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United States Gypsum Co. v. Lafarge North America Inc.

October 27, 2009

UNITED STATES GYPSUM COMPANY, PLAINTIFF
v.
LAFARGE NORTH AMERICA INC., LAFARGE S.A., DAVID DOWNS, JOHN D. YOCKEY, ED GREEN, WILLIAM HARTFORD, WALTER WELDON, KURT F. KURZSHAK, AND SIDNEY SPEAR, DEFENDANTS.



The opinion of the court was delivered by: Rebecca R. Pallmeyer United States District Judge

Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

In this lawsuit, pending since 2003, Plaintiff United States Gypsum Company ("USG") claims that Defendants Lafarge North America, Inc. ("Lafarge"), Lafarge's parent company, and several Lafarge employees, have infringed USG's patents and stolen confidential information relating to wallboard manufacture. Before the court are motions to bar the testimony of the parties' expert witnesses pursuant to Federal Rule of Evidence 702 and the Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

DISCUSSION

Defendants have moved in limine (No. 13) [562] to exclude the testimony of Plaintiff's proffered computer forensics expert Carl Florez. The court simultaneously considers Plaintiff's motion in limine (No. 4) [575] to preclude the testimony of Defendants' proffered computer forensics expert Andrew Reisman. Florez is expected to testify to his opinions on the adequacy of data protections measures at USG and the manner and extent to which USG documents were obtained by Lafarge. Reisman is expected to testify to his opinions on the adequacy and shortcomings of Florez's computer forensics investigation and report. For the reasons explained below, both motions are granted in part and denied in part. The factual background has been presented earlier, see United States Gypsum Co. v. Lafarge North America, Inc., 508 F. Supp. 2d 601 (N.D. Ill. 2007), and the standards governing the pending motions were presented in a companion ruling of today's date. Those facts, and the legal standards, will not be repeated here, but the court assumes familiarity with those previous orders.

I. Expert Qualifications

Under Rule 702, a witness can be qualified as an expert by "knowledge, skill, experience, training, or education . . . ." FED. R. EVID. 702. "Accordingly, [courts] consider a proposed expert's full range of practical experience as well as academic or technical training when determining whether that expert is qualified to render an opinion in a given area." Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).

A. Carl Florez's Qualifications

Carl Florez's technical expertise, as a general matter, is not in dispute. Defendant concedes that "Carl Florez knows his way around computers . . . . He can surely testify about technical matters that are beyond the ordinary experience of most jurors . . . ." (Def. [562] Mot. at 2.) Florez has been the Director of Impact Forensics, a computer forensics examiner with its own forensics laboratory, since 2006. (Florez 06/18/07 Expert Report at 1-2.) Previously, he was Director of Electronic Discovery at that company. (Id.) He has also been the president of Computer Evidence Specialists, another company, since 2002. (Id.) In his current position, he provides consulting services in computer forensics, electronic discovery, data recovery, expert witness testimony and litigation support for law firms and corporate clients. (Id.)

Prior to entering private practice in 2002, Florez spent twenty years with the Federal Bureau of Investigation, retiring as the Assistant Special Agent in Charge of the FBI's Seattle office. (Id. at 2.) While there, Florez oversaw several FBI laboratories dedicated to the investigation and examination of electronic media and illegal internet activity. (Id.) He had executive responsibility for the creation and management of the National Drug Intelligence Center. (Id.) He is an FBI- certified computer forensics examiner and a field instructor on computer forensics. (Id.) He has previously taught courses on computer forensics, personally conducted more than 100 computer forensic investigations, testified as a computer forensic expert in both state and federal courts, and worked on trade secret matters for Fortune 500 companies like Motorola and McDonalds. (Id.) He holds a graduate degree in criminal justice from Michigan State University. (Id. at 3.) Florez's knowledge, experience, and training provide ample support for the court's determination that he is a qualified expert in the areas of computer forensics and investigation.

B. Andrew Reisman's Qualifications

Defendant's expert, Andrew Reisman, is also a qualified expert in the field of computer forensics. Reisman is the President and Lead Forensic Examiner of Elijah Technologies, a company he founded in 2003, which specializes in computer forensic investigations, electronic discovery, and litigation support. (Reisman 08/24/07 Expert Report at 2.) In that position, he has had primary responsibility for more than 100 forensic engagements. (Id.) Prior to 2003, Reisman was a practicing attorney specializing in litigation and technology law at the firm of Foley & Lardner LLP in Chicago. (Id.) He is a certified fraud examiner and a certified EnCase computer forensics examiner.*fn1 (Id.) He has undergone formal training in computer forensics techniques and software. (Id.) He has been on the Board of Directors of the International Information Systems Forensics Association. (Id.) He has delivered lectures and published articles on topics in computer forensics and electronic discovery, including a primer on computer forensics for the Illinois Institute for Continuing Legal Education. (Id. at 2-3.) Reisman is a licensed private investigator in Michigan and Texas and a member of the Illinois bar. (Id. at 2.) He has previously testified as a computer forensics expert in state and federal court. (Id. at 3.) The court concludes that Reisman is a competent expert in computer forensics.

II. The Daubert Standard:Reliability and Assisting the Jury

The admissibility of expert testimony depends on more than just whether the potential witness qualifies as an expert. The court must also determine that the proffered expert opinions are more than mere speculation or conjecture, but have at their core some reliable basis.*fn2 In addition to reliability, the court must decide whether expert testimony is relevant by determining "whether evidence or testimony assists the trier of fact in understanding the evidence or in determining a fact in issue." Cummins v. Lyle Indus., 93 F.3d 362, 368 (7th Cir. 1996) (internal citations and quotations omitted); see also ...


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