*1 This matter was previously referred to me for hearing and determination of: (1) Plaintiff's April 10, 2023 motion to compel appropriate responses to its first set of interrogatories and requests for production of documents, which the Court denied without prejudice on April 17, 2023 for failure to comply with E.D. Mich. LR 7.1 (see ECF Nos. 11-13); and, (2) Plaintiff's July 11, 2023 renewed motion to compel, which the Court granted as unopposed on August 10, 2023 (see ECF Nos. 15-17, 19-20).

Currently, this matter is before the Court for consideration of two matters.

A. Plaintiff's request for an award of attorney fees and costs (ECF No. 21)

In its August 10, 2023 order, the Court awarded Plaintiff its reasonable costs and attorney fees associated with the preparation of the renewed motion (ECF No. 15), pursuant to Fed. R. Civ. P. 37(a)(5)(A), and set forth the process for pursuit of such an award. (ECF No. 20, PageID.341.) Plaintiff's affidavit (ECF No. 21) and Defendants' objection (ECF No. 22) were timely submitted.[1]

Upon consideration of the parties' submissions (ECF Nos. 21, 22), and the related oral argument on December 19, 2023, and for all the reasons stated on the record by the Court, which are hereby incorporated by reference as though fully restated herein, Plaintiff's request (ECF No. 21), is GRANTED IN PART and DENIED IN PART. Preliminarily, to the extent Defendants' September 15, 2023 “specific objections to Plaintiff's request for attorney fees” (ECF No. 22) take issue with the Court's August 10, 2023 order (ECF No. 20), Defendants' filing makes no showing under the standards for reconsideration and is well beyond the 14-day period for seeking reconsideration (E.D. Mich. LR 7.1(h)(2)) or the 14-day period for filing objections to the order (Fed. R. Civ. P. 72(a)).

*2 However, Defendants' submission (ECF No. 22) is timely as an objection to Plaintiff's request for an award of attorney fees and costs (ECF No. 21), as specified in the Court's prior order granting them (ECF No. 20, PageID.341). The Court agrees that the nearly $20,000 amount requested by Plaintiff is eye-popping for a motion to compel, Thomas v. Bannum Place of Saginaw, 421 F. Supp.3d 494, 496 (E.D. Mich. 2019), and further agrees that the request for costs associated with the originally filed motion to compel (ECF No. 11), which was denied without prejudice for failure to comply with E.D. Mich. LR 7.1 (ECF No. 13), should be denied. Accordingly, Defendant's related objection is SUSTAINED. However, the Court has considered and will GRANT Plaintiff's request for attorney fees associated with the renewed motion to compel (ECF No. 15), although not in the requested amount. The Court has painstakingly reviewed Mr. Shannon's affidavit (ECF No. 21), with the related factors, including that this is a discovery motion (i.e., not a trial or appeal), and the invoices (ECF No. 21-2), and has also considered State Bar of Michigan's Economics of Law Survey (ECF No. 21-1) and other factors stated on the record, including the Court's own experience. Thomas, 421 F. Supp.3d at 498 (“Additionally, ‘Judges use their experience with the case and counsel, as well as their experience with the practice of law, to assess the reasonableness of the hours spent and rates charged in connection with a request for expense shifting sanctions.’ ” (quoting 7 Moore's Federal Practice, § 37.23[8] (3d ed. 2017) (emphasis added))). The Court has taken all this into account.

Beginning with the invoice dated July 31, 2023, which contains the first references to time spent drafting the renewed motion to compel, and consistent with the line-item detail and additional time reduction provided on the record, the Court's award for associate Rebecca El Badaoui's work is $3,000 (10 hours at a $300 hourly rate), for partner Joseph J. Shannon's work is $1,125 (2.25 hours at a $500 hourly rate), and costs of $56. The total award of $4,181 – which is substantially less than the nearly $20,000 requested – is made against defense counsel's law firm, as the Court does not see evidence that its clients were at fault. Littler Mendelson, P.C. SHALL pay $4,181 to Bodman P.L.C. no later than December 28, 2023.

B. Plaintiff's motion to compel (ECF No. 23)

On November 14, 2023, Plaintiff filed a motion for contempt and order to show cause, motion to compel the 30(b)(6) deposition of Metal-Matic, motion to compel the deposition of Manish Bhatt, and motion to strike Metal-Matic's expert witness disclosure (ECF No. 23), which has been referred for hearing and determination (ECF No. 24), and as to which a response, reply, and joint list of unresolved issues have been filed (ECF Nos. 26-31).

On December 19, 2023, I conducted an in-person motion hearing, at which Attorneys Joseph J. Shannon, III and Robert C. Tice appeared. (ECF No. 25.) Upon consideration of the motion papers (ECF Nos. 23, 26-30), as framed by the joint list of unresolved issues related to ECF No. 23 (ECF No. 31), and the related oral argument on December 19, 2023, and for all the reasons stated on the record by the Court, which are hereby incorporated by reference as though fully restated herein, Plaintiff's request (ECF No. 23), is GRANTED IN PART and DENIED IN PART as follows:

(1) Plaintiff's motion is DENIED to the extent it argued that Defendant should be held in contempt for “failing to comply with this Court's order (ECF No. 20).” (ECF No. 23, PageID.521-525; see also id., PageID.528.) Plaintiff has not shown contemptuous conduct by Metal-Matic, notwithstanding the behavior of its counsel, and has not met its burden to produce “clear and convincing evidence” of such conduct. Elec. Workers Pension Trust Fund of Local Union # 58, IBEW v. Gary's Elec. Serv. Co., 340 F.3d 373, 379 (6th Cir. 2003).

(2) Nonetheless, as outlined in the joint list of unresolved issues, the Court finds that Metal-Matic failed to comply with this Court's Order (ECF No. 20) (see ECF No. 31, PageID.1356-1360), namely:

(3) On October 17, 2023, Plaintiff deposed Defendants' Fed. R. Civ. P. 30(b)(6) witness, Thomas Jackson, who Plaintiff's counsel explained was the witness on “all except number 8.” (ECF No. 23-13, PageID.610.) As for whether Metal-Matic complied with Fed. R. Civ. P. 30(b)(6) (ECF No. 31, PageID.1360-1363; see also ECF No. 23, PageID.525-527), Plaintiff's motion is GRANTED to the extent it seeks an order “compelling the 30(b)(6) deposition of Metal-Matic[.]” (ECF No. 23, PageID.528.) Jackson testified inadequately as to Topic 1.[4] At Vince Fera's December 20, 2023 deposition, he MUST be prepared to testify on Topics 1 and 8, consistent with obligations under Fed. R. Civ. P. 30(b)(6), even if he has to pick up the phone and call someone in preparation, e.g., Jim Craig, Manish Bhatt, etc., or otherwise investigate. Weber Mfg. Techs., Inc. v. Plasan Carbon Composites, Inc., No. 14-12488, 2016 WL 8114507, at *5 (E.D. Mich. July 26, 2016) (“Although the designated person does not need personal knowledge of the facts to which he testifies, he must be prepared by the corporation so that he can adequately testify as to the corporation's position.”). If such testimony is not possible with Mr. Fara, then defense counsel needs to find others who can testify on December 20, 2023. Furthermore, defense counsel is not to make “speaking objections,” and counsel shall “abstain from offensive personality[,]” as required by the Lawyers' Oath taken by all members of the Michigan Bar. Additionally, to the extent Plaintiff seeks the deposition of Manish Bhatt (ECF No. 23, PageID.527; ECF No. 31, PageID.1360-1361), Bhatt is not actually employed by Defendant, and Plaintiff has been aware of his scope of knowledge since the February 3, 2023 initial disclosures (ECF No. 27-4, PageID.1003); accordingly, Plaintiff could have taken the deposition during discovery and its request for that deposition is DENIED.

*4 (4) As for Plaintiff's request that Metal-Matic's expert disclosure – by Vyacheslav (Slava) Fos – be stricken (see ECF No. 23, PageID.527-528 & ECF No. 31, PageID.1363-1365), Plaintiff's motion is GRANTED. Preliminarily, to the extent Defendant takes issue with “R.V.M.'s unprepared expert witness,” (see ECF No. 26, PageID.687-688, 699-700), Plaintiff's expert report is not before this Court, and references thereto are projection and deflection. More to the point, the case management scheduling order required Fed. R. Civ. P. 26(a)(2) proponent expert disclosures by September 18, 2023 and rebuttal expert disclosures by October 18, 2023 (ECF No. 10, PageID.65.) Defendants' expert report (ECF No. 26-3, PageID.735, 736-742) is not, in fact, a rebuttal expert disclosure. The report does not identify Fos's report as a rebuttal report, just as an “updated” expert report, although no prior report was tendered. The Court has reviewed that report, and the only reference to Plaintiff's expert disclosure is among a litany of materials reviewed by the expert. However, the report does not even mention the name of Plaintiff's expert, and nowhere in the report is there any actual reference to Plaintiff's expert opinions or theories; nowhere does it suggest why Plaintiff's expert was wrong, nor does it rebut or even acknowledge the content of Plaintiff's expert's report. Instead of constituting a rebuttal disclosure, it is actually a proponent expert disclosure – notwithstanding defense counsel's mischaracterization of it as a rebuttal report when its untimeliness was pointed out to him – which would have been due on September 18, 2023. However, it was not supplied until November 24, 2023. Alternatively, even if it were truly a rebuttal expert report, it would have been due with the disclosure tendered on October 18, 2023. Therefore, the report is at least five weeks, if not nine weeks, late. “A scheduling order is ‘not a frivolous piece of paper, idly entered, which can be cavalierly disregarded ... without peril.’ Birge v. Dollar Gen. Corp., No. 04-2531, 2006 WL 133480, at *1 (W.D. Tenn. Jan. 12, 2006) (quotations omitted). It may be modified ‘only for good cause and with the judge's consent.’ Fed. R. Civ. P. 16(b)(4).” Automation Guarding Sys., LLC v. Steel Guard Co., LLC, No. 2:21-CV-10221-TGB-APP, 2023 WL 8375226, at *1 (E.D. Mich. Sept. 21, 2023) (Berg, J.). See also Inge v. Rock Financial Corporation, 281 F.3d 613, 625 (6th Cir. 2002).[5] Accordingly, Defendants' expert disclosure (ECF No. 23-20), and its subsequent expert report (ECF No. 26-3) are HEREBY STRICKEN AND DISALLOWED, which shall consequently have the effect of excluding Dr. Fos as an expert witness and should MOOT the pending motion to exclude his testimony and opinions (ECF No. 32).

(5) Finally, Plaintiff's motion is GRANTED to the extent it sought an award of its “attorneys' fees and expenses incurred in bringing this motion, as Plaintiff largely (but not entirely) prevailed. See Fed. R. Civ. P. 37(a)(5)(C). (ECF No. 23, PageID.529.) When asked about a reasonable number of attorney hours for this award, Plaintiff's counsel suggested 10 hours by his associate and 5 hours by himself, while defense counsel suggested 7.5 hours (with 2/3 attributed to the associate and 1/3 attributed to the partner). Upon consideration of these suggestions, the Court AWARDS reimbursement of 7.5 hours spent by the associate at an hourly rate of $300 ($2,250) and 5 hours spent by the partner at an hourly rate of $500 ($2,500). As with my above ruling, the total award of $4,750 is made against defense counsel's law firm, as the Court does not see evidence that its clients were at fault. Littler Mendelson, P.C. SHALL pay $4,750 to Bodman P.L.C. no later than December 28, 2023 (in addition to the above award of $4,181, for a combined award on both motions to compel (ECF Nos. 15 & 23) of $8,931.

IT IS SO ORDERED.[6]