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TCPA and related litigation has exploded, and an army of newly minted expert witnesses has materialized along with it. Experts opine on the nature and “capacity” of automatic dialer technology, provide data analysis on dialer databases, and testify about the feasibility of identifying unknown class members. Concerning trends have emerged from opinions issued in these cases.

Unqualified Experts

Many TCPA “experts” lack relevant educational or professional experience to qualify as experts and a substantial number of TCPA cases are settled prior to Daubert rulings. This scenario leaves these unqualified experts untainted by a negative Daubert ruling and free to continue to provide unqualified opinions.

Experts with Vested Economic Interests

Some experts will not charge fees if the case is not certified. These experts have an economic interest in case outcome calling into doubt their independence and objectivity. Class administrators are being offered as experts in the certification stage on issues like class ascertainability. These expert reports are often provided at a low cost on the expectation the expert will later be retained to administer the class. Expert opinions should not be colored by a contingent payday in the event the expert's client “wins.” In addition, many experts have incomes attributable to a small number of law firms. These cozy relationships are rarely explored or objected to.

Experts Who Perform Little or No Analysis

Many TCPA experts appear to do little actual analysis and file reports that lack scientific rigor. The dialer databases involved in Fair Debt Collection Practice Act, eavesdropping, and TCPA cases are usually the most critical evidence produced. These databases may record how many calls were made, to what numbers, when, what happened on the call, whether the recipient objected to the call, and whether a recording notification was provided.

This data is often produced during discovery in plenty of time for a full examination yet experts often simply tally the total number of calls during the class period and identify the cellular numbers called. Basic quality control measures are often skipped, resulting in incorrect conclusions and inaccurate understandings of how data was compiled.

Given the amount of damages potentially at stake (claims over $100 million are common), it's surprising that so little is done to investigate data at the heart of these cases. Flimsy, sloppy, or perfunctory data analytics can result in conclusions that lack integrity and reliability, but these calculations are rarely effectively investigated.

To assist in this inquiry, the following five questions are worth asking of any opposing TCPA expert:

1. Is payment of your fees contingent upon class certification?

Expert independence is not a given. Probe whether undisclosed financial relationships exist or whether the expert expects to reap additional compensation once the class is certified.

2. Why haven't you conducted testing?

Defendants typically produce a mountain of evidence in consumer class actions. With the exception of running simple queries relating to the number of calls made and identifying cellular numbers, little testing is typically conducted. See, for example, two Southern District of Florida cases in Mohamed v. American Motor Company LLC (2017), where the expert's testimony was struck for failing to conduct an adequate examination, and Legg v. Voice Media Group, Inc. (May 2, 2014), where the court determined that basing an expert opinion on reviewing a company's handbook was “an insufficient basis to form an opinion on capacity”. Experts should provide real analysis, not run rudimentary queries or regurgitate the same capacity opinion.

3. Did you examine the database for evidence of audit logs or corruption before finalizing your conclusions?

Dialer data is contained on structured databases that are connected to complex corporate information systems. The stored information is highly dependent upon the type of software and hardware in use, configuration of systems, storage capacity of databases, and the professionalism of IT staff. Forensic experts must understand the design or schema of the database and test its contents before relying upon its contents.

4. Have you conducted an analysis like the one contained in your report for anyone other than a class action lawyer?

Experts should have deep experience in the specific area about which they are testifying. That experience can come from consulting, academia, or employment in the industry. Many proposed experts in consumer class actions have no real world experience. They are often also guilty of “mission creep.” Once they have been accepted in one area, they claim expertise in another.

Remember, there is no such thing as a “technology” expert, in the same way there are no “medicine” experts. Courts do not let podiatrists testify about brain surgery. Similarly, a database administrator should not, without additional demonstrated credentials, testify about data security. And a data security expert is not a computer forensic expert without relevant training and experience.

Expose posers by asking “test questions” that a “real” expert should be able to answer, such as pertinent ISO standards or the definition of discipline specific terms of art. Failure to answer these questions can destroy an expert's credibility.

5. What quality control testing did you perform on your findings?

Running queries on complex structured database systems is not easy. Due to idiosyncrasies in the data or unexpected frameworks built into a database, output from the query may be inaccurate, misleading, or incomplete. When an actual result is produced, it is critical to make sure the output is correct. Testing the results produced by opposing experts can uncover significant errors that can be used to exclude their testimony.

In TCPA cases, sweeping opinions have been issued by some experts on the ease of identifying class members through telephone numbers with no testing to support the claim. Pushing back on unsubstantiated claims, and conducting your own scientifically valid testing can provide the court with the facts and opinions upon which it can justifiably rely.

Ms. Daley is a managing director at Berkeley Research Group. She is a nationally recognized expert on conducting investigations and an award-winning forensic technologist. The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions, position, or policy of Berkeley Research Group, LLC or its other employees and affiliates.