RACKEMANN v. LISNR, INC. et al

Filing 117

ORDER denying 89 Defendants' Motion to Appoint Expert. Signed by Magistrate Judge Mark J. Dinsmore on 7/11/2017. (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ALAN RACKEMANN,

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Plaintiff,
v.
LISNR, INC.,
ADEPT MOBILE, LLC,
INDIANAPOLIS COLTS, INC.,
Defendants.

No. 1:17-cv-00624-TWP-MJD

ORDER ON DEFENDANTS’ MOTION TO APPOINT EXPERT
LISNR, Inc., Indianapolis Colts, Inc., and Adept Mobile, LLC (“Defendants”) move the
Court to appoint a neutral expert pursuant to Federal Rule of Evidence 706(a) to provide
guidance on a phone application’s ability to monitor and record human speech. For the reasons
set forth below, the Court DENIES Defendants’ Motion to Appoint Expert. [Dkt. 89.]
I.

BACKGROUND

Alan Rackemann (“Plaintiff”) brought this lawsuit alleging that Defendants’ mobile
application (the “App”) continually accesses a smartphone’s microphone to record and analyze
audio input for signals without the user’s consent. Plaintiff alleges that, because the App
constantly records all background audio, Defendants’ conduct constitutes an unlawful
interception of oral communications in violation of the Electronic Communications Privacy Act
(“Wiretap Act”). 18 U.S.C. § 2510, et seq. [Dkt. 1.] Defendants now move to appoint a neutral
expert pursuant to Rule 706 to address the ability of the technology to record communications.

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II.

DISCUSSION

Defendants argue that the Court should appoint an expert pursuant to Rule 706 because
the App’s complicated technology is beyond the ken of non-experts to understand, and courts
have appointed experts to explain many other types of complex technology. Defendants also
argue that appointing an expert to inform the Court on a single issue could lead to early
resolution of the case.
In response, Plaintiff argues that since there is no conflicting expert testimony or any
barrier to hiring an outside expert, appointment of an independent neutral expert is not necessary.
Plaintiff further argues that judges typically appoint Rule 706 experts in only two circumstances:
1) to understand the testimony of the parties’ experts, and 2) when at least one of the parties
failed to offer expert testimony typically due to a party’s inability to pay for expert testimony.
Plaintiff argues that neither of these circumstances apply and that appointing a Rule 706 expert
this early would slow the judicial process. Plaintiff maintains that the relevant information will
be available through the discovery process.
In reply, Defendants argue that courts can, and do, appoint experts at the early stages of
cases where the expert’s services will be helpful in understanding complex or technical subject
matters.
Rule 706 permits a court to propose the appointment of a neutral expert when doing so
would aid the adjudicative process. Fed. R. Evid. 706(a). As the Advisory Committee’s Note for
Rule 706 explains, “[E]xperience indicates that actual appointment is a relatively infrequent
occurrence” even though “the inherent power of a trial judge to appoint an expert of his own
choosing is virtually unquestioned.” Fed. R. Evid. 706 advisory committee’s note. Appointment
of an expert under Rule 706 is “rare under virtually any circumstances” because such

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appointment “interferes with adversarial control over the presentation of evidence.” Wright et al.,
Federal Practice & Procedure § 6304 (2d ed. 2014). In general, judges view the appointment of
a neutral expert as an “extraordinary activity that is appropriate only in rare instances in which
the traditional adversarial process has failed to permit an informed assessment of the facts.” Joe
S. Cecil & Thomas E. Willging, Court-Appointed Experts: Defining the Role of Experts
Appointed Under Federal Rule of Evidence 706 4 (Fed. Jud. Center 1993); see also Antonetti v.
Skolnik, No. 3:10-cv-00158-LRH-WGC, 2013 WL 593407, *9-10 (D. Nev. Feb. 13, 2013)
(“Expert witnesses should not be appointed where they are not necessary or not significantly
useful for the trier of fact to comprehend a material issue in a case,” and are only appropriate if
the expert’s opinion would “promote accurate fact finding” (internal quotations omitted));
Carranza v. Fraas, 471 F. Supp. 2d 8, 9 (D.D.C. 2007) (noting that Rule 706 is typically invoked
in “exceptional cases” where “the ordinary adversary process does not suffice or when a case
presents compelling circumstances warranting the appointment of an expert”).
The most common extraordinary circumstance is indigence. Courts across the nation,
including Indiana district courts, have appointed Rule 706 experts in situations where at least one
party is unable to pay for expert testimony. See, e.g., Rowe v. Gibson, 798 F.3d 622, 631-32 (7th
Cir. 2015) (encouraging district courts to consider the appointment of neutral experts in Eighth
Amendment deliberate indifference cases involving indigent prisoners); Gorton v. Todd, 793 F.
Supp. 2d 1171, 1182 (E.D. Cal. Jun. 29, 2011) (“When an indigent prisoner is proceeding pro se,
however, the adversary system is more likely to fail in its pursuit of accurate factfinding.”).
Courts have also appointed Rule 706 experts in situations where they require expert
assistance in interpreting conflicting expert testimony and evidence. See, e.g., Turner v. Cox, 569
Fed. App’x 463, 468 (7th Cir. 2014) (“A court may appoint an expert to help sort through

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conflicting evidence . . . but it need not appoint an expert for a party’s own benefit”); ATA
Airlines, Inc. v. Fed. Express Corp., 665 F.3d 882, 889 (7th Cir. 2011) (“But a judge can always
appoint his own expert to assist him in understanding and evaluating the proposed testimony of a
party’s expert.”); In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 652, 665 (7th Cir.
2002) (advising trial judge to appoint a neutral expert “rather than leave himself and the jury
completely at the mercy of the parties’ warring experts”). In these situations, the battle of the
experts has produced such obfuscation that the court needs the aid of its own expert to render fair
decisions on, for example, evidentiary issues. See, e.g., ATA Airlines, Inc., 665 F.3d 889
(recommending that district court appoint neutral expert where assessing qualifications of
proposed expert was beyond judge’s expertise).
But neither of these extraordinary circumstances, reflective of a breakdown of the
adversarial process, is present in this case. Neither party is indigent, so the most common
scenario for neutral experts does not apply. Nor does the Court have a special need for expert
testimony at this stage. Thus far, there is very little evidence, if any, through which that a neutral
expert could sift. While Defendants point to cases where judges have appointed experts to help
them with complex, esoteric, or complicated evidence that a lay-person would not be able to
understand, those are cases where discovery had closed or where specific issues requiring a
judicial determination had arisen. See Reynolds v. Goord, No. 98 CIV. 6722, 2000 WL 235278
(S.D.N.Y. June 22, 2000) (appointing Rule 706 expert after discovery had closed and defendants
had moved for summary judgment); Maury Microwave, Inc. v. Focus Microwaves, Inc., No. CV
10-03902 MMM (SSx), 2010 WL 5116141 (C.D. Cal. Dec. 9, 2010) (ordering parties to show
cause regarding appointment of neutral expert to address a specific issue about how to inspect a
microwave).

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The Court has no need for an expert to address the issues raised to-date. While
Defendants assert that appointing a Rule 706 expert now will help resolve the “threshold issue”
of whether the App can record human oral communication, they fail to explain how the
traditional adversarial process is insufficient to resolve the issues raised in this case. Defendants
do not otherwise point to extraordinary circumstances justifying the appointment of a neutral
expert. Appointment of a neutral expert is therefore inappropriate at this time.
III.

CONCLUSION

For the reasons stated above, the Court DENIES Defendants’ Motion to Appoint Expert.
[Dkt. 89.]
SO ORDERED.

Dated: 11 JUL 2017

Distribution:
Service will be made electronically
on all ECF-registered counsel of record via
email generated by the court’s ECF system.

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