Diamond Post

Electronic Discovery Newsletter

FEATURE ARTICLE:
CYBERSLEUTHING PLAINTIFF'S EXPERTS
~ By James M. Dedman IV 

Usually, e-discovery articles focus on the challenges of the electronic age, and how to deal with voluminous documents which are easily alterable, expensive to retrieve and are accompanied by metadata. However, one of the benefits of the electronic age is having information available at your fingertips...including information about expert witnesses for the opposing party. Prior to having a plethora of information available electronically, attorneys were limited to researching experts through information provided by colleagues or perhaps expert databases. However, there are additional techniques in using the internet to thoroughly research an expert.

In most litigation, counsel will obtain a copy of the expert's curriculum vitae, or CV, prior to the expert's deposition.  Typically, in an effort to inflate their credentials, experts list numerous association memberships on their CVs. Although some associations are facades and offer little information of value, many associations post their membership requirements and ethical codes on the Internet. Sometimes, the association's code of ethics will include specific guidelines for experts to follow when testifying during litigation.  These codes can make excellent deposition exhibits.

3.    Locating Past Deposition Transcripts.

Locating past deposition transcripts of an expert can be difficult, and having only the case name makes it difficult to determine the state in which the case was filed and the attorney defending the lawsuit.  However, inputting the name of the Plaintiff or lawsuit into Google or even a Westlaw Docket Search can occasionally locate more specific information.

 

4.    Searching News and Blogs.

Because many experts love to be quoted in the media, it is critical to search for their past media interviews.  Although many times certain articles may not be posted on the Internet,  subscribers to Westlaw have access to its "News" database.  This resource is extraordinary and can yield significant results.

For example, in our defense of the largest commercial litigation case in South Carolina, the Plaintiff, a large textile company, retained an expert animator who had previously given a number of media interviews.  In one, he candidly discussed the number of times his animations had been excluded in prior litigation.  He noted that "in 15 years, that's only happened twice.  In one case, a truck-driving witness switched stories while on the stand...So once he changed his mind, we could not use the animation....In the other evidence--and thus the animation based on it--was thrown out because of a lawyer's failure to properly document..."  As this news article originally appeared in a newspaper that did not have its own website, this interview would not have surfaced in a basic Internet search and was instead located via Westlaw News. 

 

Another helpful technique, particularly for frequently encountered experts, is the Google News Alert.  Most would be surprised to learn how often experts author Internet message board posts, letters to the editor, and other articles readily available online.  There is no reason to regularly search the Internet when Google News can perform the task.  One can set Google News to email them an alert which will link to any recent news story or blog entry mentioning a particular expert's name.  Multiple news alerts can be set to capture articles and Internet news coverage regardless of how the expert's name appears therein.  For example, if the expert's name is William Throckmorton, and his consulting firm is named Plaintiff Testimony, Inc., alerts could be set for "William Throckmorton," "Bill Throckmorton," "Plaintiff Testimony, Inc.," or even the more expansive "Throckmorton 'Plaintiff Testimony, Inc.'" A search can be set to "Comprehensive," and thus, be made to search not just news outlets but the entire Internet, which would include blogs, miscellaneous non-news related websites, and official corporate and legal sites which may not be indexed on Google News.  Further, one can set the frequency of searches to daily, weekly, or even "As-It-Happens," which means as soon as Google locates the site on which the searched terms appear.

 
5.    Past Appellate Decisions. 

Westlaw or Lexis should be searched to locate potential appellate opinions discussing exclusion under Daubert or similar state case law. Once a federal appellate or trial court opinion referencing the expert has been located, counsel can log into PACER and find the original motion seeking exclusion of that expert and counsel's response.  Such motions will typically have an earlier version of the expert's CV as well as relevant excerpts of the expert's report and deposition transcript.  Plus, having the original motion allows counsel to contact the defense attorney directly to obtain a copy of the expert's deposition as well as any other file materials that attorney may have assembled on the expert to prepare the motion.

Use of Forensic Examination

Peskoff v. Faber, 251 F.R.D. 59 (D.D.C. 2008)

When a responding party does not adequately preserve and search for information, a forensic examination can be ordered and the cost of such an examination will not be shifted to the requesting party.  The court found that the electronically stored information could not be obtained without the aid of a forensic examination; that the factors weighed strongly in favor of discovery since the information sought would be highly relevant, not duplicative, and could not be obtained from other sources; and that the cost of the forensic exam ($33K) would not dwarf the final recovery ($2.5 million).  The question remained whether the court should break form the traditional presumption of the responding party bearing the costs of production and shifting some or all of those costs to the Plaintiff because of undue burden.  The court found that the burden on the Defendant, the producing party, was because the Defendant inadequately searched for responsive electronically stored information, failed to deactivate network maintenance tools that automatically deleted stored information after being informed of pending litigation, and did not appear in court to explain himself.  

Cannon U.S.A., Inc. v. S.A.M., Inc., 2008 WL 2522087 (E.D. La. 2008)

Where a party appears to have inadequately searched for responsive electronic information and may not have the resources to conduct a sufficient search, the court may order the retention of a forensic analyst.  Further, where an inadequate search has occurred, an argument that an opposing party obtained the documents from a third party will not avoid an award of sanctions in the form of the costs associated with obtaining the documents from that third party.  During a deposition, Defendant's owner testified that he forgot about a back up server that he kept in his home in Florida, which recorded internet sales, customer data, and emails.  Defendant's owner had his son search the server but was unsure if the search was conducted thoroughly.  The court concluded that the evidence suggested that the requested discovery was retained on the server and accessible, and that Defendant should bear the costs in producing them.  Additionally, the court granted Plaintiff's request that Defendant hire a forensic specialist because Defendant's owner's son did not appear to have the requisite technological savvy to conduct a comprehensive search and Defendant treated Plaintiff's discovery request lackadaisically.  Finally, Defendant's argument that Plaintiff obtained the documents from a third party was not sufficient to avoid the additional search or sanctions related to the costs of obtaining the records from the third party.

Adverse Inference Instructions and Sanctions

Nursing Home Pension Fund, et al, v. Oracle Corporations, et al., 254 F.R.D. 559 (N.D. Ca. 2008)
The court held that adverse inference instructions against Defendant were warranted when it produced only a few of its CEO's emails to Plaintiff and did not prevent spoliation of evidence it could have controlled, although it lacked physical possession of that evidence.  The court imposed sanctions on Defendants for failing to preserve transcripts and recordings that Defendants had control but not physical custody over.  The court concluded that because Defendants were on notice of the impending litigation, the spoliation of those emails, transcripts and recordings was willful.  The court held that Plaintiff was entitled to adverse inference instructions and that it would take those adverse instructions into account when determining Defendants' motion for summary judgment. 

When the five factors to determine whether spoliation occurred are met, the court was willing to grant an adverse inference instruction against Defendant.  The five factors for spoliation are: (1) prejudice to non-spoiling party as a result of destruction of evidence, (2) whether prejudice can be cured, (3) practical importance of evidence, (4) whether spoiling party acted in good or bad faith, and (5) potential for abuse of expert testimony about evidence not included.  In this case, Plaintiff procured a February 12th email by her supervisor from a third party that supported her claims.  She sent a letter to preserve documents about 9 days later but all emails sent from and received by Defendant's employees around that time, which could have supported the Plaintiff's claims, were uncharacteristically not preserved.  The court inferred that other relevant emails existed.  Additionally, the court held that the five factors used by the court in determining spoliation favored Plaintiff's claim of spoliation of evidence.  The court granted an adverse inference instruction against Defendant.