United States District Court, D. Minnesota
Heather Kliebenstein and Allen Hinderaker, Merchant &
Gould PC, for Plaintiff
Fleming, Christopher Pham, and Christian Hokans, Fredrikson
& Byron, PA, for Defendants
T. SCHULTZ UNITED STATES MAGISTRATE JUDGE
Federal Insurance Company and ACE American Insurance Company
(collectively “Federal”) brought a Motion to
Compel Discovery [Docket No. 337] from Plaintiff Fair Isaac
Corporation (FICO). Federal seeks discovery it claims is
“relevant to the credibility and qualifications of
[FICO’s] expert witness, Brooks Hilliard.” Def.
Br. 1, Docket No. 339. Specifically, Federal moves to (1)
compel FICO to respond fully to Document Production Request
Nos. 52 and 53, and (2) compel FICO to produce Hilliard for
another deposition, at FICO’s expense, to answer the
questions he previously refused to answer during his first
opposes the motion, arguing that it is untimely under the
Sixth Amended Scheduling Order and that the discovery is
“irrelevant, prejudicial, and collateral to this
case.” Pl. Br. 2, 5, Docket No. 353. FICO also asks for
attorney’s fees incurred in responding to
Federal’s motion. Id. at 12-13.
was deposed on June 19, 2019. See Fleming Decl.
¶ 2 and Ex. 2, Docket Nos. 340, 341. He identified a
Michigan lawsuit in which he was retained as an expert, but
stated that he did not provide any opinion in that case
because he was a consulting expert. Id. Ex. 2.
Hilliard repeatedly refused to answer Federal’s
questions about a Texas lawsuit that Hilliard brought against
the client that had retained him in the Michigan lawsuit for
nonpayment of fees. Id. The client asserted a
counterclaim alleging that Hilliard misrepresented his
qualifications and expertise and therefore the client could
not use him to provide an expert opinion and had to find
another expert. Id. Ex. 4 (Amended Answer and
Counterclaims ¶¶ 4-5, 11-12, 16-17, 25-26) and Ex.
5 (Navratil Affid. ¶ 8), Docket No. 340-1. Hilliard did
not object on the basis of any privilege in declining to
answer Federal’s questions. Id. Ex. 2 (Tr.
55-65), Docket No. 341. FICO’s counsel also did not
invoke any privilege or instruct Hilliard not to answer the
questions at the deposition. Id.
28, 2019 Federal served the following document requests on
REQUEST FOR PRODUCTION NO. 52: Please produce all documents
that have been filed with the court or exchanged between the
parties in case number D-1-GN-17-006229, captioned
Business Automation Associates, Inc. v. Versata Software,
Inc., which is venued in the 200thJudicial
District Court of Travis County, Texas.
REQUEST FOR PRODUCTION NO. 53: Please produce all
communications between Brooks Hilliard and counsel for
Versata Software, Inc., or any related entity, from the case
Ford Motor Co. v. Versata Software Inc., et al., No.
2:15-cv-10628, venued in the Federal Court for the Eastern
District of Michigan, or from any related case.
Id. ¶ 8 and Ex. 6.
filed this motion to compel on July 12, 2019 [Docket No. 337]
and a hearing was held on July 30, 2019. After the hearing,
with the agreement of Federal’s counsel, FICO provided
the Court with a copy of Hilliard’s expert report in
days before the hearing on the motion to compel, on July 26,
2019 Federal brought a Motion to Exclude Expert Report and
Testimony of Brooks Hilliard. Docket No. 386. FICO filed an
opposition brief on August 26, 2019. Docket No. 475. The
District Court Judge ...