr. Service to provide trial testimony, Defendant will be charged the $4,000.00 daily rate. (See, Id.).

The Court sets the new deadline for the completion of expert depositions in a manner which still permits the parties sufficient time to complete the necessary expert depositions prior to the trial ready date provided for in the Amended Pretrial Scheduling Order.