Fair Isaac Corporation v. Federal Insurance Company

Background

Federal Insurance Company and ACE American Insurance Company, together called “Federal,” moved to compel discovery from Fair Isaac Corporation, referred to as “FICO.” Federal sought information it said was relevant to the credibility and qualifications of FICO’s proposed testifying expert, Brooks Hilliard.

Federal asked the court to compel FICO to provide complete responses to Document Production Request Nos. 52 and 53. Request No. 52 sought documents filed or exchanged in a Texas lawsuit involving Business Automation Associates, Inc. and Versata Software, Inc. Request No. 53 sought communications between Hilliard and counsel for Versata Software, Inc., or a related entity, from a Michigan lawsuit or related case. Federal also asked the court to require Hilliard to appear for another deposition, at FICO’s expense, to answer questions he had declined to answer during his first deposition.

Hilliard had identified the Michigan lawsuit during his June 19, 2019 deposition but said he had served there as a consulting expert and had not provided an opinion. He repeatedly declined to answer questions about a Texas lawsuit that he had brought against the client that retained him in the Michigan lawsuit. In that Texas case, the former client asserted a counterclaim alleging that Hilliard had misrepresented his qualifications and expertise. Hilliard and FICO’s counsel did not invoke privilege as the basis for refusing to answer those questions.

FICO argued that Federal’s motion was untimely under the scheduling order and that the requested discovery was irrelevant, prejudicial, and collateral. FICO also requested attorney’s fees for responding to the motion.

Court’s analysis

Federal Rule of Civil Procedure 26 permits discovery of nonprivileged information that is relevant to a claim or defense and proportional to the needs of the case. Information need not be admissible at trial to be discoverable. A testifying expert must provide a report containing the expert’s qualifications, and the opposing party may depose the expert after the report is provided.

The court found good cause to excuse any untimeliness. Federal did not know until Hilliard’s first deposition that he would refuse to answer questions, including questions about matters of public record, and Federal acted promptly afterward. FICO did not claim that the timing had prejudiced it.

The court rejected FICO’s argument that Hilliard had answered all questions about his role as a consulting expert in the Michigan lawsuit. The court found that the Michigan and Texas lawsuits were linked because the Texas counterclaim concerned Hilliard’s qualifications as an expert in the Michigan lawsuit. The Texas lawsuit was therefore not merely a fee dispute.

The court also concluded that Hilliard’s consulting experience and qualifications were proper subjects for examination. His expert report described his consulting background, technical expertise, and reliance on industry experience. The court held that Federal was entitled to ask questions about those matters even if Federal already possessed, or could obtain, documents from public court files.

The court agreed with FICO, however, that Requests Nos. 52 and 53 were overly broad. The court limited the compelled production to documents that directly related to Hilliard’s qualifications and expertise. The requested materials were not protected work product in this case or otherwise privileged here.

Order

The court ordered that Federal’s Motion to Compel Discovery was GRANTED IN PART and DENIED IN PART. The order was conditional because Federal had separately moved to exclude Hilliard’s expert report and testimony.

If the district court enters an order denying Federal’s motion to exclude, then, within 10 days after that order is filed, FICO must produce documents in its custody or control—including Hilliard’s custody or control—from the Michigan and Texas lawsuits that relate to Hilliard’s qualifications and expertise. FICO need not produce publicly available court-file documents, documents relating solely to the amount of fees or hours billed by Hilliard in the Michigan lawsuit, or any settlement agreement in the Texas lawsuit. If FICO or the Michigan client believes a responsive document contains proprietary business information, FICO must contact the court about an in-camera review, meaning a private judicial review of the document.

Within 10 days after the deadline for producing those documents, FICO must produce Hilliard for another deposition at FICO’s expense, either in person in Minneapolis or by teleconference at Federal’s option. The questioning must be limited to subjects concerning the Michigan and Texas lawsuits that relate to Hilliard’s qualifications and expertise. The order does not state a separate disposition of FICO’s request for attorney’s fees.