Robocast v. Apple and Microsoft: Preliminary Surveys Ordered Produced Even Where Expert Did Not Rely Upon Surveys and Had Deleted Them Before Creating His Expert Report

by Jeffer Mangels Butler & Mitchell LLP
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Robocast filed patent infringement actions against Apple and Microsoft. As expert reports were underway, Apple and Microsoft moved to compel undisclosed surveys that were commissioned by one of Robocast's experts. As the Magistrate Judge explained, "Specifically, I am asked to resolve the parties' dispute concerning certain undisclosed surveys commissioned by Professor James T. Berger in anticipation of his issuing expert reports vis-a-vis each defendant. Those two reports, in turn, are the foundation upon which another plaintiff's expert directly relies for the purpose of establishing the scope of damages against the defendants. Robocast's survey expert actually had preliminary surveys conducted for each of the two defendants, Apple and Microsoft, prior to the surveys which form the basis for his expert reports' conclusions."

Robocast resisted to reveling the prior surveys was predicated on the argument that Professor Berger claimed he did not rely upon any of the prior surveys in connection with reaching the conclusions reflected in his final reports concerning each defendant. "Indeed, because the expert deleted the earlier surveys (which had been performed after his retention by the plaintiff) from his computer, he was physically unable to take them into consideration at the time he reviewed and adopted the later-commissioned surveys into his final reports."

The Magistrate Judge found that "Robocast has a plausible point concerning the data its expert did and did not specifically look at when he created his report. That is, I have no reason to doubt the expert's Declaration that he both deleted the prior surveys and couldn't remember them when lie drafted the reports that have been issued. If one reads the first phrase of Rule 26(a)(2)(B)(ii) as being inherently modified by the second phrase, and assumes that the two phrases cannot be read alone, the plaintiff's position about non-disclosure could be upheld."

Nonetheless, the Magistrate Judge determined that his position disregarded reality. "This position, however, disregards the reality of an expert whose report is grounded on the formulation of a statistical basis for his opinions. I believe that the only logical interpretation of Rule 26(a)(2)(B)(ii) given the facts of this particular dispute is to construe the operative phrase using common sense, which doesn't require anyone to parse the sentence in order for it to be effective."

In fact, the Magistrate Judge found "it difficult if not impossible to believe that an expert whose opinions are predicated upon the creation of a statistically-meaningful effort could have, in the statistical sense, completely ignored the data that had been previously collected by him. One set of survey questions has even been characterized as part of a "pilot" effort. The ultimate reports were generated upon very similar if not identical questions. My consideration of the issue at hand is at least partially framed by the fact that the prior surveys were directly related to the subject matter of the final surveys used for the opinions in the reports."

Accordingly, the Magistrate Judge recommended production of the prior surveys. "Here, the expert generated information as a result of the prior surveys. When the information was generated, it is implausible that the expert didn't review it and that he didn't reflect upon it at least to a certain extent. As mentioned above, it was inevitable that Professor Berger's reports were informed (if not in the inspirational sense then in some other, important, sense) by the prior surveys; the evolution from preliminary to ultimate surveys had to have been for statistically-relevant purposes. Even if it was a closer call, I find that sufficient ambiguity exists with respect to whether the prior surveys played any role in the ultimate opinions reached in the reports that impact the defendants."

Robocast, Inc. v. Apple, Case No. 11-235 (RGA) (D. Del. Sept. 18, 2013)

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Jeffer Mangels Butler & Mitchell LLP
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