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Estate of Jackson v. Billingslea

United States District Court, E.D. Michigan, Southern Division

July 1, 2019

The Estate of Michaelangelo Jackson, deceased, et al., Plaintiffs,
Richard Billingslea, et al., Defendants.


          Victoria A. Roberts United States District Judge

         I. Background

         The Estate of Michaelangelo Jackson brings suit against the City of Detroit and others for constitutional claims arising from the deaths of Michaelangelo and Makiah Jackson during a high-speed police chase.

         In its scheduling order, the Court set the deadline for discovery as January 4, 2019. During discovery, Defendants retained Dr. Jerome Eck (“Eck”) and his company Eck Engineering LLC to produce an expert crash-reconstruction report. Defendants filed an expert witness disclosure pursuant to Fed.R.Civ.P. 26(a)(2)(B). It contained Eck's written opinions, the documents he relied on to produce his opinion, his resume, fee schedule, and a list of cases he has worked on in the last four years. Plaintiffs subpoenaed Eck after the close of discovery on March 30, 2019 requiring him to disclose:

         1. Copies of all IRS form 1099s issued to Eck or Eck Engineering LLC for any company they rendered an expert opinion for within the last five years; 2. Proof of payment for those services rendered; 3. Copies of the last twenty expert opinions rendered by Eck; 4. Copies of the last ten opinions written by any employee of Eck Engineering LLC that is not Eck; and 5. The names of all attorneys the reports were written for within those five years. The Court held a phone conference with counsel to resolve disputes over the subpoena. The Court ordered that Eck must produce his 1099s for all expert witness services he has provided in the past five years.

         Defendants filed this motion for reconsideration and motion for a protective order. Eck hired his own counsel and submitted a motion for a protective order and motion to quash Plaintiffs' subpoena.

         The Court denies Defendants' and Eck's motions for a protective order and to quash Plaintiffs' subpoena, but will grant that part of Defendants' motion for reconsideration that asks for reconsideration of the inclusion of personal information.

         II. Discussion

         The scope of discovery is governed by Rule 26(b)(1). Fed.R.Civ.P. 26(b)(1). Information within the scope of discovery can nonetheless be placed under a protective order. Fed.R.Civ.P. 26(c)(1). Additionally, a subpoena for an otherwise discoverable piece of information may be quashed. Fed.R.Civ.P. 45(d)(3).

         Eck and Defendants contend that Eck's 1099s for his expert witness services are not within the scope of discovery, should be placed under protective order, and Plaintiffs' subpoena for them should be quashed. Eck also presents additional arguments for why he should not be required to submit to the Court's original order. Despite these arguments, Eck must produce his 1099s. A. The Scope of Discovery Eck contends his 1099s are not relevant. Meanwhile, Defendants argue the 1099s for Eck's other clients have marginal, if any, relevance. Both of these arguments relate to the scope of discovery and are ultimately incorrect. Rule 26(b)(1) permits discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. . . .” Fed.R.Civ.P. 26(b)(1). This scope is further limited by (1) the parties' relative access to information, (2) the parties' resources, (3) the importance of the discovery, and (4) the balance between the burden and benefit of complying with discovery. Id.

         The financial information of an expert witness is squarely within the scope of discovery if its purpose is to uncover potential bias. Behler v. Hanlon, 199 F.R.D. 553, 556 (D. Md. 2001); see also Burger v. Allstate Ins. Co., No. 07-11870, 2009 WL 1587396, at *2 (E.D. Mich. June 8, 2009). In Burger, Plaintiff sought 1099s, payment records, and other information related to an expert physician's financial relationship with any defendant he provided expert witness services for from 2003 to 2008. Burger, 2009 WL 1587396, at *1. The Defendant argued none of this information was relevant. Id. The Court sided with the Behler court: holding that information that relates to the potential bias of an expert witness is relevant to the witness's credibility, which could directly affect impeachability. Id. at *2.

         Thus, any information related to the expert's volume of work, number of defendants he worked for, the amount paid by those defendants, and the percentage of income derived from his expert witness services was found within the scope of discovery. Burger, 2009 WL 1587396, at *2-3; see also Great Lakes Anesthesia, PLLC v. State Farm Mut. Auto. Ins. Co., No. 11-10658, 2011 WL 4507417, at *5-6 (E.D. Mich. Sept. 29, 2011) (finding financial information of expert witness is squarely within the scope of discovery).

         1099s are within the scope of discovery. Chauvin v. State Farm Mut. Auto. Ins. Co., No. 10-CV-11735, 2011 WL 2490870, at *2 (E.D. Mich. June 22, 2011). For example, in Chauvin, the Plaintiff requested several financial documents from the Defendant's independent medical examiner, including 1099s for all insurance companies that expert provided examinations for over the past four years. Id. The Court allowed discovery of those 1099s but permitted the redaction of federal identification and social security numbers. Id. The 1099s were proper inquiries by the Plaintiff about the expert's potential bias, and were, therefore, within the scope of discovery. Id. at *2-3.

         Notwithstanding decisions from other district courts to the contrary, Eck's 1099s for this and other litigants are within the scope of discovery. Chauvin, Burger, and Great Lakes make it clear that the Court considers 1099s and similar financial documentation relevant to impeachability and thus discoverable. ...

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