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Court Denies Production Motion for Data Source Since Expert Did Not Consider the Data in Preparing Opinion

Posted on October 5th, 2016

In the class action litigation Pearlman et. al. v. Cablevision Systems Corp., Caes No. 10-4992 (E.D. N.Y., Sept. 19, 2016), the  Plaintiffs were subscribers of Defendant’s cable services and sued Defendant for its failure to provide certain television programming during a two-week period in 2010. Defendant’s prior arrangement with Fox broadcasting network had briefly expired, which caused the programming interruption in plaintiffs’ subscription (the expiration resulted in the loss of Defendant’s right to broadcast certain channels owned by Fox.) After the temporary interruption, Defendant did not provide Plaintiffs with a credit or with alternative programming for the interrupted service. During discovery, the parties hired expert witnesses. Defendant’s damages expert, Jonathan Orszag, issued a report in which he relied on certain documents, which had been produced in hard copy form to Plaintiffs. Plaintiffs filed a letter motion seeking to compel production of these documents in native format/with metadata.

Defendant fought the motion as untimely, arguing that the expert report and supporting documents had been submitted a year prior to the filing of the motion. Defendant also argued that the documents subject to the supplemental request for native production were not actually considered by the expert, but were simply sent to his staff. Plaintiffs contended that they were entitled to obtain the “original source files of company data”.

The court agreed with Defendant that the motion was untimely. The court made further findings that the documents did not fall within the scope of FRCP 26, because Plaintiffs did not show that the expert actually used the documents in forming his opinion or writing his report. Defendant asserted that the expert’s staff determined what the expert needed for his opinion, and then provided him the data in the form of spreadsheets, which he then used in his report and which were produced. The expert further testified at his deposition that everything he had relied upon in drafting his report had been provided to Plaintiffs. Plaintiffs also cited no case law in support of their argument that they were entitled to the source data. Therefore, the court denied Plaintiffs’ Motion to Compel.

ILS – Plaintiff ESI Discovery Experts

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