LovePop, Inc. v. PaperPopCards Inc.

Filing 171

Judge Nathaniel M. Gorton: ORDER entered denying 122 MOTION for Order to Exclude Opinions; denying 142 MOTION for Order to to Exclude Testimony. (Vieira, Leonardo)

United States District Court
District of Massachusetts
LOVEPOP, INC.,
Plaintiff,
v.
PAPER POP CARDS, INC.,
Defendant.
PAPER POP CARDS, INC.,
Counter Claimant,
v.
LOVEPOP, INC.,
Counter Defendant.

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Civil Action No.
17-11017-NMG

ORDER
GORTON, J.
I.

Background
This case involves claims for, among other things,

copyright and trademark infringement in which LovePop, Inc.
(“LovePop” or “plaintiff”) asserts that Paper Pop Cards, Inc.
(“Paper Pop” or “defendant”) unlawfully copied the designs of
some of its three-dimensional, pop-up greeting cards.

Paper Pop

counterclaims, in turn, for like-kind infringement as well as
various common law torts.

Paper Pop submits that it could not

possibly have infringed LovePop’s copyrights or trademarks
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because it possesses documents and photographs that demonstrate
it created the disputed card designs first.
LovePop responds that the purported evidence was
fraudulently produced by Paper Pop and thus not only impugns
Paper Pop’s defense but also bolsters its claim of infringement.
LovePop avers that defendant manipulated the documents’ metadata
to make it appear as though the subject documents were created
before LovePop’s designs.
In support of its fabrication theory, plaintiff proffers
James Berriman as an expert in e-discovery and metadata.

He

purportedly will 1) explain generally what metadata is and how
it works, 2) show why some of defendant’s documents could not
possibly have been created at the time suggested because the
relevant software was not yet available and 3) demonstrate how a
document’s metadata can be manipulated to produce a false date
of creation without any evidence of tampering.

Paper Pop

repudiates LovePop’s fabrication theory as unfounded and
proffers the testimony of Laurence Lieb to rebut Mr. Berriman’s
conclusions.
Pending before the Court are the parties’ conflicting
motions to exclude testimony of their opponent’s expert
witnesses (Docket No. 122 and 142) as well as plaintiff’s motion
for sanctions (Docket No. 112) all of which are related to
defendant’s alleged fabrication of evidence.
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II.

Motions to Exclude Expert Testimony
A.

Legal Standard

The admission of expert evidence is governed by Fed. R.
Evid. 702, which codified the Supreme Court’s holding in Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and its
progeny. See United States v. Diaz, 300 F.3d 66, 73 (1st Cir.
2002).

Rule 702 charges a district court with determining

whether: 1) “scientific, technical, or other specialized
knowledge will assist the trier of fact,” 2) the expert is
qualified “by knowledge, skill, experience, training, or
education” to testify on that subject, and 3) the expert’s
proposed testimony a) is based upon “sufficient facts or data,”
b) is the product of “reliable principles and methods” and c)
“applies the principles and methods reliably to the facts of the
case”.
The Court must be vigilant in exercising its gatekeeper
role because an expert’s testimony may be given substantial
weight by the jury due to the expert’s status, see Daubert, 509
U.S. at 595, but the Court must keep in mind that
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.
Id. at 596.

If an expert’s testimony is within “the range where

experts might reasonably differ”, the jury, not the trial court,

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should be the one to decide among the conflicting views of
different experts. Kumho Tire Co. v. Carmichael, 526 U.S. 137,
152 (1999).
B.

Parties’ Arguments

Paper Pop claims that Mr. Berriman should be precluded from
testifying as an expert witness because his opinions and
conclusions 1) are not the result of forensic analysis or
technical or specialized knowledge, 2) have not been adequately
tested with respect to the authenticity of defendant’s
documents, 3) constitute impermissible speculation because of an
insufficient evidentiary foundation and are therefore
fundamentally unreliable.

A test run by Paper Pop’s expert, Mr.

Lieb, purportedly demonstrates that Mr. Berriman’s theory of
“backdating” documents without leaving evidence of such
tampering is actually impossible and therefore Mr. Berriman’s
process was faulty.
Not only does LovePop oppose the motion to exclude its
expert witness, it counters that Mr. Lieb should be precluded
from testifying as a rebuttal expert because 1) he does not
actually disagree with many of Mr. Berriman’s conclusions as to
the metadata at issue and how it can be manipulated, 2) he does
not understand the concept of metadata manipulation, 3) he made
substantial errors in reporting metadata in his expert report by
use of unreliable methodology and 4) the test he ran to prove
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the authenticity of defendant’s documents did not even address
his opposing expert’s hypothesis.
C.

Application

After review of the extensive briefing on the cross-motions
to exclude, the Court concludes that both Messrs. Berriman and
Lieb should be permitted to testify as experts.

In the first

instance, both witnesses are qualified as experts based on their
experience with and technical and specialized knowledge of ediscovery issues and metadata.

Their explanation of what

metadata is and how it works will assist lay jurors.
With respect to the substance of the purported expert
testimony, the Court finds that the parties’ objections to the
methodologies, opinions and conclusions of their opposing
experts go to their credibility and to the weight to be afforded
to their testimony.

Such matters are appropriately left to the

jury to resolve. Crowe v. Marchand, 506 F.3d 13, 18 (1st Cir.
2007); Payton v. Abbott Labs, 780 F.2d 147, 156 (1st Cir. 1985)
(“[I]t is a matter for the jury to resolve any inconsistencies
in expert testimony.”).
Mr. Berriman refers to a sufficient evidentiary foundation
to support his fabrication theory, namely the discrepancies
between the dates of certain allegedly falsified documents and
the date when the relevant software for the creation of those
documents was available. See Damon v. Sun Co., Inc., 87 F.3d
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1467, 1474-75 (1st Cir. 1996).
to rebut that theory.

Mr. Lieb may offer an analysis

Any issues with respect to the

reliability of the methods and analysis of the respective
experts are not so fundamental as to render their testimony
inadmissible and those issues may be vigorously challenged on
cross examination. Compare WBIP, LLC v. Kohler Co., 965 F. Supp.
2d 170, 173 (D. Mass. 2013), with United States v. CandelarioSantana, 916 F. Supp. 2d 191, 204-05 (D.P.R. 2013).
ORDER
The motions to exclude one another’s expert witnesses
(Docket No. 122 and 142) are, therefore, DENIED.

Because

plaintiff’s motion for sanctions depends upon a finding that
defendant, in fact, falsified evidence, which is an issue that
will be addressed at trial, it will be DENIED without prejudice.

So ordered.
_/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated January 29, 2019

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