• 15-Second Advertising Law Alert: New Expert Protections Applied to Consumer Survey Device
  • April 7, 2011 | Author: Richard J. Leighton
  • Law Firm: Keller and Heckman LLP - Washington Office
  • Decisions on discovery motions are starting to fill gaps in our understanding of the new Federal Rule of Civil Procedure protections for testifying and non-testifying experts. A decision issued today may affect practices relating to consumer perception surveys, a mainstay in Lanham Act cases.*

    BACKGROUND

    The parties are competitors in the marketing of hot dogs. They have sued one another, each alleging that the other's advertising for its products is false or misleading.

    Defendant's expert did a survey on one of two challenged Plaintiff's free-standing inserts. At his deposition, it became clear that, prior to that survey, he also did something relating to the other FSI. But he was instructed not to answer any questions related to that.

    The basis for the instruction, previously unknown to the Plaintiff, was that the expert was a confidential consultant with respect to the second FSI, and as such protected from certain types of discovery. It subsequently became clear that a pilot survey had been done on that second FSI, and Defendant's lawyers ordered that the survey project not proceed.

    Plaintiff moved to compel further discovery from this "two-hat" witness as to whether his, as of yet unknown, prior involvement with the second FSI affected his opinion as to the FSI on which he conducted a survey. Communications between the expert and Defendant's lawyers were submitted to the Magistrate Judge for in camera review.

    DECISION

    The motion was denied. The Magistrate Judge found that the submitted documents showed that the expert advised Defendant's lawyers how they might conduct pilot surveys on the second FSI. But, defense counsel had the undisclosed survey work done independently and did not share the results with the expert witness.

    The judge found that the expert's advice was not "facts or data" that might have been discoverable had they been considered in forming the expert's reported opinions.

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    * Sara Lee Corp. v. Kraft Foods Inc., et al. Inc., No. 09C3039 (N.D. IL, April 1, 20111).