Stella: I had nearly an identical situation. I have a deposition fee agreement that I have opposing counsel sign that spells out if they cancel within a certain amount of time then it is non-refundable. If they then have to reschedule it is a new fee agreement and payment.
The agreement spells out that any request for production of documents is charged at $X/hour. I typically get prepayment for 2 hours, then bill the rest and it confirms that they are in agreement with my hourly rate past that 2 hours. If they don't agree, then we will cease the deposition at 2 hours.
The agreement is just to confirm they understand the deposition fees, I have never had any problem having someone sign. You can do a letter and very specifically spell out your expectations. I just like having them sign something so there is no confusion.
My "war story" was that I had a deposition planned and it cancelled a couple of days in advance. The opposing counsel's father was dying 7 hours away and he had to cancel to be with him. Having compassion, I said no cancellation fee this time, I will apply this to the next deposition. That was for November 2021. It rescheduled in January 2022. They cancelled again, the opposing counsel's family had covid. At that point, I felt another attorney in his firm could have deposed me and I applied the first check I had received. I had now held 2 days and I wasn't going to waive the fee.
They planned a third day and I requested payment. It settled before I received payment. I asked for the deposition fee and opposing counsel had requested production of documents and that had been paid. He said that should cover my deposition. I refused as the production of documents took time, which I billed.
It ended up that retaining attorney covered the cancelled deposition fee. I was paid and that is what the situation was. After doing this for over 30 years, I was reminded, "never trust an attorney". I am married to an attorney, so I say that in jest, but I should have charged them each time as they were a large enough firm another attorney could have covered my deposition or they had to pay me.
This attorney in particular is just difficult for the sake of being difficult. He has a reputation of not wanting to pay for breaks during a deposition. He has the recorder stop the clock for me and for her. So now in his agreement, I have my fees start the moment I arrive and until I leave, regardless of breaks.
I should have known better than to waive the fee that one time. I won't do it again.
I hope this helps. Stick to your guns!
Michelle McBroom Weiss, MA, CRC, CCM, NCC, MSCC, ABVE/D, IPEC
5543 Edmondson Pike, Suite 128
Nashville, TN 37211
mcbroomweiss@mcbroomweiss.com
(P) 615-834-0186
(F) 615-831-5274
(C) 615-308-6395