Expert Discovery

• Pages: 67-86

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CHAPTER V

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

damages.”)).

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