The Estate of MichaelAngelo Jackson et al v. Billingslea et al
ORDER Denying In Part and Granting In Part Defendants' Motion for Reconsideration and Denying Defendants' and Plaintiffs' Motions for Protective Order 21 22 . Signed by District Judge Victoria A. Roberts. (LVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
The Estate of Michaelangelo
Jackson, deceased, et al.,
Case No. 18-10400
Honorable Victoria A. Roberts
Richard Billingslea, et al.,
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS’
MOTION FOR RECONSIDERATION AND DENYING DEFENDANTS’
AND PLAINTIFFS’ MOTIONS FOR PROTECTIVE ORDER
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
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.
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 *23.
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. However, certain personal information
can be redacted from 1099s, as it was in Chauvin.
Eck and Defendants urge the Court to adopt the rational in Behler and similar
decisions from other districts. They cite the rational of Behler and a potential chilling
effect on expert witnesses as reasons to find 1099s are outside the scope of discovery.
These arguments are unconvincing. While the rational of Behler is valid and well written,
it is not the law in this jurisdiction, which finds gross income stated in 1099s not too
intrusive or burdensome to outweigh the potential bias it can reveal. Furthermore, the
Behler opinion does not contemplate that the percent of income derived from expert
witness services and the gross amount gained from those services can reveal bias in
The percentage of income informs the jury about how dependent the expert is on
the income from providing those services, whereas gross income reveals the expert’s
total monetary incentive to produce favorable results. One can imagine a scenario
where an expert’s percentage of income from providing expert witness services is low
but he still receives substantial amounts of money for them. Thus, the two pieces of
information are not interchangeable as Behler and the movants suggest, and there is no
compelling reason to deviate from the Court’s past decisions finding both within the
scope of discovery.
The movants’ argument that requiring experts to disclose 1099s would induce a
chilling effect is also unpersuasive. While some potential experts may be dissuaded
from providing services to litigants, those fears are likely assuaged because sensitive
information can be censored. Social security numbers and other federal identification
can normally be redacted from the expert’s documents as in Chauvin.
Eck’s 1099s for this and other litigation are within the scope of discovery.
Sensitive personal information unrelated to bias may be redacted.
B. Protective Order
Information within the scope of discovery can nonetheless be placed under a
protective order. Fed. R. Civ. P. 26(c)(1). Under Rule 26(c)(1), a court may issue a
protective order, for good cause, to protect a person from annoyance, embarrassment,
oppression, or undue burden or expense. Id. General statements claiming a hardship
are not sufficient to establish good cause for a protective order. Chauvin, 2011 WL
2490870, at *2. Instead, it is the movant’s burden to show good cause for a protective
order by articulating specific facts that show he will suffer a clearly defined and serious
injury if the order is not given Nix v. Sword, 11 F. App'x 498, 500 (6th Cir. 2001).
Additionally, production of 1099s related to expert witness services is not unduly
burdensome provided personal information can be redacted and the time-frame of the
1099s is limited. See Chauvin, 2011 WL 2490870, at *2; see also Great Lakes, 2011
WL 4507417, at *6-7 (finding financial documents related to a medical examiner’s
medical-legal consulting business were not unduly burdensome if limited to the past four
Neither the Defendants nor Eck meet their burden to show good cause for a
protective order. The Defendants’ and Eck’s arguments for a protective order focus
primarily on Eck’s 1099s being outside the scope of discovery. For the reasons already
discussed, those arguments are unconvincing.
However, Eck also argues he will face annoyance and embarrassment from
disclosing his 1099s, because they will reveal information about his clients that the
clients do not want disclosed. Eck does not elaborate on why this would be a serious
injury. Indeed, if simply not wanting to divulge information was a valid grounds for a
protective order then an unwilling party would never have to comply with discovery. That
result would be absurd and Eck’s argument is likewise unconvincing.
Eck also argues that requiring him to produce his 1099s would be unduly
burdensome. However, this is not the case. Like in Chauvin and Great Lakes, the Court
ordered the production of 1099s limited to Eck’s expert witness services and business
for a limited five year time-period. Eck will also be allowed to redact federal
identification. Furthermore, Eck provides no reason why production of 1099s would be
more burdensome than the 1099 production in Chauvin or the financial documents in
Great Lakes. Therefore, their production is not unduly burdensome.
Neither Eck nor Defendants show good cause for a protective order.
C. Quashing the Subpoena
In the alternative, Eck says the Court should quash the Plaintiffs’ subpoena. Rule
45(d)(3) permits a court to quash or modify a subpoena when it subjects a person to
undue burden. Fed. R. Civ. P. 45(d)(3)(iv). Subpoenas are quashed on a case-by-case
basis. In re: Modern Plastics Corp., 890 F.3d 244, 251 (6th Cir.). The factors for
quashing include the relevance of the subpoenaed information, the parties’ need for the
documents, the breadth of the documents, and the burden imposed. Id.1 The moving
party must demonstrate undue burden, while the burden to demonstrate relevance is on
the party seeking discovery. Hansen Beverage Co. v. Innovation Ventures, LLC, No.
2:09-MC-50356, 2009 WL 1543451, at *1 (E.D. Mich. June 2, 2009).
Eck argues that Plaintiffs must show a substantial need for his 1099s and cites Fed. R. Civ. P.
45(d)(3)(C)(i) for support. However, that rule only pertains to non-retained experts and trade secrets. Fed.
R. Civ. P. 45(d)(3)(B)(i)-(ii). Eck is neither and Plaintiffs have no burden to show a substantial need.
The importance and relevance of the information sought has been discussed.
The Plaintiffs do not have that information; they were only provided with Eck’s written
opinions, the documents he relied on, his resume, fee schedule, and a list of cases he
provided a deposition for from the past four years. Additionally, the breadth of the 1099s
is narrowly confined to financial information from expert witness services from the past
five years. As previously discussed, there is no undue burden associated with 1099s.
Eck fails to show good cause to quash Plaintiffs’ subpoena.
D. Eck’s Other Arguments
Eck makes several other arguments for why he should not be required to
produce his 1099s.
First, Eck argues that he complied with Rule 26(a)(2)(B), which he says
constitutes the outer bounds of discovery’s scope for an expert witness.
Rule 26(a)(2)(B) requires an expert witness to provide a written report disclosing
several key pieces of information about their testimony and compensation. Fed. R. Civ.
P. 26(a)(2)(B). However, courts routinely allow discovery of information beyond what
26(a)(2)(B) requires. Campos v. MTD Prod., Inc., No. 2:07-0029, 2009 WL 920337, at
*2 (M.D. Tenn. Apr. 1, 2009). Additionally, the rule has no language that says it limits
the scope of discovery or otherwise acts as the outer bounds for what an expert witness
may be required to disclose. Furthermore, Eck provides no case law or authority to
support this argument. Eck’s argument is without support and he may be ordered to
produce information beyond what is listed in Rule 26(a)(2)(B).
Second, Eck argues that relevant financial information should be obtained from
the defendants and not him. This argument relies heavily on the idea that Eck must only
disclose financial information related to his work for these Defendants. Since this is not
the case, the argument makes little sense; nobody but Eck has access to all the 1099s
Third, Eck argues that as a non-party the Court must first order him to submit to
its jurisdiction before discovery beyond what is required in Rule 26(a)(2)(B) is permitted.
Again, this argument rests on a faulty premise: that the Court is limited to allowing
discovery for only the items provided in 26(a)(2)(B). As discussed, this is incorrect.
Therefore, no order requiring Eck to submit to the Court’s jurisdiction is necessary.
None of Eck’s other arguments is a ground for a protective order. Eck does not
present a compelling reason why he should not be required to comply with the Court’s
Defendants’ motion for reconsideration is GRANTED IN PART AND DENIED IN
PART. Defendants’ request that Eck not comply with the Court’s order of April 14 is
DENIED. Defendants’ request regarding Eck’s privacy is GRANTED; Eck may redact
federal identification like social security and tax-payer numbers from his 1099s. If
Defendants wish to keep Eck’s 1099s under seal they must file a motion to do so.
Defendants’ and Eck’s motions for a protective order are DENIED.
Eck’s motion to Quash Plaintiffs’ subpoena is DENIED.
IT IS ORDERED.
s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: July 1, 2019
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