The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge
Magistrate Judge Maria Valdez
MEMORANDUM OPINION AND ORDER
In this case, Plaintiff Mintel International Group alleges that, prior to leaving his employment with Mintel, Defendant Meesham Neergheen e-mailed Mintel documents to his personal e-mail account. Plaintiff had been monitoring Defendant's e-mail activity since he gave notice of his intended departure date, and thus Plaintiff was aware of Defendant's actions and demanded that Defendant not use the documents. After Plaintiff learned that Defendant had accepted employment at third-party Datamonitor, Plaintiff filed this action alleging violations of the Illinois Trade Secrets Act, Computer Fraud Abuse Act, and violations of various terms of Defendant's employment contract with Mintel.
After a contentious period of discovery undertaken under the supervision of Magistrate Judge Valdez, a bench trial commenced on January 26 and continued on January 27, 2009. In the first phase of the bench trial, the parties presented several fact witnesses. The second phase of the bench trial, during which the parties will present the testimony of their Rule 702 opinion (or "expert") witnesses, will begin on April 30, 2009. Before the Court are several motions and objections to orders entered by Magistrate Judge Valdez: Defendant's motion in limine to exclude testimony of Scott Jones [194-2]; Defendant's motion in limine ; Plaintiff's motion for leave to amend complaint ; Plaintiff's objections to Magistrate Judge Valdez's January 22, 2009 order ; and Plaintiff's objections to Magistrate Judge Valdez's December 23, 2008 and February 3, 2009 orders [177, 218]. The Court addresses each motion in turn below.
I. Motion in limine to exclude testimony of Scott Jones [194-2]
Defendant has filed a motion in limine*fn1 seeking to exclude certain testimony of Scott Jones [194-2], a proposed Rule 702 opinion (or "expert") witness retained by Plaintiff in this matter. Defendant seeks to exclude Jones' proposed testimony on several grounds, including that his testimony fails to meet the standards set forth in Rule 702 and the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and that it was not properly disclosed under Federal Rule of Civil Procedure 26(a)(2).
As an initial matter, Plaintiff takes the view that motions in limine "make little sense" in bench trials. While that position may be too categorical, the Court recognizes the Seventh Circuit's teaching about the critical distinction between a jury trial and a bench trial with respect to the Rule 702 inquiry:
Where the gatekeeper and the factfinder are one and the same -- that is, the judge -- the need to make such decisions prior to hearing the testimony is lessened. See United States v. Brown, 415 F.3d 1257, 1268-69 (11th Cir. 2005). That is not to say that the scientific reliability requirement is lessened in such situations; the point is only that the court can hear the evidence and make its reliability determination during, rather than in advance of, trial. Thus, where the factfinder and the gatekeeper are the same, the court does not err in admitting the evidence subject to the ability later to exclude it or disregard it if it turns out not to meet the standard of reliability established by Rule 702.
In re Salem, 465 F.3d 767, 777 (7th Cir. 2006); see also United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005) ("There is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself"). Under this sensible approach, the judge in a bench trial may choose to allow the presentation of borderline testimony, subject the testimony to the rigors of cross-examination, and decide later whether the testimony is entitled to some consideration or whether it should be excluded as irrelevant, unreliable, or both.
Both sides in this contentious litigation have retained and propose to offer trial testimony from witnesses who appear to be qualified as experts in computer forensics and electronic discovery.*fn2 But qualifications are only part of the pertinent inquiry under Rule 702. Indeed, Defendant's motion does not directly challenge Jones' qualifications and even acknowledges that Jones "may have sufficient experience in the field of forensic analysis to qualify him as an expert." Nevertheless, Defendant seeks exclusion of Jones' proposed testimony on several other grounds, including those set forth above.
A. Testimony on Legal Conclusions
To begin with, Defendant moves to exclude any testimony from Jones on matters of law -- for example, whether Defendant misappropriated any trade secrets. Defendant's argument in that respect is well supported in the case law. See, e.g., Sommerfield v. City of Chicago, 254 F.R.D. 317, 330 (N.D. Ill. 2008) ("expert testimony that contains a legal conclusion that determines the outcome of a case is inadmissible"); Apotex Corp. v. Merck & Co., Inc., 2006 WL 1155954, at *8 (N.D. Ill. Apr. 25, 2006) (excluding expert testimony that consisted of "plainly inadmissible legal conclusions" that "would be completely unhelpful to the fact finder"); Clintec Nutrition Co. v. Baxa Corp., 1998 WL 560284, at *9 (N.D. Ill. Aug. 26, 1998) ("Legal conclusions are not admissible because they are not helpful to the trier of fact"). The critical issue for the parties, the Court, and the witnesses themselves to bear in mind is what the Seventh Circuit has described as the "difference between stating a legal conclusion and providing concrete information against which to measure abstract legal concepts." United States v. Blount, 502 F.3d 674, 680 (7th Cir. 2007). In this case, that means that the Rule 702 opinion witnesses may attempt to explain the forensic record -- for example, what happened to documents that are or were stored on the computer and USB drives at issue in this case -- but may not offer opinions on whether any conduct by Defendant in fact constituted spoliation or misappropriation, because testimony of that nature purports to offer a legal conclusion that is reserved for the trier of fact. Accordingly, Defendant's motion in limine is granted in part, and Jones (and Defendant's expert, Andrew Reisman) will be precluded from offering testimony that contains legal conclusions.
B. Testimony Based on Experience
Defendant also contends that Jones' testimony is flawed because it rests on mere experience and speculation. But that argument conflates two concepts that do not necessarily go together. On its face, "Rule 702 specifically contemplates the admission of testimony by experts whose knowledge is based on experience." Trustees of the Chicago Painters & Decorators Pension, Health & Welfare, and Deferred Savings Plan Trust Funds v. Royal Int'l Drywall & Decorating, Inc., 493 F.3d 782, 787 (7th Cir. 2007); see also Fed. R. Evid. 702 ("a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify * * *") (emphasis added). Thus, on a straightforward reading of the Rule itself, "[t]estimony based solely on a person's special training or experience is properly classified as expert testimony" (Compania Administratora de Recuperacion v. Titan Int'l, Inc., 533 F.3d 555, 561 (7th Cir. 2008)), and "no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156 (1999). To be sure, the opinions offered by Rule 702 witnesses must "have 'analytically sound bases' so that they are more than mere 'speculation' by the expert." Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000); see also Trustees of the Chicago Painters & Decorators, 493 F.3d at 788 (finding testimony reliable where "it is based on specialized knowledge as opposed to subjective beliefs or speculation"). Subject to that and the other limitations and caveats set forth elsewhere in this opinion, the Court will permit both experts to testify on the basis of their experience, bearing in mind of course that the opinion of a Rule 702 expert "has a significance proportioned to the sources that sustain it." Huey v. United Parcel Service, 165 F.3d 1084, 1087 (7th Cir. 1999). In other words, testimony that has only weak support will be discounted, and testimony that is completely unsupported will be excluded or disregarded altogether. See In re Salem, 465 F.3d at 777.
C. Whether the Testimony is the Product of a Tested Theory
Defendant also points out Jones' acknowledgment that because his testimony is based on professional experience, it does not rest on a testable theory. That line of argument echoes the observations of several courts that testing often is an important method of demonstrating the reliability of a hypothesis. See, e.g., Daubert, 509 U.S. at 593 ("Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested"). At the same time, however, some propositions do not lend themselves to measurement through experimentation or testing; in those instances, a person with experience in the field may be more apt to opine that "I know it when I see it." That type of testimony alone is not satisfactory, for a court may not simply take an expert's word for a proposition. General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997) ("nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert"). Yet, at the same time, the Supreme Court has stressed that neither testing, nor any other factor, is a sine qua non of Rule 702 opinion testimony:
"a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony's reliability. But, as the Court stated in Daubert, the test of reliability is 'flexible,' and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination."
Kumho Tire, 526 U.S. at 141; see also Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000); Sommerfield v. City of Chicago, 254 F. ...