Special Master Lukoff recently considered Apple and Microsoft’s request to order plaintiff to produce early surveys commissioned by one of plaintiff’s experts in anticipation of issuing his expert reports. Robocast, Inc. v. Apple, Inc., et al., C.A. No. 11-235-RGA, C.A. No. 10-1055-RGA (D. Del. Sept. 18, 2013). The early surveys were conducted prior to the surveys which formed the basis of plaintiff’s expert’s opinions. Id. 1-2. The parties’ dispute hinged on the interpretation of the phrase “the facts or data considered by the witness in forming [the opinions],” found in Rule 26(a)(2)(B)(ii). Id. at 2. Plaintiff argued that production was not required because the expert did not consider those prior surveys when reaching his conclusions, and could not have considered them since the expert deleted the earlier surveys from his computer. Id. at 2. Defendants, on the other hand, argued that under Rule 26 the expert must have considered the surveys, even based only on the similarity of all the surveys. Id at 3. Moreover, defendants argued that the term “considered,” for purposes of Rule 26, has been defined by courts to mean “reviewed.” Id. “As such, a review having occured, there is no question about whether the expert had ‘considered’ the earlier surveys.” Id.
Special Master Lukoff noted that there was no reason to doubt that Plaintiff’s expert deleted the prior surveys and could not remember them when drafting his expert reports. Id. However, when construing Rule 26 “using common sense,” Special Master Lukoff determined that it would be “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.” Id. at 4. Ultimately, Special Master Lukoff noted that it was a close call, but, since there was “sufficient ambiguity” as to whether the prior surveys played a role in the expert’s final reports, the plaintiff was ordered to immediately produce those prior surveys (including questions and answers) to the defendants. Id. at 5-6.