• October 19, 2009

Update: The Fair Isaac litigation was the subject of an earlier entry (below), a skirmish about deadlines.  A deadline, again, is the subject of motion practice. This time it is a motion to exclude Experian’s amended exhibit list as untimely, set for hearing tomorrow afternoon, less than ten days before the scheduled start of trial before Judge Anne Montgomery.

In one of the larger business disputes pending in the U.S. District Court, District of Minnesota, Fair Isaac Co. (inventors of the “FICO score”) v. Experian, Transunion, Equifax, et al., a nearly three year-old fight, the Court had dealt a blow to Plaintiff Fair Isaac by upholding an order barring Fair Isaac’s motion to compel as past the deadline for non-dispositive motions.

The deadline that the Court held Fair Isaac to was in the 7th (seventh!) amended scheduling order, trial is now set to start on October 29, and, in early September, the Court simply rejected Fair Isaac’s argument — essentially that Experian did not produce certain emails that it had committed to producing and, on that basis, Fair Isaac argued that it had good cause for seeking the hearing after the deadline.

It can be argued that such deadlines (particularly so-called “heard by” deadlines) put litigants in difficult positions, forcing them to put motions on for hearing a month or more in advance — as a kind of insurance in case a motion is needed down the line. So the discovery deadline is not really the discovery deadline because the litigant would have had to complete discovery weeks before not just to allow time for briefing a motion, but also to accommodate scheduling the hearing, which, particularly in large multi-party cases can be a challenge.

In any event, it is widely known that courts’ flexibility and tolerance as to deadlines is often inversely correlated with the proximity of trial. Fair Isaac seems to have cut it too close.

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