Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al

Filing 218

RESPONSE to 202 MOTION for Order Excluding Expert Evidence and Testimony by Chris Schwerzler Pursuant to Daubert filed by Weather Underground, Incorporated. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Schaefer, Enrico)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
THE WEATHER UNDERGROUND, INC.,
a Michigan corporation,
Plaintiff,
vs.
NAVIGATION CATALYST SYSTEMS,
INC., a Delaware corporation;
CONNEXUS CORP., a Delaware
corporation; FIRSTLOOK, INC., a
Delaware corporation; and EPIC MEDIA
GROUP, INC., a Delaware corporation;

Case No. 2:09-CV-10756
Hon. Marianne O. Battani

Defendants.
______________________________________________________________________
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff
Anthony P. Patti (P43729)
HOOPER HATHAWAY, PC
126 South Main Street
Ann Arbor, MI 48104
734-662-4426
[e-mail]
Attorneys for Plaintiff

Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
Bruce L. Sendek (P28095)
BUTZEL LONG, PC
150 West Jefferson, Suite 100
Detroit, MI 48226
[phone]
[e-mail]
[e-mail]
[e-mail]
Local Counsel for Defendants

William A. Delgado (admitted pro hac vice)
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants
______________________________________________________________________
PLAINTIFF’S RESPONSE TO DEFENDANTS’ DAUBERT MOTION
TO STRIKE REPORT OF CHRISTOPHER SCHWERZLER
AND PROHIBIT HIS TESTIMONY ON SAME AT TRIAL

NOW COMES Plaintiff, The Weather Underground, Inc. (“Plaintiff”), by and
through its counsel, Traverse Legal, PLC, and responds to Defendants’ Daubert Motion
to Strike Report of Christopher Schwerzler and Prohibit His Testimony on Same at Trial
as follows:
ARGUMENT
I.

Schwerzler’s Report is Authenticated.
Defendants request that the Court strike Exhibit M of Plaintiff’s Motion for Partial

Summary Judgment on its Anti-Cybersquatting Consumer Protection Act (“ACPA”)
claim. Defendants argue that, because the reports in Exhibit M are unsigned and
unverified by sworn affidavit, they are inadmissible at trial and for purposes of the
Motion for Summary Adjudication under Fed. R. Civ. P. § 56(c)(2) and Fed. R. Evid.
§ 602. Despite the fact that Defendants examined Mr. Schwerzler in detail at his
deposition about his reports, Defendants continue to play procedural games and avoid
the merits at all cost.
Regardless, Plaintiff is providing a sworn affidavit from Christopher Schwerzler
authenticating the reports attached as Exhibit M to Plaintiff’s Motion for Partial Summary
Judgment, which affidavit is attached hereto as Exhibit A. It is important to note that
Chris Schwerzler’s primary role in this case was to review and report on a terabyte drive
comprised of Defendant’s database containing, among other things: a list of defendant’s
domains, dates of registration, USPTO trademark database, USPTO database
matching tool and other related software code. Mr. Schwerzler’s primary role to report
on what is, in fact, included in Defendant’s production of the terabyte drive and use their

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trademark matching tool to see how certain domains registered by Defendants
match-up. The data (primarily lists of domains registered by Defendants) is either there
or not. Verification could not be easier. Mr. Schwerzler’s “Conclusions” listed on the last
two pages of his report are not necessary to Plaintiff’s Motion for Summary Judgment
under the ACPA, although most of them remained unchallenged.
II.

Chris Schwerzler’s Report and Testimony Are Admissible Under Federal
Rule of Evidence § 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.
Defendants’ argue Mr. Schwerzler is “the Plaintiff” because he is a Director,

Board Member, Employee, and Shareholder of the Plaintiff, and therefore presumptively
biased and unfit to be an expert witness in this case. Since Mr. Schwerzler is primarily
reporting on what is contained in Defendants’ databases, his status as an owner of
Plaintiff Company is irrelevant. Defendants’ case citations are distinguishable. In re
Commercial Money Center, Inc., 737 F. Supp. 2d 815 (N.D. Ohio 2010) involved a
company owner who “had limited experience with loan servicing” and “no experience
relevant to the technical areas involved in the case.” Id. at 843. He was excluded for
lack of foundation, and because his testimony would not be helpful to the jury. Id.
Similarly, In re Air Crash at Detroit Airport, 737 F. Supp. 427 (E.D. MI 1989) had nothing
to do with an owner testifying as an expert. The court precluded an expert’s testimony
because the evidence was “so lacking in probative force and reliability that no
reasonable expert could base an opinion on the data.” Id. at 430.
Here, Mr. Schwerzler’s testimony is largely verifiable fact testimony about what is
contained in Defendants’ digital production, simple comparison queries against lists of

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known third party web sites and related matters. To the extent Schwerzler offers
opinions such as those ten paragraphs listed at the conclusion of his report, they are
based on the data included in the database or in comparison to other publically
available data; i.e. “That a large percentage of the current portfolio is a near miss of
high-ranking Quantcast top million domains.” With regard to his opinions, his status as
an owner goes to credibility not admissibility.
Defendants further claim that Mr. Schwerzler is unqualified to render the opinions
in his reports, although they do not challenge any of the specific information he was
able to pull from Defendants’ digital production.
Federal Rule of Evidence § 702 governing the admissibility of expert testimony
provides as follows:
“If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the testimony is
the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.”
Fed. R. Evid. § 702.
The Supreme Court enunciated guidelines in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993) as a further guide for admission of expert
testimony: (1) whether the theory or technique can be or has been tested; (2) whether it
has been subjected to peer review and publication; (3) where there is a known or
potential rate of error; (4) whether the theory or technique enjoys general acceptance in
the relevant scientific community.

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A. SCHWERZLER IS A QUALIFIED EXPERT
The proponent of the testimony is obliged to demonstrate the facets of the
witness' background that makes his knowledge “specialized,” that is, beyond the scope
of the ordinary juror. Zuzula v. ABB Power T & D Co., Inc., 267 F. Supp. 2d 703, 713
(E.D. Mich. 2003) (citing De Jager Const., Inc. v. Schleininger, 938 F.Supp. 446, 449
(W.D.Mich.1996)). The qualifications must be relevant to the opinion sought. The
seminal explanation of this principle comes from Berry v. City of Detroit:
[I]f one wanted to explain to a jury how a bumblebee is able to fly, an
aeronautical engineer might be a helpful witness. Since flight principles
have some universality, the expert could apply general principles to the
case of the bumblebee ... even if he had never seen a bumblebee.... On
the other hand, if one wanted to prove that bumblebees always take off
into the wind, a beekeeper with no scientific training at all might be an
acceptable witness if a proper foundation were laid for his conclusions.
25 F.3d 1342, 1349–50 (6th Cir. 1994).
Whether or not an expert has a degree is not dispositive in determining his
qualifications “because the expert's education must be relevant to the opinion, and
qualification may be based on knowledge, skill, experience or training as well.” Zuzula
at 713 (citing Fed. R. Evid. § 702). The Sixth Circuit has held that “Rule 702 should be
broadly interpreted on the basis of whether the use of expert testimony will assist the
trier of fact.” Morales v. American Honda Motor Co., 151 F.3d 500, 517 (6th Cir. 1998)
(quoting Davis v. Combustion Engine, Inc., 742 F.2d 916, 919 (6th Cir.1984)). “The
court's investigation of qualifications should not be onerous or inordinately exacting, but
rather must look to underlying competence, not labels.” Zuzula, 267 F. Supp. 2d at 713
(E.D. Mich. 2003) (citing Mannino v. Int'l Mfg. Co., 650 F.2d 846, 850 (6th Cir.1981)).

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Further, “[T]he expert need not have complete knowledge about the field in question,
and need not be certain. He need only be able to aid the jury in resolving a relevant
issue.” Id. As indicated in Mr. Schwerzler’s affidavit, Mr. Schwerzler’s testimony is
crucial in informing the jury about the information provided by Defendants in discovery,
which is not in a format that is decipherable by a jury.
In arguing that Mr. Schwerzler is unqualified, Defendants decline to properly
recognize the limited field of inquiry. Defendants also ignore that Mr. Schwerzler’s
degree in Computer Science, his experience in computer science while working for
Plaintiff, his ability to write queries to pull and compare data, and his demonstrated skill
in analyzing computer code qualify him as an expert in this case. Defendants rely on
Communities for Equity v. Michigan High School, Athletic Assoc., 2007 WL 5830967 at *
4 (W.D. Mich. 2007) to argue that Mr. Schwerzler is not qualified; however, in that case,
of the two out of four proposed experts the Court declined to qualify as experts on Title
IX gender inequity issues, one was a high school volleyball coach and another an
individual who was “instrumental” in convincing the Minnesota High School League to
sanction a girls ice hockey tournament. The Court noted in each instance that in
addition to the fact neither had ever testified as an expert in the issue of gender equity
and sports, neither reviewed any documents related to the case. Id. Schwerzler’s
qualifications in this case are derived from his education in computer science, his work
experience and particular knowledge of working with software code and pulling
information from databases using simple queries. These characteristics assure that Mr.
Schwerzler’s knowledge meets the standard to qualify as an expert in this case, which

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is knowledge beyond the scope of an ordinary juror in explaining computer code that
screens potentially trademarked domain names.
B.

SCHWERZLER’S METHODOLGY IS SIMPLE AND RELIABLE

The task for the district court in deciding whether an expert's opinion is reliable is
not to determine whether it is correct, but rather to determine whether it rests upon a
reliable foundation, as opposed to unsupported speculation. See Fed. R. Evid. § 702.
Although the opinions of a proffered expert may be “shaky,” if the opinions are based
upon facts in the record, and are not “assumptions” or “guesses,” challenges merely go
to the accuracy of the conclusions, not to the reliability of the testimony. See Jahn v.
Equine Services, 233 F.3d 382, 390-93 (6th Cir. 2000); see also McLean v. 988011
Ontario, Ltd., 224 F.3d 797, 801 (6th Cir. 2000) (“An expert's opinion, where based on
assumed facts, must find some support for those assumptions in the record. However,
mere ‘weaknesses in the factual basis of an expert witness' opinion ... bear on the
weight of the evidence rather than on its admissibility.’”) (quoting United States v. L.E.
Cooke Co., 991 F.2d 336, 342 (6th Cir.1993)) (“Where an expert's testimony amounts to
‘mere guess or speculation,’ the court should exclude his testimony, but where the
opinion has a reasonable factual basis, it should not be excluded. Rather, it is up to
opposing counsel to inquire into the expert's factual basis.”); see e.g. In re Scrap Metal
Antitrust Litigation, 527 F.3d 517, 529-30 (6th Cir. 2008). Interestingly, Defendant’s take
no issue with the accuracy of Mr. Schwerzler’s conclusions, i.e. list of domains
registered by Defendants pulled from their database, comparisons of Defendants
domains to Defendants’ purchased list of registered trademarks, comparisons of

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Defendants’ domains to Defendants’ public list of well known web sites with substantial
traffic, etc. You would think that Defendants would be able to point to a single instance
where Mr. Schwerzler’s data output was incorrect given their argument that he is
unqualified.
1. CONNEXUS SOFTWARE
Defendants argue that Schwerzler’s methodology is unreliable because he did
not make record of every single search, every table viewed, or every query made during
his research, but Defendants do not tell why such an over-share of all simple queries,
the dead ends and irrelevant search results is necessary to determine Schwerzler’s
basic methodology. The expert conducts research and refines his analysis and
conclusions from the relevant results. Defendants are basically demanding that
Plaintiff’s expert keep a junk folder of every piece of information he comes across during
his research, which is obviously unrealistic and of little help in assisting the Court in
determining whether Defendants committed the alleged infringements. Defendants do
not argue that Mr. Schwerzler did not keep enough notes; Defendants argue that he did
not keep a note of every single piece of information during his research. This does
nothing to establish a lack of reliability in his methods. More importantly, Defendants
have full access to their own data, the very data used by Mr. Schwerzler. If they believe
Mr. Schwerzler has incorrectly reported data, showing that could not be much more
straightforward. The proof in this case is truly in the pudding. It is most certainly
verifiable.

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Defendants argue that Schwerzler admitted conspicuous oversights in his
methodology. This is a perversion of Schwerzler’s statements. He admitted to not
including the “blacklist,” but did not ever admit that this was a conspicuous oversight.
Mr. Schwerzler analyzed the only database provided by Defendants in this case, which
includes the domains they in fact registered. If Defendants wish to talk about domains
they never registered or considered or were excluded by the blacklist, they are free to
offer into evidence the jury a list of domains they never considered for registration
because of the supposed blacklist.
Further, although he missed a single path in the code in his first draft because of
Defendants’ discovery delays, Schwerzler corrected this after having more time to
review the terabyte drive produced only after his initial report was submitted. The timely
supplement identified in discovery is no basis to preclude testimony or strike reports.
Defendants’ argument that Schwerzler failed to demonstrate Defendants’
intention to register trademarked domains is equally unpersuasive. Schwerzler did set
out to test the supposed trademark vetting software used by Defendants. Schwerzler’s
own trademark testing tool demonstrates the ability to, with relative ease, effectively
screen trademarked names and famous brands if Defendants had actually wanted to
succeed in that endeavor. Simply criticizing Schwerzler’s conclusions are no basis to
preclude him from testifying given that Schwerzler utilized facts provided in discovery
and a simple methodology to demonstrate his opinions and conclusions.

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2.

CREATING PHP SCRIPT

Schwerzler has a degree in computer science and relevant practical experience
in creating software code, including in his current employment testifying he had “created
many PHP scripts.” Daubert Motion for Defendant, Ex. E at pp. 11, 29. Defendants
attempt to delegitimize Schwerzler’s skill and experience in creating PHP script because
he had heretofore never created one for trademark matching. These scripts don’t care
what data is being analyzed, trademark data or otherwise. The fact that trademark
registration data is being analyzed is irrelevant. Schwerzler’s expertise is demonstrated
by the fact he created many PHP scripts that matched code on subjects and data other
than trademarks, which is beyond an ordinary juror’s understanding of source code
function and application and is essential to a juror’s understanding of why Defendants
could have easily produced their own effective version of screening software if they had
wanted to take that route. Ironically, Defendants business supposedly is to exclude
trademarks from their domain registrations. Mr. Schwerzler, who they say is
unqualified, was able to write a trademark matching system which performs much better
than their own. What does that say about how hard Defendants tried to exclude
trademarks?
III.

THE DAUBERT FACTORS FAVOR ADMISSION OF SCHWERZLER’S
REPORTS AND TESTIMONY
Rejection of expert testimony is the exception rather than the rule, and generally,

testimony will be admissible even if based on allegedly erroneous facts when there is
some support for those facts in the record. In re Scrap Metal Antitrust Litigation, 527

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F.3d at 517. Nothing in the text of Rule 702 establishes “general acceptance” as an
absolute prerequisite to admissibility; a rigid “general acceptance” requirement would be
at odds with the “liberal thrust” of the Federal Rules and their “general approach of
relaxing the traditional barriers to ‘opinion’ testimony.” Daubert, 509 U.S. at 588. If the
opinions are based upon facts in the record, and are not “assumptions” or “guesses,”
challenges from opposing party merely go to the accuracy of the conclusions, not to the
reliability of the testimony. Jahn, 233 F.3d at 390-93. The Sixth Circuit has also allowed
experts to testify under circumstances where the expert created his research and report
specifically for the litigation. See Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768,
791 (6th Cir. 2002) (where court allowed expert’s testimony despite the fact that expert
created his methodology specifically for the case at hand.) Further, “[v]igorous
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 794.
Defendants’ purported application of the Daubert factors is rigid and inaccurate.
A true application of the factors favor the admission of Schwerzler’s report and
testimony:
A.

(1) “whether the theory or technique can be or has been tested”

Schwerzler’s testing of the Connexus software can be replicated by any software
coder capable of writing straight forward scripts. He is pulling data and identifying
software code within Defendants’ system so the jury can see what is there. If
Defendants want to argue that the data does not exist, or is inaccurate, they are free to

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do so. Mr. Schwerzler has identified each issue he looked at and set forth every piece
of code relevant to the issues he reviewed and identified where it is found within the
produced code, along with his analysis of that specific code and his conclusions related
thereto. Examples of such methodology run throughout his report; in fact, his report
sets forth the code he is reviewing. Only the aspects that form a basis for his opinions
and conclusion need to be tested, not every uneventful search and query. Further, the
fact that no one has tested Schwerzler’s PHP script or its ability to screen for
trademarks has no legal significance because the script and its capabilities are still free
to be tested by Defendants’ experts and they do not claim otherwise. See Daubert, 509
U.S. at 593 (“can be OR has been tested”).
B.

(2) “whether it has been subjected to peer review and

publication”
Schwerzler’s methodology has not been subject to peer review or publication
and is very narrow in scope; however this does not discredit his work because
“publication does not necessarily correlate with reliability, and, in some instances, wellgrounded but innovative theories will not have been published.” Daubert, 509 U.S. at
593. What is being done here in many instances is simple, but important since the jury
has no way to pull or see data contained within Defendants’ production.
C.

(3) “whether there is a known or potential rate of error”

There can be no error rate in much of what Mr. Schwerzler is doing, which in
many instances reports only on what is contained in Defendants’ production by way of
software code and databases. Much like an expert who might report on what text

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appears in a digital book jurors can’t read, Mr. Schwerzler reports on whether the code
or data is there or not. With regard to certain conclusions - such as Defendants’ are
trying very hard to exclude trademarks – Defendants exaggerate the potential for errors
committed in the research. Schwerzler’s inference that the most popular domain names
will be trademarked is reasonable and logical, although not critical to his opinions. This
can easily be determined by referring the trademark database that will be part of the
evidence in this case. The court can further take judicial notice of marks that are
contained in the trademark database.
D.

(4) “whether the theory or technique enjoys general

acceptance in the relevant scientific community”
Defendants overemphasize the need for general acceptance in the community,
especially in the case here where Schwerzler has simply reported on what is contained
in Defendants’ production in terms of lines of code and data, as well as explained
search code. A rigid “general acceptance” requirement would be at odds with the
“liberal thrust” of the Federal Rules of Evidence and their “general approach of relaxing
the traditional barriers to ‘opinion’ testimony.” Daubert, 509 U.S. at 588. Again,
Defendants fail to identify a single error made by Mr. Schwerzler in his reports. They
fail to identify a single domain identified by Schwerzler that does not belong to
Defendants or a single domain name which does not match a registered trademark.
Finally, Defendants’ suggestion that somehow Plaintiff failed to comply with the
rules by preparing a “draft report” is incorrect, given their delays and discovery order
violations in the case. In fact, Defendants failed to turn over the primary piece of

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evidence in this case until the Depositions of Donnie Misino, when the terabyte drive
was inexplicably tendered over two months after the Magistrate order required and two
weeks after Mr. Schwerzler turned in his expert report. (See Exhibit B; 30(b)(6)
Deposition of Donnie Misino; pp. 13-15, 131-133.) The fact that Plaintiff worked with
Defendants in order to complete discovery without further court involvement only to now
have Defendants come back and complain at delays caused exclusively by their own
failures is troubling indeed. Defendants did not object at the time to the supplemental
report and subsequent depositions, given their own discovery delays. They can not do
so now.
CONCLUSION
Mr. Schwerzler’s expert opinions found on the last two pages of his report are not
necessary to find in favor of Plaintiff on its Motion for Partial Summary Judgment on its
ACPA Claims. Plaintiff has not relied on those opinions in bringing its Summary
Judgment motion. A Daubert hearing can be held prior to his trial testimony with regard
to specific objections to listed opinions.
To the extent Mr. Schwerzler pulled or compared data from Defendants’ terabyte
drive production, the testimony is factual, not opinion. In fact, such data and comparison
remain unchallenged by Defendants in this Motion.
/
/
/
/

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Respectfully submitted this 30th day of August, 2011.
/s/Enrico Schaefer___________________
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
Lead Counsel for Plaintiff
Anthony P. Patti (P43729)
HOOPER HATHAWAY, PC
126 South Main Street
Ann Arbor, MI 48104
734-662-4426
[e-mail]
Attorneys for Plaintiff

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CERTIFICATE OF SERVICE
I hereby certify that on the 30 th day of August, 2011, I electronically filed
the foregoing paper with the Court usi ng the ECF system which will send
notification of such filing to the following:
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff
Anthony P. Patti (P43729)
HOOPER HATHAWAY, PC
126 South Main Street
Ann Arbor, MI 48104
734-662-4426
[e-mail]
Attorneys for Plaintiff

William A. Delgado (admitted pro hac)
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants
Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
Bruce L. Sendek (P28095)
BUTZEL LONG, PC
150 West Jefferson, Suite 100
Detroit, MI 48226
[phone]
[e-mail]
[e-mail]
[e-mail]
Local Counsel for Defendants
/s/Enrico Schaefer___________________
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
Lead Counsel for Plaintiff

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