Fair Isaac Corp. v. Federal Insurance Co.

          Heather Kliebenstein and Allen Hinderaker, Merchant & Gould PC, for Plaintiff

          Terry Fleming, Christopher Pham, and Christian Hokans, Fredrikson & Byron, PA, for Defendants

          ORDER

          DAVID T. SCHULTZ UNITED STATES MAGISTRATE JUDGE

         Defendants 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 deposition.

         FICO 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.

         FACTS

         Hilliard 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.

         On June 28, 2019 Federal served the following document requests on FICO:

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 200^thJudicial 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.

         Federal 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 this lawsuit.^[1]

         A few 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 ...