Demorest Law Firm has represented a University of Michigan Professor in two separate matters. Dr. Alex Halderman is a nationally recognized expert in election cybersecurity. We successfully quashed subpoenas attempting to compel Dr. Halderman to testify as an involuntary expert.
There are two different types of witnesses involved in litigation, and it is important to understand the difference between the two.
Fact witnesses are called in a specific case because they can testify as to specific facts of the case. For example, they may have witnessed a car accident at issue in a case or were a signatory to a contract that is being litigated. The testimony of a fact witness is based on personal knowledge, it is information that was gained directly through their own observations.
Expert witnesses, in contrast, are retained by a party to present to provide specialized opinion evidence. This is information that the witness has learned through their own study and analysis which has led to the development of certain opinions.
In two separate matters, Fox News Network, LLC v J Alex Halderman (Washtenaw County Circuit Court) and J Alex Halderman v Herring Networks, Inc., et al. (United States District Court) subpoenas were issued attempting to compel Dr. Halderman to provide deposition testimony without his consent.
In both cases, the parties were attempting to characterize Dr. Halderman as a fact witness in order to compel his testimony, when in reality, he was really an expert witness.
For example, in Herring Networks, Inc., et al., the District Court determined that the subpoena would improperly require Dr. Halderman to give expert testimony that was uncompensated in violation of Fed. R. Civ. P. 45(d)3)(B)(ii). Herring was unable to demonstrate that Dr. Halderman’s testimony would fall under the category of a fact witness. There was no showing that Dr. Halderman has any personal knowledge of the information that Herring was seeking to obtain from him, and any knowledge he had came directly from his own personal studies and would be expert opinions. Thus, the subpoena for Dr. Halderman’s testimony was quashed. Testimony cannot be compelled from an expert witness that has not been retained, compensated, and is unwilling to testify. Washtenaw County Circuit Court Judge Carol Kuhnke made a similar ruling in the Fox News case.
