How many times have you noticed an expert witness for deposition, only to be told you've got to pay their fee in advance, failing which, they say, they aren't coming. As Jim Garrity explains, it doesn't have to be that way. Listen in and learn why prepayment isn't required and how to properly avoid advance payment. After all, those prepayment demands are often excessive, don't explain how the fee was determined, and of course don't guarantee the expert will even qualify as such, much less offer admissible testimony. And we've got a wealth of research for you in the show notes. SHOW NOTES Evans v. Home Depot USA, Inc., Case no. 2:25-CV-451-SPC-KRH, 2026 WL 1837154 (M. D. Florida June 25, 2026) (plaintiff’s treating doctor, a non-retained expert, was set for one hour deposition, and demanded prepayment of $3,000 for the deposition; held, prepayment is generally not required, “so lack of prepaid fees would not justify refusing to attend the deposition after proper service of a valid subpoena;” further outlining the process to address a treating physician’s potential nonappearance at a deposition, asking whether the deposition was subject to the courts subpoena power, and if so, whether the defendant had issued and served the subpoena, noting that the court then need not intervene until (a) the physician seeks to quash the subpoena or fails to appear, and (b) the defendant moves to hold him in contempt for failing to appear to deposition) Johnson v. Spirit Airlines, Inc., No. CV 07-1874FBJO, 2008 WL 1995117, at *1 (E.D.N.Y. May 6, 2008) (“The pertinent rule thus teaches that once Dr. Seldes has actually “spent” time responding to Spirit's questions at the deposition, he may then bill Spirit for a “reasonable” fee for that amount of “time.” Dr. Seldes therefore may not insist on advance payment, and may not set a flat fee before he knows what he will be called upon to do; he may instead charge only a reasonable hourly fee. I will not predict in advance what reasonable hourly fee Dr. Seldes may choose to request, but should a dispute arise, I will of course defer to the persuasive authority of cases such as the Garnier decision cited above and the precedent on which it in turn relied. See id. at *3-*4 (describing a range of reasonable hourly rates below $500)) Conte v. Newsday, Inc., No. CV 06-4859 JFB ETB, 2011 WL 3511071, at *3 (E.D.N.Y. Aug. 10, 2011) (“The rule and the case law makes it clear that the parties seeking court intervention to determine a reasonable fee for an expert deposition should do so retrospectively—that is, after the deposition has taken place. The rule clearly contemplates that a court order will be issued subsequent to the deposition, as it requires a court to order payment of a “reasonable fee for time spent in responding to discovery”) Tennant v. Handi-House Mfg. Co., Case No. 3:16-cv-1276-J-25MCR, 2017 WL 11105252 (M. D. Fla. Nov. 20, 2017) (Defendant moved for, among other things, order deferring payment for deposition of plaintiff’s treating physician, who canceled the deposition because he did not receive the $3,300 payment he demanded for his two-hour deposition; held, Defendant’s request to defer deposition fees of the treating physician granted, with the court “finding that prepayment of expert witness deposition fees is inappropriate under the Federal Rules of Civil Procedure;” noting that Federal Rule of Civil Procedure 26(b)(4)(E) “does not require the prepayment of expert deposition fees; further noting that the parties agreed that the issues presented are governed by the expert fee rules, implying that a treating physician may qualify as an expert under the circumstances); Court also noted that Fed. R. Civ. P. 26(b)(4)(E)(i) says that unless manifest injustice would result, the court must require that the party seeking discovery pay the expert a reasonable fee for “time spent” in responding to discovery; court noted that the deposition had not yet taken place, and so seemed to emphasize that it was premature to determine the reasonableness of payment because the provision talks about “time spent” and the doctor had not yet been deposed”) Regions Bank, etc. v. Kaplan, No. 8:12-CV-1837-T-17MAP, 2015 WL 4935694 (M.D. Fla. Aug. 18, 2025) (Bank filed Motion to Defer Payments to Experts or to Determine Reasonableness of Expert Charges, where defendants demanded that the bank pay an invoice from TASA Group in the amount of $10,325.29 in advance of the banking expert’s testimony, failing which the witness would not appear; bank argued that the court should defer reimbursement obligation pending the outcome of the case, in pending submission of supporting data, arguing that the Committee Notes to the 1970 amendments to Rule 26 say that the court may issue an order to pay fees as a condition of discovery, or it may delay the order until after discovery is completed.; Court noted that “other courts have denied request for advance payment because Rule 26 (small B) (4) (E) does not require it,” citing cases from Wisconsin and California for the proposition that, unlike ordinary witness fees, no rule requires that an opposing expert deposition fees be tendered to the witness in advance) Regions’ Motion to Defer on Payment of Experts, or alternatively, to Determine Reasonableness of Kaplan Parties’ Expert Charges and Supporting Memorandum of Law (CM/ECF Doc. 435) Regions Bank, etc. v. Kaplan, No. 8:12-CV-1837-T-17MAP, 2015 WL 4935694 (M.D. Fla. Aug. 18, 2025) Defendant Marvin I. Kaplan’s Motion for Approval of Expert Witness Fees and Expenses (CM/ECF Doc. 436), Regions Bank, etc. v. Kaplan, No. 8:12-CV-1837-T-17MAP, 2015 WL 4935694 (M.D. Fla. Aug. 18, 2025) Parkland Venture, LLC v. City of Muskego, No. 09-C-0972, 2010 WL 4723411 (E. D. Wisconsin November 15, 2010) denying plaintiff’s motion requiring the defendants to pay reasonable fees to the plaintiff’s experts in advance of taking their depositions; court noted that while rule 26(b)(4)(C) provides in relevant part that in less manifest justice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent responding to discovery, rule does not say that experts fees must be paid in advance of the deposition absent agreement to do so, and pointing out that unlike ordinary witness fees, no rule requires that an opposing expert’s deposition fees be tendered to the witness in advance) Kramer et al. v. Hartford Insurance Co. of the Midwest, Case No. 8:12-cv-01824-T-17AEP, 2013 WL 12155927 (M. D. Florida April 30, 2013) (court granted Defendant’s Motion to Compel Deposition Testimony of Dennis James, an expert, finding “that prepayment of expert witness fees, including Mr. James’ expert witness in this action, is inappropriate under the Federal Rules of Civil Procedure. The court noted that while Rule 26(b)(4)(E)(i) says that in less manifest injustice would result, the court must require that a party seeking discovery pay the expert a reasonable fee for “time spent” [emphasis added], the Advisory Committee Notes (1970 Amendment) to Rule 26(b)(4) authorize a court to require the payment of fees and expenses as a condition of discovery, and also to delay the order until after discovery is completed. Thus, the court ordered the deposition to proceed but set a payment deadline for his fees within 50 days of the date of his deposition. The court emphasized that - while rule 26(b)(4)(E)(i) “is silent as to exactly when an expert will be paid after responding to discovery, the Court finds that a degree of reasonableness is inherent in the Federal Rules of Civil Procedure. In the circumstances of this case, a payment deadline of 50 days was reasonable.) Harris v. Costco Wholesale Corp., 226 F.R.D. 675, 676–77 (S.D. Cal. 2005) (plaintiff’s counsel abruptly terminated defense deposition of plaintiff’s expert because Defendant would not pay expert witness fee at that time; court, rejecting the manner of termination is improper, said of Rule Fed.R.Civ.P. 26(b)(4)(C) that while experts must be paid absent manifest injustice, “The rule does not state, however, that the expert's fees must be paid in advance of the deposition absent agreement to do so. To the contrary, “[u]nlike ordinary witness fees, no rule requires that an opposing expert's deposition fees be tendered to the witness in advance… Because there is no rule allowing a party to terminate a deposition for the failure to pay opposing expert witness fees in advance, Plaintiff's counsel was wrong in doing so in the instant case) Conte v. Newsday, Inc., No. CV 06–4859 (JFB) (ETB), 2011 WL 3511071, at *2 (E.D.N.Y. Aug. 10, 2011) (ruling that a motion seeking prepayment for an expert’s deposition was premature because the Rule “clearly contemplates that a court order will be issued subsequent to the deposition;” further saying “Nor, as discussed above, does the rule entitle plaintiff to payment in advance, citing Rule 26(b)(4)(E), which entitles an expert to a reasonable fee for “time spent” responding to discovery); citing Johnson v. Spirit Airlines, Inc., No. CV 07-1874FBJO, 2008 WL 1995117, at *1 (E.D.N.Y. May 6, 2008) (“[The expert] therefore may not insist on advance payment ....”). Rather, if the parties cannot agree to reasonable reimbursement for plaintiff's experts following their depositions, either party may apply to the Court for such a determination;” “Dr. Seldes therefore may not insist on advance payment, and may not set a flat fee before he knows what he will be called upon to do; he may instead charge only a reasonable hourly fee.”) Conte v. Newsday, Inc., No. CV 06-4859 JFB ETB, 2011 WL 3511071, at *2 (E.D.N.Y. Aug. 10, 2011) (citing Broushet v. Target Corp., ––– F.R.D. ––––, 2011 WL 1750753, at *1 (E.D.N.Y. Mar.3, 2011), and saying “Courts consider the following factors in determining whether
