Saunders v. Albertsons/Safeway, LLC (June 16, 2025)

Case details
Full caption
Jamie Lee Saunders v. Albertsons/Safeway, LLC
Country
United States
Jurisdiction
Colorado (CO)
Court
Colorado Supreme Court
Decided
June 16, 2025
Disposition
Motion Denied
Majority
Susan Prose (J.) (unanimous Court)
JAMIE LEE SAUNDERS, Plaintiff, v. ALBERTSONS/SAFEWAY,..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 1040465Only the Westlaw citation is currently available.United States District Court, D. Colorado.JAMIE LEE SAUNDERS, Plaintiff,v.ALBERTSONS/SAFEWAY, LLC,1 andUNITED FOOD AND COMMERCIALWORKERS UNION, LOCAL #7, Defendants.Civil Action No. 1:24-cv-00814-PAB-SBP|04/16/2026Susan Prose, United States Magistrate JudgeORDERSusan Prose, United States Magistrate Judge*1 This matter comes before the court on three motions filedby Plaintiff Jamie Lee Saunders: a motion for costs, ECFNo. 74 (“Motion for Costs”); a motion for ruling (styled asa “Third Motion for Costs”), ECF No. 126; and a motion tostrike a notice of lien filed by her former attorney, ECF No.125. The undersigned considers these motions pursuant to theOrder of Reference, ECF No. 32, the memoranda referring themotions, ECF Nos. 75, 127, and 28 U.S.C. § 636(b)(1).The court has reviewed the motions, the related filings, andthe applicable law. For the reasons set forth below, the courtnow respectfully issues the following ORDER2 concerningeach of the motions.A. Motion for Costs (ECF No. 74)31. BackgroundMs. Saunders, a former meat cutter at Safeway's store inMontrose, Colorado, see ECF No. 1 3, disclosed AlejandroEcheverry, Ph.D., as an expert witness “on the Food & healthSafety issued [sic] raised in her complaint” and the “PublicPolicy claim set forth in her complaint[.]” See Plaintiff'sExpert Witness's Report Disclosure dated June 19, 2025, ECFNo. 96-2 at 1; see also ECF No. 1 ¶¶ 139-149 (claim asserting“Retaliation, Harassment and Wrongful Termination forReporting Compliance and Safety Issues in violation ofPublic Policy against Defendant Safeway,” based on thealleged “mishandling of products in the Meat Department”).Dr. Echeverry is identified as an “Associate Professor ofPractice in Food Microbiology and Food Engineering” in the“Department of Animal and Food Sciences at Texas TechUniversity.” Expert Opinion of Alejandro Echeverry, Ph.D.,dated June 16, 2025, ECF No. 96-2 at 4.*2 The record indicates that Ms. Saunders has paid Dr.Echeverry a total of $10,000 thus far:$5,000 as an initial retainer and an additional $5,000 in expertfees after that, realized over ten hours at a rate of $500 perhour. See ECF No. 74-3 at 3 (referencing a $5,000 “SecondRetainer” paid by Ms. Saunders on August 5, 2025). Ms.Saunders has offered no argument as to why the original$5,000 retainer could be charged to Safeway and, accordingly,the court denies her request for reimbursement of that initialretainer. As to the remaining $5,000 Ms. Saunders paidDr. Echeverry, the court must decide whether Safeway isobliged to reimburse that amount4 under Federal Rule of CivilProcedure 26(b)(4)(E)(i), which states that “[u]nless manifestinjustice would result, the court must require that the partyseeking discovery pay the expert a reasonable fee for timespent in responding to discovery under Rule 26(b)(4)(A) or(D).”5 Safeway contends the answer to that question is no.Safeway explains that it paid Dr. Echeverry $500—hisrequested hourly rate—for each of the five hours he sat for hisdeposition on September 5, 2025, for a total payment to himof $2,500. See ECF No. 76-1. This, Safeway argues, is the“time [he] spent in responding to discovery,” ECF No. 76 at 4(quoting Fed. R. Civ. P. 26(b)(4)(E)(i)), and “Plaintiff's expertwitness deposition preparation is an expense that properly fellon Plaintiff.” Id. (citing Benjamin v. Gloz, 130 F.R.D. 455, 457(D. Colo. 1998)). The analysis of whether a party is entitledto compensation for an expert's deposition preparation time issomewhat more nuanced than Safeway acknowledges.2. Legal PrinciplesNothing in Rule 26(b)(4)(E)(i) itself, or in the accompanyingAdvisory Committee Note—which states only that “theexpert's fees for the deposition will ordinarily be borne by theparty taking the deposition”—explicitly defines “respondingto discovery” to encompass an expert's deposition preparationtime. See Fed. R. Civ. P. 26 advisory committee's noteto 1993 amendment; see also Fiber Optic Designs, Inc.v. New England Pottery, LLC, 262 F.R.D. 586, 591 (D.Colo. 2009) (observing that “Rule 26(b)(4)(C)6 does not
JAMIE LEE SAUNDERS, Plaintiff, v. ALBERTSONS/SAFEWAY,..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.2specifically address whether fees can be recovered for timespent preparing for a deposition, and case law does notprovide any consistent guidance for resolving that issue”).This court has located no opinion by the Tenth Circuit Court ofAppeals evaluating whether expert witness fees for depositionpreparation time are recoverable under Rule 26(b)(4)(E)(i),and the parties have pointed to none.*3 Courts within the Tenth Circuit have expressed differingpoints of view on the question of compensability ofpreparation time for expert depositions. See Sterisil, Inc. v.ProEdge Dental Prods., Inc, No. 13-cv-01210-REB, 2019WL 1429280, at *4 (D. Colo. Mar. 29, 2019) (findingthat “[c]ompensation for reasonable [expert deposition]preparation time is reasonable,” and awarding 7.5 hoursof preparation time for an expert's deposition that lastedseven hours) (citing McCulloch v. Hartford Life and AccidentIns. Co., No. Civ. 3:01CV1115AHN, 2004 WL 2601134,at *2 (D. Conn. 2004)); Fiber Optic Designs, 262 F.R.D.at 594 (“elect[ing] to follow the line of cases requiringreimbursement under Rule 26(b)(4)(C) for an expert'sdeposition preparation,” and ordering reimbursement forfour hours of deposition preparation time, rather than therequested sixteen hours); Gloz, 130 F.R.D. at 457 (findingthat “exclusion of ‘preparation’ time is supported by the lackof a provision for compensation for time spent by expertsin responding to interrogatories under Rule 26(b)(4)(A)(i)”)(quoting Rhee v. Witco Chem. Corp., 126 F.R.D. 45, 47 (N.D.Ill. 1989)); Cricut, Inc. v. Enough for Everyone, Inc., No.2:21-cv-00601, 2024 WL 1585600, at *2 (D. Utah Apr. 11,2024) (declining to shift fees for time spent preparing for anexpert deposition “[a]gainst [a] legal backdrop” in which “theTenth Circuit has not addressed this issue and district courts inthis circuit are divided”); Jones v. OfficeMax N. Am., Inc., No.17-1219-JTM-KGG, 2018 WL 6590100, at *1 (D. Kan. Dec.14, 2018) (“Courts have interpreted the phrase ‘time spent inresponding to discovery’ to include the ‘expert's reasonabletime in preparation for the deposition.’ ”) (quoting Monsour'sInc. v. Menu Maker Foods, Inc., No. 05-1204-MLB, 2007 WL437780, at *1-2 (D. Kan. Feb. 6, 2007)).Looking outside the Tenth Circuit, all Circuit Courts ofAppeals to address the matter have construed Rule 26(b)(4)(E) as encompassing expert witness fees for preparation ofdeposition testimony. As the Sixth Circuit Court of Appealsobserved:This text [of Rule 26(b)(4)(E)(i)] is not limited to anexpert's time in the deposition; it covers the expert's“time spent in responding to discovery.” The time spentpreparing for a deposition falls within this language.So all of the circuit courts to have considered thisquestion have held that experts may seek compensationfor deposition preparation.Phillips v. Tangilag, 14 F.4th 524, 543 (6th Cir. 2021)(emphasis added) (citing Halasa v. ITT Educ. Servs., Inc., 690F.3d 844, 852 (7th Cir. 2012) (affirming decision to reimbursean expert for deposition preparation); Knight v. Kirby InlandMarine Inc., 482 F.3d 347, 356 (5th Cir. 2007) (affirmingaward of discovery costs, including deposition preparationtime of two expert witnesses); Haarhuis v. Kunnan Enters.,Ltd., 177 F.3d 1007, 1015 (D.C. Cir. 1999)). Very recently,the Ninth Circuit “join[ed] the Fifth, Sixth, Seventh, and D.C.Circuits in holding that reasonable expert witness depositionpreparation fees are recoverable under Rule 26. [Plaintiffs’]suggestion that such fees are never recoverable cannot besquared with Rule 26’s plain text, which requires the ‘partyseeking discovery’ to ‘pay the expert a reasonable fee fortime spent in responding to discovery under Rule 26(b)(4)(A).’ ” Miller v. Sawant, 114 F.4th 1071, 1076 (9th Cir. 2024)(quoting Fed. R. Civ. P. 26(b)(4)(E)) (citing Phillips, 14 F.4that 543); id. at 1075 (observing that “all of the circuit courts tohave considered this question have held that experts may seekcompensation for deposition preparation”) (quoting Phillips,14 F.4th at 543).This court, like the many others referenced here, cannotreasonably construe Rule 26(b)(4)(E)(i), and its “time spentin responding to discovery” language, as imposing a ban onrecovery for time an expert expends in deposition preparation.The court is not persuaded to a different interpretation bySafeway's argument that “ ‘time spent in responding todiscovery’ does not include the time an expert spen[ds]preparing for deposition” where, as here, “a deposition iswholly related to pending litigation,” ECF No. 76 at 3(emphasis added)—a proposition that appears to be premisedon language extracted from the Fiber Optic Designs case.Safeway, in this court's view, reads too much into the “whollyrelated” language from that case, which merely reflectedthat court's observation that the plaintiffs reaped a doublebenefit from the deposition of defendant's expert becausethere was a related parallel proceeding before the UnitedStates Patent and Trademark Office. See 262 F.R.D. at 594(“Having made the tactical decision to take [the] deposition[of the defendant's expert] in advance of a USPTO rulingand the filing of dispositive motions in this case, I concludethat Plaintiffs reaped the lion's share of any benefit derivedfrom the expert's deposition preparation.”). Yet the court inFiber Optic Designs still made a partial award for the expert's
JAMIE LEE SAUNDERS, Plaintiff, v. ALBERTSONS/SAFEWAY,..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.3deposition preparation time. Put simply, the court neithermade nor recognized a rule that expert deposition preparationfees cannot be recovered in cases where the deposition is“wholly related” to the litigation, nor does this court find anyjustification for doing so.*4 Regardless, this court is not obliged to shift all of Dr.Echeverry's deposition preparation time to Safeway withoutfurther consideration of the question. Instead, reasonablenessis the touchstone for the court's assessment because only “areasonable fee for time spent in responding to discovery”need be paid. Fed. R. Civ. P. 26(b)(4)(E)(i) (emphasis added);see, e.g., Cricut, 2024 WL 1585600, at *2 (recognizing as“the fundamental questions governing whether an expert'sdeposition preparation time may be properly shifted underthe rule” to be whether the fee was “reasonable” and whetherthe expert's “bill reflects only ‘time spent in responding todiscovery under Rule 26(b)(A)(4)’ ”). “The party seekingreimbursement for the fee bears the burden of establishingreasonableness.” Cricut, 2024 WL 1585600, at *3 (citationmodified) (citing Barnes v. District of Columbia, 272 F.R.D.135, 137 (D.D.C. 2011)); Fiber Optic Designs, 262 F.R.D.at 589 (same). In assessing the reasonableness of the fee,courts look to a variety of factors: “(1) the witness’ area ofexpertise; (2) the education and training required to providethe expert insight that is sought; (3) the prevailing rates ofother comparably respected available experts; (4) the nature,quality and complexity of the discovery responses provided;(5) the fee actually being charged to the party who retained theexpert; (6) fees traditionally charged by the expert on relatedmatters; and [7] any other factor likely to be of assistance tothe court in balancing the interests implicated by Rule 26.”Young v. Glob. 3, Inc., No. CIV.A.03-N-2255(CBS), 2005WL 1423594, at *1 (D. Colo. May 26, 2005) (quoting U.S.Energy Corp. v. Nukem, Inc., 163 F.R.D. 344, 345-46 (D.Colo. 1995)).3. Application of the Legal Principles to the Facts HereDr. Echeverry's August 26, 2025 bill to Ms. Saunders containsthe following categories of pre-deposition activities billed byDr. Echeverry at a rate of $500 per hour for most of theactivities, with the exception of a $250 hourly rate for onecall with Ms. Saunders and one half-hour block for “MaterialPreparation” for defense counsel7 :• 4.5 hours for responding to Safeway's subpoenaand communications with defense counsel: Under theheading “Material Preparation,” Dr. Echeverry lists a“Subpoena Duces Tecum,” which defense counsel issued.ECF No. 76 at 2. In total, the bill reflects 3.0 hoursfor preparation of documentary materials in responseto the subpoena. Id. Dr. Echeverry also bills for a“Conference Call Laureen Rogers (Holland & Hart)Document Preparation and secure sharing link, DepositionDetails,” on which he expended 1.50 hours. Id.; see alsoSeptember 2, 2025 email from Laurie Rogers at Holland &Hart LLP to Ms. Saunders, ECF No. 74-2 at 1 (stating that“my office worked with Dr. Echeverry directly to obtainthe documents responsive to Safeway's subpoena requestto him,” and that “[a]ll of the documents he produced to uswere provided to you and the Union”).• 5.5 hours for deposition preparation: Dr. Echeverrydescribes his deposition preparation as “Colorado RetailFood Establishment Rules and Regulations”; “ColoradoRetail Food Establishment Rules and Regulations, 2013& 2024 versions”; “FDA 2022 Food Code”; and “FinalOpinion.” ECF No. 76 at 2. Although not clearlyarticulated, the court assumes that Dr. Echeverry means tostate that he prepared for his deposition by reviewing thesematerials, including the report he generated in this case.• .50 hours for a conference call with Ms. Saunders:Dr. Echeverry seeks $250 for a thirty-minute conferencecall with Ms. Saunders on August 1, 2025, regarding“Deposition update, Document Delivery.” Id.Examining the record here pursuant to a reasonablenessstandard, the court begins by observing that Safeway hasnot contested the reasonableness of Dr. Echeverry's rate of$500 per hour, at least insofar as that is his fee for the timehe actually spent in deposition; as to the reasonableness ofany fee for deposition preparation time, Safeway has notaddressed the question. See generally ECF No. 76. Safewayalso has not disputed the reasonableness of the foregoingbreakdown of Dr. Echeverry's pre-deposition activities. Evenso, Ms. Saunders has presented nothing that would allowthe court to evaluate the reasonableness of the $500-per-hour fee demanded by an expert in food safety—includingany information about the rates of other experts in this field,see generally ECF Nos. 74, 77, 84—and so the court mayexercise its discretion in determining a reasonable fee forDr. Echeverry's pre-deposition activities. See, e.g., Oakley v.MSG Networks, Inc., No. 17-CV-6903 (RJS) (RFT), 2025WL 3041936, at *16-17 (S.D.N.Y. Oct. 31, 2025) (“Whereparties do not provide sufficient evidence to support thereasonableness of the rate requested, courts may use theirdiscretion to determine a reasonable fee or ‘simply applyan across-the-board reduction of expert's fees.’ ”) (quoting
JAMIE LEE SAUNDERS, Plaintiff, v. ALBERTSONS/SAFEWAY,..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.4Matteo v. Kohl's Dept. Stores, Inc., No. 09-CV-7830 (RJS),2012 WL 5177491, at *5 (S.D.N.Y. Oct. 19, 2012), aff'd, 533F. App'x 1 (2d Cir. 2013)); Addison v. Gordon, 338 F.R.D. 577,579 (S.D.N.Y. 2021) (“If the parties provide little evidence tosupport their interpretation of a reasonable rate, the court mayuse its discretion to determine a reasonable fee.”) (quotationomitted); Kernke v. Menninger Clinic, Inc., No. 00-cv-2263-GTV, 2002 WL 334901, at *1 (D. Kan. Feb. 26, 2002) (same).*5 Start with the work that Dr. Echeverry did inresponse to Safeway's subpoena, including pre-depositioncommunications with defense counsel. This is the type ofwork ordinarily deemed to be compensable under Rule 26(b)(4)(E). See, e.g., Cash v. Laurens Cnty., No. 6:23-CV-1235-DCC-TER, 2025 WL 509272, at *3 (D.S.C. Feb. 14,2025) (“Because time spent preparing documents requestedin connection with a deposition is time preparing for adeposition, the undersigned agrees with Defendant that itis compensable under Rule 26(b)(4)(E).”); Thorne v. UnionPac. Corp., No. 1:15-CV-561-RP, 2018 WL 11422083, at*2 (W.D. Tex. Sept. 27, 2018) (“Time an expert spendsresponding to a deposition subpoena is time spent preparingfor that deposition. The Court therefore finds that time spentresponding to a deposition subpoena is compensable underRule 26(b)(4)(E)(i), so long as it is reasonable.”). Safewaydoes not address this point, nor does it attempt to challenge theconclusion that Dr. Echeverry expended a reasonable amountof time in doing it.Nevertheless, it was Ms. Saunders's burden to demonstratethat the amount she seeks for Dr. Echeverry's work wasreasonable, and this she has failed to do. She did not placethe subpoena in the record, and the list of discovery materialsDr. Echeverry reviewed in preparing his expert report just tenweeks prior to his scheduled deposition is limited and wouldhave been readily accessible to him. See ECF No. 96-2 at 5-6.And to the extent Dr. Echeverry was asked to produce theseven documents contained within the “References” sectionof his report, see id. at 29-30, these are materials publishedby federal and state regulatory agencies to which an expert infood safety presumably would have had ready access. Takinginto account these circumstances—and with no informationconcerning the exact length of time Dr. Echeverry spokeby phone with defense counsel to accomplish the simplelogistical tasks of disseminating his responses to the subpoenaand setting up his remote deposition—the court reduces thecompensable hours for this category of work from 4.5 hoursto two hours.Next, as to Dr. Echeverry's rate for this work, in hisreport, he stated that his rate for “review of documentsand materials” is $250 per hour, in contrast with his $500-per-hour rate for the deposition itself. Id. at 6. In theabsence of any information concerning “the prevailing ratesof other comparably respected available experts” or “feestraditionally charged by the expert on related matters,” whichMs. Saunders did not provide,8 see Young, 2005 WL 1423594,at *1, the court finds the $250-per-hour rate reasonable forthe time Dr. Echeverry expended in responding to Safeway'ssubpoena and for his conversations with defense counsel.ECF No. 76 at 2; see Oakley, 2025 WL 3041936, at *18(concluding that “[t]he time spent on the work appearsreasonable, but because Defendant has not shown that [theexpert's] rates were reasonable, I award Defendant half thefees requested in connection with [the expert's] work”).Accordingly, Safeway is ordered to pay Dr. Echeverry $500—for two hours of time compensated at a rate of $250 perhour—for his work in responding to Safeway's subpoena,including his communications with defense counsel regardingthe subpoena and deposition logistics.Turning next to the “Deposition Preparation” componentof Dr. Echeverry's bill, several points bear emphasizing.First, the record suggests no particular complexity in theanalysis provided by Dr. Echeverry. See Young, 2005 WL1423594, at *1. His June 16, 2025 report hinges on twopoints: (1) his review of “photographic evidence,” i.e.,photographs taken by Ms. Saunders during her employmentwith Safeway, and (2) Safeway's purported failure to maintaincertain records. See generally ECF No. 96-2 passim (repeatedreferences to “lack of records,” “lack of equipment logs,”“lack of temperature logs,” and “lack of product traceabilityand supplier verification documentation”). Second, thefinalization of Dr. Echeverry's report occurred just sevenweeks before the first billing entry reflecting his depositionpreparation on August 6, 2025. See ECF No. 76 at 2.*6 Under these circumstances—where the subject ofan expert's deposition was a very recently prepared,straightforward report focused on the alleged nonexistence ofrecords—the court does not find the deposition preparationtime for which reimbursement is sought to be reasonable. Thecourt respectfully declines to countenance the idea that 5.5hours of preparation was required to prepare for a five-hourdeposition. That said, it is reasonable for an expert witness tospend some amount of time preparing for a deposition. SeeSterisil, 2019 WL 1429280, at *2. Exercising its discretion
JAMIE LEE SAUNDERS, Plaintiff, v. ALBERTSONS/SAFEWAY,..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.5to consider the close proximity between the finalization ofDr. Echeverry's report and his deposition, the straightforwardnature of the opinions at issue, and a record that reflects nosignificant complexity, the court finds that it is reasonableto attribute 2.5 hours of Mr. Echeverry's time as necessaryto prepare for his deposition and to award him fees for thattime in the amount of $250 per hour—the hourly amountthat he bills for “review of documents and materials,” seeECF No. 96-2 at 6—for a total of $625 for his depositionpreparation work. See Hampton v. Utah Dep't of Corr., No.1:18-cv-00079-CMR, 2022 WL 22888394, at *4 (D. UtahJan. 31, 2022) (“[T]he court is not persuaded that a $500hourly rate for preparation time is reasonable given that thiswas the rate charged for attending the deposition.”) (citingBoos, 212 F.R.D. at 580) (declining to apply the same hourlyrate for preparation time and deposition time and finding $200per hour to be a more reasonable rate for preparation time thanthe $500 per hour claimed by expert)).Finally, the court finds that it is not reasonable to award Dr.Echeverry $250 for a thirty-minute conference call with Ms.Saunders on August 1, 2025, concerning “Deposition update,Document Delivery.” ECF No. 96 at 2. Time that an expertspends conferring with a party (or, more typically, a party'sattorney) in preparation for a deposition is generally notcompensable. See, e.g., Hampton, 2022 WL 22888394, at *2(“[T]he court agrees with Defendant that the opposing party‘is not responsible to pay for the time that [the expert witness]spent meeting with [the retaining] attorneys to review herpreparation.’ ”) (quoting Conroy v. Schafer, No. 2:06-cv-867,2010 WL 11566118, at *1 n.13 (D. Utah Feb. 24, 2010) (citingBoos, 212 F.R.D. at 580; Sinclair v. Hembree & HodgsonConstr., L.L.C., No. CIV-18-938-D, 2020 WL 6479782, at*4 (W.D. Okla. July 14, 2020) (“Although Rule 26(b)(4)(E)encompasses a reasonable fee for time spent by an expertpreparing for a deposition, it does not include compensationfor time devoted by the retaining attorney to defending thedeposition.”)); Cricut, 2023 WL 8019047, at *2 (D. Utah,Nov. 20, 2023) (“[T]ime spent consulting with counsel iscommonly excluded—even by courts holding that depositionpreparation is generally compensable. The rationale for fee-shifting under Rule 26(b)(4)(E) does not support requiringDefendants to pay for such consultation, which may fairly becharacterized as part of trial preparation.”).The court discerns no justification for taking a differentapproach here and accordingly awards no fees forconversations between Ms. Saunders and Dr. Echeverry.* * *Based on the relevant record and in accordance with theanalysis set forth above, the court respectfully orders thatSafeway pay to Dr. Echeverry a total of $1,125 for 4.5 hoursof his pre-deposition preparation work, at a rate of $250 perhour.B. Other Motions (ECF Nos. 125, 126)The court construes Ms. Saunders's Third Motion for Costs(ECF No. 126) as a motion for a ruling on the Motion forCosts docketed at ECF No. 74. Accordingly, the Motion atECF No. 126 is granted through the issuance of this Order.With regard to Ms. Saunders's motion to strike her formerattorney's notice of lien (ECF No. 125), Ms. Saunders doesnot address why striking the notice of lien would be anappropriate remedy to impose in response to the deficienciesalleged by Ms. Saunders. The court finds no cause to strike thenotice of lien, nor does the court find it necessary to addressthe validity of the notice at this time. Accordingly, the motionto strike is denied.C. ConclusionConsistent with the foregoing analysis, it is respectfullyORDERED that Plaintiff's Motion for Costs (ECF No. 74)is GRANTED in part and DENIED in part. DefendantSafeway Inc. is ordered to pay Dr. Echeverry $1,125 for hispre-deposition preparation work as delineated above. It isfurther*7 ORDERED that Plaintiff's motion seeking a ruling (ECFNo. 126) is GRANTED. It is furtherORDERED that Plaintiff's motion to strike (ECF No. 125) isDENIED.9DATED: April 16, 2026 BY THE COURT:Susan ProseUnited States Magistrate JudgeAll CitationsSlip Copy, 2026 WL 1040465
JAMIE LEE SAUNDERS, Plaintiff, v. ALBERTSONS/SAFEWAY,..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.6Footnotes1Counsel has explained that this defendant is properly referred to as “Safeway Inc.,” see ECF No. 76 at 1, and so thecourt will refer to it as “Safeway” in this Order.2Because the motions addressed here are non-dispositive, the court proceeds by order. See Fiber Optic Designs, Inc.v. New England Pottery, LLC, 262 F.R.D. 586, 594 (D. Colo. 2009) (magistrate judge granting in part and denying inpart a request to shift deposition-related fees via an order); see also Fed. R. Civ. P. 72(a) (“When a pretrial matter notdispositive of a party's claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge mustpromptly conduct the required proceedings and, when appropriate, issue a written order stating the decision.”).3As a preliminary matter, in its surreply, Safeway includes an embedded motion to strike the Motion for Costs on groundsthat Ms. Saunders's reply brief was not timely filed and that she relied on a fictional, AI-generated case. See ECF No.86 at 3; see also ECF No. 77 at 3 (citing Lampe v. United States, 18 F. App'x 744 (10th Cir. 2001)). The court declinesto strike the Motion for Costs. The approximately two-week delay in filing the reply caused no prejudice to Safeway, andas to the reference to an AI-generated case, Ms. Saunders has acknowledged this error and apologized to the court andopposing counsel. See ECF No. 84 at 2. Ms. Saunders, however, is respectfully warned that future filings must complywith all applicable procedural rules and that citing to hallucinated cases may result in her filings being stricken withoutfurther analysis.4Ms. Saunders asks the court to direct that Safeway pay this $5,000 directly to Dr. Echeverry. ECF No. 74 at 3.5Rule 26(b)(4)(A) permits the deposition of experts, and Rule 26(b)(4)(D) regulates discovery of experts employed onlyfor trial preparation.6This is the predecessor version of Rule 26(b)(4)(E)(i). See Boos v. Prison Health Servs., 212 F.R.D. 578, 579 (D. Kan.2002) (observing that “[p]ursuant to Federal Rule of Civil Procedure 26(b)(4)(C)(i), a party seeking discovery from anexpert is required to pay ‘a reasonable fee for time spent in responding to discovery’ ”).7It is unclear to the court why the latter work was billed at a $250 hourly rate in one instance and at a $500 hourly ratein other instances.8Although not obliged to do so, the court undertook its own research on this point, utilizing the Westlaw database, andwas unable to locate any information identifying rates for comparable experts in the food safety arena.9Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after service of a MagistrateJudge's order or recommendation, any party may serve and file written objections with the Clerk of the United StatesDistrict Court for the District of Colorado. 28 U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make anysuch objection will result in a waiver of the right to appeal the Magistrate Judge's order or recommendation. See SinclairWyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositiveorders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not applywhen the interests of justice require review, including when a “pro se litigant has not been informed of the time periodfor objecting and the consequences of failing to object”).End of Document© 2026 Thomson Reuters. No claim to original U.S.Government Works.
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