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Arista Records LLC; Atlantic Recording Corporation; Arista Music, Fka v. Lime Group LLC; Lime Wire LLC; Mark Gorton; Greg Bildson; and M.J.G.

May 2, 2011

ARISTA RECORDS LLC; ATLANTIC RECORDING CORPORATION; ARISTA MUSIC, FKA BMG MUSIC; CAPITOL RECORDS, INC; ELEKTRA ENTERTAINMENT GROUP INC; INTERSCOPE RECORDS; LAFACE RECORDS LLC; MOTOWN RECORD COMPANY, L.P.; PRIORITY RECORDS LLC; SONY MUSIC ENTERTAINMENT, FKA SONY BMG MUSIC ENTERTAINMENT; UMG RECORDINGS, INC; VIRGIN RECORDS AMERICA, INC.; AND WARNER BROS. RECORDS INC.,
PLAINTIFFS,
v.
LIME GROUP LLC; LIME WIRE LLC; MARK GORTON; GREG BILDSON; AND M.J.G. LIME WIRE FAMILY LIMITED PARTNERSHIP, DEFENDANTS.



The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.:

OPINION AND ORDER

I. Introduction

On May 11, 2010, this Court granted summary judgment in favor of Plaintiffs on their claims against Defendants LimeWire LLC ("LW"), Lime Group LLC ("Lime Group"), and Mark Gorton (collectively, "Defendants") for secondary copyright infringement. The Court found that Defendants had induced multiple users of the LimeWire online file-sharing program ("LimeWire") to infringe Plaintiffs' copyrights. In the Court's Opinion and Order (as amended on May 25, 2010), the Court detailed this case's procedural and factual background, familiarity with which is assumed. (See Dkt. Entry No. 223; Arista Records LLC v. Lime Group LLC, 715 F Supp. 2d 481, 507 (S.D.N.Y. 2010).) The litigation is now in the damage phase, with a trial on damages scheduled for May 2, 2011.

Defendants have designated three witnesses to offer expert testimony on different aspects of the damage proceedings: Professor Emin Gn Sirer, George Strong, and Professor Aram Sinnreich. Plaintiffs have moved to preclude certain portions of the testimony of each of these witnesses under Rule 702 of the Federal Rules of Evidence. (Dkt. Entry No. 572.) As set forth in more detail below, Plaintiffs' motions are GRANTED in part, and DENIED in part.

II. Applicable Law

The Supreme Court has assigned to district courts a "gatekeeping" role with respect to expert opinion testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993) (holding that it is the district court's responsibility to ensure that "any and all scientific testimony or evidence admitted is not only relevant, but reliable"). This "gatekeeping" function applies whether the expert testimony is based on scientific, or on technical or "other specialized" knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). "It is well-established that the trial judge has broad discretion in the matter of the admission or exclusion of expert evidence." Boucher v. United Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) (citation omitted).

The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which provides:

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. A court's inquiry thus focuses on three issues: (1) whether the witness is qualified to be an expert; (2) whether the opinion is based upon reliable data and methodology; and (3) whether the expert's testimony on a particular issue will assist the trier of fact. Nimely v. City of New York, 414 F.3d 381, 396-97 (2d Cir. 2005). The party seeking to rely on expert testimony bears the burden of establishing, by a preponderance of the evidence, that all requirements have been met. See Daubert, 509 U.S. at 593 n.10; United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007). (a) Qualification of an Expert Whether a purported expert witness is qualified as such by his or her "knowledge, skill, experience, training or education," Fed. R. Evid. 702, is a "threshold question" to be resolved prior to the other inquiries. Nimely, 414 F.3d at 396 n.11. See Haimdas v. Haimdas, 09 Civ. 2034, 2010 WL 652823, at *2 (E.D.N.Y. Feb. 22, 2010) (stating that "where an expert witness is insufficiently qualified, an analysis of the remaining factors 'seems almost superfluous'" (quoting Zaremba v. Gen. Motors Corp., 360 F.3d 355, 360 (2d Cir. 2004)). The Second Circuit has explained that this question is particularly important "because an 'expert' witness is permitted substantially more leeway than 'lay' witnesses in testifying as to opinions that are not 'rationally based on [his or her] perception.'" Nimely, 414 F.3d at 396 n.11 (quoting United States v. Garcia, 291 F.3d 127, 139 & n. 8 (2d Cir.2002)).

In order to determine whether a witness is qualified to render an expert opinion, a court "must first ascertain whether the proffered expert has the educational background or training in a relevant field," Cary Oil Co., Inc. v. MG Refining & Marketing, Inc., No. 99 Civ. 1725, 2003 WL 1878246, at *2 (S.D.N.Y. Apr. 11, 2003) (citation omitted), by looking at the "totality of [the] witness's background." Arista Records LLC v. Usenet.com, Inc., 608 F. Supp. 2d 409, 422 (S.D.N.Y. 2009) (citation omitted). A witness may be qualified based on any one or more of the qualities listed in Rule 702 -- knowledge, skill, experience, training or education. Tiffany (NJ) Inc. v. eBay, Inc., 576 F. Supp. 2d 457, 458 (S.D.N.Y. 2007) (citing 4 Jack B. Weinstein, Weinstein's Federal Evidence § 702.04[1][c] (2d ed. 2006)).

The court must then "compare the area in which the witness has superior knowledge, education, experience, or skill with the subject matter of the proffered testimony." United States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004). The court must ensure that the expert will actually be testifying "on issues or subject matter[s] within his or her area of expertise." Haimdas, 2010 WL 652823, at *2 (citing Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 80 (2d Cir. 1997)). "[A]n expert who is qualified in one field cannot offer an opinion about aspects of the case in another field for which she is not qualified." In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation, MDL No. 1358, M21-88, 2008 WL 1971538, at *6

n.48 (S.D.N.Y. May 7, 2008). See also Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 642 (S.D.N.Y. 2007) ("An expert qualified in one subject matter does not thereby become an expert for all purposes. Testimony on subject matters unrelated to the witness's area of expertise is prohibited by Rule 702.").

"Courts within the Second Circuit 'have liberally construed expert qualification requirements' when determining if a witness can be considered an expert." Cary Oil, 2003 WL 1878246, at *1 (quoting TC Sys. Inc. v. Town of Colonie, New York, 213 F.Supp.2d 171, 174 (N.D.N.Y. 2002)). See also United States v. Brown, 776 F.2d 397, 400 (2d Cir. 1985) (qualification requirements of Rule 702 "must be read in light of the liberalizing purpose of the rule"); In re Zyprexa Prods. Liab. Litig., 489 F. Supp. 2d 230, 282 (E.D.N.Y. 2007) ("In keeping with the 'liberal thrust' of the Federal Rules and their 'general approach of relaxing the traditional barriers to 'opinion' testimony,' the standard for qualifying expert witnesses is liberal." (quoting Daubert, 509 U.S. at 588-89) (internal citation omitted)); In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531, 559 (S.D.N.Y. 2004) ("The Second Circuit has taken a liberal view of the qualification requirements of Rule 702, at least to the extent that a lack of formal training does not necessarily disqualify an expert from testifying if he or she has equivalent relevant practical experience.").

In light of the "liberal thrust" of the Rules, Daubert, 509 U.S. at 588, courts in this circuit have noted that an expert "should not be required to satisfy an overly narrow test of his own qualifications." Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp., No. 04 Civ. 7369, 2006 WL 2128785, at *6 (S.D.N.Y. July 28, 2006) (citation and quotation marks omitted). "If the expert has educational and experiential qualifications in a general field closely related to the subject matter in question, the court will not exclude the testimony solely on the ground that the witness lacks expertise in the specialized areas that are directly pertinent." In re Zyprexa, 489 F. Supp. 2d at 282 (citing Stagl, 117 F.3d at 80). See also Johnson and Johnson, 2006 WL 2128785, at *5 ("In considering a witness's practical experience and educational background as criteria for qualification, the only matter the court should be concerned with is whether the expert's knowledge of the subject is such that his opinion will likely assist the trier of fact in arriving at the truth." (citation omitted)); Sullivan v. Ford Motor Co., No. 97 Civ. 593, 2000 WL 343777, at *4 (S.D.N.Y. Mar. 31, 2000) ("One knowledgeable about a particular subject need not be precisely informed about all details of the issues raised in order to offer an opinion." (quoting Thomas J. Kline, Inc. v. Lorillard, Inc., 8178 F.2d 791, 799 (4th Cir. 1989))). "Quibble[s] with an expert's academic training" go to the "testimony's weight . . . not its admissibility," and are an appropriate subject for cross-examination. United States v. Joseph, 542 F.3d 13, 21-22 (2d Cir. 2008) (quoting McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1043 (2d Cir. 1995)).

(b) Reliability of Expert Testimony

Once a court has determined that a witness is qualified as an expert, it must ensure that the witness is proposing to testify to knowledge that both "rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 597. "As the Second Circuit has noted, district courts should presume expert evidence is reliable." UMG Recordings, Inc. v. Lindor, 531 F. Supp. 2d 453, 456 (E.D.N.Y. 2007) (citing Borawick v. Shay, 68 F.3d 597, 610 (2d Cir.1995)). In assessing the reliability of an expert's proposed testimony, the Court's focus "must be solely on principles and methodology, not on the conclusions they generate." Daubert, 509 U.S. at 595; Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 266 (2d Cir. 2002).*fn1 Courts have held that claims "that the assumptions relied on by an expert are unfounded is generally an argument that goes to the weight rather than the admissibility of the evidence." MacQuesten General Contracting, Inc. v. HCE, Inc., 99 Civ. 8598, 2002 WL 31388716, at *2 (S.D.N.Y. Oct. 22, 2002) (citing Boucher, 73 F.3d at 21). See also Johnson & Johnson, 2006 WL 2128785, at *7 ("As long as the expert uses reliable methods to reach his conclusion, 'lack of textual support should go to the weight of the evidence, not its admissibility.'" (quoting Amorgianos, 303 F.3d at 267)). As the Supreme Court stated, "[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." Daubert, 509 U.S. at 596.

At the same time, under the court's "gatekeeping" function, the court must "make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho, 526 U.S. at 152. "Subjective methodology, as well as testimony that is insufficiently connected to the facts of the case" can serve as "grounds for rejection of expert testimony." In re Zyprexa, 489 F. Supp. 2d at 284. The Supreme Court has stressed that "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. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). See also Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008) (holding that expert testimony should be excluded when it is "speculative or conjectural" (quoting Boucher, 73 F.3d at 21)). Thus, "when an expert opinion is based on data, a methodology, or studies that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony." Amorgianos, 303 F.3d at 266.

(c) Helpfulness / Relevance of Testimony

Finally, the Court must determine that the expert testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. This inquiry essentially looks to whether the testimony is relevant. See In re Zyprexa, 489 F. Supp. 2d at 283.

Under the Federal Rules of Evidence, evidence is relevant if it has a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401; see also Daubert, 509 U.S. at 591-92 ("Rule 702's 'helpfulness' standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility"). A court should not admit expert testimony that is "directed solely to lay matters which a jury is capable of understanding and deciding without the expert's help." United States v. Mulder, 273 F.3d 91, 104 (2d Cir. 2001) (quoting United States v. Castillo, 924 F.2d 1227, 1232 (2d Cir. 1991)).

Expert testimony must also adhere to the other Federal Rules of Evidence, including Rule 403, which provides that relevant evidence may still be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403. The Rule 403 inquiry is particularly important in the context of expert testimony, "given the unique weight such evidence may have in a jury's deliberations." Nimely, 414 F.3d at 397. See Daubert, 509 U.S. at 595 ("'Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses.'" (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence Is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991))).

III. Analysis

A. Emin Gun Sirer

Defendants offer Professor Emin Gun Sirer as an expert in technology and computer science. Professor Sirer is an Associate Professor of Computer Science at Cornell University. He holds a Ph.D in Computer Science and Engineering from the University of Washington, and a Bachelor of Science in Engineering from the Computer Science Department of Princeton University. A review of Professor Sirer's curriculum vitae shows that he has published papers and lectured widely on a broad range of topics relating to computer systems, and peer-to-peer systems in particular. (See Klaus Dec. in Support of Pl's. Mot. to Preclude Certain Purported Expert Testimony by Emin Gun Sirer (hereinafter "Klaus Dec. (Sirer)"), Ex. 4, Expert Report of Emin Gun Sirer (hereinafter "Sirer Report"), Ex. A.)

Plaintiffs do not dispute Professor Sirer's technological expertise. (See Pl. Mem. of Law in Support of Mot. to Preclude Certain Expert Testimony by George Strong (hereinafter "Pl. Mem. (Strong)") at 8 (describing Professor Sirer as a "technical expert").) Instead, Plaintiffs challenge the admissibility of Professor Sirer's opinions regarding the statistical conclusions of Plaintiffs' purported statistics expert, Dr. Richard Waterman, concerning the total number of infringements on LimeWire of Plaintiffs' works at issue. Specifically, Plaintiffs argue that Professor Sirer has insufficient expertise in statistics and statistical methodologies to offer an opinion admissible under Rule 702, and that, in any event, his opinions are insufficiently reliable. For the following reasons, the Court GRANTS in part and DENIES in part Plaintiffs' motion.

Plaintiffs point out that, unlike Dr. Waterman, Professor Sirer does not have a degree in statistics, does not teach statistics, has never published articles on statistics, and, in fact, has never taken a class in a statistics department or one where statistics was the primary focus of the class. Although Professor Sirer claimed to use statistical methods in his computer science work, at his deposition, he was unable to provide specifics about the particular statistical methodologies he has used. He was also unwilling (if not unable) to answer basic questions about statistical principles at his deposition. (See Klaus Dec. (Sirer), Ex. 5, Deposition Transcript of Emin Gun Sirer (hereinafter "Sirer Dep.") at 224:13-226:16.) Plaintiffs also argue that, to whatever extent Professor Sirer has experience working with statistics, he has never performed statistical analyses or surveys of human populations.

The Court agrees that Professor Sirer is not qualified to offer an expert opinion about statistics or surveying issues. See Zaremba, 360 F.3d at 359-60 (affirming exclusion of purported expert who had only a bachelor's degree in engineering, finding that purported expert had "meager qualifications to offer . . . opinions as to automobile design"); Haimdas, 2010 WL 6852823, at *2-3 (excluding testimony of family therapist offered to rebut testimony of psychologist regarding psychological analysis of children because psychology and family therapy are different disciplines). Professor Sirer has no doubt employed statistics to some degree in his studies and work, "as most people do to one extent or another." Malletier, 525 F.Supp.2d at 642 (precluding testimony on probabilities by expert in colorimetry because his expertise in colorimetry "[did] not establish his expertise as a statistician"). However, Defendants have not demonstrated that Professor Sirer possesses sufficient "knowledge, skill, experience, training, or education" to provide testimony on statistical issues that will "assist the trier of fact." Fed. R. Evid. 702. Cf. Malletier, 525 F. Supp. 2d at 642 (noting that the plaintiff "certainly had the opportunity to retain an expert to interpret the statistical probabilities [at issue] but it did not do so")

Defendants argue that Professor Sirer's criticisms of Dr. Waterman's study do not depend upon sophisticated knowledge of statistics. This is contradicted by the substance of his criticisms, which focus on technical matters of statistical analysis and surveying techniques. In any event, to the extent that Professor Sirer's opinions do not depend upon any statistics or surveying expertise, they are not appropriate matters for expert testimony. See Mulder, 273 F.3d at 102 (precluding testimony "directed solely to lay matters which a jury is capable of understanding and deciding without the expert's help"); see also In re Zyprexa, 489 F. Supp. 2d at 283 ("Expert testimony should not merely reiterate ...


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