Expert Discovery

The role of experts, particularly economists, in federal antitrust
litigation cannot be overstated. 1 In addition to providing essential
evidence on key elements of antitrust claims, defenses, and damages
theories,2 the expert serves to explain how the factual evidence relates to
economic concepts upon which the antitrust claims and defenses in a
given case are based. The expert must be an effective storyteller, in
addition to his substantive qualifications. A highly-credentialed expert
may prove ineffective at conveying an accessible story to the finder of
fact. For the defense, because the plaintiff bears the burden of proof, the
expert should strive, at a minimum, to neutralize the plaintiff’s expert
testimony. This chapter will identify the issues that should be considered
by counsel in dealing with expert testimony in antitrust litigation.
1. Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993); Kumho Tire Co. v.
Carmichael, 526 U.S. 137 (1999); see also Virginia Vermiculite Ltd. v.
W.R. Grace & Co.-Conn., 98 F. Supp. 2d 729, 736 (W.D. Va. 2000)
(expert testimony in nearly all antitrust litigation should be considered
critical requirement) (citing GEORGE A. HAY, THE ECONOMIST AS EXPERT
WITNESS, in EXPERT WITNESSES 335 (Faust F. Rossi ed. 1991); IIA
PHILLIP E. AREEDA ET AL., ANTITRUST LAW ¶ 399 (3d ed. 2007) (“It is the
rare antitrust litigant who has not retained an expert economist to offer
testimony on market definition, market structure, market power, the
competitive significance of business conduct, antitrust injury, and
2. There is disagreement over whether expert testimony is required for certain
elements of an antitrust case (e.g., the establishment of a relevant market).
Compare Lantec v. Novell, 146 F. Supp. 2d 1140, 1147-48 (D. Utah 2001),
aff’d, 306 F.3d 1003 (10th Cir. 2002) (rejecting an Eleventh Circuit rule
that a relevant market must be established using expert testimony), with
Colsa Corp. v. Martin Marietta Servs., 133 F.3d 853, 855 n. 4 (11th Cir.
1998) (holding that “‘construction of a relevant economic market or a
showing of monopoly power in the market cannot be based upon lay
testimony’”) (quotation omitted).
68 Antitrust Discovery Handbook
A. Selecting Experts
One of the most important tasks in an antitrust case is locating a
suitable expert. It is important in selecting an expert to ensure not only that
he will be an effective witness in deposition and at trial, but also that the
client’s expectations about fees and expenses are met.
1. When and How to Use Experts
Counsel must determine early on in a case whether to retain an expert
and whether the expert will testify at trial or merely play a consulting role.
Hiring an expert based upon her credentials alone, and assuming that she
will be persuasive, is a mistake. While pedigree will surely hold some
weight with the finder of fact, qualifications alone are rarely decisive.
Further, errors in expert due diligence may also significantly impact the
quality and credibility of the expert’s testimony irrespective of the
expert’s qualifications.
There are many qualified experts who can assist in preparation and
presentation of a case, but who may not be effective witnesses. The
retention of such an expert to serve in a consulting capacity can add
expertise and a differing viewpoint to the development of case theories
and strategy and aid in developing the testimony of the testifying expert.
The decision regarding whether to retain an expert only to consult should
be made early, when such assistance can help determine the focus of
discovery and, if appropriate, the selection of the testifying experts.
2. Locating Expert Witnesses
Potential experts can be identified through a variety of means: word
of mouth; searches of academic publications; going to conferences where
economists speak on relevant issues; legal research for cases in which
experts testified on similar topics, and expert clearinghouse organizations,
to name a few. While these are all good places to start, a personal
interview is likely the most effective way to evaluate a potential expert’s
fit for a particular litigation. Ultimately, counsel and the client must be
comfortable with the expert’s qualifications, credibility, and efficiency. If
the expert will testify at trial, they must also be satisfied that the expert can
communicate effectively with the fact finder.
Geography may be a legitimate concern in expert selection. Once
venue is set (assuming the case is not, as is common with large antitrust
cases today, consolidated into an MDL docket by the Judicial Panel on
Multidistrict Litigation and referred to a particular district court), counsel

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