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Lawyer Sleuthing Uncovers Copying in Expert Reports

Daily Journal

Los Angeles litigator Mark C. Scarsi was getting ready to take a deposition in a patent infringement case when he noticed something odd in an expert witness' report. Supplemental information had been filed, and it didn't look the same as the original report - it had a heightened degree of specificity and the sentences were written in a different style.

Scarsi, a partner at Milbank, Tweed, Hadley & McCloy LLP who was defending Apple Inc. in a patent infringement case, typed an eight-word sentence directly into Google's search engine and up popped an article from Wikipedia, the crowdsourced online encyclopedia often questioned for its reliability. He also found sentences matching a website called "How Stuff Works." The attorney printed out portions of the websites, and after Scarsi had the witness verify he had written his report during his deposition, he showed him the entries.

"I exposed the copying," Scarsi said. "That was powerful during the trial, as well, because I was able to say, 'You told me you wrote your expert report, and that's not true. You actually copied some stuff from the Internet.'"

The experience is not unique. In a subsequent trial in Texas, Scarsi again Googled an expert report to find lifted sentences and paragraphs from the same websites. It isn't just patent trials or civil litigation, either. Last fall, in a high-profile San Francisco criminal economic espionage case, defense attorneys discovered a Georgetown Law professor submitted a report with major sections identical to Wikipedia entries.

In the past, litigators say they have seen small fibs on an expert's resume, or found somebody's contentions exaggerated, but the wholesale lifting from the Internet is more rare. Legal observers say it shows lack of due diligence by attorneys and experts producing the reports, and it also demonstrates how important it is to conduct simple research into the background of an opposing party's witnesses.

"I think there is something pretty questionable about going to Wikipedia and doing a drag and drop and putting it in the middle of your expert witness report," said professor Stephen D. Easton at University of Wyoming College of Law, who teaches about expert witnesses and had not heard of it happening. "When a student does that in academia, we call it plagiarism."

The attorneys in cases have handled such discoveries differently - by either filing a motion to exclude the expert testimony before trial or holding onto it and surprising a witness in front of the jury. Scarsi prevailed before the jury in both cases. In one, the jury hung but both sides agreed to a majority verdict, and Apple prevailed. But one plaintiffs' lawyer in the case in Los Angeles, Raymond P. Niro, senior partner at Niro, Haller & Niro, said exposing the witness' reliance on Internet articles did not affect the verdict, because he was citing general information.

"In trials, you can exaggerate a point and it can be hugely insignificant," Niro said. "What the lawyer was trying to do was make a point that this guy can't be believed because he is a plagiarist. It didn't work.'"

Niro did say expert witnesses can be one of the most unpredictable parts of trial. "I think experts are without a doubt the greatest cause for concern that I have in a case," he said. "I love to cross[-examine] the other side's experts; I hate it when our expert is being crossed."

In another Apple case last fall, Scarsi found the copied materials after deposition but before trial in Texas and decided to save it for cross-examination. He pulled up graphics from Wikipedia and the other sources in front of the jury, with the identical sentences highlighted. "It was a pretty dramatic cross," Scarsi said. "Being able to show that he copied all the stuff from the Internet was a great impeachment. In closing argument, we were able to say our expert has great expertise; their expert copied it off the Internet."

In the economic espionage case, defense attorneys from Keker & Van Nest LLP decided to take a different path after discovering the government expert's report on China mimicked Wikipedia entries. Keker's own expert on China noticed and alerted San Francisco-based partner Stuart L. Gasner and his team. They decided to file a motion to exclude the witness, professor James V. Feinerman of Georgetown University Law, rather than save it for cross-examination.

"We felt that it was important to discredit the government's case early and often," Gasner said. "You could score points on cross-examination, but it's hard to know in advance how that's going to play out. On balance, we thought we'd get more impact from bringing it up early."

It worked out for them, though U.S. District Judge Jeffrey S. White did not exclude the witness entirely in a hearing before the trial. White expressed concerns with Feinerman's reports and called for a separate hearing outside the presence of the jury before the professor would be called to testify. Prosecutors attempted to replace him with a different expert, but White denied the motion. They never called him to the stand.

Experienced trial attorneys say it is hard to imagine how an expert report that so closely matched unreliable Internet sources could make it through serious vetting by lawyers. "The expert report is usually written hand in glove with counsel," said Rodney R. Sweetland III, Washington, D.C.-based partner at Duane Morris LLP. "Literally every single word is discussed. If you're not doing that as a lawyer, you're not doing your job."

Scarsi said after his discoveries of copying, he is increasingly vigilant about his own experts' work.

"I'm much more concerned about making sure our expert reports can be held up to a very bright line," Scarsi said.

Wes R. Porter, an assistant professor at Golden Gate University School of Law, said he does not see a growing trend of copying from the Internet - he simply thinks the quality of expert witnesses varies wildly.

"If you have a hackish lawsuit or hackish attorneys," Porter said, "sometimes you're going to end up with an expert that reflects that."