Kleiman v. Wright

Filing 622

OMNIBUS ORDER granting in part and denying in part Plaintiffs' Motion, ECF No. 492 , and granting in part and denying in part Defendant's Motion, ECF No. #500 . Signed by Judge Beth Bloom on 11/16/2020. See attached document for full details. (scn)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 18-cv-80176-BLOOM/Reinhart
IRA KLEIMAN, et al.,
Plaintiffs,
v.
CRAIG WRIGHT,
Defendant.
______________________/
OMNIBUS ORDER
THIS CAUSE is before the Court upon Plaintiffs’ Omnibus Daubert Motion to Strike
Defense Experts, ECF No. [492] (“Plaintiffs’ Motion”)1 and Defendant’s Motion to Exclude the
Opinion Testimony of Plaintiffs’ Expert Witnesses, ECF No. [500] (“Defendant’s Motion”)
(collectively, “Motions”). The Court has considered the Motions, all supporting and opposing
submissions (ECF Nos. [528],2 [529], [554], and [556]3), the record in this case, the applicable

Plaintiffs’ Motion was filed under seal. On May 12, 2020, the Court denied Plaintiffs’ motion to
seal Plaintiffs’ Motion and directed Plaintiffs to refile it with redactions. See ECF No. [502]. On
May 18, 2020, Plaintiffs’ Motion was refiled with redactions. See ECF No. [509]. For ease of
reference, the Court cites to ECF No. [492].
1

Plaintiffs’ Response to Defendant’s Motion was filed under seal, ECF No. [528]. On May 26,
2020, the Court denied Plaintiffs’ motion to seal Plaintiffs’ response and directed Plaintiffs to refile
it with redactions. See ECF No. [538]. On June 1, 2020, Plaintiffs refiled their Response. ECF No.
[548]. For ease of reference, the Court cites to ECF No. [528].
2

Plaintiffs’ Reply in support of Plaintiffs’ Motion was filed under seal, ECF No. [556]. On June
3, 2020, the Court denied Plaintiffs’ motion to seal the Reply and directed Plaintiffs to refile it
with redactions. See ECF No. [563]. On June 10, 2020, the Reply was refiled with redactions. See
ECF No. [549]. For ease of reference, the Court cites to ECF No. [556].
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law, and is otherwise fully advised. For the reasons set forth below, Plaintiffs’ Motion is granted
in part and denied in part, and Defendant’s Motion is granted in part and denied in part.
TABLE OF CONTENTS
BACKGROUND………………………………………………………………………………….3
LEGAL STANDARD…………………………………………………………………………….4
DISCUSSION……………………………………………………………………………………..9
A.

Plaintiffs’ Motion………………………………………………………………................9
1.

Dr. Ami Klin…………………………………………………………….................9
a.
b.

2.

Witness exclusion is unwarranted and too harsh a remedy…………..……12
Portions of Opinion #2 exceed the purview of expert testimony………….19

Kevin Madura……………………………………………………………………..24
a.

Mr. Madura was not required to disclose information considered
in the capacity of a consulting expert………………………………………27

b.
3.

Mr. Madura’s opinion is not speculative and unreliable…………………..30

F. Harley Norwitch………………………………………………………………..33
a.

Mr. Norwitch’s reports fail to comply with Rule 26………………………36

b.

Defendant fails to carry his burden to avoid Rule 37 sanctions……………39

c.

Defendant fails to show that Mr. Norwitch’s opinions are based
on a reliable methodology………………………………………………….40

4.

Dr. Stewart MacIntyre…………………………………………………………….44
a

Dr. MacIntyre’s opinions regarding Mr. Kleiman’s health and
effects of medication……………………………………………………….47

b

Dr. MacIntyre’s opinions regarding lack of care by family and
friends and Mr. Kleiman’s “disruptive” behavior………………………….49

B.

Defendant’s Motion………………………………………………………………………50
1.

Gordon Klein………………………………………………………………………50

2.

Dr. Matthew Edman……………………………………………………………....58

3.

Andreas Antonopoulos……………………………………………………………62
a.

Mr. Antonopoulos’ qualifications and alleged bias……………………….66

b.

Section XI of Mr. Antonopoulos’ report regarding public

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statements by Satoshi Nakamoto…………………………………………67
c.

Bitcoin lists and bitcoin message…………………………………………68

4.

Stefan Boedeker………………………………………………………………….70

5.

Dr. Robert Leonard……………………………………………………………....74

CONCLUSION………………………………………………………………………………….78
I.

BACKGROUND

The Court assumes the parties’ familiarity with the general factual allegations and nature
of this case. See, e.g., ECF Nos. [68]; [83]; [87]; [265]; [373].
Plaintiffs seek to strike defense experts, Dr. Ami Klin, Kevin Madura, F. Harley Norwitch,
and Dr. Stewart MacIntyre, pursuant to Fed. R. Evid. 702, Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Fed. R. Civ. P. 37(c)(1). Plaintiffs represent that
they do not bring their motion “on the basis that the opinions offered contradict the evidence the
Defendant has produced in this litigation,” but rather because “these experts either (1) failed to
comply with the bare minimum requirements imposed by Fed. R. Civ. P. 26, and therefore must
be excluded on fairness or reliability grounds under Rule 37 or Daubert; or (2) issued opinions
that are irrelevant to the issues in this litigation.” Id. at 3-4.
Defendant seeks to exclude the opinions of Plaintiffs’ experts, Gordon Klein, Dr. Matthew
Edman, Andreas Antonopoulos, Stefan Boedeker, and Dr. Robert Leonard because their testimony
is inadmissible under Rule 702 and Daubert. ECF No. [500]. In Defendant’s view, Plaintiffs’
experts’ opinions are “products of methods of inquiry that are not generally accepted as valid in
their fields,” and they “improperly seek to influence the jury with unsupported, results-driven
conclusions and flawed methodologies.” Id. at 2.

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II.

LEGAL STANDARD
A.

Rule 702 and Daubert

Federal Rule of Evidence 702 governs the admissibility of expert testimony. When a party
proffers the testimony of an expert under Rule 702, the party offering the expert testimony bears
the burden of laying the proper foundation, and that party must demonstrate admissibility by a
preponderance of the evidence. See Rink v. Cheminova, Inc., 400 F.3d 1286, 1291-92 (11th Cir.
2005); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). To determine
whether expert testimony or any report prepared by an expert may be admitted, the Court engages
in a three-part inquiry, which includes whether: (1) the expert is qualified to testify competently
regarding the matters he intends to address; (2) the methodology by which the expert reaches his
conclusions is sufficiently reliable; and (3) the testimony assists the trier of fact, through the
application of scientific, technical, or specialized expertise, to understand the evidence or to
determine a fact in issue. See City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th
Cir. 1998) (citing Daubert, 509 U.S. at 589). The Court of Appeals for the Eleventh Circuit refers
to each of these requirements as the “qualifications,” “reliability,” and “helpfulness”
prongs. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004). While some overlap exists
among these requirements, the court must individually analyze each concept. See id.
An expert in this Circuit may be qualified “by knowledge, skill, experience, training, or
education.” J.G. v. Carnival Corp., No. 12-21089-CIV, 2013 WL 752697, at *3 (S.D. Fla. Feb.
27, 2013) (citing Furmanite Am., Inc. v. T.D. Williamson, 506 F. Supp. 2d 1126, 1129 (M.D. Fla.
2007); Fed. R. Evid. 702). “An expert is not necessarily unqualified simply because [his]
experience does not precisely match the matter at hand.” Id. (citing Maiz v. Virani, 253 F.3d 641,
665 (11th Cir. 2001)). “[S]o long as the expert is minimally qualified, objections to the level of the

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expert’s expertise go to credibility and weight, not admissibility.” See Clena Invs., Inc. v. XL
Specialty Ins. Co., 280 F.R.D. 653, 661 (S.D. Fla. 2012) (citing Kilpatrick v. Breg, Inc., No. 0810052-CIV, 2009 WL 2058384, at *1 (S.D. Fla. June 25, 2009)). “After the district court
undertakes a review of all of the relevant issues and of an expert’s qualifications, the determination
regarding qualification to testify rests within the district court’s discretion.” J.G., 2013 WL
752697, at *3 (citing Berdeaux v. Gamble Alden Life Ins. Co., 528 F.2d 987, 990 (5th Cir. 1976)).4
When determining whether an expert’s testimony is reliable, “the trial judge must assess
whether the reasoning or methodology underlying the testimony is scientifically valid and . . .
whether that reasoning or methodology properly can be applied to the facts in issue.” Frazier, 387
F.3d at 1261-62 (citation omitted) (quotation marks omitted). To make this determination, the
district court examines: “(1) whether the expert’s theory can be and has been tested; (2) whether
the theory has been subjected to peer review and publication; (3) the known or potential rate of
error of the particular scientific technique; and (4) whether the technique is generally accepted in
the scientific community.” Id. (citing Quiet Tech. DC-8, Inc. v. Hurel-Dubois, UK Ltd., 326 F.3d
1333, 1341 (11th Cir. 2003)). “The same criteria that are used to assess the reliability of a scientific
opinion may be used to evaluate the reliability of non-scientific, experience-based
testimony.” Id. at 1262 (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). Thus,
these factors are non-exhaustive, and the Eleventh Circuit has emphasized that alternative
questions may be more probative in the context of determining reliability. See id. Consequently,
trial judges are afforded “considerable leeway” in ascertaining whether a particular expert’s
testimony is reliable. Id. at 1258 (citing Kumho Tire Co., 526 U.S. at 152).

4

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted
as binding precedent all decisions of the Court of Appeals for the Fifth Circuit rendered prior to
October 1, 1981.
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The final element, helpfulness, turns on whether the proffered testimony “concern[s]
matters that are beyond the understanding of the average lay person.” Edwards v. Shanley, 580 F.
App’x 816, 823 (11th Cir. 2014) (quoting Frazier, 387 F.3d at 1262). “[A] trial court may exclude
expert testimony that is ‘imprecise and unspecific,’ or whose factual basis is not adequately
explained.” Id. (quoting Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., Fla., 402 F.3d
1092, 1111 (11th Cir. 2005)). To be appropriate, a “fit” must exist between the offered opinion
and the facts of the case. McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir. 2004)
(citing Daubert, 509 U.S. at 591). “For example, there is no fit where a large analytical leap must
be made between the facts and the opinion.” Id. (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136
(1997)).
Under Daubert, a district court must take on the role of gatekeeper, but this role “is not
intended to supplant the adversary system or the role of the jury.” Quiet Tech., 326 F.3d at 1341
(citations omitted) (quotation marks omitted). Consistent with this function, the district court must
“ensure that speculative, unreliable expert testimony does not reach the jury.” McCorvey v. Baxter
Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002). “[I]t is not the role of the district court
to make ultimate conclusions as to the persuasiveness of the proffered evidence.” Quiet Tech., 326
F.3d at 1341 (citations omitted) (quotation marks omitted). Thus, the district court cannot exclude
an expert based on a belief that the expert lacks personal credibility. Rink, 400 F.3d at 1293 n.7.
To the contrary, “vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.” Quiet Tech., 326 F.3d at 1341 (quoting Daubert, 509 U.S. at 596). “Thus,
‘[o]n cross-examination, the opposing counsel is given the opportunity to ferret out the opinion’s
weaknesses to ensure the jury properly evaluates the testimony’s weight and credibility.’” Vision

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I Homeowners Ass’n, Inc. v. Aspen Specialty Ins. Co., 674 F. Supp. 2d 1321, 1325 (S.D. Fla. 2009)
(quoting Jones v. Otis Elevator Co., 861 F.2d 655, 662 (11th Cir. 1988)). Ultimately, as noted, “a
district court enjoys ‘considerable leeway’ in making” evidentiary determinations such as
these. Cook ex rel. Estate of Tessier, 402 F.3d at 1103 (quoting Frazier, 387 F.3d at 1258).
B.

Rules 26 and 37

Federal Rule of Civil Procedure 26 requires a party to disclose to the other parties the
identity of any witness it may use at trial to present expert testimony. See Fed. R. Civ. P. 26(a)(2).
To make a proper disclosure, parties must disclose an expert’s identity “accompanied by a written
report.” Id. at Rule 26(a)(2)(B). The written report must contain an array of information, including
a “complete statement of all opinions the witness will express and the basis and reasons for them,”
“the facts or data considered by the witness in forming them,” and the witness’ qualifications, lists
of cases where the witness testified as an expert, the expert’s fee arrangement, and exhibits used
to summarize or support the expert’s opinions. See id. at Rule 26(a)(2)(B)(i)-(vi).
Parties must supplement their expert disclosures when required under Rule 26(e). Id. at
Rule 26(a)(2)(E). That rule, in turn, imposes a duty on a party to supplement or correct its expert
disclosure or response “in a timely manner if the party learns that in some material respect the
disclosure or response is incomplete or incorrect, and if the additional or corrective information
has not otherwise been made known to the other parties during the discovery process or in writing;
or as ordered by the court.” Id. at Rule 26(e)(1). Further, for an expert whose report must be
disclosed under Rule 26(a)(2)(B), “the party’s duty to supplement extends both to information
included in the report and to information given during the expert’s depositions,” and any “additions
or changes to this information must be disclosed by the time the party’s pretrial disclosures under

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Rule 26(a)(3) are due.” Id. at Rule 26(e)(2). Under that rule, unless ordered otherwise by the court,
pretrial disclosures must be made at least 30 days before trial. Id. at Rule 26(a)(3)(B).
“If a party fails to provide information or identify a witness as required by Rule 26(a) or
(e), the party is not allowed to use that information or witness to supply evidence . . . at trial, unless
the failure was substantially justified or is harmless.” See id. at Rule 37(c)(1). The non-disclosing
party bears the burden of showing that the failure to comply with Rule 26 was substantially
justified or harmless. Mitchell v. Ford Motor Co., 318 F. App’x 821, 824 (11th Cir. 2009). In
making this determination, the Court considers four factors: “(1) the importance of the excluded
testimony; (2) the explanation of the party for its failure to comply with the required disclosure;
(3) the potential prejudice that would arise from allowing the testimony; and (4) the availability of
a continuance to cure such prejudice.” Torres v. First Transit, Inc., No. 17-CV-81162, 2018 WL
3729553, at *2 (S.D. Fla. Aug. 6, 2018) (citation omitted). “Prejudice generally occurs when late
disclosure deprives the opposing party of a meaningful opportunity to perform discovery and
depositions related to the documents or witnesses in question.” Bowe v. Pub. Storage, 106 F. Supp.
3d 1252, 1260 (S.D. Fla. 2015) (citation omitted).
“Substantial justification requires justification to a degree that could satisfy a reasonable
person that parties could differ as to whether the party was required to comply with the disclosure
request. The proponent’s position must have a reasonable basis in law and fact. The test is satisfied
if there is [a] genuine dispute concerning compliance.” Home Design Services, Inc. v. Hibiscus
Homes of Florida, Inc., No. 603CV1860ORL19KRS, 2005 WL 2465020, at *2 (M.D. Fla. Oct. 6,
2005) (quoting Ellison v. Windt, No. 6:99-cv-1268-Orl-KRS, 2001 WL 118617, at *2 (M.D. Fla.
Jan. 24, 2001)) (citation omitted). “Failure to timely make the required expert witness disclosures
is harmless when the party entitled to the disclosure suffers no prejudice.” Id.

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Ultimately, the “determination of whether a Rule 26(a) violation is justified or harmless is
entrusted to the broad discretion of the district court.” Smith v. Jacobs Eng’g Grp., Inc., No.
4:06CV496-WS/WCS, 2008 WL 4264718, at *6 (N.D. Fla. Mar. 20, 2008), report and
recommendation adopted, No. 4:06 CV 496 WS, 2008 WL 4280167 (N.D. Fla. Sept. 12, 2008)
(citation omitted); Warren v. Delvista Towers Condo. Ass’n, Inc., No. 13-23074-CIV, 2014 WL
3764126, at *1-2 (S.D. Fla. July 30, 2014) (noting that while the “failure to comply with the expert
witness disclosure requirements may result in the striking of expert reports or the preclusion of
expert testimony,” a court has “great discretion in deciding whether to impose such a sanction”).
Through this lens, the Court considers the Motions and the parties’ arguments.
III.

DISCUSSION
A.

Plaintiffs’ Motion
1.

Dr. Ami Klin

Dr. Klin, a licensed clinical psychologist, was retained by Defendant to “address two
questions: (1) does Dr. Wright meet criteria for Autism Spectrum Disorder (ASD), and (2) if so,
how would this diagnosis impact his presentation in legal proceedings such as depositions and
court appearances.” ECF No. [492-1] at 1. Dr. Klin diagnosed Defendant with ASD and opined
how it affects Defendant’s behavior, including issues related to answering questions asked of him.
Plaintiffs argue that Dr. Klin’s report should be stricken because it violates Fed. R. Civ. P.
26(a)(2)(B) by “fail[ing] to include essentially all the factual materials or data Dr. Klin relied upon
in forming his opinions,” and his proposed testimony is “improper because [it] invades the
province of the jury by opining extensively on Defendant’s credibility.” ECF No. [492] at 6.
Plaintiffs make four arguments for striking Dr. Klin’s report. First, they maintain that Dr.
Klin’s destruction of materials he relied upon in forming his opinions was improper. Id. at 6-9.

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Specifically, the “Klin Binder” of materials produced to Plaintiffs did not include seven categories
of documents, including Dr. Klin’s contemporaneous notes of his interview with Defendant nor
the contemporaneous notes of his colleague, Dr. Saulnier, who interviewed Defendant’s family
members. Id. at 7. Dr. Klin testified that he destroyed the notes of all the interviews he and Dr.
Saulnier conducted as it is his “standard practice” to destroy such items. ECF No. [492-2] at 12425, 312-13, 368-69. Dr. Klin also destroyed materials related to certain ADI-R and ADOS-2
psychological assessments. ECF No. [492] at 8-9. Second, Plaintiffs argue that Dr. Klin’s
destruction of materials he relied upon has irreparably prejudiced Plaintiffs and justifies striking
him as a witness because they “are unable to test any of the bases for Dr. Klin’s opinions.” Id. at
9. They assert that Dr. Klin “intends to come to trial and base sweeping opinions regarding Dr.
Wright’s mental health on information to which Plaintiffs have no access to.” Id. at 10. Moreover,
there is “no way” to “test the veracity of” his opinions and they “should not have to ‘take Dr. Klin’s
word for it’ and hope they are not ambushed at trial.” Id. at 11. See also ECF No. [556] at 6-8
(arguing that Plaintiffs’ prejudice is not “harmless” and that there was no substantial justification
for Dr. Klin’s actions). Third, Plaintiffs contend that Defendant should not be able to “evade the
requirements of Rule 26 by hiring an expert whose practice is to discard records.” ECF No. [492]
at 11-12. Plaintiffs suggest that Dr. Klin’s actions fall short of the American Psychological
Association’s ethical guidelines. Id. Fourth, Plaintiffs maintain that Dr. Klin’s “Opinion #2,”
which addresses how Defendant’s ASD diagnosis impacts his presentation in legal proceedings,
including depositions and court proceedings, ECF No. [492-1] at 14-17, is improper expert witness
testimony because it invades the province of the jury by opining on Defendant’s credibility. ECF
No. [492] at 12. According to Plaintiffs, “Defendant intends to put forward an expert witness to
‘explain’ to the jury how Dr. Wright’s well-documented challenges with telling the truth are not

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evidence that he lacks credibility but are instead just an unfortunate symptom of a mental health
disorder.” Id.
Defendant responds that Dr. Klin’s testimony “will help the jury understand how
[Defendant’s ASD] disability affects behavior” and will be “critical for the jury to fairly weigh the
evidence” and “evaluate his credibility.” ECF No. [529] at 2, 4. Dr. Klin has studied ASD for over
35 years and completed over 2,000 ASD diagnostic evaluations. Id. at 4. He and Dr. Saulnier used
the “gold standard” methodology when evaluating Defendant. Id. Defendant adds that even though
Dr. Klin discarded certain handwritten notes and raw scores as a matter of routine practice, he
“integrated those notes into his final expert report before discarding them and [] his report contains
the ‘totality’ of the information used to generate his opinions.” Id. at 2. Defendant makes six core
arguments. First, Defendant argues that expert testimony regarding autism is admissible under
Rule 702, Fed. R. Evid, Dr. Klin is qualified, and the method he applied is reliable. Second, Dr.
Klin’s expert testimony is admissible under Rule 608(a), Fed. R. Evid., which provides that a
“witness’s credibility may be attacked or supported by testimony about the witness’s reputation
for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion
about that character.” Id. Third, Defendant contends the cases Plaintiffs cited are distinguishable
as they do not involve “behavioral (or analogous) testimony” and Dr. Klin “does not purport to
testify as to Dr. Wright’s truthfulness” but instead “as to how ASD causes certain behavior that is
outside the common knowledge of jurors.” Id. at 9. Fourth, Dr. Klin’s opinions are not speculative
as he relied upon testing instruments, such as ADOS, ADI-R, and the Vineland Adaptive
Behavioral Scales. Id. at 9-10. Fifth, the requirements of Rule 26 are “unequivocally met” despite
Plaintiffs’ complaint that the report and disclosures did not contain handwritten notes and raw
scores. Id. at 11-15. He adds that the raw scores from the testing instruments were incorporated

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into Dr. Klin’s report, he provided over 208 pages of expert materials to Plaintiffs, id. at 13, and
the purpose of Rule 26’s expert witness disclosure requirements “has been served by the contents
of Dr. Klin’s report and related disclosures.” Id. at 14. In this respect, he contends that the missing
handwritten notes and raw scores are not a “disclosure violation” and do “not detract from the
completeness of the report, especially since that data was incorporated into the report itself.” Id. at
14. Finally, Defendant argues that even if the absence of the handwritten notes could amount to a
discovery violation, the absence of materials does not warrant Rule 37 sanctions. Id. at 15. In
particular, he maintains that there is “substantial justification” given Dr. Klin’s “routine practice”
to destroy handwritten notes, and any disclosure deficiency is “harmless” because “the substance
of the notes is not absent from Dr. Klin’s report.” Id. at 16-17 (emphasis in original; citing ECF
No. [529-2] at 123-26, 368). Further, Plaintiffs deposed Dr. Klin for seven hours and can crossexamine him at trial. Id. at 17. He posits that excluding Dr. Klin’s testimony is “too harsh a remedy
that is disproportionate to the alleged disclosure violation,” and there is no showing of bad faith.
Id. at 17-18.
a.

Witness exclusion is unwarranted and too harsh a
sanction

Plaintiffs first argue that Opinion #1 should be stricken and Dr. Klin excluded as a witness
because of his alleged “willful destruction” of materials he relied upon to reach his conclusion that
Defendant has ASD. Id. at 2, 6-8. See also ECF No. [492] at 9-11. The Court does not agree.
Plaintiffs have failed to demonstrate how Dr. Klin’s expert report or expert opinions are
unreliable or unhelpful without the underlying handwritten notes or raw testing data. The Court
has no reason to find that Dr. Klin did not follow the established “gold standard” for evaluating
Defendant, and his report reflects Defendant’s scores on various metrics and what the scores mean.
See, e.g., ECF No. [492-1] at 7-10. Likewise, the report sets forth that “Drs. Klin and Saulnier

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also had an opportunity to discuss all materials at the end of the consultation and prior to summary
report writing in order to clarify any matters associated with the various procedures that Dr.
Saulnier had carried out, and in order to perform a clinician-best estimate diagnosis across the two
clinicians (a consensus diagnosis as per ‘gold standard’ practices). . . . Dr. Klin integrated all
findings and observations in the final report.” Id. at 3; See also ECF No. [529-1] at 123-125.
Moreover, while Plaintiffs challenge the usefulness of the documentation provided to them, the
record does support that numerous records were produced. ECF No. [492-3]. These records
consisted of a draft component report sent to Dr. Klin by Dr. Saulnier; correspondence between
Dr. Saulnier and Defendant; correspondence between Dr. Saulnier and Defendant’s wife;
Defendant’s SRS-2 self-report and score report; Defendant’s wife’s SRS-2 report and score report;
a Vineland-3 Comprehensive Interview Report; a Vineland-3 form; and an ADI-R form. Id. The
blank assessment forms reflected the questions used in the evaluations, which final scores were
later included in the report. Further, according to Dr. Klin, “the gold standard clinical judgment
using the ADOS makes use of its algorithm scores—his total scores, not item by item. The validity
of an instrument is maximized by using the totality of information and not any of the items in
isolation.” See ECF No. [492-2] at 368:2-8. Accordingly, that some blank forms were produced
does not mean that the materials provided were meaningless or that Plaintiffs were unduly
prejudiced.
Additionally, Plaintiffs deposed Dr. Klin, which in turn enabled them to probe the extent
and nature of his opinions. The Court is unwilling to exclude Dr. Klin as an expert witness on the
ground that he did not preserve his notes, due to his expressed retention policy, where his report
represents that he “integrated all findings and observations in the final report.” ECF No. [492-1]
at 3; ECF No. [529-1] at 123:9-16; 124:1-6; 125:2-8; 126:2-17; 368:2-8. See, e.g., Walker v. DDR

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Corp.,

No.

3:17-CV-01586-JMC,

2019

WL

3409724,

at

*4-7

(D.S.C.

Jan.

4,

2019), reconsideration denied, No. 3:17-CV-01586-JMC, 2019 WL 1349514 (D.S.C. Mar. 26,
2019) (denying motion to exclude expert testimony and rejecting argument that it was
“impossible” to scrutinize expert’s opinion “because his notes and underlying facts or data are
destroyed” due to his retention policy where the notes were ultimately dictated and included in the
final report and the expert had been deposed). Indeed, the report itself is comprised of an extensive
“background for consultation” that identifies the scope of the assignment and materials reviewed;
identification of the diagnostic consultants and their roles; identification of the procedures and
notes on methodology; a summary of the ADI-R, including notes on Defendant’s family history
and genetic liabilities, his developmental history, communication skills, reciprocal interaction
skills, and patterns of behavior; Defendant’s ADI-R scores and SRS-2 scores; assessment of
adaptive behavior on the Vineland Adaptive Behavior Scales, including his scores; direct interview
and observation analysis of Defendant using the ADOS-2 Module 4, including Defendant’s scores;
Defendant’s diagnostic evaluation in Opinion #1; and Opinion #2. See ECF No. [492-1].5
Next, although Plaintiffs argue that Defendant engaged in a “disclosure violation” of Rule
26, ECF No. [492] at 9, Rule 26 does not require an expert to provide “every scrap of paper with

Plaintiffs’ citation to Capricorn Mgmt. Sys., Inc. v. Gov’t Employees Ins. Co., No.
15CV2926DRHSIL, 2019 WL 5694256 (E.D.N.Y. July 22, 2019), report and recommendation
adopted, 2020 WL 1242616 (E.D.N.Y. Mar. 16, 2020) for support that Dr. Klin’s failure to
disclose the notes that form the basis for his opinions warrants his exclusion is misplaced. That
court did not address whether the alleged destruction of an expert’s notes warrants striking the
expert. Instead, the expert reports in that case ran afoul of Rule 26(a)(2)(B) because they were
submitted and signed by counsel rather than the experts, and they referred to the experts in the
third-person, “which underscores that [Plaintiff’s] lawyers, rather than the experts, prepared the
reports.” Id. at *5. Further, the reports did not provide a “substantive rationale in detail” or “explain
factually why and how” the experts reached their opinions. Id. at *6. Additionally, the reports
made “vague references” to “general items” that were considered. Id. Those features are not
present in the instant case.
5

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potential relevance to an expert’s opinion.” Etherton v. Owners Ins. Co., No. 10-cv-00892-MSKKLM, 2011 WL 684592, at *2 (D. Colo. Feb. 18, 2011). There is “no ‘suggestion in Rule 26(a)(2)
that an expert report is incomplete unless it contains sufficient information and detail for an
opposing expert to replicate and verify in all respects both the method and results described in the
report.’ Rule 26(a)(2) does not ‘require that an expert report contain all the information that a
scientific journal might require an author of a published paper to retain.’” Id. (citation omitted).
“Rule 26 reports are not intended to be a substitute for an expert’s trial testimony and can never
realistically explore all nuances of the expert’s opinions.” Ostroski v. United States, No. 06-80327CIV, 2007 WL 9701868, at *4 (S.D. Fla. Aug. 23, 2007). Nor does Rule 26 “require a party to
disclose all of its expert’s notes, calculations, and preliminary analysis.” Etherton, 2011 WL
684592, at *2. Indeed, “Rule 26 merely requires the exp[e]rt report to contain a statement of the
data or other information considered by the witness in forming the opinions. The plain language
of the Rule does not require the expert to attach the data or other information to the opinion.”
Corwin v. Walt Disney Co., No. 602CV1377ORL19KRS, 2004 WL 5486639, at *11 (M.D. Fla.
Nov. 12, 2004) (denying motion to strike based on alleged disclosure violation).
Further, Rule 26(a)(2)(B) “does not require that a report recite each minute fact or piece of
scientific information that might be elicited on direct examination to establish the admissibility of
the expert opinion under Daubert. Nor does it require the expert to anticipate every criticism and
articulate every nano-detail that might be involved in defending the opinion on cross examination
at a Daubert hearing.” McCoy v. Whirlpool Corp., 214 F.R.D. 646, 652 (D. Kan. 2003). Instead,
under Rule 26(a)(2)(B), “[i]t is justifiable to produce a summary of an expert’s data which is
detailed enough to provide the opposing party an opportunity to adequately cross examine the
expert without providing all the raw data the expert looked at while coming to his opinion.” In re

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Nitro Leisure Prod., L.L.C., No. 02-14008-CIV, 2003 WL 25669322, at *1 (S.D. Fla. Dec. 16,
2003) (denying motion to exclude where party failed to disclose “completed questionnaires
total[ing] 1953 pages” that the expert relied upon in forming his opinion).
The “expert witness discovery rules are designed to allow both sides in a case to prepare
their cases adequately and to prevent surprise[.]” W. Union Holdings, Inc. v. E. Union, Inc., 316
F. App’x 850, 854 (11th Cir. 2008) (citation omitted). Moreover, the “purpose of Rule 26(a)(2) is
to provide notice to opposing counsel—before the deposition—as to what the expert witness will
testify” so as to “minimize the expense of deposing experts, and to shorten direct examination and
prevent an ambush at trial.” Companhia Energetica Potiguar v. Caterpillar Inc., No. 14-CV24277, 2016 WL 7507848, at *4 (S.D. Fla. Aug. 1, 2016) (citations omitted). Here, the objectives
of the expert discovery rules are not subverted. Moreover, the Court is unconvinced that Opinion
#1 in Dr. Klin’s expert report is facially inadequate. “The content of an expert report is adequate
‘when it is sufficiently complete, detailed and in compliance with the Rules so that surprise is
eliminated, unnecessary depositions are avoided, and costs are reduced.’” Goodbys Creek, LLC v.
Arch Ins. Co., No. 3:07-CV-947-J-34HTS, 2009 WL 1139575, at *1 (M.D. Fla. Apr. 27, 2009)
(citation omitted). Dr. Klin’s report sufficiently identifies the procedures, methodology, diagnostic
criteria, scores, analysis and assessments supporting Opinion #1. See ECF No. [492-1] at 2-14. As
such, Dr. Klin’s failure to preserve his handwritten notes or the answers to every question asked
in the exams does not render the report and Opinion #1 unreliable or a “disclosure violation.” See
Gillespie v. Sears, Roebuck & Co., 386 F.3d 21, 34-35 (1st Cir. 2004) (rejecting argument that
Rule 26(a)(2)(B) requires that the expert report contain, or be accompanied by, all of the expert’s
working notes or recordings); Etherton, 2011 WL 684592, at *2; McCoy, 214 F.R.D. at 652; see
also Walker, 2019 WL 3409724, at *7 n.9 (“Were the court to adopt Plaintiff’s position—that the

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absence of an expert’s notes is insufficient to survive Daubert scrutiny—the consequences would
be profound. Experts who decline to keep their notes would always be disqualified under
the Daubert standard, and the court’s ability to properly perform its ‘gatekeeping’ responsibilities
would be undermined because there may be instances, such as here, in which an expert’s report
purportedly reflects handwritten notes. Federal courts have expressly rejected such a rigid
application of Daubert.”) (internal citation omitted).
Plaintiffs also have failed to present any evidence that Dr. Klin’s destruction of his notes,
which is his “standard practice,” was done in bad faith or with wrongful intent. See Etherton, 2011
WL 684592, at *3 (“Without a finding of bad faith or gamesmanship . . . courts are loathe to invoke
the strong medicine of precluding expert testimony.”) (citation omitted). In this respect, while
Plaintiffs argue that Defendant “cannot evade the requirements of Rule 26 by hiring an expert
whose practice is to discard records,” ECF No. [492] at 11 (citing Whalen v. CSX Transp., Inc.,
No. 13CIV3784LGSHBP, 2016 WL 5660381, at *5 (S.D.N.Y. Sept. 29, 2016)), they fail to present
any evidence that Defendant hired Dr. Klin because of his document retention policy.6 Relatedly,
to the extent Defendant’s actions amount to a violation of Rule 26, the Court does not conclude
that Rule 37 sanctions are appropriate. Although Plaintiffs do not possess every physical document

Whalen does not support Plaintiffs’ argument that Dr. Klin’s retention policy requires his
exclusion. In that case, the court rejected defendant’s argument as “not credible” where the expert
physician “charg[ing] thousands of dollars for [his] testimony” allegedly did not maintain a record
of the prior cases in which he testified in the previous four years, and hence, did not disclose that
information required by Rule 26(a)(2)(B)(v). The court explained that while the expert may not
have been aware of Rule 26(a)(2)(B)(v), defendant’s counsel was “unquestionably chargeable with
knowledge of the Rule” and “was proceeding at its own risk.” Id. Here, that specific provision of
Rule 26 is not at issue, and unlike Whalen, where the expert did not provide any information at all
concerning his prior casework, Dr. Klin’s expert report contains his findings and observations.
Further, the court in Whalen did not exclude the expert but instead granted defendant an
opportunity to cure the disclosure issues.
6

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from Defendant’s evaluation, the record reflects that Dr. Klin incorporated his and Dr. Saulnier’s
findings into the expert report, and Plaintiffs later deposed Dr. Klin. Thus, under the facts at bar,
Plaintiffs have not been irreparably prejudiced such that they cannot effectively cross-examine Dr.
Klin or gauge his reasoning as to Opinion #1. See, e.g., Bona Fide Conglomerate, Inc. v.
SourceAmerca, No. 314CV00751GPCAGS, 2019 WL 1369007, at *19-20 (S.D. Cal. Mar. 26,
2019) (denying exclusion of expert under Rule 37 and rejecting argument that party was prejudiced
and could not meaningfully cross-examine an expert who did not disclose various notes and
working papers); Patel v. Verde Valley Med. Ctr., No. CV051129PHXMHM, 2009 WL 5842048,
at *1 (D. Ariz. Mar. 31, 2009) (declining to exclude expert’s testimony “merely because he
discarded his notes” and stating that defendants “are free to raise this issue as a means of attacking
[the expert’s] credibility with the jury if they so desire”).7
Finally, even assuming that there was a discovery violation, the Court does not find striking
the expert report or excluding Dr. Klin as a witness to be appropriate. Chau v. NCL (Bahamas)
Ltd., No. 16-21115-CIV, 2017 WL 3623562, at *5 (S.D. Fla. May 3, 2017) (“[E]xclusion of a

Plaintiffs’ citation to United States v. Batchelor-Robjohns, No. 03-20164-CIV, 2005 WL
1761429 (S.D. Fla. June 3, 2005) to support their claim that Rule 37(c)(1) sanctions are warranted
is misguided. In that case, plaintiff admitted that it failed to provide defendants with the expert’s
models and curves pursuant to Rule 26, and it likewise admitted that without the withheld
information it was “impossible for another expert” to determine how the expert reached his opinion
or to test the reliability or accuracy of the opinion. Id. at *2-3. The expert, further, “unequivocally
refused” to disclose the withheld information at his deposition “even if the parties entered into a
protective agreement.” Id. at *3. Accordingly, that court noted that “it seems clear that Plaintiff’s
failure to disclose the . . . models was not harmless[.]” Id. Indeed, the court explained that without
the models and curves, defendants would be prejudiced in their ability to adequately cross-examine
the expert and prepare a defense. Id. at *4. Here, by contrast, there is no such concession that
Defendant did not comply with Rule 26(a)(2)(B) nor that Dr. Klin’s methods are unreliable and
“impossible” to determine how he reached his conclusions. Further, while the defendants in
Batchelor-Robjohns were deprived of all information associated with the withheld models and
curves, and the expert unconditionally refused to disclose this information, there is no
corresponding deficiency in this case.
7

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witness is not automatic when a party fails to comply with the applicable disclosure rules. . . .
Rather, the court must first assess whether there was substantial justification for the failure to
disclose or whether the failure to disclose was harmless. In so doing, courts typically consider four
factors: (1) the importance of the excluded testimony; (2) the explanation of the party for its failure
to comply with the required disclosure; (3) the potential prejudice that would arise from allowing
the testimony; and (4) the availability of a continuance to cure such prejudice.”). Upon
consideration of the factors, the Court determines that they do not weigh in favor of the harsh
sanction Plaintiffs seek. See, e.g., Torres v. First Transit, Inc., No. 17-CV-81162, 2018 WL
3729553, at *3 (S.D. Fla. Aug. 6, 2018) (denying motion to strike where there was no surprise to
the non-disclosing party, the testimony at hand was crucial to the party’s claim, and “the potential
prejudice to Plaintiffs of striking their experts far outweighs any prejudice to Defendant”).
Accordingly, Plaintiffs’ Motion is denied on this basis.
b.

Portions of Opinion #2 exceed the purview of expert
testimony

Plaintiffs argue that Opinion #2 is improper because it is speculative, irrelevant to the issues
in the case, and invades the province of the jury by “opining extensively on Defendant’s
credibility.” ECF No. [492] at 12. Upon review and consideration of Dr. Klin’s expert report and
the parties’ briefings, the Court agrees in part with Plaintiffs.
As a preliminary matter, the Court does not find that Opinion #2 is irrelevant to the ultimate
issues in dispute in this case. Plaintiffs sue Defendant for a variety of alleged wrongdoings,
including fraud and civil theft. Defendant’s intent and his prior statements and actions are squarely
disputed between the parties. In this respect, evidence relating to Defendant’s state of mind, his
ability to analyze questions asked of him and to respond intelligently and thoughtfully, and his
ability to explain inconsistencies in his answers are relevant to resolving key issues in this case,

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and ultimately, to the jury’s credibility determinations. The Court also disagrees with Plaintiffs
that Opinion #2 is inadequate because it does not cite to literature, id. at 15, or because Dr. Klin’s
interview of Defendant lasted less than three hours. ECF No. [556] at 6. Plaintiffs cite no authority
directing that an expert’s opinion must contain a literature review or that an examination must last
a certain duration to be admissible. These are considerations that may affect the weight a fact finder
accords Dr. Klin’s testimony, but they do not operate to preclude his testimony.
The Court similarly notes that Dr. Klin, the Director of the Marcus Autism Center and
Professor and Division Chief of Autism and Related Disorders at the Department of Pediatrics at
Emory University School of Medicine, ECF No. [492-1], testified that he wrote a book, Asperger
Syndrome, which “address[es] many issues regarding presentation, clinical presentation,
treatments, challenges,” including how high intellect ASD individuals present in legal
proceedings, which “has been of subject of great interest in the past 10 years or so.” ECF No. [5292] at 62-63. He likewise noted that he has “been able to support colleagues who wrote books on
those subjects.” Id. at 63.
The Court also does not agree that Opinion #2 is inherently speculative and unreliable. In
this regard, Plaintiffs fail to demonstrate why the materials Dr. Klin relied upon in forming his
opinion, including reviewing an evidentiary hearing transcript and watching a videotaped
deposition of Defendant, are insufficient for Dr. Klin to form his opinions and assess Defendant.
But even if these materials or Dr. Klin’s methodology were otherwise deficient, such as by
“ignor[ing] voluminous amounts of publicly available videos” of Defendant, the weight given to
Dr. Klin’s opinion is for a fact finder to decide. As Defendant acknowledges, the jury “could very
well reject” Dr. Klin’s testimony. ECF No. [529] at 6. And Plaintiffs can undoubtedly use crossexamination to explore the limits and pitfalls of his opinion and analysis.

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Nevertheless, Opinion #2 at times ventures too far into areas that are traditionally reserved
for the jury. “Absent unusual circumstances, expert medical testimony concerning the truthfulness
or credibility of a witness is inadmissible. Expert medical testimony concerning the truthfulness
or credibility of a witness is generally inadmissible because it invades the jury’s province to make
credibility determinations.” United States v. Beasley, 72 F.3d 1518, 1528 (11th Cir. 1996) (district
court did not abuse its discretion in excluding expert testimony that an individual “was a
psychopath who had no conception of the truth”) (internal citations omitted); see also Snowden v.
Singletary, 135 F.3d 732, 738-39 (11th Cir. 1998) (stating that “[w]itness credibility is the sole
province of the jury” and determining that trial court erred by allowing expert to opine that 99.5%
of children tell the truth especially as the “jury’s opinion on the truthfulness of the children’s stories
went to the heart of the case”); Bodner v. Royal Caribbean Cruises, Ltd., No. 17-20260-CIV, 2018
WL 2471215, at *3 (S.D. Fla. Apr. 10, 2018) (“‘[C]redibility is not a proper subject for expert
testimony; the jury does not need an expert to tell it whom to believe, and the expert’s stamp of
approval on a particular witness’ testimony may unduly influence the jury’ . . . The Federal Rules
of Evidence preclude a witness from testifying as to the credibility of another witness.”) (citations
omitted).
Defendant maintains that Dr. Klin “does not purport to testify as to Dr. Wright’s
truthfulness” but instead “as to how ASD causes certain behavior that is outside the common
knowledge of jurors.” ECF No. [529] at 9. On its face, this statement complements the generic
description of Opinion #2: “How does the diagnosis of ASD impact Dr. Wright’s presentation in
legal proceedings such as depositions and court appearances?” However, Dr. Klin does not merely
opine that Defendant’s ASD diagnosis causes Defendant to attribute a hyper-technical meaning to
ordinary words or to scrutinize seemingly simple yes-or-no style questions due to imprecise

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language. Nor does he merely opine that Defendant’s struggle with the nuances of language is
exacerbated by close-ended questioning. Rather, Dr. Klin’s opinion provides impermissible
credibility testimony as to the sincerity of Defendant’s statements, his truthfulness, his ability to
deceive others, and his belief as to how others will process his testimony. See, e.g., ECF No. [4921] at 11 (“[H]e is quite incapable of manipulating other people by being deliberately deceitful and
contrived, and this blatant style is both a historical and a present source of negative reactions by
others, as he comes across as arrogant, entitled, insensitive, and hurtful.”); id. at 15 (Defendant has
a “deferential attitude towards the judge, which is sincere . . . When Dr. Wright professes his
utmost deference to the law, . . . he is making these statements with profound sincerity . . . and not
contrived to manipulate the opinion of others”); id. at 16 (“Dr. Wright’s frequent sparring with the
deposing attorneys . . . invit[es] the judgment of contemptuous disregard for the proceedings and
hostility to those attempting to uncover the truth from him.”); id. (Defendant’s “frequent struggle
to answer questions that appear trivial” and to “describe past communications with others that
contained important information on intentions, negotiations, decisions and plans” “fuels other
people’s impressions that he is not telling the truth”); id. at 17 (“Dr. Wright’s focus on irrelevant
‘parts’ rather than meaningful ‘wholes’ should not be interpreted as blatant stonewalling;”); id.
(“Unfortunately for Dr. Wright, others will once again see this behavior as intransigence,
disingenuous effort, and contempt. . . . To others, the litigation and Dr. Wright’s behavior in it, is
about truthfulness of intention, intellectual property and monetary rights. To Dr. Wright, his
behavior during this litigation is about others’ understanding of his creations and of himself.”); id.
(“And yet, when Dr. Wright states that he remembers his math and his work, . . . he is being
truthful.”); id. at 18 (“In many instances during the deposition, Dr. Wright was respectful, truthful
and made a real effort to answer questions and remember information[.]”).

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These opinions, often couched as observations, bear squarely on witness credibility. See,
e.g., United States v. Falcon, 245 F. Supp. 2d 1239, 1247 (S.D. Fla. 2003) (“[E]xtrinsic opinion
evidence from a forensic psychologist as to a witness’ psychological motivations for the way the
witness testifies is not only irrelevant, but is clearly inadmissible under Federal Rule of Evidence
608.”). Although Defendant asserts that Dr. Klin is “not telling the jury to believe Dr. Wright” or
that “Dr. Wright is truthful or respectful,” ECF No. [529] at 7-8, Dr. Klin’s descriptions and
characterizations of Defendant’s thinking and actions certainly cast the impression that Defendant
endeavors to be truthful and that he acts without ulterior motive in a judicial setting. While expert
testimony is useful to provide context and a lens for evaluating Defendant’s testimony as an
individual with ASD, an expert is not needed to tell the jury if Defendant is sincere, truthful,
respectful, a willing participant in the litigation process, or otherwise capable of manipulating
others. Those determinations fall within the jury’s province. Expert testimony, likewise, is not
needed to decipher Defendant’s testimony to specific questions and evidence.
Accordingly, while Opinion #2 can explain ASD’s symptomology and how ASD generally
affects Defendant’s ability to process questions and respond in kind, ultimately it is up to the jury
to probe Defendant’s responses, demeanor, and credibility when weighing his testimony against
the factual record. Indeed, as Plaintiffs correctly note, Defendant’s “subjective intentions and
testimonial sincerity is for the jury alone to decide and as such, this testimony from Dr. Klin should
be excluded.” ECF No. [492] at 14. To the extent Dr. Klin provides testimony that intrudes into
realms traditionally reserved for the jury, Opinion #2 is improper and such testimony will not be
permitted at trial. See, e.g., Bodner, 2018 WL 2471215, at *3-4 (precluding expert from opining
on the credibility of others).

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2.

Kevin Madura

Mr. Madura was retained by Defendant to provide an opinion on whether David Kleiman
(“Mr. Kleiman”) “had the requisite skills and experience to have written the original Bitcoin core
software application released in 2009.” ECF No. [492-4] at 4. Mr. Madura opines that Mr.
Kleiman’s skills and experience are “highly inconsistent” with the skills and experience required
to develop the Bitcoin code. Id. at 11. Plaintiffs argue that Mr. Madura’s testimony is irrelevant
and should be stricken because (1) he failed to comply with Rule 26 disclosure requirements by
refusing to disclose documents and materials he reviewed in connection with work he performed
in this litigation, and (2) his opinion is “speculative at best, as it fails to consider evidence that
undermines his ultimate opinion.” ECF No. [492] at 16.
Plaintiffs maintain that Mr. Madura was first engaged by Defendant as a consultant on the
case in 2019. However, his role later morphed into that of a testifying expert. Id. at 16-17.
According to Plaintiffs, “[Mr.] Madura admitted that his work as a consultant and his work as a
testifying expert ‘may share similarities’” and that “he himself was ‘not sure’ whether certain
questions related to his consultant or expert role.” Id. at 17 (internal citations omitted). Plaintiffs
argue that Defendant’s counsel “repeatedly” instructed Mr. Madura not to answer questions that
probed the “potential relevance between his consulting work and the opinion he was offering” as
an expert. Id. at 17-18. They assert that Mr. Madura has not disclosed the materials he reviewed
while in the role of a consultant, id. at 17, and Mr. Madura did not answer questions such as
whether he reviewed documents “relating to Dave Kleiman’s involvement in the creation of
Bitcoin” or “any emails from Craig Wright.” Id. at 18-19. In Plaintiffs’ view, such materials “go
directly to [Mr. Madura’s] core opinion” and “directly contradict” his opinion. Id. at 19; see also

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ECF No. [556] at 8-10 (arguing that Mr. Madura failed to disclose information relevant to his
opinion, and that it is “highly likely” he reviewed materials that undermine his opinion).
Plaintiffs argue further that despite Mr. Madura’s alleged Rule 26 violations, his opinion
is speculative and unreliable. ECF No. [492] at 19-22. Specifically, they assert that Mr. Madura’s
“methodology fails to pass Daubert’s gatekeeping requirement because (1) Madura
inappropriately ‘cherry-picked’ the evidence he relied on in forming his ultimate opinion and (2)
such paltry materials are insufficient for reliably concluding anything about Dave’s C++
programing skills. These deficiencies are even more glaring given his refusal to answer whether
he reviewed evidence in this case that directly contradicts his opinion.” Id. at 20. Plaintiffs contend
that Mr. Madura “cherry-picked” evidence relating to Mr. Kleiman’s programming skills such as
ignoring statements from Defendant that characterized Mr. Kleiman as an excellent coder. Id. at
20-21. Additionally, they argue that Mr. Madura’s testimony is unreliable because “it is simply
not possible for him to reliably opine on Dave’s coding skill set with the extremely limited and
irrelevant information he was provided.” Id. at 21. In this respect, they take issue with Mr.
Madura’s alleged failure to account for various possibilities explaining how Mr. Kleiman had the
ability to develop Bitcoin and the “non-scientific methodology” he employed to form his opinion.
Id. at 21-22. See also ECF No [556] at 10-11 (arguing that Mr. Madura’s opinion is speculative,
unreliable, based on cherry-picked “anecdotal evidence,” and otherwise fails to satisfy Daubert’s
gatekeeping functions).
In response, Defendant maintains that Mr. Madura’s opinion is reliable and based on a
comprehensive analysis of available information. ECF No. [529] at 19-22. He asserts that Mr.
Madura is qualified to testify competently based on his experience, which involved working at
IBM and assessing the skills and abilities of programmers. Id. at 19. He adds that courts have

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flexibility in determining the reliability of an expert’s opinion, and Mr. Madura considered a host
of materials, including Mr. Kleiman’s resume, professional certification, his publications, and the
Bitcoin client application code and related materials. Id. at 20. He states that Plaintiffs own
statistics reflect that most programmers have a college degree, and that Mr. Kleiman’s ability to
be self-taught in C++ programming language can be addressed on cross-examination. Id. at 20-21.
Defendant denies that Mr. Madura “cherry-picked” evidence, and he argues that Plaintiffs
mischaracterize his prior statement concerning Mr. Kleiman’s extensive editing abilities, rather
than his coding abilities. Id. at 21.
Defendant additionally argues that Mr. Madura disclosed all information he considered in
his testifying expert role, and that information in his consulting expert role is privileged. Id. at 2,
22-26. He states that Mr. Madura’s involvement as a consultant began in January 2019 but his
involvement as a testifying expert began in December 2019, and between December 2019 and
April 2020, Mr. Madura “allocated most of his time to writing the expert reports he has submitted”
and his work as a consultant did not relate to the “drafting of the report.” Id. at 22 (citations
omitted). He submits that, to the extent there was a Rule 26 non-disclosure violation, Rule 37
sanctions are not warranted because “[t]here was a substantial justification for the non-disclosure
given the information sought by the [P]laintiffs was: (1) not considered by Mr. Madura in rendering
his expert opinion; (2) colorably privileged, at a minimum; and (3) not subject to Rule 26
disclosure” and was “further harmless because the assertion of privilege was not a deliberate or
fraudulent attempt to gain an advantage and the assertion was known to opposing counsel, who
could have addressed the issue after deposition with defense counsel, or with the Court in a motion
to compel and re-open the deposition.” Id. at 25. He adds that his counsel acted with the “utmost
good faith” during Mr. Madura’s deposition and made “every effort” to enable Plaintiffs’ counsel

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to “get all the answers they were entitled to without crossing the boundaries of privilege for
consulting experts.” Id. at 25-26. Thus, in his view, excluding Mr. Madura’s testimony is
“disproportionate” to the alleged disclosure violation. Id. at 26.
a.

Mr. Madura was not required to disclose information
considered in the capacity of a consulting expert

The first dispute centers on whether Mr. Madura, initially a consultant for Defendant but
later a testifying expert, was required to disclose information reviewed as a consultant but which
Plaintiffs believe may have potential bearing upon the opinions in the expert report. “When an
expert serves as a testifying witness, Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure
requires disclosure of material considered, reviewed or generated by the expert in forming the
opinion, irrespective of whether the materials were actually relied on by the expert.” Vision I
Homeowners Ass’n, Inc. v. Aspen Specialty Ins. Co., No. 08-81211-CIV, 2009 WL 10667552, at
*2 (S.D. Fla. Dec. 30, 2009) (citation omitted). “When an expert witness serves the dual role of
both a consultant and a testifying expert, the ‘court shall only give force to this differentiation of
roles if it is convinced that the information considered for consulting purposes was not also
considered pursuant to the expert’s testifying function.’” Id. (citation omitted). See also Ohio State
Troopers Ass’n, Inc. v. Point Blank Enterprises, Inc., No. 18-63130-CIV, 2019 WL 6896299, at
*3-4 (S.D. Fla. Dec. 18, 2019) (“[W]hen an expert serves as both a litigation consultant and a
testifying witness, an issue arises as to whether the party relinquishes the privilege that would
otherwise attach to the litigation consultant’s work. . . . [T]he question is the extent of
the substantive relationship between [the expert’s] two expert roles. Disclosure is warranted ‘when
there is at least an ambiguity as to whether the materials informed the [testifying] expert’s
opinion.’”) (internal citations omitted; emphasis omitted); Sara Lee Corp. v. Kraft Foods Inc., 273
F.R.D. 416, 419–20 (N.D. Ill. 2011) (“Most courts have held that a single expert may serve in both

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roles [as a non-testifying consultant and a testifying expert] but that the broader discovery for
testifying experts applies to everything except ‘materials generated or considered uniquely in the
expert’s role as consultant.’”) (emphasis in original).
Here, the Court is “convinced” that the materials Mr. Madura considered for consulting
purposes were not also considered pursuant to his testifying function. Vision I Homeowners Ass’n,
Inc., 2009 WL 10667552, at *2. As set forth in the expert report, the materials Mr. Madura
reviewed in preparing his report included (1) Mr. Kleiman’s resume, professional certification,
and supporting documents; (2) an expert declaration from Mr. Kleiman; (3) a memorandum from
the City of Lake Worth’s human resources director regarding Mr. Kleiman’s qualifications; (4)
deposition transcripts of Mr. Andresen and Mr. Andreou; (5) Mr. Kleiman’s professional
biography; (6) copies of the S-Lok product technical documentation for which Mr. Kleiman was
the product manager; (7) the Bitcoin client application code, documentation and annotations; (8)
two publications on Bitcoin; and (9) Mr. Kleiman’s publications. ECF No. [492-4] at ¶¶ 9-19. See
also ECF No. [529-2] at 148:7-13 (Mr. Madura affirming that he “only identified documents that
related to [his] opinion” and “not other documents [he] reviewed in this litigation”).
When asked at his deposition if “any of the work [he] performed as a consultant in any way
relate[d] to [his] testimony as an expert,” Mr. Madura responded “[n]ot as it pertains to the drafting
of the report.” ECF No. [529-2] at 172:16-24. See also id. at 58:9-13 (“I reviewed the materials
referenced in my report to determine whether or not [Mr. Kleiman’s] skill set was consistent with
the skills required to create a complex piece of software such as Bitcoin.”). Moreover, when asked
if “any of the work [he] reviewed in connection as a consultant inform[ed] [his] understanding of
what this lawsuit is about,” Mr. Madura responded that “[i]t likely increased [his] understanding

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of it vaguely” but that he “can’t pinpoint a specific instance of a clarity in [his] understanding.” Id.
at 173:21-174:10.
Plaintiffs contend that the boundaries of Mr. Madura’s roles are ambiguous given the
limited description of the nature of the work he performed as a consultant. ECF No. [556] at 9.
Without pointing to any specific evidence, they posit that it is “highly likely that Mr. Madura
reviewed evidence that undermines his opinion.” Id. They also challenge that his deposition
testimony evidences an unclear line between his dual roles. See ECF No. [492] at 17 (citing ECF
No. [492-5] at 217:12-18 (Mr. Madura testified “I’m trying to determine whether it would be
considered part of the consulting work or the expert work. I think for these purposes, it’s the
consulting work. I’m not sure[,]” in response to whether he “discuss[ed] with counsel anything
related to [his] work as a consultant during the breaks today?”). However, none of these instances
contradict Mr. Madura’s testimony and statement in his report that he only considered the materials
listed in the report in generating his opinions. Indeed, Plaintiffs simply “suggest” that Mr. Madura
“may have been instructed to rely only on evidence that was helpful to his opinion and to ignore
any other documents or information he may have reviewed.” ECF No. [492] at 18.
To be sure, while Mr. Madura acknowledged that his work as a consultant “may share
similarities in the technical understanding of certain topics,” this is unsurprising given that Mr.
Madura’s expertise involves an inherently technical subject—coding and programming skills—
and his role as a consultant involved providing his “technical opinion regarding various data.” ECF
No. [529-2] at 145:2-10, 172:16-24. The mere overlap of a generic “technical” background,
however, does not in and of itself mean that Mr. Madura failed to disclose materials he reviewed
and considered as a consultant that relate to his present opinion as a testifying expert. Mr. Madura
sufficiently set forth the extent of materials he reviewed to formulate his opinion. Accordingly, the

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Court agrees with Defendant that there “is no ambiguity as to the delineation of Mr. Madura’s role
as a testifying expert . . . and the work he performed as a consultant.” ECF No. [529] at 23.
Plaintiffs’ Motion, thus, is denied on this basis.
b.

Mr. Madura’s opinion is not speculative and unreliable

Plaintiffs challenge that Mr. Madura’s opinion involved “paltry materials” to assess Mr.
Kleiman’s programming abilities and Mr. Madura “cherry-picked” evidence to support his
position. ECF Nos. [492] at 20; [556] at 10-11. The Court is unconvinced by Plaintiffs’ arguments.
First, Mr. Madura’s “paltry materials” included, among others, materials directly from Mr.
Kleiman, including his resume, professional certification, publications, professional website, and
an expert declaration. ECF No. [492-4] at 4-5. It also included deposition transcripts of Mr.
Kleiman’s former colleagues. Id. Although Plaintiffs point out that the totality of Mr. Kleiman’s
skills and experiences may not be fully reflected in these materials, Mr. Madura did not opine that
it was impossible for Mr. Kleiman to have contributed to Bitcoin. Instead, he opined that Mr.
Kleiman’s skills and experiences based off the materials available were “highly inconsistent” with
the profile of a person that could have created Bitcoin. See generally ECF No. [492-4]. And as
Defendant correctly points out, Plaintiffs’ own statistics demonstrate that the vast majority of
computer programmers are not wholly self-taught, as Plaintiffs claim was the case for Mr.
Kleiman. See ECF Nos. [492] at 22; [529] at 21.
Second, Plaintiffs’ assertion that Mr. Madura “cherry-picked” evidence is unsupported.
Plaintiffs challenge that Mr. Madura’s reliance on testimony from Mr. Andreou about a
collaboration he and Mr. Kleiman worked on two years before Bitcoin was released “ignored
statements” from Defendant that Mr. Kleiman “could edit his way through hell and back.” ECF
No. [492] at 20-21. However, as Defendant notes, when shown the email in question, Mr. Madura

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testified that it “doesn’t impact [his] conclusions or opinions” because that email is “not clear”
whether “it’s referring to editing words or code,” but nonetheless Mr. Madura acknowledged that
if it referred to code, “it would undermine [his] opinion[.]” ECF No. [529-2] at 95-97. Mr.
Madura’s reliance on Mr. Andreou’s testimony, moreover, was not improper. Mr. Andreou, who
worked with Mr. Kleiman at Securit-e-doc, testified that Mr. Kleiman was “not a programmer”
and he “needed help many times [] creating a simple program.” ECF No. [492-4] at ¶ 31.
Further, while Plaintiffs complain that Defendant’s counsel instructed Mr. Madura not to
answer certain deposition questions (which were objected on the basis that they were privileged or
outside the scope of Mr. Madura’s work), ECF No. [492] at 16-17, as Defendant notes, nearly
every instance cited was before the parties agreed to the scope of permissible testimony. ECF No.
[529] at 24 (citing ECF No. [524-2] at 188-94; [492-5] at 199). Additionally, Plaintiffs were given
the opportunity to revisit questions where objections were previously asserted. ECF No. [524-2]
at 192:8-13 (stating that questions related to Mr. Kleiman and Mr. Antonopoulos will be re-asked).
And Mr. Madura answered certain of the questions previously identified, such as whether he
reviewed evidence related to Mr. Kleiman’s involvement in creating Bitcoin and his ownership of
Bitcoin. ECF No. [529] at 24 (citing ECF No. [529-2] at 183:20-24; 185:20-25).
Third, Plaintiffs’ contention that Mr. Madura’s methodology is “flawed” is misplaced.
Although Mr. Madura admitted that he had not determined a “minimum requirement for
contribution to the [Bitcoin] code,” ECF No. [529-2] at 42:18-19, his testimony is based on an
experience-driven evaluation of Mr. Kleiman’s overall skills and abilities to create complex code
rather than a scientific examination. See, e.g., ECF No. [492-5] at 44:7-24 (Mr. Madura stating
that he studied Mr. Kleiman’s “background as a whole” and “in its entirety” “to determine whether
or not it would be consistent with the skills required to meaningfully contribute or code the original

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Bitcoin version”). In this respect, while Plaintiffs maintain that “it is simply not possible for [Mr.
Madura] to reliably opine on [Mr. Kleiman’s] coding skill set with the extremely limited and
irrelevant information he was provided,” ECF No. [492] at 21, a “trial judge must have
considerable leeway” in evaluating reliability, including that of “non-scientific, experience-based
testimony.” United States v. Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004). Here, as noted, Mr.
Madura reviewed numerous materials from Mr. Kleiman and others, including Mr. Kleiman’s
resume, professional certification, his publications, and his professional biography. None of these
reflect experience coding Bitcoin or blockchain technology. Further, Mr. Madura testified that his
background, including his experiences at IBM, required assessing the skill set, competencies, and
capabilities of other coders and determining whether they could contribute to coding for the tasks
involved. ECF No. [529-2] at 60:5-62:17. Because Mr. Kleiman is not alive, Mr. Madura
unsurprisingly cannot directly “test” Mr. Kleiman’s abilities. Nonetheless, Plaintiffs fail to
demonstrate that the materials Mr. Madura relied upon render his opinions unreliable.
Plaintiffs argue that Mr. Madura did not review the classes Mr. Kleiman took while
enrolled in college or whether he was otherwise self-taught. None of these features ultimately
change the underlying nature of Mr. Madura’s evaluation: whether Mr. Kleiman’s skills and
experiences are consistent with the background needed to develop Bitcoin. And yet, Plaintiffs’
point is not well taken. Mr. Madura’s report states that while Mr. Kleiman attended four different
institutions between 1983 and 1992, “[n]one of the course work listed includes any relating to
computer programming or C++ coding.” ECF No. [492-4] at ¶ 38. Mr. Madura also testified that
he “took [] into account” that Mr. Kleiman majored in computer science, and he “did not rule out
th[e] possibility” that Mr. Kleiman attended programming courses. Id. at 44-46. He likewise agreed
that it was “possible” that Mr. Kleiman taught himself C++. Id. at 57. Nonetheless, he concluded

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that it would be “inconsistent with the materials” he reviewed regarding Mr. Kleiman’s
background that Mr. Kleiman “taught himself C++, to an extent that he was able to contribute to
the Bitcoin code base” given the “complex code that incorporates concepts across the field of
computer science, as well as other fields[.]” Id. at 49, 57. Further, Defendant correctly states that
“Plaintiffs are free to cross examine Mr. Madura on all of these points[.]” ECF No. [529] at 21.
Plaintiffs’ Motion is denied as to Mr. Madura.
3.

F. Harley Norwitch

Mr. Norwitch, a forensic document examiner, was retained by Defendant as an expert to
evaluate signatures on certain documents. He disclosed three reports: one from December 2019,
ECF No. [492-10] (“December Report”); one from March 2020, ECF No. [492-11] (“March
Report”);8 and one from May 2020, ECF No. [492-12] (“May Report”). In the December Report,
Mr. Norwitch opined that the questioned signature on a “Consent Order” dated August 28, 2013
is “very probably written by Jamie Wilson.” ECF No. [492-10] at 6. In the March Report, Mr.
Norwitch was requested to “ascertain, if possible, the authenticity of the questioned signatures” on
an undated “Deed of Loan,” an undated “Consent to Act,” and a “Deed” dated October 23, 2012,
all purporting to bear the signatures of both Defendant and Uyen Nguyen (“Ms. Nguyen”). ECF
No. [492-11] at 35-37. Mr. Norwitch opined that Defendant’s alleged signatures on these
documents “are not genuine” but that Ms. Nguyen’s signatures on the documents “were written”
by her. Id. at 38.9 In the May Report, Mr. Norwitch opined that Defendant’s purported signature

8

ECF No. [492-11] contains both the December Report, id. at 2-32, and the March Report, id. at
33-129. Plaintiffs refer to the March Report as the “April Report” because it was disclosed to them
on April 10, 2020. ECF No. [492] at 22. However, the report is clearly dated March 21, 2020, and
the Court will use that date when referring to that document.
Plaintiffs maintain that Mr. Norwitch’s conclusion as to Defendant’s signature on the Deed of
Loan is contradicted by Defendant’s testimony that a handwritten annotation and signature on that
9

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on an “Intellectual Property License Deed” dated August 22, 2013 “is not genuine.” ECF No. [49212] at 6.
Plaintiffs argue that Mr. Norwitch’s expert reports and proposed opinions should be
stricken “because (i) his reports fail to comply with Rule 26(a)(2)(B)(i)’s requirement that they
contain ‘the basis and reasons for’ every opinion offered and (ii) his testimony fails to comply with
the bare minimum requirements imposed by Federal Rule of Evidence 702, as explained by
Daubert and its progeny.” ECF No. [492] at 23. According to Plaintiffs, Mr. Norwitch’s reports
do not provide “any meaningful explanation as to how or why he reached” his opinions. Id.
(emphasis in original). For instance, they claim that the March Report “provides a bare-bones
description of the technique generally underlying handwriting analysis” and “[b]eyond [] cryptic
generalities” contained in “a few conclusory sentences that shed no light on his reasoning or
methodology,” the deficiencies “were not cured at this deposition.” Id. at 24-25. Regarding the
December and May Reports, they similarly challenge that Mr. Norwitch’s “analysis” is threadbare
and fails to “adequately disclose the reasons, basis, and methodology of his opinions.” Id. at 26.
Regarding the Rule 26 deficiencies, Plaintiffs contend that an expert report “must include
‘how and why the expert reached a particular result, not merely the expert’s conclusory opinions,’”
and reports that “furnish[] no real explanation” for an opinion are insufficient. Id. at 27 (citations
omitted). In their view, Mr. Norwitch’s reports contain “essentially no analysis, are cursory, and
superficial.” Id. at 28. They add that Defendant’s alleged noncompliance with Rule 26 was not
substantially justified or harmless. Id. at 31-33. Plaintiffs further assert that Mr. Norwitch’s
“inadequate reports rendered an effective deposition impossible” such that their “ability to
effectively rebut the [r]eport[s] has been completely foreclosed and their ability to cross-examine

document were his own. ECF No. [492] at 22-23 (citing ECF No. [492-7] at 299:20-300:6).
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Mr. Norwitch has been substantially harmed.” Id. at 33; see also ECF No. [556] at 17-18 (asserting
that Rule 37 sanctions are warranted). Finally, they maintain that Mr. Norwitch should be excluded
from testifying because his opinions are not the product of a reliable methodology, ECF No. [492]
at 33-37, and that “courts routinely exclude testimony from handwriting experts who fail to
sufficiently explain their methodology.” Id. at 34. See also ECF No. [556] at 12-17 (arguing that
Defendant fails to carry his burden to establish that Mr. Norwitch’s opinions are sufficiently
reliable, and that his reports “raise far more questions than answers”).
In response, Defendant asserts that Mr. Norwitch’s “concise” reports and opinions meet
the requirements of Rule 702. ECF No. [529] at 27-30. He states that each report lists the evidence
Mr. Norwitch considered in preparing the report, explains the protocols used to analyze each
questioned document, included a signature comparison chart, and “provided succinct, yet detailed,
findings of each of the questioned signatures.” Id. at 27. Defendant maintains that Mr. Norwitch
is qualified to opine on handwriting analysis, he was deposed twice and testified that he employed
a “side-by-side examination” method to compare signatures, and he relied on a strict visual
examination without special equipment, software, or tools. Id. at 28-29 (citations omitted). In his
view, Plaintiffs improperly focus on Mr. Norwitch’s “brevity” while “failing to appreciate the
detail” in his findings and observations. Id. at 29. Defendant contends that Plaintiffs’ argument
that the reports fail to satisfy Rule 26 “lacks credibility[.]” Id. at 31. He argues that “[t]his is not
complex scientific analysis requiring complicated testing procedures” but rather naked visual
comparison of signatures such that Plaintiffs cannot be “surprised” by Mr. Norwitch’s testimony.
Id. He adds that Mr. Norwitch provided “ample basis and reasons” for his opinions, and even if
Defendant did not comply with Rule 26, Rule 37 sanctions are unwarranted. Id. at 31-32.

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a.

Mr. Norwitch’s reports fail to comply with Rule 26

Rule 26 requires an expert witness to disclose an expert report that contains “a complete
statement of all opinions the witness will express and the basis and reasons for them.” Fed. R. Civ.
P. 26(a)(2)(B)(i). The purpose of the expert disclosure rule is to “provide opposing parties
‘reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert
testimony from other witnesses.’” Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008) (citation
omitted). Expert reports must include “‘how’ and ‘why’ the expert reached a particular result, not
merely the expert’s conclusory opinions.’” Calhoune v. Ford Motor Co., No. 17-61702-CIV, 2018
WL 7287871, at *1 (S.D. Fla. Dec. 26, 2018) (citation omitted). See also Rinker v. Carnival Corp.,
No. 09-23154-CIV, 2011 WL 6370062, at *1 (S.D. Fla. Dec. 19, 2011) (striking expert report
where “the majority of the opinions” are “conclusory without supporting reasons, facts, or data”
and other opinions are inadequately explained); Aponte v. Royal Caribbean Cruises, Ltd., No. 1521854-CIV, 2019 WL 943267, at *3 (S.D. Fla. Feb. 26, 2019) (explaining that an expert report fell
“far short” where it was “cursory and superficial,” “briefly summarized” matters in the case, and
“perfunctorily pointed” to broad non-specific categories that “generally support[ed]” the opinion
but which “provided no further detail or analysis”); Looking Good Properties LLC v. Ascot Corp.
Names Ltd., No. CV412-138, 2013 WL 12214331, at *2 (S.D. Ga. July 23, 2013) (expert reports
that are “a bit skeletal” and which “furnish[] no real explanation” are insufficient).
Mr. Norwitch’s reports are largely conclusory and fail to adequately set forth the bases and
reasons for his opinions other than through unhelpful platitudes. In the reports, the “Findings,
Opinions” sections contain three to four short paragraphs that do not explain how Mr. Norwitch
arrived at his opinions. For instance, in the May Report, in opining that Defendant’s purported

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signature was not genuine, Mr. Norwitch stated that the “questioned signature does not compare
favorably with the individual characteristics present in the standard signature and, in fact, displays
total departure and fundamental dissimilarity to the standard signatures in all areas.” ECF No.
[492-12] at 6. Relatedly, in the March Report, in opining that Defendant’s purported signature was
not genuine, Mr. Norwitch stated that the “questioned Craig Wright signatures, although bearing
some pictorial resemblance to the standard Wright signatures, the questioned signatures do not
compare favorably with the individual characteristics present in the standard signatures and, in
fact, displays significant and fundamental departures from the genuine signatures. These
dissimilarities are beyond the range of normal variation found within the standard signatures and
are indicative and consistent with simulation.” ECF No. [492-11] at 4. The reports reflect similarly
bare and phrased opinions regarding Jamie Wilson’s and Ms. Nguyen’s alleged signatures. See
ECF Nos. [492-10] at 3; [492-11] at 4.
The Court agrees with Plaintiffs that these representations (i) do not provide details about
what “individual characteristics” are, what about the characteristics Mr. Norwitch examined, how
those characteristics did not “compare favorably” or simply what that even entails; (ii) do not
provide an explanation regarding what “significant and fundamental departures” were found let
alone what the difference between a “significant” and insignificant departure is; (iii) do not
describe alleged “dissimilarities,” explain what “range of normal variation” is and how the
questioned signatures exceed that “range;” and (iv) do not explain what would show “consistence”
with a simulation or what “indicates” that a signature is “simulated.” ECF No. [492] at 28-29.
Indeed, like the expert report in Aponte, where the medical expert’s report was “cursory and
superficial” by pointing to items like the “patient’s history, symptoms, physical exam, EMG
studies. . . . and MRI scans and the intraoperative findings at surgery,” 2019 WL 943267, at *3,

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Mr. Norwitch’s reports rely on non-descriptive generalities with little to no analysis undergirding
his opinions. Although the December Report provides slightly more detail in the form of a onesentence addition reporting that “[i]ndications normally associated with simulation, such as
hesitation, tremor, and a slow ‘drawn’ appearance, are not present,” he fails to explain how any of
those features apply to the seven signatures under consideration. ECF No. [492-10] at 3. As
Plaintiffs state, this sentence “raises more questions as [Mr. Norwitch] fails to explain what a
hesitation, tremor, or drawn appearance look like.” ECF Nos. [492] at 30; [556] at 15.
To be sure, Mr. Norwitch’s reports each contain a half-page “Forensic Document
Examination Protocol” section that overviews potential techniques to analyze handwriting:
Handwriting and signatures examination and comparison procedures consist of
examination of standard (known) material for consistency and normal variation,
and then a side by side comparison of individual writing movements and inherent
characteristics found in the questioned material with comparable writing
movements found in the standard material, such as, but not limited to: form, height
ratios, slant, proportions, skill level, movement, speed, pressure, and line quality,
where possible and/or necessary.
Examination, comparisons, and archival procedures may employ, but are not
limited to, stereo microscopy, video-spectral comparison and electro-static
instrumentation, transparency comparison, computer scanning, and photo
microscopy (photomicrographs).
ECF Nos. [492-10] at 5; [492-11] at 37; [492-12] at 5. However, the reports fail to state which of
the methodologies Mr. Norwitch actually used, which specific dimensions were analyzed, what
was significant to each analysis, or how any of the features and traits in the comparator samples
aligned or contrasted with the “questioned signatures.” Further, none of these terms are defined
nor specifically applied to demonstrate how Mr. Norwitch reached his conclusions. Additionally,
the “comparison chart” of signatures does not actually make any comparisons or highlight any
differences between signatures or even groups of signatures, but simply collects on a single
document the signatures that are to be compared. See, e.g., ECF No. [492-11] at 40. Courts have

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excluded handwriting expert opinions that were supported by far more detailed charts than here.
See, e.g., Agri-AFC, LLC v. Everidge, No. 5:16-CV-00224-TES, 2019 WL 385421, at *15 (M.D.
Ga. Jan. 30, 2019) (granting motion to strike where the report “offer[ed] several pages of signature
samples with arrows and circles highlighting a particular part of each signature and noting the
differences between them, but there is no explanation for why [the expert] chose those parts of the
signature to highlight as opposed to others”).
b.

Defendant fails to carry his burden to avoid Rule 37
sanctions

Defendant maintains that even if he did not comply with Rule 26, sanctions are
inappropriate “because there is no demonstrable harm to the [P]laintiffs.” ECF No. [529] at 32. In
support, he notes that Plaintiffs could have engaged a rebuttal expert and Mr. Norwitch was
deposed more than once. Id. The Court does not agree. A party suffers prejudice from inadequate
disclosures where it is deprived of the “ability to prepare for effective cross-examination and
rebuttal[.]” Brown v. NCL (Bahamas) Ltd., 190 F. Supp. 3d 1136, 1143 (S.D. Fla. 2016). See also
St. v. Drury Inns, Inc., No. CIV.A.08-0700-CG-N, 2009 WL 3784330, at *2 (S.D. Ala. Nov. 10,
2009) (“merely having to depose a party on information that should have been disclosed in a Rule
26 Report is a form of prejudice.”). Here, the reports merely provide cursory background
information about how handwriting analysis is performed and fail to provide a meaningful basis
to understand how Mr. Norwitch reached any of his opinions.
Although the Court does not conclude that Plaintiffs were ambushed at Mr. Norwitch’s
depositions, their ability to prepare for effective cross-examination to rebut his opinions was
impaired by the skimpy conclusion-laden nature of his reports. Indeed, the need to depose Mr.
Norwitch twice underscores the glaring deficiencies. See Goodbys Creek, LLC v. Arch Ins. Co.,
No. 3:07-CV-947-J-34HTS, 2009 WL 1139575, at *3 (M.D. Fla. Apr. 27, 2009) (prejudice exists

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when a party is furnished “with a woefully inadequate report” because it “adversely impacts upon
its ability to prepare for and conduct the deposition”); Romero v. Drummond Co., Inc., 552 F.3d
1303, 1323 (11th Cir. 2008) (holding that district court did not abuse its discretion in excluding
experts under Rule 37 where each report “provided a single paragraph to explain the expert’s
anticipated opinion and the basis for it” and neither report “stated the expert’s anticipated opinion
with sufficient specificity” to allow preparation for rebuttal or cross-examination). Further, the fact
that the May Report was issued only one week before the instant motion was filed cuts against
Defendant’s suggestion that a rebuttal expert could have been engaged. Defendant as the nondisclosing party bears the burden of showing that the failure to comply with Rule 26 was
substantially justified or harmless. That burden has not been met and Mr. Norwitch’s opinions are
stricken under Rule 37.
c.

Defendant fails to show that Mr. Norwitch’s opinions are
based on a reliable methodology

Even if Mr. Norwitch’s reports complied with Rule 26’s disclosure requirements, the Court
finds that his reports fail to pass muster under Rule 702, Fed. R. Evid. “To fulfil their obligation
under Daubert, district courts must engage in a rigorous inquiry to determine whether: . . . the
methodology by which the expert reaches his conclusions is sufficiently reliable as determined by
the sort of inquiry mandated in Daubert[.]” Rink, 400 F.3d at 1291–92. The party offering the
expert carries the burden to satisfy the reliability of the expert’s opinions by a preponderance of
the evidence. Id. at 1292. “In evaluating the reliability of an expert’s method, however, a district
court may properly consider whether the expert’s methodology has been contrived to reach a
particular result.” Id. at 1293 n.7.
Defendant maintains that handwriting analysis “is not complex scientific analysis requiring
complicated testing procedures.” ECF No. [529] at 31. However, while that may be so in his view,

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like any other expert testimony, Mr. Norwitch’s opinions must be the product of reliable principles
and methods. Plaintiffs argument that Mr. Norwitch’s reports fail to explain how or why he reached
his conclusions or to otherwise demonstrate a reliable methodology is well-taken. ECF No. [556]
at 12. Other courts in this circuit have excluded handwriting analysis experts that similarly failed
to provide a sufficient explanation for the methodology employed. See, e.g., Agri-AFC, LLC, 2019
WL 385421, at *15 (striking expert report that was “not based on any methodology that is readily
apparent from the record”); Dracz v. Am. Gen. Life Ins. Co., 426 F. Supp. 2d 1373, 1379-80 (M.D.
Ga. 2006) (striking expert who failed to provide “any detailed explanation as to exactly how [he]
evaluated the documents and drew his conclusions regarding authorship and sequence”) (emphasis
in original); Am. Gen. Life & Acc. Ins. Co. v. Ward, 530 F. Supp. 2d 1306, 1314 (N.D. Ga. 2008)
(striking expert report that “lack[ed]” “any identifiable ‘methodology’ to which the Court can
apply the Daubert factors”). See also Wheeler v. Olympia Sports Ctr., Inc., No. 03-265-P-H, 2004
WL 2287759, at *4 (D. Me. Oct. 12, 2004) (excluding testimony where the expert “offers no details
about his methodology, beyond ‘comparing’ the handwriting on several documents,” explaining
that the report is “insufficient to allow the court to determine whether his methodology could be
tested, has been subject to peer review, or is in accordance with applicable standards,” and noting
that “[a]ny individual, with no training or experience whatsoever, could ‘compare’ the handwriting
of different documents and reach a conclusion”).
In Agri-AFC, the expert explained that she examined and compared 81 documents “using
magnification” and “evaluated the ‘line quality, pressure patterns, rhythm, slant, size and
proportions, utilization of space and spatial alignment, initial and terminal strokes, writing speed,
legibility, skill level, letter forms, types of connectors, method of construction, and pattern
formation’ of the signatures on those documents,” but the Court noted that “none of these terms

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are defined or specifically applied in the report to show what exactly [she] did while evaluating
the signatures.” 2019 WL 385421, at *15.
In Dracz, the expert explained that he “determined whether the questioned document
appeared to be distorted, and then evaluated the questioned document for the consistency, variation
style, and peculiar or identifying characteristics using a stereo star zoom American Optical 7X
1030X Twin Microscope and a Micronata Illuminated Microscope at 30X,” and his evaluation
assessed the “comparability, quantity, and naturalness reviewing the Cumulative Range of
Variation to determine the document handwriting probabilities and the physiological, neurological,
and psychological factors peculiar to the writer.” 426 F. Supp. 2d at 1379-80. According to that
court, however, the expert “did not explain how he accomplished the comparison” and “[t]here is
nothing in the record to allow the Court to conclude, based on [the expert’s] vague and cursory
explanation, that the techniques employed in his comparison are techniques that are generally
accepted in the field, can be tested or subjected to peer review, are subject to standards or have an
acceptable known or potential rate of error.” Id. at 1380.
In Ward, the court explained that the expert’s description of his methodology—“mentally
compar[ing] [the questioned writing] with all the writing he has ever seen and be able to determine
whether each feature is common, rare, or somewhat in between in order to determine how much
significance to attribute to the feature”—“is not so much a ‘methodology’ as a general observation
about handwriting that, while probably true, is not very enlightening.” 530 F. Supp. 2d at 1314.
Further, the court noted that while the report explained that a number of variables can factor into
evaluating a person’s handwriting, the expert “does not state what those variables are” and his
“lack of specificity makes it difficult to evaluate his methodology, but suggests that his report is
not reliable.” Id.

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These decisions are instructive. In this case, Mr. Norwitch’s three reports examined twentysix signatures overall to conclude that based on his visual side-by-side examination unaided by
special equipment, software, or tools, Mr. Wilson and Ms. Nguyen’s signatures were genuine, but
Defendant’s purported signatures were not. Although the Court does not have reason to believe
that Mr. Norwitch’s opinions were “contrived to reach a particular result,” Rink, 400 F.3d n.7, the
Court does have significant reasons to doubt the reliability of his methodology. First, his opinion
in the March Report that Defendant’s signature on the Deed of Loan is “not genuine” flies directly
in the face of Defendant’s testimony regarding his authorship of the signature. See ECF No. [492]
at 22-23 (citing ECF Nos. [492-7]; [492-8] and [492-9]). Second, the Court is unable to determine
the specific handwriting dimensions Mr. Norwitch actually examined, how they were scored or
analyzed, or how they collectively were factored into arriving at each of his conclusions. Indeed,
his “examination protocol” explains that handwriting and signature examination includes various
factors “not limited to” height ratios, slant, line quality, among others “where possible and/or
necessary.” ECF Nos. [492-10] at 5; [492-11] at 37]; and [492-12] at 5. However, those “various
factors” are decidedly absent from the reports.
Third, none of the limited terminology contained in Mr. Norwitch’s reports is defined nor
specifically applied to the opinions to demonstrate how he reached his conclusions. Critically, the
reports do not explain what specific aspects of the signatures are comparable or different, how so,
why those dimensions were compared, and how the similarities or differences are material. The
“charts” do not even contain arrows and circles around signatures, such as in Agri-AFC, that would
annotate and highlight areas of examination and the points of comparison. Further, the reports fail
to apprise the Court whether Mr. Norwitch’s methodology has any indicia of reliability, such as if

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the methodology is testable or subject to a known error rate. Accordingly, the Court concludes that
Mr. Norwitch’s opinions are unreliable and Plaintiffs’ Motion, therefore, is granted.
4.

Dr. Stewart MacIntyre

Defendant retained Dr. MacIntyre, a medical doctor specializing in infectious diseases, for
the purpose of “forming opinions as to [Mr. Kleiman’s] medical conditions (relating to infectious
disease) for a certain period of years.” ECF No. [492-13] at 2. He issued his first report on
December 13, 2019 and his second report on April 8, 2020. ECF No. [492-14]. As part of his
evaluation, he reviewed medical records, various litigation documents, a police report, and an
autopsy related to Mr. Kleiman’s death. Id. at 2. Dr. MacIntyre opined as follows: (i) Mr. Kleiman
had two basic types of chronic infections (soft tissue infection and bone infection relating to the
pressure ulcers, and urinary tract infections); (ii) while hospitalized, Mr. Kleiman received
medications “which could affect mental status and ability to do complex work;” (iii) Mr. Kleiman
was given an “irregular discharge” from the hospital, which “could” have adversely affected his
health; (iv) Mr. Kleiman’s autopsy revealed the presence of cocaine metabolites in his urine; and
(v) after his discharge from his “long and complex hospitalization,” Mr. Kleiman’s “lack of care
by family, friends, or medical personnel” caused “uncontrolled infection” leading up to his death.
ECF Nos. [492-13] and [492-14].
Plaintiffs argue that Dr. MacIntyre’s opinions should be stricken. First, they contend that
his opinions relating to Mr. Kleiman’s physical health and capacity to work beginning in 2010 are
irrelevant and contradicted by the record. ECF No. [492] at 38. They assert that “nothing about
[Mr. Kleiman’s] physical health is at issue in this case,” and issues regarding Mr. Kleiman’s
“mental state and how it may have affected his capacity to work beginning in 2010 are irrelevant
because the joint business relationship between Dave [Kleiman] and Dr. Wright was formed before

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his hospitalization.” Id. Plaintiffs add that any conclusion that Mr. Kleiman’s mental state affected
his ability to do work is “contradicted by both Dr. MacIntyre’s own testimony and the records.”
Id. at 39. In particular, Plaintiffs state that Mr. Kleiman’s hospital records are “replete” with
“instances of clinicians noting how Dave was ‘busy with work,’ continually ‘participate[d] in
work-related activities,’ and was ‘productive in doing work regarding his business.’” Id. (citation
omitted). See also ECF No. [556] at 20-21 (arguing that Dr. MacIntyre’s opinions regarding the
impact of prescription drugs on Mr. Kleiman’s ability to perform complex tasks and Mr. Kleiman’s
medical conditions impeding Mr. Kleiman’s “independence, mobility and ability to function at
work” are irrelevant and unsupported).
Second, Plaintiffs argue that Dr. MacIntyre’s testimony about Mr. Kleiman’s lack of
support by friends and family is irrelevant and contradicted by the record. Id. at 40. Regarding the
former, according to Plaintiffs “whether Dave [Kleiman] had consistent visitors at the hospital has
no bearing on whether [he] and Craig [Wright] co-created Bitcoin or formed a joint business
relationship[.]” Id. Regarding the latter, they state that Mr. Andreou testified that he visited Mr.
Kleiman at times, and Mr. Kleiman’s medical records note the presence of visitors. Id. In Plaintiffs’
view, Dr. MacIntyre’s “opinion” is “not a medical opinion but instead is a back-door attempt to
impermissibly inject the alleged lack of a close relationship between Ira [Kleiman] and Dave
Kleiman into the case.” Id. See also ECF No. [556] at 19-20 (arguing that Dr. MacIntyre’s opinion
that Mr. Kleiman’s lack of support by friends and family contributed to his death is highly
prejudicial, speculative, an attempt to “make the jury ‘punish’ Ira [Kleiman] for his alleged familial
failings,” and contrary to Mr. Kleiman’s autopsy report that listed his cause of death as “coronary
artery disease”).

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Finally, Plaintiffs maintain that testimony related to Mr. Kleiman’s “disruptive” behavior
in the hospital, his “irregular discharge,” and cocaine found in his autopsy report is irrelevant and
any probative value is substantially outweighed by its prejudicial effect. ECF No. [492] at 40-41.
In response, Defendant makes four main arguments. First, Dr. MacIntyre’s testimony
regarding Mr. Kleiman’s medical history is relevant. ECF No. [529] at 33-34. He asserts that
Plaintiffs’ claims “are neither squarely limited to facts pre-dating 2010, nor are they limited to the
formation of a purported joint business relationship prior to that year,” and the complaint’s
allegations “implicate a timeframe that spans into 2013.” Id. at 33. Defendant contends that while
Dr. MacIntyre is not offering a stand-alone opinion on Mr. Kleiman’s mental health or intellectual
capacity, he is offering an opinion “on the inescapable consequences and burdens of the severe
(physical) medical conditions and related issues plaguing Dave Kleiman,” which includes
impediments to his independence, mobility, ability to function and work, and side effects from
prescribed medications. Id. at 33-34 (footnotes omitted; emphasis omitted). He adds that given Mr.
Kleiman’s paraplegia, the jury is “entitled to understand the chronic physical conditions that
dominated Dave Kleiman’s day-to-day life, including the final prolonged hospitalization involving
‘multiple surgical procedures’ and ‘other traumatic incidents.’” Id. at 34. In his view, to exclude
Dr. MacIntyre’s testimony “will be to provide an incomplete account to the jury of substantial
factors relevant to a fair determination of the issues in this case.” Id.
Second, Defendant asserts that Dr. MacIntyre’s testimony satisfies Daubert. In particular,
he contends that the reports are within Dr. MacIntyre’s experience and qualifications; his
testimony is reliable because it is based on his background and specialization as an infectious
disease specialist, including his forty-eight years of practice; and Dr. MacIntyre’s testimony will
be helpful to the jury in understanding the medical records and the “significance and severity” of

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Mr. Kleiman’s “prolonged medical complications.” Id. at 35-36. Third, he maintains that Dr.
MacIntyre’s report and testimony does not contradict the record. Specifically, Defendant argues
that Plaintiffs “confus[e] the issues by attempting to correlate a handful of references to ‘work’ to
Dave Kleiman’s ‘ability to form a joint business relationship,’” and Mr. Kleiman’s ability to use a
computer or do some “work” “proves none of [P]laintiffs’ points.” Id. at 36-37. Further, he asserts
that Plaintiffs point to nothing to contradict Dr. MacIntyre’s statements regarding the lack of inperson visits not being reflected in the medical records because, for instance, Mr. Andreou testified
that he would “just walk in” to the hospital because “security was pretty lax there[.]” Id.
Finally, Defendant contends that the probative value of Dr. MacIntyre’s testimony
outweighs any prejudice. Mr. Kleiman’s “irregular discharge,” autopsy report showing the
presence of cocaine metabolites in Mr. Kleiman’s system, and a “letter of warning” from the
hospital’s Disruptive Behavior Committee are not grounds to strike his opinions. Id. at 38-39. He
adds that Plaintiffs’ case authorities “are not instructive on the specific issue raised by them,” and
the fact that Mr. Kleiman’s medical records “recite unfortunate events does not in and of itself
create a prejudicial effect.” Id. at 38. He concludes that Mr. Kleiman’s medical issues were “an
integral part of his life; they were neither in passing, nor were they peripheral,” and they
“necessarily influenced” his mobility and ability to perform complex tasks. Id. at 39.
Upon review and consideration, the Court agrees in part with Plaintiffs that certain portions
of Dr. MacIntyre’s opinions are irrelevant and the potential danger of unfair prejudice related to
his testimony will substantially outweigh the probative value of his opinions.
a.

Dr. MacIntyre’s opinions regarding Mr. Kleiman’s
health and effects of medication

Although Plaintiffs are correct that the jury does not need an infectious disease specialist
to opine that paraplegia impedes mobility, issues related to Mr. Kleiman’s health, including his

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“long and complex hospitalization,” numerous surgeries and medical treatments, and the impact
of medications “that could affect mental status and ability to do complex work” are not irrelevant
to whether he in fact was able to develop intellectual property with Defendant and mine bitcoins.
To state the obvious, it would be less likely that Mr. Kleiman could perform complex tasks during
periods when he was recovering from surgery or while under the influence of medications,
including opiates and other medications that “can dull mental acuity.” ECF No. [492-14] at 3.
Further, as Defendant correctly points out, Plaintiffs’ claims are not limited to Mr. Kleiman’s prehospitalization period but instead extend through 2013.
In this respect, although Plaintiffs focus on instances where Mr. Kleiman was using a
computer or was visited by friends at the hospital, none of these features ultimately render Dr.
MacIntyre’s opinions unreliable or contradicted by the record. The medical records did not contain
notations reflecting that Mr. Kleiman was specifically working on Bitcoin or with Defendant while
using his computer in the hospital. In fact, Dr. MacIntyre’s report states that while the content of
Mr. Kleiman’s work on his computer is “obviously not known,” Mr. Kleiman “did note on
occasion watching movies on his laptop.” Id. And as noted, Dr. MacIntyre’s statement that he did
not find mentions of “in person visits” in the medical records does not mean that his testimony is
inaccurate, especially given Mr. Andreou’s testimony that he would “just walk in” to the hospital,
“[n]obody would check him, there was “no real procedure” for visitations, and he was unaware of
a visitor log. ECF No. [529-9] at 13:8-20.
Further, references to Mr. Kleiman’s “irregular discharge” and the presence of illicit drugs
in his system are relevant to determinations concerning Mr. Kleiman’s ability to develop
intellectual property and mine bitcoin while in his declining medical state. Indeed, Dr. MacIntyre
opines that an “effect” of the “irregular discharge” is that Mr. Kleiman “had no outpatient medicine

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prescriptions and no arrangements for nursing care” or wound care, he “would be expected to have
uncontrolled infection . . . [and] benzodiazepine withdrawal symptoms (fever, mental status
changes, possible seizures)[.]” ECF No. [492-14] at 4. Accordingly, those opinions will not be
stricken, and Plaintiffs’ Motion is denied on these points.
b.

Dr. MacIntyre’s opinions regarding lack of care by
family and friends, and Mr. Kleiman’s “disruptive”
behavior

The Court is mindful of Plaintiffs’ concerns that Dr. MacIntyre’s testimony operates as a
“back-door” attempt to impugn Ira Kleiman’s character. Although the Court is unconvinced that
Dr. MacIntyre’s reports and opinions function in that regard, it nonetheless agrees that Dr.
MacIntyre’s opinion that “lack of care” by family and friends after Mr. Kleiman’s discharge would
“clearly” contribute to Mr. Kleiman’s death is likely to prejudice Plaintiffs and “make the jury
‘punish’ Ira [Kleiman] for alleged familial failings.” ECF No. [556] at 19. Not only was Mr.
Kleiman’s cause of death determined to be coronary artery disease, there is nothing to suggest that
Mr. Kleiman’s family and friends were aware of his discharge or that anyone was neglectful in
caring for him. But even if Mr. Kleiman’s friends and family were somehow remiss, Dr. MacIntyre
fails to point to anything in particular to substantiate this opinion. Moreover, the limited probative
value of this opinion as to Mr. Kleiman’s death is substantially outweighed by its prejudicial
effect—attributing Mr. Kleiman’s death, in part, to his brother’s potential inaction. Therefore, this
opinion is stricken. Likewise, Dr. MacIntyre’s testimony related to Mr. Kleiman’s “letter of
warning” from the hospital’s Disruptive Behavior Committee in May 2011 two years before his
discharge for being “uncooperative with nurses and therapists” does nothing to make an ultimate
issue in this case more or less probable. Indeed, whether Mr. Kleiman at one time was
uncooperative with medical personnel (for some unstated reason) does not make it less likely that

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he worked on Bitcoin or developed intellectual property with Defendant. As Plaintiffs states, this
“attempt[] to depict Dave [Kleiman] as unruly and reckless, and otherwise attack [his] character”
is of no consequence to issues in dispute. ECF No. [492] at 41. Accordingly, this opinion is also
stricken, and Plaintiffs’ Motion is granted on these points.
B.

Defendant’s Motion
1.

Gordon Klein

Mr. Klein, a faculty member at UCLA’s Anderson School of Management, was retained
by Plaintiffs to “opine on whether the course of conduct and communications between Dave
Kleiman, [Craig] Wright, and other relevant parties is consistent with a partnership and/or joint
venture having been formed by [Mr.] Kleiman and Wright. . . . I have not been asked to give a
legal opinion and do not purport to give one[.]” ECF No. [500-1] at ¶ 11. He opines that the
“conduct of and communications by and between Dave Kleiman, Wright and other parties . . . are
consistent with and indicative of a partnership and/or joint venture as the Satoshi Nakamoto
Enterprise (‘SN Enterprise’). The SN Enterprise appears to have been formed for multiple
purposes, including the mining of bitcoin and the development of software and intellectual
property related to bitcoin and blockchain technologies.” Id. at ¶ 13. Defendant argues that based
on Mr. Klein’s report and testimony, he “admits that he was retained to give so-called ‘legal
opinion’ testimony, which purports to state legal standards (the Court’s province), and then weigh
the evidence to determine if those standards were met (the jury’s province). All of this is improper
vel non. There is only one ‘legal expert’ in a federal court, and the expert is the judge.” ECF No.
[500] at 7 (citation omitted).
Defendant makes three overarching arguments for excluding Mr. Klein’s testimony. First,
Mr. Klein’s report and testimony contain improper legal conclusions. Specifically, Defendant

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asserts that Mr. Klein uses the term “guideposts” when referring to the legal elements of an oral
partnership “[i]n an obvious attempt to conceal the fact that his proffered opinion is nothing more
than improper legal argument[.]” Id. at 8. According to Defendant, the Court will instruct the jury
on the proper elements of Florida partnership law, and unnecessarily states, Plaintiffs’ “laughable
subterfuge should fool no one.” Id. He adds that an expert may not testify to the legal implications
of a party’s conduct and communications. See also ECF No. [554] at 2-3 (arguing that Mr. Klein’s
“guideposts” will confuse the jury, especially as they are “either identical to or share phrases and
other parallels with[] the legal elements of a partnership”) (citing ECF No. [500-1] at ¶¶ 19, 23,
25)).
Second, Defendant argues that Mr. Kleiman’s testimony is unhelpful to the jury. In
particular, he maintains that Mr. Klein’s report “usurps the jury’s role as finder of fact” by
improperly weighing evidence and drawing conclusions by applying his “guideposts” to the facts
at hand. ECF No. [500] at 9-10 (citing ECF No. [500-1] at ¶¶ 30, 59, 71). Third, he contends that
Mr. Klein’s report contains improper opinions on the “states of mind, motives or intent of Dr.
Wright and others,” and it acts as an improper “vehicle for factual narrative” especially for the
alleged “main issue” in this case—the existence of an alleged partnership between Mr. Kleiman
and Defendant. ECF No. [500] at 10-11 (citing ECF No. [500-1] at ¶¶ 33, 36); see also ECF No.
[554] at 4 (arguing that “jurors are capable of reading and interpreting e-mails and
correspondence.”).
In response, Plaintiffs maintain that Defendant’s arguments are “specious” and predicated
on false premises. ECF No. [528] at 5. First, they argue that Mr. Klein does not offer a legal opinion
that there was a partnership or joint venture. Instead, “using an unchallenged methodology, he
provided an opinion following established guideposts that indicate whether or not Dave Kleiman

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and Defendant’s conduct was consistent with having formed a partnership or joint venture,
‘leaving it to others to utilize that information in the context of the overall proceeding.’” Id. at 6
(citation omitted). Further, his opinion is “grounded in his business and accounting expertise and
experience, not in his legal training from four decades ago,” and Mr. Klein’s “testimony will assist
the jury in assessing whether the elements of a partnership are met, but it does not purport to
supplant the jury’s role to weigh the evidence with the benefit of Mr. Klein’s expert opinion, or
the role of this Court in establishing the law the jury must apply.” Id. at 6-7. Second, Plaintiffs
argue that Mr. Klein’s testimony will be helpful to the jury because he “consistently applies an
unchallenged methodology,” the “DOGS framework.”10 Id. at 8. They add that Mr. Kleiman is
permitted to identify evidence in the case and explain how it fits with his methodology, and the
cases Defendant cites are inapposite. Third, Plaintiffs challenge that Mr. Klein is not offering an
opinion about motive or credibility, and “none of the guideposts Mr. Klein uses rely on a
determination of a party’s state of mind or intent.” Id. at 9.
Upon review, the Court agrees with Defendant that Mr. Klein’s testimony impermissibly
invades both the province of the Court and the jury regarding determinations as to whether
Defendant and Mr. Kleiman entered into a partnership under Florida law. Testifying experts may
not offer legal conclusions. Cook ex rel. Estate of Tessier, 402 F.3d at 1112 n.8, 1113 (affirming
exclusion of opinion that pretrial detainee’s constitutional rights were violated because such
opinion was a legal conclusion). “Each courtroom comes equipped with a ‘legal expert,’ called a
judge, and it is his or her province alone to instruct the jury on the relevant legal standards.”
Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1213 (D.C. Cir. 1997)

10

This acronym refers to (1) decision-making that is shared; (2) ownership; (3) goals that are
shared; and (4) skills that are complementary and non-ministerial. ECF No. [528] at 8 n.3 (citing
ECF No. [528-2]).
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(citing See Marx & Co. v. Diners’ Club, Inc., 550 F.2d 505, 509–10 (2nd Cir. 1977) (“expert
testimony on law is excluded because ‘the tribunal does not need the witness’ judgment. The judge
(or the jury as instructed by the judge) can determine equally well.’”) (punctuation altered)). See
also Konikov v. Orange Cnty., Fla., 290 F. Supp. 2d 1315, 1317-18 (M.D. Fla. 2003) (explaining
that the “Court’s function is to instruct the jury on the law, and domestic law is not to be presented
through testimony and argued to the jury as a question of fact. . . . [I]n the Eleventh Circuit, the
judge is the jury’s only source of law. The judge decides the content of the law, and instructs the
members of the jury on the applicability of the law to the facts of the case.”). Further, while an
expert may testify as to his opinion on an ultimate issue of fact, he may not “merely tell the jury
what result to reach” nor may he “testify to the legal implications of conduct,” because the court
“must be the jury’s only source of law.” Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537,
1541 (11th Cir. 1990) (holding that district court erred in admitting expert opinion that insurer had
a duty to hire tax counsel under the policy because it was a legal conclusion).
Here, Mr. Klein maintains that he did not reach a “legal opinion” and that his opinions only
concern “guideposts” to evaluate whether a partnership existed. However, the Court is
unconvinced that these “guideposts” are substantively any different than legal elements that the
jury must consider and analyze in making their determinations.11 For instance, when asked whether
his guideposts are the same as elements of a partnership or joint venture, Mr. Klein testified that
he views “the word ‘element’ as a legalistic” term and that he “think[s] business people would call
them guideposts[.]” ECF No. [528-1] at 266:13-24. He also stated that he “really couldn’t tell you
one way or the other” under Florida law if his guideposts are the same as the legal elements of a

Some of Mr. Klein’s guideposts include the joint pursuit of a common goal or set of interrelated
goals, typically to achieve financial gain; shared decision-making and joint control and ownership;
and sharing in profits. ECF No. [500-1] at ¶ 19, 23, 25.
11

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partnership or joint venture. Id. at 267:1-6. In this respect, he testified that does not “know that
people having complementary skill sets is a legal element of a partnership” but he “tend[s]” to see
that feature in a “shared business relationship” and it is “typical” in a partnership. Id. at 267:21268:23.
Mr. Klein’s opinions, accordingly, run the risk of confusing the jury as to the elements of
a partnership but also of encroaching on the Court’s sole province in instructing the jury as to the
relevant legal standards that will need to be analyzed. See In re Rosenberg, No. 09-13196-BKCAJC, 2012 WL 3870351, at *1-2 (Bankr. S.D. Fla. Sept. 6, 2012) (noting that “instructing the jury
on legal matters is the exclusive domain of the judge,” and explaining that allowing expert
testimony on issues related to requirements for filing an involuntary bankruptcy petition, the
standard for determining whether an involuntary petition was filed in bad faith, and the
consequences of such a filing “create[s] a risk of jury confusion” concerning the applicable law).
See also Burkhart, 112 F.3d at 1213-14 (expert witness “misstate[d] relevant legal principles”
regarding communication matters under the ADA and demonstrated “the danger in allowing expert
witness to testify as to their understanding of the law”). Although Mr. Klein’s “DOGS framework”
may alert jurors to certain areas of inquiry that he believes they should pay particular attention to
when evaluating evidence, ultimately Florida law as instructed by the Court creates the framework
through which the jury must make their determinations. Konikov, 290 F. Supp. 2d at 1318
(excluding expert witness that opined that county ordinance was improperly applied against the
plaintiff and that ordinance did not satisfy test for withstanding constitutional scrutiny). Mr.
Klein’s testimony is akin to the impermissible expert testimony at issue in In re Rosenberg,
Burkhart, and Konikov.

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The Court also agrees with Defendant that Mr. Klein’s report essentially functions as a
legal conclusion that a partnership was formed based on weighing “guidepost” evidence. See, e.g.,
ECF No. [500-1] at ¶ 29 (“One partner’s characterization of another as being a critical, or ‘key,’
co-contributor is typical of the praise that partners bestow on one another in a partnership or joint
venture and consistent with Dave Kleiman having merited an equity stake as a co-owner of a joint
business enterprise with Wright.”); ¶ 34 (“Wright’s description of his work with Dave Kleiman as
a ‘team’ effort . . . is consistent with and indicative of the joint business relationship between the
parties . . . and indicative of Dave Kleiman having had unique skills that were complimentary to
Wright’s, which is another important guidepost[.]”); ¶ 36 (“The conduct and communications
between Wright and Dave Kleiman also reveal mutual decision-making by the men in their
business activities . . . another guidepost that is consistent with and indicative of them having
formed a partnership and/or joint venture.”); ¶ 42 (explaining that the absence of a written
partnership agreement is “not at all uncommon” and that “numerous partnerships” “never
formalize their relationship in writing”); ¶ 71 (Mr. Kleiman and Defendant’s “apparent pursuit of
‘real money’ wealth” through mining is “once again consistent with the SN Enterprise having a
substantial profit-seeking motive”). It is the jury’s province to examine the evidence, derive
conclusions from it, and ultimately decide whether a partnership or joint venture existed as defined
by Florida law. The jury does not need Mr. Klein to perform the relevant analysis for them. Indeed,
expert testimony is not permitted, where like here, “the witness simply recounts the facts and then
offers an opinion as to the conclusion which the jury should reach[.]” Omar v. Babcock, 177 F.
App’x 59, 63 n.5 (11th Cir. 2006) (affirming striking of portions of expert affidavit that contained
legal conclusions as to whether appellants acted with deliberate indifference).12

12

Plaintiffs’ non-circuit cases where courts permitted expert testimony about whether a partnership
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The jury, likewise, does not require an expert to help them interpret the meaning and
implications of Defendant’s communications, particularly as to whether he partnered with Mr.

was formed are distinguishable. Unlike here, the experts in those cases provided testimony
regarding specialized industry terms, practices, or standards beyond the understanding of a lay
person. See Elia v. Roberts, No. 1:16-CV-0557 AWI EPG, 2017 WL 4844296, at *5-6 (E.D. Cal.
Oct. 25, 2017) (permitting accountant experts’ testimony in case involving dispute as to whether
plaintiff was an independent contractor versus a partner because “accounting is a field in which
expert testimony can aid the trier of facts,” the “significance of certain tax forms, the meaning of
technical organizational documents, and whether the conduct of a business deviated from that
organization would also be topics in which expert opinion would be useful,” and limiting testimony
as to explaining underlying entities’ “accounting, taxes, organizational structure, and the general
manner in which the business was run”); Bd. of Trustees, Sheet Metal Workers’ Nat. Pension Fund
v. Palladium Equity Partners, LLC, 722 F. Supp. 2d 845, 852-53 (E.D. Mich. 2010) (permitting
testimony in case involving multi-employer pension plans and three private equity investment
partnerships because private equity fund expert’s “opinions comparing the way the defendants
operated the Haden Companies to the way private equity funds operate in general may shed some
light on the defendants’ intent in forming the limited partnerships (LP), the rationale for some of
the LPs’ management practices, and whether the LPs indeed intended to form a partnership or a
joint venture,” and noting that “[d]etails of private equity funds’ investment and management
practices are outside the domain of an ordinary person’s knowledge, and might be helpful to a
decisionmaker” such that the expert could “testify as to issues of structure and function of the
defendants compared to comparable practices in the industry”); Leeds LP v. United States, No.
08CV100 BTM BLM, 2010 WL 3911429, at *1-3 (S.D. Cal. Oct. 5, 2010) (permitting estate
planning expert’s testimony in case where whether plaintiff is a “nominee of the taxpayers” was
the “ultimate matter at issue,” the expert’s opinions were “limited to the structure of” the
“documents used to create the limited partnerships, trusts, and corporations at issue” and did not
include review of “financial documentation involved in the relevant transactions or how the entities
were operated after formation,” and the expert’s “general testimony about the use of limited
partnerships and trusts as ‘good business practice’” was relevant because it “potentially could be
used to rebut an assertion that the property was “‘placed in the name of the nominee in anticipation
of a suit or occurrence of liabilities’—a factor raised by Defendant as pertinent to the nominee
analysis’” where “the Court has not yet had an opportunity to determine what specific factors of
nominee ownership are applicable in this case”). Notably, none of those cases involved partnership
“guideposts,” Florida partnership law, or disputes related to alleged Bitcoin or blockchain-related
partnerships. Further, Kearney v. Auto-Owners Ins. Co., No. 8:06-CV-595T24TGW, 2009 WL
3712343, at *10 (M.D. Fla. Nov. 5, 2009), aff’d, 422 F. App’x 812 (11th Cir. 2011), is inapplicable
because it involved expert testimony regarding insurance bad faith claims handling, not
partnerships, and the court explained that because “[t]he lay person is not necessarily familiar with
insurance claims handling,” opinions “regarding what ordinary and reasonable claims handling
practices consist of and whether or not Auto–Owners complied with those standards” would be
“helpful to the fact-finder’s evaluation of the parties’ conduct against the standards of ordinary
practice in the insurance industry[.]”
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Kleiman. See, e.g., ¶¶ 31-33 (explaining that Defendant’s email to Ira Kleiman stating the work
“we [Defendant and Mr. Kleiman] did together” expresses a “shared enterprise, built through
shared effort” and is “consistent with and indicative of the joint business relationship between
them,” and “we did partner ;)” is “consistent with their joint efforts” and joint relationship); ¶ 41
(opining that Defendant’s “emphatic use of words like ‘OUR’ and ‘OURS’” in an email to Ira
Kleiman that Mr. Kleiman’s interest in the alleged partnership is “OURS as you [] are Dave’s
heir,” is “indicative of Wright’s recognition that Wright and Dave Kleiman were co-owners of a
business enterprise”); ¶ 59 (noting that Defendant’s email stating “I was with my partner, so to
speak, in all of this, Dave, we mined quite a lot” “confirms that the acquisition of bitcoin through
mining was an integral activity of their joint enterprise”); ¶ 60 (opining that Defendant’s statement
that his “life goal is to increase the value of the bitcoin I mined as Satoshi” “confirms the profit
motive for their work”); ¶ 69 (commenting that Defendant’s statement that Mr. Kleiman helped
write the Bitcoin White Paper and make the language “serene” “confirms the synergistic nature of
the relationship . . . and is consistent with them having chosen to work together”). Expert testimony
is admissible where “it concerns matters that are beyond the understanding of the average lay
person,” but such testimony “generally will not help the trier of fact when it offers nothing more
than what lawyers for the parties can argue in closing arguments.” Cook ex rel. Estate of Tessier,
402 F.3d at 1111 (citation omitted). Nor does the jury require Mr. Klein to tell them whether
Defendant is credible based on certain communications he had with third-parties. See e.g., ¶ 43
(“Wright also made various statements to law enforcement and taxing authorities . . . [which] are
particularly notable because the communications were made in a government proceeding that
might have significant consequences to Wright if his statements were made recklessly or falsely.”).
Accordingly, Defendant’s Motion is granted as to Mr. Klein.

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2.

Dr. Matthew Edman

Dr. Edman, a cyber security engineer with a certification in forensics, was retained by
Plaintiffs to “analyze certain documents submitted by [Defendant] in this litigation and determine,
to the extent possible, whether they are authentic, including but not limited to whether the
documents and/or their associated metadata have been manipulated or altered since their creation.”
ECF No. [500-2] at 5. He also examined cryptographic signatures and native files. Id.13 Dr. Edman
opines that certain documents produced by Defendant were “manipulated” and are “not authentic”
or are “forgeries.” See, e.g., Id. at 5, 33, 36-37. Dr. Edman testified that he “is opining that a
number of documents were manipulated in a manner that would be consistent with the defendant
having performed those manipulations,” and that while he does not “conclude decisively” that
Defendant made modifications or altered documents, “the implication” is “clear” that Defendant
“performed those manipulations.” ECF No. [500-3] at 13:15-16:1. According to Defendant, Dr.
Edman’s reports and testimony should be excluded because “he lacks the requisite expertise to
opine about the forensic analysis of documents, his opinions are not based on a reliable
methodology, and his testimony will serve only to confuse the jury.” ECF No. [500] at 12.
Regarding Dr. Edman’s qualifications, Defendant asserts that he has “virtually no training
in the forensic analysis of documents to determine whether they were altered or forged,” and that
his experiences include analyzing documents to detect malware, but he lacks various certifications.
Id. Defendant contends that Dr. Edman failed to use industry “best practices” by not using a “clean
workstation and write blocker to ensure that he didn’t inadvertently alter the documents” and by
not maintaining a log of hash values that he generated. Id. at 13. Defendant also asserts that Dr.

ECF No. [500-2] contains Dr. Edman’s reports dated December 13, 2019, January 13, 2020, and
April 10, 2020.
13

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Edman exhibited a “complete lack of knowledge” regarding “basic terms and concepts of forensic
analysis.” Id. Regarding methodology, Defendant maintains that although his reports generally
describe how Dr. Edman analyzed a document’s metadata and human readable text, Dr. Edman
was “incapable of describing with specificity his process for analyzing the metadata.” Id. In
Defendant’s view, the metadata artifacts considered “do not have the required indicia of scientific
reliability,” and Dr. Edman’s methodology to opine that alterations and forgeries were consistent
with having been made by Defendant “rests on a non-existent foundation.” Id. at 13-14.
Specifically, Defendant challenges that associating IP addresses with geographic locations is
improper. Id. Finally, he contends that Dr. Edman’s testimony would confuse the jury because Dr.
Edman “considers virtually any document edit to be a ‘forgery,’ regardless of the intent behind the
edit,” even to correct mistaken dates or incorrect figures reflected on a document. Id. at 14-15; see
also ECF No. [554] at 4-5 (arguing that jurors cannot understand the difference between a forgery
and a fraud).
In response, Plaintiffs argue that Dr. Edman has had a central role at various points in these
proceedings in giving testimony concerning the authenticity of documents submitted by
Defendant, such as for the motion for judgment on the pleadings and testifying at the Court’s
August 2019 show cause hearing. ECF No. [528] at 10. They represent that Defendant previously
mounted an unsuccessful Daubert challenge against Dr. Edman, and that Judge Reinhart addressed
the difference between a forgery and a fraud and allowed Dr. Edman to testify whether a document
is a forgery but not whether he believes it was fraudulently prepared. Id. at 10-11 (citing ECF No.
[264] at 112-13). According to Plaintiffs, Dr. Edman’s testimony that he intends to present at trial
“is materially the same type of testimony that he has already offered throughout the course of this
litigation, and that this Court has already credited in finding that certain evidence was fabricated.”

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Id. at 11. Plaintiffs make two primary argument: Dr. Edman is qualified, and his methodology for
analyzing documents produced by Defendant is reliable. Id. at 11-15.
First, Plaintiffs maintain that Dr. Edman is “clearly qualified” based on his degrees,
including a Ph.D in computer science; his publications in peer-reviewed journals on topics
including cryptographic security; his certification in digital forensics; his direct work with the FBI
in a case involving forensic analysis and seizure of bitcoins; and his professional experiences
reviewing manipulated emails and phishing-related investigations. They note that during the
August 2019 hearing, Defendant did not challenge Dr. Edman’s qualifications during his Daubert
challenge even though Judge Reinhart expressly invited him to do so. Id. at 11. They add that
Defendant “grossly mischaracterizes” Dr. Edman’s deposition testimony regarding his training in
forensic analysis of documents. Id. at 12-13. Second, Plaintiffs argue that Defendant has not put
forward an expert to opine that the documents at issue are in fact authentic, and his challenges to
Dr. Edman’s methodology affect the weight of Dr. Edman’s testimony, not its admissibility. Id. at
14 (citing Floorgraphics, Inc. v. News Am. Mktg. In-Store Servs., Inc., 546 F. Supp. 2d 155, 169
(D.N.J. 2008)). Finally, they assert that Defendant’s claim that Dr. Edman’s use of the word
“forgery” will cause jury confusion is “misguided,” especially as Judge Reinhart already
determined that Dr. Edman’s use of that word was not inappropriate. Id. at 15. They add that
Defendant can cross-examine Dr. Edman about conclusions that can be drawn from the metadata
he reviewed, just as they did at the August 2019 hearing. Id.
Upon review and consideration, the Court is unpersuaded that Dr. Edman is unqualified to
opine about the forensic analysis of documents, that his opinions are not based on a reliable
methodology, or that his testimony will serve only to confuse the jury. Plaintiffs have produced a
sufficient basis for the Court to conclude that Dr. Edman is qualified to provide testimony

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regarding the authenticity of documents produced by Defendant. Although Defendant challenges
that Dr. Edman lacks certain certifications or that his training in forensic analysis is lacking, these
are subject matters that Defendant may freely explore on cross-examination. Similarly, the Court
does not conclude that Dr. Edman’s methodology is unreliable. Whether Dr. Edman could have
been more diligent in aspects of conducting his analysis, such as in using a write blocker, a “clean
workstation,” or maintaining a hash value log, these features go to questions of weight rather than
admissibility. See Floorgraphics, Inc., 546 F. Supp. 2d at 168-69 (rejecting argument that expert’s
testimony was unreliable because he failed to ensure or confirm the accuracy of the data upon
which he relied in forming his opinions, and stating that whether the expert “should have more
diligently researched the underlying facts given to him . . . is a question of weight, not
admissibility”). Defendant does not point to any specific component of Dr. Edman’s methodology
that is inherently flawed or otherwise unaccepted in the field of forensic analysis. As Plaintiffs
state, Defendant can cross-examine Dr. Edman about the metadata he reviewed and the
conclusions to draw from it.
The Court also does not agree that Dr. Edman’s testimony would confuse the jury because
he defines a “forgery” as including an alteration, modification, or manipulation to a document
irrespective of whether there is a benign intent behind the alteration. Dr. Edman’s terminology can
be explained to a jury and hypotheticals probing his reasoning can be employed. Notably, Judge
Reinhart has already explained that a forgery “simply means the document is not what it purports
to be,” ECF No. [264] at 112-13, which is comparable to Dr. Edman’s description of a forgery as
a “document that has been manipulated to appear to be something other than what it actually is.”
ECF No. [500-3] at 55:16-61:12. While Defendant asserts that a jury will not be able to understand
the nuance between a forgery and a fraudulent document, ECF No. [554] at 5, the Court is

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confident that a jury has the capacity to differentiate between a fraud and a document that “is
something other than what it actually is.” To the extent Dr. Edman opines on someone’s purported
motives in altering a document (in other words, an individual’s state of mind and intent), such
testimony exceeds the boundaries of his expert opinion. But the mere reference to “forgery” in and
of itself is not so confusing that Dr. Edman’s testimony should be excluded. Defendant’s Motion
as to Dr. Edman, therefore, is denied.
3.

Andreas Antonopoulos

Andreas Antonopoulos, the author of the “world’s most cited book on Bitcoin” and
working in the field of blockchain technology, was retained by Plaintiffs to (i) “provide a
description of the Bitcoin protocol, a high-level overview of the technology underpinning this
protocol, and a brief history of its creation and existence;” (ii) describe the concept of a Bitcoin
fork; (iii) review the known public communications, communication platforms and forums and
email addresses used by Satoshi Nakamoto; and (iv) “analyze data sets produced by Defendant
purporting to be lists of bitcoin addresses (and corresponding blocks) that were mined by
Defendant, comment on the security of transferring private keys as a means to sell bitcoin and
comment on and verify signed messages.” ECF No. [500-5] at 2-4. Defendant makes four
overarching arguments to exclude Mr. Antonopoulos.
First, Mr. Antonopoulos is not qualified to opine on purported damages. ECF No. [500] at
15-16; see also ECF No. [554] at 5-6. According to Defendant, Mr. Antonopoulos’ opinion about
the price of bitcoin on December 3, 2019 is irrelevant; he is not qualified to testify about damages
because he is not an economist and lacks a “background in complex economic analysis” regarding
bitcoin, which “has significant liquidity issues, is highly volatile, and whose price varies on
different markets;” and even if Mr. Antonopoulos was qualified, he “never performed any analysis

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to determine the actual realized value of a bitcoin transaction at any point in time.” ECF No. [500]
at 15-16. Additionally, Defendant contends that Mr. Antonopoulos “simply copied and pasted an
inadmissible internet website’s listing of bitcoin price as of December 3, 2019” but failed to verify
the reliability of any of that data. Id.
Second, Mr. Antonopoulos has a “deeply rooted bias” against Defendant. Id. at 16-18.
Defendant states that Mr. Antonopoulos has made “chronic, derogatory and defamatory statements
about Dr. Wright in public forums, including his personal assessment of Dr. Wright’s credibility
(referring to him as a con artist and Faketoshi), prior to being engaged” by Plaintiffs. Id. at 16. In
particular, he points to two tweets and a podcast segment in which Mr. Antonopoulos purportedly
referred to Defendant as trying to “fool even the smartest people” and orchestrate a fraud.
Defendant contends that permitting Mr. Antonopoulos to testify “would amount to [Defendant]
impaling himself on Morton’s Fork.” Id. at 17. He adds that an expert’s bias is an element the
Court may consider in evaluating whether particular expert testimony is reliable. Id. at 18; Third,
Defendant maintains that Section XI of Mr. Antonopoulos’ report, titled “Analysis of Satoshi
Public Communications,” is unhelpful to the jury because Mr. Antonopoulos “concedes that he
doesn’t know who (or how many people) Satoshi is/are,” and this methodology “consists of
reading unidentified emails that he found in the public record and regurgitating their contents.”
ECF No. [500] at 18. In Defendant’s view, Mr. Antonopoulos simply provides a timeline of Satoshi
Nakamoto communications, and the jury is “quite capable of reading emails and forming their own
conclusions” without the need for an expert to “tell jurors what an email says.” Id. at 19; see also
ECF No. [554] at 7 (contending that public statements regarding Satoshi Nakamoto are unhelpful
to the jury and that Mr. Antonopoulos should not be permitted to testify to their authenticity).
Finally, Defendant argues that Plaintiffs “should not be permitted to use Mr. Antonopoulos’ report

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and testimony as a backdoor through which to introduce inadmissible non-evidence of purported
Bitcoin prices.” ECF No. [500] at 19. See also ECF No. [554] at 6-7 (arguing that Mr.
Antonopoulos’ report and testimony cannot be used as a conduit to present inadmissible evidence).
In particular, he asserts that Mr. Antonopoulos analyzed and relied on “documents from an
anonymous source that cannot be authenticated,” and a certain message contained in a May 4,
2019 bitcoin transaction stating that Defendant “is a liar and a fraud” is inadmissible
unauthenticated hearsay and should not be used as a backdoor to “smear” and improperly attack
Defendant’s character. ECF No. [500] at 19-20.
In response, Plaintiffs contend that each of Defendant’s arguments should be rejected. First,
they assert that Mr. Antonopoulos is “plainly qualified” to opine about “the spot market price” of
bitcoin and bitcoin forks. ECF No. [528] at 15-16. According to them, the spot trading price of
bitcoin and bitcoin forks is “traceable through the use of sites such as coincap.io,” which “identifies
the market value in U.S. dollars of Bitcoin forks at different points in time.” Id. at 15. Plaintiffs
state that Mr. Antonopoulos has worked exclusively in the Bitcoin and blockchain industry since
2012, he published the “definitive guide” and “world’s most cited book on Bitcoin,” he has been
interviewed by global media organizations for his expertise, and he “sits on oversight committee
for the CME Bitcoin price index and reference rate, the world’s first regulated price index by the
world’s largest derivatives marketplace.” Id. at 15-16. They maintain that Mr. Antonopoulos is not
opining on the ultimate damages, the number of bitcoin allegedly misappropriated, or the
appropriate date to measure damages. Id. at 16. They add that they “only intend to rely on Mr.
Antonopoulos’s testimony to show how damages should be calculated after the Court determines
the appropriate date on which damages should be measured.” Id. (emphasis in original).

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Second, Plaintiffs argue that Mr. Antonopoulos is not biased against Defendant and that
none of his opinions are based on any bias against Defendant. Id. at 17 (citing ECF No. [528-6] at
264:6-12). They assert that even if he harbored bias, that is not a basis for exclusion because
allegations of bias are attacks against credibility, not admissibility. Id. They contend that
Defendant’s cited authority is “wholly inapposite.” Third, Plaintiffs maintain that Mr.
Antonopoulos’ testimony regarding public statements by Satoshi Nakamoto is relevant.
Specifically, they state that the Second Amended Complaint “details how Satoshi Nakamoto
created the bitcoin protocols . . . how Defendant years later came out and claimed he and Dave
Kleiman were the individuals behind the Satoshi Nakamoto moniker,” Mr. Antonopoulos
“reviewed the archive of a cryptography mailing list that has been public since its inception and
reviewed the original sources containing communications from Satoshi Nakamoto,” and while he
is “not opining on the substance of those communications, [] his testimony will be helpful for the
jury and this Court to authenticate communications written by Satoshi Nakamoto.” Id. at 18.
Finally, Plaintiffs assert that Mr. Antonopoulos’ reliance on the allegedly inadmissible
evidence, the “CW List” and “DK List” and a message contained in a particular bitcoin message,
“does not offend the Federal Rules of Evidence.” Specifically, the CW List and DK List were
provided by Defendant, Mr. Antonopoulos did not opine who created them nor how so, he
examined other bitcoin holding lists related to Defendant’s bitcoin holdings (the “Shadders List”
and the “CSW Filed List”) and concluded that the “CW List, and the CSW Filed List . . . could not
have plausibly been produced independently of the Shadders List.” Id. at 18-19 (citing ECF No.
[500-5] at 28). Regarding the bitcoin message, they argue that while Mr. Antonopoulos does not
opine on the relevancy of the message, they intend to “use the signed message to show that an
address that Defendant previously claimed to be his in fact belongs to someone else,” and this

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“transactional data” is admissible under Rule 803(6), Fed. R. Evid., as a record of a regularly
conducted activity. Id. at 19.
a.

Mr. Antonopoulos’ qualifications and alleged bias

Defendant has provided evidence that Mr. Antonopoulos previously referred to Defendant
as Faketoshi and doubted his claims, and Plaintiffs have conversely produced testimony that Mr.
Antonopoulos harbors no personal animus against Defendant and that his opinions are not based
on bias. Although Mr. Antonopoulos’ two tweets and podcast remarks may offend Defendant, the
Court does not agree that Defendant is “impaled” on a Morton’s Fork, a “choice between two
equally unpleasant alternatives.” ECF No. [500] at 17 n.11 (citation omitted). Litigation
necessarily invites “unpleasant” scenarios for all litigants, yet Defendant has not shown that Mr.
Antonopoulos is truly a “partisan disguised as an expert.” ECF No. [554] at 8 (citation omitted).
But even so, Plaintiffs correctly note that “allegations of bias are attacks against credibility. And a
witness’s credibility goes to the weight of the evidence – not admissibility.” Zaccone v. Ford
Motor Co., No. 2:15-CV-287-FTM-38CM, 2017 WL 11532918, at *1 (M.D. Fla. Apr. 17, 2017)
(denying motion to strike) (citing Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir. 1986)).
Defendant can readily address these issues of alleged bias on cross-examination.
Regarding qualifications, the Court does not agree with Defendant that Mr. Antonopoulos
is unqualified to testify about the spot market price of bitcoin and bitcoin forks. Mr. Antonopoulos’
background includes publishing the “world’s most cited book on Bitcoin” and sitting on an
oversight committee for the CME Bitcoin price index and reference rate. Although Mr.
Antonopoulos is not an economist by trade, Defendant fails to persuade the Court why such a
background is necessary to testify about spot prices, especially as Plaintiffs represent that Mr.

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Antonopoulos is not opining on the ultimate damages to be awarded. Accordingly, Defendant’s
Motion is denied on these points.
b.

Section XI of Mr. Antonopoulos’ report regarding public
statements by Satoshi Nakamoto

Mr. Antonopoulos’ report notes that he was “asked to review the known public
communications, communication platforms and forums and email addresses used by Satoshi
Nakamoto,” ECF No. [500-5] at ¶ 11. Further, in Section XI of his report, Mr. Antonopoulos states
that he “was asked by Plantiff’s [sic] attorneys to examine the publicly posted communications of
Satoshi and the email addresses and accounts used by Satoshi in these communications.” Id. at
¶ 88. His “analysis of Satoshi public communications” is functionally an eight-item chronology
from the first Satoshi Nakamoto message announcing Bitcoin in October 2008 to Satoshi ending
his communications on the BitcoinTalk.org forum in December 2010. Id. at ¶¶ 89-96. There is no
“analysis” set forth other than roughly outlining a two-year timeline, and there is no discernable
opinion rendered by Mr. Antonopoulos in this section.
The Court agrees with Plaintiffs that “[c]ommunications sent by Satoshi Nakamoto are
plainly relevant to this litigation.” ECF No. [528] at 18. Satoshi Nakamoto’s public
communications are certainly part of Bitcoin’s history and provide relevant context for the jury to
understand the parties’ relationships and dealings. However, Plaintiffs represent that Mr.
Antonopoulos is not opining on the substance of those communications. And Section XI of the
report does not conduct any meaningful historical analysis of any of the described timeline
moments. See, e.g., ECF No. [500-5] at ¶ 90 (“Satoshi engages in conversations with several other
users on the mailing list in response to questions, using ‘satoshi@[]’ as his email address.”); ¶ 93
(“The Bitcoin Whitepaper linked in the Cryptography Mailing List announcement attributes the
work to ‘Satoshi Nakamoto satoshin[]www.bitcoin.org’”); ¶ 95 (“Satoshi announced the Bitcoin

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v0.1 software on the P2P Foundation Forum with an account with the user name ‘Satoshi
Nakamoto[.]’”). It instead consists of a handful of cursorily described events involving Satoshi
Nakamoto but without any clear direction as to its overall role for trial purposes. Further, while
Plaintiffs represent that they requested Mr. Antonopoulos “retrieve and authenticate
communications that are known to have originated from the Satoshi Nakamoto email accounts,”
ECF No. [528] at 18, that request is not expressly reflected in his report.
Accordingly, the Court grants in part Defendant’s Motion on this point. While Mr.
Antonopoulos is permitted to testify about Satoshi’s public communications and the emails
historically associated with Satoshi Nakamoto, an actual opinion must be connected to such
testimony. See, e.g., ECF No. [500-7] at 49:24-52:21 (Mr. Antonopoulos describing how he
formed opinions based on public information, relied on his “broad range of [] professional
experience” to evaluate public communications, and applied his prior experiences when evaluating
the Satoshi communications). Merely reading a post or emails located on a public forum is not an
“opinion” nor would the jury require expert assistance in performing such a task.
c. Bitcoin lists and bitcoin message
Defendant challenges that Section XII of Mr. Antonopoulos’ report, titled “Analysis of
Address Lists,” relies on anonymously-sourced documents that cannot be authenticated and
includes hearsay messages that attack Defendant’s character. According to Defendant, the items
Mr. Antonopoulos relied on are inadmissible and a “backdoor” effort to “smear” him. The Court
agrees in part, particularly as it relates to the May 4, 2019 bitcoin message.
Regarding the bitcoin address lists—the CW List, DK List, Shadders List, and CSW Filed
List—the Court is unconvinced that this evidence cannot be authenticated. Although Defendant
asserts that the CW and DK Lists were received in an encrypted form and decrypted with

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information received anonymously, Plaintiffs represent that these lists were provided by Defendant
in the litigation. Indeed, as noted in Mr. Antonopoulos’ report, he was informed that these lists
“had been independently produced by the trust and delivered by Defendant to Plaintiff[s] during
settlement negotiations[.]” ECF No. [500-5] at ¶ 103. Further, the CSW Filed List was “produced
to the Court by Defendant as the list of addresses extracted from an encrypted communication
delivered by ‘bonded courier’ from a trust[.]” Id. at ¶ 104. The Shadders List, moreover, was
compiled by Steve Coughlan, one of Defendant’s employees. Id. at ¶ 101. Defendant fails to show
why Mr. Antonopoulos cannot rely on this type of evidence to form his opinions. See Fed. R. Evid.
703 (“An expert may base an opinion on facts or data in the case that the expert has been made
aware of or personally observed. If experts in the particular field would reasonably rely on those
kinds of facts or data in forming an opinion on the subject, they need not be admissible for the
opinion to be admitted.”).
Regarding the May 4, 2019 bitcoin message, however, the Court agrees with Defendant
that the message itself is a backdoor attempt to attack Defendant’s character for truthfulness.
Although it is one thing for an expert to represent generally that a message was sent from an
individual not purporting to be Defendant using a bitcoin address Defendant claimed as his own,
it is entirely different to have an expert testify that, as part of forming his opinions, the message
“Craig is a liar and a fraud” was transacted. See id. (“But if the facts or data would otherwise be
inadmissible, the proponent of the opinion may disclose them to the jury only if their probative
value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.”). In
this respect, the Court agrees that Plaintiffs have not shown that all of the elements of Fed. R. Evid.
803(6)14 are satisfied. Specifically, Plaintiffs fail to demonstrate how the message was “kept in the

14

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course of a regularly conducted activity of a business, organization, occupation, or calling[.]” Id.
at Rule 803(6)(B). As Defendant notes, the blockchain itself is not a business, organization,
occupation, or calling. ECF No. [554] at 7. The bitcoin message reflected in paragraphs 147
through 158 of Mr. Antonopoulos’ report, therefore, is inadmissible hearsay. But even if it was
otherwise admissible evidence, Plaintiffs fail to persuade the Court that the probative value of the
anonymously authored message is not substantially outweighed by its prejudicial effect.
Accordingly, Defendant’s Motion is granted on this point, and Mr. Antonopoulos may not disclose
the content of the May 4, 2019 message.
4.

Stefan Boedeker

Stefan Boedeker, a statistician and economist, was retained by Plaintiffs to “review
transaction data that the Defendant provided,” specifically, a list of 16,404 bitcoin blocks allegedly
mined by Defendant, “to statistically analyze gaps that are occurring between Transaction IDs and
determine the likelihood that gaps exceeding a certain length occur.” ECF No. [500-9] at ¶¶ 6-7.
Mr. Boedeker concluded that “the observed patterns in the data have an infinitesimally small
chance of occurring naturally without any outside intervention such as data manipulation after the
fact.” Id. at ¶ 9. In particular, he opined that “[b]ased on overwhelming statistical evidence derived
from descriptive statistical analysis which identified highly unusual ‘gaps’ in the data, and from
statistical hypothesis tests and exact probability calculations which proved that these ‘gaps’ would

Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record
was made at or near the time by--or from information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization,
occupation, or calling, whether or not for profit; (C) making the record was a regular practice of
that activity; (D) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute
permitting certification; and (E) the opponent does not show that the source of information or the
method or circumstances of preparation indicate a lack of trustworthiness.” Fed. R. Evid. 803(6).
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only appear by chance with a probability that is virtually zero, I conclude that some kind of data
manipulation must have taken place to ‘create’ these gaps.” Id. at ¶ 10.
Defendant argues that Mr. Boedeker’s conclusion that the gaps were manipulated is
unsupported. He contends that Mr. Boedeker is unqualified to opine about how SHA 256 hashes
and bitcoin transaction IDs should be distributed because “he has no expertise in SHA 256 hashes
or the hashing process,” Mr. Boedeker improperly presumes that such data should always
randomly evenly distribute across a range based on material he reviewed online, he was unfamiliar
with certain individuals’ credentials, and “he doesn’t know anything about bitcoin mining or the
data that serves as the input for the bitcoin transaction IDs.” ECF No. [500] at 21; see also ECF
No. [554] at 8 (arguing that Mr. Boedeker’s “opinion that the list of bitcoin public addresses is
manipulated is not expert testimony”). Defendant adds that Mr. Boedeker’s supplemental report,
ECF No. [500-11], is untimely and fails to “cure” Mr. Boedeker’s “lack of expertise as to SHA256 hashing, the bitcoin mining process, and his inability to conclude as a matter of fact that
something was manipulated.” ECF No. [500] at 22-24.
In response, Plaintiffs argue that Mr. Boedeker is qualified to perform statistical analyses
on Defendant’s bitcoin holdings lists to determine if there are any anomalies in the data. ECF No.
[528] at 19-20. They make two main arguments. First, Mr. Boedeker properly relied on the
uniformity of the SHA-256 hashing function. According to Plaintiffs, the premise that a SHA 256
output distribution should be random and evenly distributed is “true” and is “confirmed” by Dr.
Edman and “[e]ven Defendant’s own expert, Mr. Choi[.]” Id. at 20 (citations omitted). Further,
they assert that Mr. Boedeker “did in fact ensure that SHA-256 hashes are ‘approximately
uniformly randomly distributed over their full range and independent” based on statistical testing
that he performed. Id. at 21 (emphasis in original). Second, Plaintiffs state that their failure to

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produce Mr. Boedeker’s supplemental report prior to his deposition was substantially justified and
harmless. In particular, they maintain that the supplemental report, which was issued the day after
his deposition, is “not a ‘new analysis,’ but rather an explanation to an attack on his analysis that
was first posed at his deposition.” Id. In their view, the supplemental report was issued to “disprove
[a] new theory by Defendant” regarding mining bitcoin. Id. Plaintiffs represent that Mr. Boedeker
offered to sit for an additional deposition on various dates prior to the close of discovery, and they
agreed to provide him for a deposition after the discovery deadline, but Defendant declined their
invitations. Id. (citing ECF No. [528-9]).
Upon review and consideration, the Court does not find that Mr. Boedeker is unqualified
to provide his expert testimony or that his analysis is unreliable. Although Defendant challenges
the premise that transaction IDs should be uniformly and evenly distributed, he can explore this
area on cross-examination just as he can cross examine Mr. Boedeker regarding whether the
bitcoin lists statistically show “manipulation.” The Court will not exclude Mr. Boedeker’s
testimony at trial.
However, Mr. Boedeker’s April 23, 2020 supplemental report, ECF No. [500-11], is
untimely. Mr. Boedeker’s first report was issued on April 10, 2020 and he was deposed on April
22, 2020. The deadline to complete discovery was May 1, 2020 and the deadline to file all pretrial motions, including motions in limine, Daubert, and dispositive motions was May 8, 2020.
ECF No. [441]. The mere fact that Plaintiffs offered Defendant a handful of dates to re-depose Mr.
Boedeker about his after-the-fact supplemental report does not avoid the bar of Rule 37 sanctions.
Glaringly, Plaintiffs provided the supplemental report to Defendant at 10:02 P.M. on April 23,
2020 and gave Defendant until close of business on April 24, 2020 to schedule a second deposition
against the press of all the numerous impending deadlines. See ECF No. [528-9]. Plaintiffs’

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decision to have Mr. Boedeker perform last-minute analyses following his deposition to shore up
his conclusions in the face of Defendant’s challenges to the soundness of his opinions carries risk.
This is particularly so where, as here, Mr. Boedeker had the Shadders List file at the time he
initially drafted his April 10, 2020 report. See ECF No. [500-10] at 57:8-58:16, 60:8-14. Indeed,
as Defendant states, Plaintiffs “should now be required to live with th[eir] decision” to not have
Mr. Boedeker “timely analyze th[e] [Shadders List] file or offer an opinion on it” before the
deposition. ECF No. [500] at 24. Accordingly, the disclosure of the after-the-fact analyses on the
Shadders List is neither substantially justified nor harmless. See Cook v. Royal Caribbean Cruises,
Ltd., No. 11-20723-CIV, 2012 WL 2319089, at *3 (S.D. Fla. June 15, 2012) (“Because Defendant
has already taken the depositions of these two experts and does not now have the ability to obtain
additional experts to rebut the supplemental opinions or to arrange for supplemental opinions from
its own witnesses, permitting Plaintiff to use these supplemental expert witness opinions would
unduly prejudice Defendant. The Court is not inclined to cause this inequitable result.”).
Plaintiffs’ contention that Defendant launched a “deceptive attack on Mr. Boedeker’s
analysis in his deposition,” ECF No. [528] at 22, is relatedly without merit. They fail to point to
anything about Defendant’s “attack” at the deposition that was “deceptive.” Merely disagreeing
with Defendant about the strength of Mr. Boedeker’s analysis or of alternative potential
explanations for data gaps is a far cry from Defendant having engaged in deception during the
course of the deposition. Likewise, to the extent Plaintiffs argue that without the supplemental
report, “Defendant will be given an opportunity to explain away Mr. Boedeker’s testimony through
falsehoods,” id., the Court is unconvinced. The adversarial system is designed to root out and
expose lies. It also exists to enable a jury to thoughtfully consider evidence before it and to assess
strengths and weaknesses of an expert’s opinion. Plaintiffs fail to show that they cannot fairly or

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effectively make their case with only Mr. Boedeker’s opinions from his first report, which report
was timely disclosed and thoroughly examined during his deposition. Defendant’s Motion
accordingly is granted in part, and Mr. Boedeker’s supplemental report is stricken.
5.

Dr. Robert Leonard

Dr. Leonard, a linguistics professor at Hofstra University, was retained by Plaintiffs to
conduct a forensic linguistic authorship analysis of certain documents associated with Defendant.
See ECF No. [500-12]. In particular, he was “asked to give an opinion on whether any of the Q
documents share likely common authorship with the K [documents].” Id. at 6. “K Documents”
consist of documents known to have been authored by Defendant while “Q Documents” are
comprised of documents Defendant denies authoring, Q1 documents; and documents that
Defendant reports “are partly his own writing, but also partly written by an imposter,” Q2
documents. Id. Dr. Leonard “analyzed the language patterns of all Ks and all Qs and compared
them.” Id. According to him, “[a]uthorship analysis proceeds by posing competing hypotheses and
seeking to determine which hypothesis best explains the non-random distribution of the language
data.” Id. Based on his analysis, Dr. Leonard concluded that the “superior hypothesis for all Q
documents (individual email threads) is Hypothesis 1. That is, the language patterns of the Q
documents are consistent with the language patterns found in the documents known to have been
written by Dr. Craig Steven Wright.” Id. In reaching this opinion, Dr. Leonard considered different
varieties of English, including Australian English, and he identified twelve “linking features”15 in
the data sets that he reviewed, such as “try and,” “setup/backup” as a verb, “etc” without periods,
“n-grams,” among others. Id. at 8-9.

Dr. Leonard described “linking features” as “similar instances of variation of language use in
more than one data set.” ECF No. [500-12] at 8.
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Defendant makes three overarching arguments for excluding Dr. Leonard. First, Dr.
Leonard’s report is not based on sufficient facts or data. ECF No. [500] at 25. Specifically,
Defendant contends that of the “millions” of words available from documents produced in this
case, Dr. Leonard relied on approximately 8,200 words and yet he “does not make any effort to
explain why this small data set for the known documents is sufficient for conducting his analysis,
nor does he indicate in his report that the data set utilized by him is a representative sample.” Id.
(emphasis in original) He adds that the “linking features” do not reflect equal numbers of
occurrences, and because the “linking features” are assessed in aggregate, “it flows that the
aggregate can only be as ‘probative’ as the strength (or weaknesses) of its individual components,
and there is no evidence that the resulting aggregate here has any deterministic connection to [his]
conclusion.” Id. at 25-26.
Second, Dr. Leonard’s report and testimony do not meet the requirements of Rule 702 or
the reliability standard of Daubert. Id. at 26. According to Defendant, Dr. Leonard uses a method
known as “forensic stylistics,” which has “various shortcomings” such as not “offer[ing] a standard
reference set of stylemarkers to be reviewed in each case,” it relies on subjectivity, and it has a
“pick and choose” nature. Id. (citation omitted). In his view, Dr. Leonard fails to “specify, in
precise terms, the methodology or guidelines utilized by him in identifying and selecting each
linking feature other than a one-sentence explanation;” he “cherry-picked textual features, without
stating why;” he “does not identify any cultural or situational contexts which linguists have shown
to contribute significantly to individual variation in language behavior;” and his analysis is
“plagued by a confirmation bias” because it “ignores evidence” that “tends to support” an
alternative hypothesis regarding the data. Id. at 27-29; see also ECF No. [554] at 9-10 (arguing
that federal courts that have not rejected experts adhering to the forensic stylistics methodology

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did not give a “detailed explanation” of their Daubert ruling or a “meaningful examination” of this
method). Finally, Defendant argues that Dr. Leonard’s testimony should be excluded because it
will serve to mislead or confuse the jury. ECF No. [500] at 29-30.
In response, Plaintiffs assert that Defendant’s contention that Dr. Leonard’s methodology
is unreliable under Daubert is “patently false” because it is “peer-reviewed” and “has been
accepted and relied upon by federal courts in major cases,” it is “based on sufficient facts and
data,” and Defendant’s remaining arguments “all go towards the weight of Dr. Leonard’s
opinions[.]” ECF No. [528] at 23. They first argue that Defendant’s attacks on Dr. Leonard’s
methodology have been rejected by other federal courts. In particular, they cite to three federal
district court cases, two from the District of Utah and one from the Western District of New York.
Id. at 24-25. According to Plaintiffs, Defendant’s challenges to Dr. Leonard’s methodology are
based on their rebuttal expert, Dr. Eggington, who “[b]y his own admission [] is part of one school
of academics who disagrees with the methodologies used by a second school (forensic stylistics)
that includes . . . [Dr.] Leonard.” Id. at 25. They add that Defendant’s failure to cite to these three
known cases rejecting Daubert challenges grounded in Dr. Eggington’s views showcases “hide
and seek litigation” tactics. Id. at 25-26.
Plaintiffs maintain that Dr. Leonard’s opinions are based on sufficient facts and data. In
particular, he used a sample size of nearly 30 documents, which “well-exceed[s]” the minimum
threshold of five documents that Dr. Eggington previously opined was sufficient to “conduct a
scientifically sound authorial attribution analysis.” Id. at 26. They further note that challenges to
the sufficiency of an individual “linking feature” go to the weight of Dr. Leonard’s opinion, and
through cross-examination, the jury can “decide whether the frequency of the occurrences of the
12 linking features, on an individual and aggregate basis, support Dr. Leonard’s opinion.” Id. at

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27. Next, Plaintiffs argue that Dr. Leonard’s methodology satisfies Daubert. They contend that Dr.
Leonard’s methodology is “based in peer-reviewed literature and academic scholarship,” it is
“completely transparent and replicable,” and while there is a “robust debate among academics
regarding best practices for authorial attribution,” a “debate in the scientific community . . . is not
a basis for exclusion.” Id. at 27-28 (citation omitted). Finally, they argue that Dr. Leonard’s
testimony does not violate Rule 403, and Dr. Leonard’s opinions are “highly relevant” to
“debunking” Defendant’s claims that he did not author certain emails. Id. at 28-29.
Upon review and consideration, the Court finds Defendant’s arguments to be unavailing.
Dr. Leonard’s testimony is plainly relevant to key issues in this case, particularly as Defendant has
denied authoring certain emails relating to whether he partnered with Mr. Kleiman. Defendant fails
to show how the sample size and quality of the documents that Dr. Leonard considered are
insufficient to perform his analysis, and he fails to convince the Court that Dr. Leonard’s
methodology is unreliable under Daubert. Other federal courts have rejected efforts to exclude
expert testimony on the basis that the forensic stylistics approach is unreliable. See, e.g., Dutcher
v. Bold Films LP, No. 2:15-CV-110-DB, 2019 WL 181353, at *1 (D. Utah Jan. 11, 2019). And the
mere fact that Dr. Eggington adheres to a different school of thought regarding forensic analysis
does not compel the conclusion that Dr. Leonard’s analysis is unreliable or fundamentally flawed.
Moreover, whether any of the identified “linking features” reflected in Dr. Leonard’s report is
commonplace in writing or a truly unique and distinctive feature can be pursued on crossexamination. The same is true regarding his alleged “confirmation bias.” Accordingly,
Defendant’s Motion is denied as to Dr. Leonard.

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IV.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Plaintiffs’ Motion, ECF No. [492],
is GRANTED IN PART AND DENIED IN PART and Defendant’s Motion, ECF No. [500], is
GRANTED IN PART AND DENIED IN PART, as set forth above.
DONE AND ORDERED in Chambers at Miami, Florida, on November 16, 2020.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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