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Case Summary, Lafarge North Amer.; Accusations of Spoliation and E-Discovery Experts

Posted by rjbiii on April 5, 2010

United States Gypsum Co. v. Lafarge North Am. Inc., 670 F. Supp. 2d 768 (N.D. Ill. 2009)

Background: Plaintiffs US Gypsum Co. (USG) claim that Defendants Lafarge North. Am. (Lafarge) infringed USG’s patents and stole confidential information relating to wallboard manufacture.
Procedural Status: The court considers motions by each party to exclude the testimony of the other party’s forensics expert.

Basic Points:

  • A witness may be qualified as an expert by knowledge, skill, experience, training, or education.
  • An expert witness may testify to those areas within his expertise, which may include areas closely associated with or encompassed in general by their subject of expertise, even if not explicitly stated in their credentials.
  • An expert witness may not testify to the state of mind of actor’s without specific qualification, or based on speculative means.
  • Accusations of spoliation based on speculation are barred from admission
  • Criticisms on one expert’s methodology based solely on a study of that methodology, and absent an independent study, are admissible to the extent the criticisms are based on expert-level knowledge and not speculative means.

Admissibility of Expert Testimony in General:

Under FRE 702, a witness can be qualified as an expert by “knowledge, skill, experience, training, or education. Courts consider a proposed expert’s full range of practical experience as well as academic or technical training when determining whether that expert is qualified to render an opinion in a given area.”

The court stated that the admissibility of expert testimony depends not only on the witness’s qualifications as an expert. Under Daubert, court’s are to consider the following factors, among others that may present themselves:

(1) whether the expert’s technique or theory can be or has been tested–that is, whether the expert’s theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability;
(2) whether the technique or theory has been subject to peer review and publication;
(3) the known potential rate of error of the technique or theory when applied;
(4) the existence and maintenance of standards and controls; and
(5) whether the technique or theory has been generally accepted in the scientific community.

The court must ensure, therefore, that the proffered testimony has, at its core, some reliable basis. The testimony must also be relevant, so that it assists the trier of fact in understanding the evidence or in determining a fact in issue.

Testimony of Carl Florez:
Carl Florez was retained by Plaintiffs to testify to the security measures undertaken by USG to protect its proprietary information.
Upon examining Mr. Florez’s qualifications, it concluded that he was a qualified expert in the areas of computer forensics and investigation. In his expert reports, Mr. Florez offered a list of “reasonable” measures a company might take to protect its confidential information, and then compared them to the measures implemented by USG. He concluded that “USG’s efforts to protect the secrecy of its proprietary and confidential information, including the information that is electronically stored, are more than reasonable, and are among the most thorough I have encountered in my experience.”

Defendants Lafarge, contended that Florez is not qualified to render an opinion regarding the steps USG took to protect its confidential information. While acknowledging Florez’s knowledge and experience in the areas of computer forensics, defendants argued that has no apparent expertise in the steps necessary to protect the secrecy of information. Florez’s opinions on these matters are, therefore, unreliable.

In beginning its analysis, the court stated the following rule: whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness’s testimony. Florez has gained expertise and familiarity with how breaches occur, including the measures and countermeasures used to protect information and to overcome protections. Efforts to protect information and efforts to access confidential information evolve on parallel tracks, such that a person familiar with the challenges of accessing protected information will also be familiar with steps necessary to protect it. Florez’s unique familiarity with computer crime provides him with an understanding of computer security measures. The court concluded that Florez’s testimony passed the test.

Defendants also argued that Florez’s opinion with respect the reasonableness of USG’s data security measuares rested on an unreliable method. Again, the court disagreed. Florez’s failure to undertake a specific experimental analysis in reaching his opinion does not, by itself, require the court to exclude his testimony. Indicators of reliability depend on the particular circumstances of the particular case at issue. Determining whether a particular activity is reasonable in light of other facts is often a function of experience, of which Defendants admit Mr. Florez has a sufficient measure. The court was persuaded that in this case, experience provided a reliable basis for determination of what precautions are reasonable and effective to prevent breaches

Reasonable Measures Cited by Mr. Florez:
Florez cited and expounded on five “generally accepted measures” for protecting electronic information:
(1) establishing and communicating protection polices;
(2) need-to-know distribution of confidential information;
(3) marking information as “confidential” or “proprietary”;
(4) maintaining confidentiality agreements; and
(5) controlling access to information with physical or electronic systems.

In the context of forming his opinion, Florez consulted authoritative sources and publications in the field. He also compared USG’s policies with those at several other organizations he was familiar with, including the FBI. Defendants suggested that these comparisons are inadequate because none of these organizations is in the manufacturing business or construction industry. While the court acknowledged that discussion of confidentiality measures in the manufacturing setting might have been useful, its omission was not fatal, as the need for security in manufacturing sector here cannot be greater than that present at the FBI. The court concluded that Florez’s opinion appeared reasonable, even in the face of his inability to cite specific sources of information used for his analysis.

Mr. Florez’s Analysis of the Intent of Actors:

The court did agree with Defendants assertions that where Mr. Florez made oblique references to the state of mind of certain actors, he appeared to exceeded the scope of his expertise. The court noted that nothing in the record suggested that Florez was particularly qualified to understand the mental attitudes of others. Even assuming he were, he is able to render an opinion on intent only by drawing inferences from the evidence. Such opinions merely substitute the inferences of the expert for those the jury can draw on its own. Thus, the court excluded this type of testimony from the case.

Mr. Florez’s Analysis of Document Spoliation:

In his reports, Florez opined that various Defendants committed intentional acts of spoliation to cover up the misappropriation of USG documents. In an earlier opinion, the court had barred USG, its attorneys and witnesses from offering evidence of any alleged spoliation of evidence by any of the Defendants . . . and precluding all comment or testimony on such matters in the presence of the jury, either directly or indirectly, at any stage of trial from jury selection to verdict. Plaintiff now sought to use Florez’s testimony to explain “what steps were taken resulting in deletion of the documents, how partial information was recovered, and what information is irretrievably lost.”

The court was not persuaded to change its view on the matter of accusations of spoliation. The opinion stated that plaintiffs implicitly conceded that the main purpose of Florez’s testimony was to create the inference that Defendants intentionally destroyed evidence in an attempt to cover up alleged wrongdoing. Because plaintiffs offer no new non-speculative evidence on the issue, the court prohibited all testimony of this type.

Testimony of Andrew Reisman:

Mr. Reisman opined primarily on the validity of Florez’s methods and conclusions, contending that the evidence Florez reviewed failed to establish his subsequent findings. Mr. Reisman conducted no independent investigation or data analysis, but rather he reviewed Florez’s reports and consulted the same data Florez did. Plaintiff suggested that Reisman was obligated to undertake a broader investigation because he “had unfettered access to the entire Lafarge computer network” and concludes that the failure to do so constituted cherry-picking data in a way that fatally undermined the reliability of his conclusions. Defendants respondrf that Reisman would testify, based on his own experience, to “what forensic analysts do, what information they look at, what conclusions they can reach, and what conclusions they cannot reach based on forensic evidence.”

The court concluded that Reisman’s methodological criticisms were sufficiently based on his relevant experience to be reliable, and because computer forensics is a highly complicated area, the jury would benefit from having access to criticism from another expert in the field. However, to the extent that Reisman’s opinion offers speculation with respect to the use or dissemination of USG information at Lafarge, in the guise of criticizing Florez’s methodology, such testimony will be excluded.

The court ruled that any comments from Reisman that appear to divine an actor’s intent through speculative means will also be excluded. Finally, the court also ruled that Reisman may not opine on issues of spoliation or destruction of documents in answer to Florez’s accusations, becuase those accuasations have already been barred. Anything that Reisman would add is therefore not needed.

Posted in 7th Circuit, Case Summary, Expert Witness, FRE 702, Information Security, Judge Rebecca R. Pallmeyer, N.D. Ill., Spoliation | Tagged: , | 1 Comment »

CA Case Summary: Miyamoto; Trustworthiness and Database Records

Posted by rjbiii on October 2, 2009

Miyamoto v. Department of Motor Vehicles, 176 Cal. App. 4th 1210, 1212 (Cal. App. 6th Dist. 2009)

JXN: State Court, California

Procedural Standing: Appeal by DMV from a trial court ruling granting of writ of administrative mandamus and ordering DMV to set aside its order to suspend defendant’s driver’s license after being arrested for driving under the influence of alcohol. The trial court ruled that the forensic laboratory report (Lab Report) of Miyamoto’s blood test results was inadmissible hearsay and that the Lab Report failed to meet the requirements of the public employee records exception to the hearsay rule (CA_Evid_Code_§_1280) because the DMV did not establish that the Lab Report was prepared at or near the time of the analysis of Miyamoto’s blood sample.

Facts of the Case: Defendant driver was pulled over for speeding, and arrested after “performing poorly” in a field sobriety test. The police dept. obtained blood samples from defendant, and had them analyzed for alcohol content. The analyses found that Miyamoto’s blood-alcohol content was twice the legal limit.

The Lab Report contained the following certification: “I, the undersigned certify under penalty of perjury that the above blood … analysis reported herein was performed during the regular course of my duties and is a true and correct representation of the results of my analysis. I further certify that I am a qualified … Forensic Alcohol Analyst (FAA) … employed by the Santa Clara County Crime Laboratory. The equipment used to perform the analysis was in proper working order at the time the analysis was performed and the recording of the analysis results was done at the time of the analysis. I further certify that the transfer of data for reporting purposes was performed electronically in accord with the laboratory’s policies and procedures.” The Lab Report was signed by “R. Desai, FAA.” The signature line, which included a line for the analyst to enter the “Date of review/report,” contained a handwritten date: “3/26/07.” The Lab Report contained the name of the “reviewer,” “Joyner.” A box in the middle of the report indicated that the “Date Printed” was “4/26/2007.”

Procedural History:At Miyamoto’s administrative hearing, the only contested issue was whether Miyamoto was driving with a blood-alcohol content of 0.08 percent or more. Miyamoto objected to the admission of the Lab Report as inadmissible for two reasons:
1. The report was hearsay because it was “untrustworthy” under Evid. Code § 1280(c) because it was certified 32 days before it was printed; and
2. The report wasn’t forwarded by the lab to the DMV within 15 days of the arrest, as required by the Vehicle Code.

The DMV hearing officer rejected Miyamoto’s objections, ruling that the report was admissible, and upholding the suspension of the defendant’s driving license.

Miyamoto petitioned the superior court for a writ of mandate to set aside the suspension order. Miyamoto argued that the Lab Report was not admissible under the public employee records exception to the hearsay rule for two reasons.
First, he asserted that the document was untrustworthy under Evid. Code § 1280(c) because although it was certified on March 26, 2007, it was not printed until April 26, 2007. Miyamoto argued that “[i]t is physically impossible for a person to sign a document which is not yet in existence.” Second, Miyamoto argued that even if the Lab Report was prepared on March 26, 2007, it was not admissible under the public employee records exception because it was not prepared “at or near the time” of the testing under Evid. Code § 1280(d), which occurred on March 23, 2007. He argued that since the Lab Report contained the only evidence of his blood-alcohol content and should have been excluded, there was insufficient evidence to support the hearing officer’s finding that he was driving with a blood-alcohol content in excess of 0.08 percent.

The DMV opposed the petition, arguing that Miyamoto’s contentions were “without merit because the lab report expressly states that the recording of the analysis results was done at the time the analysis was performed.” The DMV argued that Miyamoto’s contentions were based on a mistaken interpretation of the report and that March 26, 2007, was not the date the lab results were reported but the date they were reviewed by the “reviewer.”

The court sided with defendant, finding that the Lab Report was “insufficient to meet the requirements of Evidence Code Section 1280, [subdivision] (b) because it does not establish that it was prepared at or near the time of the analysis and the entry of the data.” The court reasoned that both arguments were “equally probable,” and that the DMV had the burden of proving the report’s admissibility. Having failed to do that convincingly, the court ruled the document was not “trustworthy” under §1280(c) of the Evid. Code. Because it failed to establish that it was prepared at or near the time of the analysis and the entry of the data,” the court granted the writ. The court ordered the DMV to set aside its order suspending Miyamoto’s license, and awarded Miyamoto his costs of suit.

DMV appealed to the appellate court, contending that the trial court erred when it concluded that the Lab Report was inadmissible hearsay and asserts that, as a matter of law, the Lab Report was admissible under section 1280, because the test results were recorded at the time that the test was done. The DMV also contends that after the court found two equally probable interpretations of the March 26, 2007 date on the Lab Report, the court erred in finding in favor of Miyamoto because Miyamoto, not the DMV, had the burden of proof in the trial court.

Findings: The appellate court started by noting that in this case, the appropriate standard for review was the defferential abuse of discretion.

The trial court found that the lab report did not meet the timeliness requirement under § 1280(c) because it did not establish that it was prepared at or near the time of the analysis of the blood sample. The court reasoned that how soon a writing must be made after the act or event is a matter of degree and calls for the exercise of reasonable judgment on the part of the trial judge. This judgment is not to be made arbritrarily or by use of artificial time limits, but rather must take into account practical considerations, such as: the nature of the information recorded; and the immutable reliability of the sources from which the information was drawn. ‘Whether an entry made subsequent to the transaction has been made within a sufficient time to render it within the [hearsay] exception depends upon whether the time span between the transaction and the entry was so great as to suggest a danger of inaccuracy by lapse of memory.

§ 1280 applies to “writings” made as records of acts, conditions or events, and the evidence code defines the term broadly. The term includes: handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored. Here, the writing consists of records from a database, thus the critical date for the purpose of the public employee records exception to the hearsay rule is the date that the test results were first recorded in that database. In reviewing the timeliness requirement, the court should consider the length of time between the act, condition, or event and the date of its recording, not the date of its eventual retrieval by computer printout.

The court reviewed two cases in which the admissibility of lab reports was properly disallowed. In Glatman v. Valverde (2006) 146 Cal.App.4th 700, 703 [53 Cal. Rptr. 3d 319], the motorist’s blood sample was analyzed on July 25, 2005, and analyzed a second time, by another analyst, a day later. Both analysts signed the report, which was dated one week after the first test was done. The DMV argued that the analysts entered the test results into the lab’s computer database shortly after completing each test and that the preparation of the report one week later simply involved retrieving the data from the database. The appellate court disagreed and observed that the record was silent regarding the procedures that the analysts used to record their test results and that there was no evidence that the test results were recorded in a computer database or anywhere else before the report was prepared. The court in that case ruled that the trial court did not abuse its discretion in ruling the report inadmissible.

In Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 987 [91 Cal. Rptr. 3d 792], this same appellate court held that the trial court did not abuse its discretion when it held that a forensic lab report was inadmissible because it was not prepared at or near the time of the recorded event. In Molenda, “there [was] no evidence the test result was entered into a computer database or recorded in any manner prior to the preparation of the written report, which was done one week after the analysis was completed. The report stated that information regarding the examination and conclusions are entered into and are maintained within the DOJ Laboratory Information Management System (LIMS) database. It did not state when the test results were entered into the database. Further, the record was silent regarding the lab’s policies and procedures for recording test results.

Because the trial court, in ruling the report inadmissible, focused on the date of certification rather than the date the results were recorded, it applied the wrong legal standard in drawing its conclusions, and abused its discretion in doing so. The trial court’s decision was reversed, and the case remanded with instructions to deny defendant’s petition for writ of mandamus and reinstate the suspension of his driver’s license.

Posted in Authentication, California, Case Summary-CA, Expert Witness, State Courts | Leave a Comment »

Case Blurb: Ahner; Fact that Producing Party is Testifying Witness Magnifies Need for Disclosure During Discovery

Posted by rjbiii on October 17, 2008

[Producing Party] argues…Rule 26(b)(4) precludes the [Requesting Party] from seeking information from it by subpoena because it is [Plaintiff’s] retained expert and its former employee, Nickie G. Cammarata, has been listed as an expert trial witness by [Plaintiff]. On the contrary, [Producing Party’s] status as a party’s testifying expert makes it more important, not less, that the facts and documents underlying its opinions be disclosed in response to a valid discovery request.

Indeed, Rule 26(a)(2) provides that parties must initially disclose, without awaiting a discovery request, the identity of any expert witness, “the data or other information considered by the witness in forming the opinions; [and] any exhibits to be used as a summary of or support for the opinions.” Although this court’s scheduling order altered the deadline imposed by the Federal Rules by which parties must provide their expert reports, underlying data and exhibits, neither that order nor Rule 26(b)(4) precludes the [Requesting Party] from propounding a subpoena duces tecum that seeks such underlying information as already exists. Rule 26(b)(4) only restricts when a party may depose its opponent’s testifying and non-testifying experts or propound interrogatories to its opponent’s non-testifying experts; it does not limit document requests.

Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 at *3 (E.D.La. Aug. 29, 2007) (internal citations removed)

Posted in 5th Circuit, Case Blurbs, Duty to Produce, E.D. La., Expert Witness, FRCP 26(a), FRCP 26(b), Magistrate Judge Joseph C. Wilkinson Jr. | Leave a Comment »