Joseph et al v. Carnes et al

Filing 139

MEMORANDUM Opinion and Order Signed by the Honorable John W. Darrah on 4/30/2015. Mailed notice. (as, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANDREW JOSEPH,
ISAMU FAIRBANKS,
IAN DOUGHTY, and
MARTIN CRAIG,

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Plaintiffs,
v.
LISA CARNES,
GREGORY PEASE,
RICK JACOBS, and
CHRIS HAMILTON,
Defendants.

Case No. 13-cv-2279
Judge John W. Darrah

MEMORANDUM OPINION AND ORDER
Defendants filed a Motion to Bar Putative Expert Witness and Expert Witness Report
[104]. For the reasons stated below, the Motion is granted.
BACKGROUND
Plaintiffs Andrew Joseph, Isamu Fairbanks, Ian Doughty, and Martin Craig filed suit
against Defendants Lisa Carnes, Gregory Pease, Rick Jacobs, and Chris Hamilton on
March 26, 2013, alleging two counts: a civil cause of action under the Stored Communications
Act (the “SCA”), 18 U.S.C. § 2701; and civil conspiracy. The SCA creates an offense where an
individual: “(1) intentionally accesses without authorization a facility through which an
electronic communication service is provided; or (2) intentionally exceeds an authorization to
access that facility; and thereby obtains, alters, or prevents authorized access to a wire or
electronic communication while it is in electronic storage.” 18 U.S.C. § 2701(a). Plaintiffs now
seek to introduce testimony and an expert report from Dr. Arnita Allen, a law professor and
doctor of philosophy, regarding the SCA.

LEGAL STANDARD
“The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and
the Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993).” Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). Under Federal
Rule of Evidence 702,
[a] witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if: (a) the expert's
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable principles
and methods; and(d) the expert has reliably applied the principles and methods to
the facts of the case.
Fed. R. Evid. 702. A trial court must ensure “that an expert's testimony both rests on a reliable
foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597. Expert testimony is
admissible where “the testimony is reliable and would assist the trier of fact to understand the
evidence or determine a fact at issue in a case.” Lewis, 561 F.3d at 705. The party seeking to
introduce expert testimony bears the burden of demonstrating that the proposed testimony
satisfies this standard by a preponderance of the evidence. Id. (citing Fed. R. Evid. 702;
Bourjaily v. United States, 483 U.S. 171, 175-76 (1987)).
ANALYSIS
The admissibility of expert testimony is governed by a three-step analysis: “the witness
must be qualified as an expert by knowledge, skill, experience, training, or education; the
expert's reasoning or methodology underlying the testimony must be scientifically reliable; and
the testimony must assist the trier of fact to understand the evidence or to determine a fact in
issue.” Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007) (internal citations
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and quotations omitted). “The rejection of expert testimony is the exception rather than the
rule.” Spearman Indus. v. St. Paul Fire & Marine Ins. Co., 128 F. Supp. 2d 1148, 1150 (N.D. Ill.
2001).
Plaintiffs seek to submit Dr. Allen’s report and testimony on
(i) the structure of the Defendants’ relationship with 123Together and Sonian and
how that structure falls within the ambit of the SCA; (ii) the manner in which the
stored emails at issue fit within a reasonable interpretation of the SCA; (iii) the
way in which the Defendants accessed, obtained and searched emails in this case
and how that activity was in contravention of the SCA; and (iv) the manner in
which damages should be calculated under the SCA in order to properly
compensate Plaintiffs.
(Resp. at 12.). They also seek to introduce Dr. Allen’s testimony on subjects including:
i) the historical backdrop against which the SCA was enacted in 1986; (ii) the
technological advances which necessitated passage of the SCA; (iii) how
electronic mail technologies and data storage facilities have changed since the
SCA was enacted; (iv) the context for understanding several key technology terms
which will be referred to throughout the trial; and (v) the legislative intent behind
the initial passage of the SCA and how advancements in technology relate to the
language in the SCA.
(Resp. at 12.) Defendants object to the inclusion of this testimony, arguing that Dr. Allen is not
qualified, that her testimony would not help the trier of fact to determine a fact in issue, and that
her testimony contains impermissible legal conclusions.
Because the resolution of the latter two issues are dispositive, a discussion of Dr. Allen’s
qualifications is unnecessary. 1 Plaintiffs submit that Dr. Allen’s proposed testimony, as set out
above, would be “potentially instructive to the trier of fact in understanding the role, purpose,
meaning and application of the SCA.” (Resp. at 12.) This testimony will not assist the fact

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While Dr. Allen has taught approximately thirty courses on privacy law, she has not
been retained by any court as an expert. Nor has she been certified or hired in any case as an
expert in privacy law.
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finder to understand the evidence or to resolve material facts. Moreover, permitting a witness to
tell the jury about her legal research on meanings of key terms impermissibly allows “the jury to
infer that it could look to that witness for legal guidance.” Harbor Ins. Co. v. Cont'l Bank Corp.,
922 F.2d 357, 366 (7th Cir. 1990). It is also improper for a legal expert to explain the purpose
and goals of a statute. See In re Ocean Bank, 481 F. Supp. 2d 892, 901 (N.D. Ill. 2007) (holding
that expert went beyond proper testimony in explaining the goals and meaning of the Fair Credit
Reporting Act). Thus, any testimony by Dr. Allen regarding her research into the SCA, the
history and purpose of the SCA, and the meaning and application of any terms within the SCA is
inadmissible as irrelevant.
“[E]xpert testimony as to legal conclusions that will determine the outcome of the case is
inadmissible.” Good Shepherd Manor Found., Inc. v. City of Momence, 323 F.3d 557, 564 (7th
Cir. 2003). Dr. Allen’s report largely consists of her analysis of case law, and the history and
purpose of the statute, which leads to the legal conclusion that Defendants are guilty of violating
the SCA. While Plaintiffs make some argument that Dr. Allen will identify and discuss privacy
standards, this is not present in her report except for a two-page discussion of the importance of
privacy in Illinois. (Resp. Ex. B, pps. 12-13.) Furthermore, Plaintiffs’ reliance on Richman v.
Sheahan, 415 F. Supp. 2d 929, 947 (N.D. Ill. 2006), is misplaced. In Richman, the court allowed
defense experts to testify regarding whether a defendant acted reasonably and appropriately in
the context of professional standards. Richman, 415 F. Supp. 2d at 947-48. Here, Dr. Allen
would be testifying as to whether Defendants violated a federal statute, not whether their actions
were reasonable in comparison to a professional standard. Testimony has been permitted as to
legal standards when those standards were not the issue in the case. See, e.g., Haley v. Gross, 86
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F.3d 630, 645 (7th Cir. 1996) (expert witness testified regarding his background setting prison
policies that complied with constitutional law).
While the rejection of expert testimony is the exception rather than the rule, it is
appropriate here, where the proposed expert testimony improperly instructs the trier of fact and
includes legal conclusions.
CONCLUSION
For the reasons discussed above, Defendants’ Motion to Bar Putative Expert Witness and
Expert Witness Report [104] is granted.

Date:

April 30, 2015

______________________________
JOHN W. DARRAH
United States District Court Judge

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