Commercial Litigation and Arbitration

Experts and Electronic Spoliation — Reliance on Internet Discussions with Other Experts Satisfies Fed.R.Evid. 703 — Reasonably Relied on by Experts in Forming Opinion

The plaintiff in Nucor Corp., v. Bell, 2008 U.S. Dist. LEXIS 86328 (D.S.C. Jan. 11, 2008), sued its former employee and his new employer for trade secret misappropriation. On the pending motion for sanctions, the plaintiff claimed that the defendants had spoliated evidence by wiping the hard drive of a laptop and disposing of a USB drive. The plaintiff moved to exclude the testimony of the defense expert (McLinden), among other reasons, because he had consulted with peers on an internet chat room to see if they had seen evidence of spoliation under similar circumstances:

[P]laintiff argues that McLinden's reliance on "chat rooms" makes his testimony on wiping unreliable because it relies on hearsay testimony that is not admissible under Rule 703....

... [Under Federal Rule of Evidence 703], an expert's opinions and inferences are admissible even if he or she relied on hearsay in forming those opinions and inferences, but only if the hearsay is of a type reasonably relied upon by experts in the particular field. See Redman v. John D. Brush & Co., 111 F.3d 1174, 1179 (4th Cir. 1997). To prove the foundation for the testimony, the burden is on the proponent to demonstrate that experts in the field would rely on the hearsay....

McLinden did not rely on his internet discussions in forming his opinion, thereby making Rule 703 in applicable.... McLinden's reports do not mention the internet discussions nor does it appear that he relied on the statements made there to reach his conclusions; he has set forth bases independent of the chat rooms for reaching his conclusions.

This case is therefore different than Redman. In Redman, the underlying issue was whether a particular safe model was an effective burglar deterrent.... The expert had experience in metallurgical engineering but had no experience in dealing with safes or burglaries.... To conclude that the safe was an effective deterrent, the expert relied on conversations he had with store personnel, who provided the expert with an accepted industry definition of "burglar deterrent." ... Applying that definition to the safe at issue, the expert determined that the safe was not an effective burglar deterrent. ... The Fourth Circuit concluded that the hearsay was not admissible under Rule 703 because the proponent failed to prove that experts in the field would rely on "conversations with store personnel to identify a standard of burglar protection capacity." ... The expert in Redman necessarily relied on this hearsay to reach his conclusion because it was an integral part of his analysis. McLinden's internet discussions were not integral to the formation of his opinions—they merely served as a sounding board for his thoughts and ideas.

Even assuming arguendo that McLinden relied on internet discussions, those discussions meet the minimal standard of admissibility established in Rule 703. "Just as a witness's own testimony may establish personal knowledge of an event about which the witness is testifying, it appears that an expert witness should be able to lay a foundation that establishes the reasonableness of relying on inadmissible evidence." Saltzburg, Martin & Capra, [Federal Rules of Evidence Manual] § 703.02[3], at 703-5. McLinden testified:

A. As I stated, I have no peer reviewed publications. I have contributed knowledge to various forensic bulletin boards, as well as acquired knowledge from such bulletin boards.

Q. So you've gone in some chatrooms and chatted it up?

A. Not chatrooms. EnCase, urn, provides a bulletin board for EnCase users. Um, and there is a computer forensics bulletin board. There is the Journal of Digital Investigations, urn, that has a bulletin board like area. So I've had - I have been involved and engaged in discussions in those, yes.

Q. Do you think those are valid areas to go to?

A. This is an evolving field. The experts, um, upon whom I rely for my information and knowledge are participants in those grounds. People like Brian Carrier, who is probably the world's foremost authority on file system analysis participates in the groups that I'm in. Harlan Carvey, who is an expert in Windows forensic analysis. So it is sharing information with the community.

... [Plaintiff’s expert] Jorgensen's testimony also supports McLinden's assertion that experts in field use internet "chat rooms" in forming their opinions. Jorgensen testified that he used a Dell support chat room to gather information about background patterns of data that Dell might put on their hard drives.... He utilized that discussion even though he had no way of verifying who the person he was chatting with was or that person's knowledge—all he knew was that the person was associated with Dell. Jorgensen even cited to his chat conversation in his report.... The evidence therefore establishes discussions in that internet fora are reasonably relied upon by experts in the particular field.

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