§ 2034.430.Application of section to certain designated experts; payment of fees; fees for

Depositions of experts differ from ordinary fact-witness depositions in one obvious way: the expert typically wants to be paid for the time. This section identifies exactly which experts trigger a fee obligation and how that obligation is calculated. It reaches an expert described in Section 2034.210(b), a treating physician, surgeon, or other treating health care practitioner asked to give opinion testimony about diagnosis, prognosis, or treatment decisions rather than merely reading from the medical record, and an architect, engineer, or licensed land surveyor who worked on the original project the person is being asked about. It does not reach a party or a party's employee.

The party who wants to depose one of these experts must pay the expert's reasonable and customary hourly or daily fee for the time spent at the deposition, measured from the time noticed in the subpoena, or from the expert's arrival if later, until the expert is dismissed, whether or not the expert ends up being questioned. If counsel for the expert or for a nonnoticing party shows up late, that tardy counsel, not the noticing party, pays the expert's fee for the delay, though the tardy counsel's fee can never exceed what the retaining party itself pays, except where the expert donated services to a charity or nonprofit. A full daily fee can only be charged for a full day of attendance, or where the deposing party required the expert to be available all day and the expert had to forgo other business as a result. And in workers' compensation cases, this same fee structure applies to a party deposing another party's listed expert.