Litigation Counsel's Involvement in Subpoena-Based Survey Renders Results Unreliable

The court granted defendant's motion to exclude the testimony of plaintiff's expert regarding his subpoena-based survey of 170 customers because counsel's involvement in the survey rendered the results unreliable. "Defendants argue that [plaintiff's counsel] essentially urged [survey] respondents to provide quick estimates rather than thoughtful investigations, thus rendering the survey inadmissible. . . . By emphasizing the quickly approaching litigation deadlines, the law firm implicitly encouraged at least [one customer] to produce any figure as a response, which seriously undermines the integrity of the received responses. . . . [T]he law firm’s correspondence with respondents regarding the scope of the question and the need for quick responses indicates the law firm’s ability to influence the survey results, which Plaintiff has admitted is improper. Because of the extensive attorney involvement here, the survey is unreliable and should thus be excluded."

Network-1 Security Solutions, Inc. v. Alcatel-Lucent USA Inc., et al, 6-11-cv-00492 (TXED October 13, 2017, Order) (Mitchell, MJ)