What is Sufficient Foundation for an Expert Report?

Motions in limine to exclude expert witnesses are as common as slot machines in Las Vegas. By far, the most common arguments I encounter are 1) the expert is unqualified, or 2) the expert’s opinion lacks adequate foundation. This post considers arguments about foundation. The foundation required for an expert to testify varies depending upon the requirements of each case. It is often easier to identify when an expert’s opinion has inadequate foundation than when it is adequately supported, like the case below.

Arista Records LLC v. Usenet.com, Inc.[1] was a music file-sharing copyright infringement case, somewhat like the far more well known Napster cases. The defendant was a business that provided Usenet access. “Subscribers pay Defendants a monthly rate for the right to access Defendants’ computer servers and download various types of files.” “Plaintiffs contend that Defendants provided their subscribers access to hundreds of music piracy newsgroups containing vast amounts of infringing digital music files copyrighted by Plaintiffs. These digital music files were stored on servers operated by or on behalf of Defendants.”

The expert witness at issue was retained and disclosed to rebut the music industry’s allegation that Usenet.com had spoiled evidence. The music industry conceded the expert was qualified, but argued the his opinions were inadequately supported and should be excluded. The expert had been deposed. The court summarized the expert’s work.

By his own admission, the following represents the sum of Professor Farber’s investigation. In preparation for his Declaration, Professor Farber received, but only “scanned” notes from Mr. Reynolds. He also “reviewed the operations manual for Surgenews” and performed Internet research on the Surgenews software. Professor Farber did not download any articles from the Usenet in preparation for his Declaration, but he was a heavy Usenet user beginning in the late 1990’s. Nevertheless, he has used the Usenet only on a couple of occasions each year since 2000. Professor Farber had discussions with Defendant Reynolds concerning the Usenet.com system, the software, the age of the servers, which Professor Farber accepted as reasonable information based on his experience.

By definition, expert witnesses are not fact witnesses. Experts often must rely upon others to provide the factual information needed to form an opinion. However, this expert formed his “opinions about the capacity and capabilities of Defendants, servers and software, which are the matters largely in contention, by simply accepting what Defendant Reynolds told him. … An expert who simply regurgitates what a party has told him provides no assistance to the trier of fact through the application of specialized knowledge.” The expert’s opinions that relied solely upon this information were struck, however other sections based upon additional information were permitted.

[1] 608 F. Supp. 2d 409 (S.D.N.Y. 2009).