Although it may feel like the coronavirus pandemic shutdown will never end, it will. We will then see many, many new things—or old things changed during the shutdown—which we will see stick around after the shutdown fades. One of those new things will be digital experts, changed by their experience in dealing with the digital world during the shutdown. In this month's article I will discuss these new digital experts.

Expert Testimony and Reports Generally

Initially, expert opinions and reports were governed by Frye v. United States, 293 F.1023 (D.C.Cir. 1923), which held that a scientific opinion was admissible only if the scientific understanding on which the opinion was based was "generally accepted" as relevant in the scientific community. The Frye standard was intended to prevent the situation in which a party sought to introduce scientific evidence that was so new that there were no "rebuttal experts, equally coversant with the mechanics and methods of a particular technique," nor could a sufficient number be assembled and brought up to speed prior to the articulation of the opinion (in a report, at a hearing, at trial, etc.). Frye contemplated a judicial inquiry, informed by experts, into the "general acceptance of the scientific methods used." The standard required that "the thing from which the [expert's] deduction is made must be sufficiently established to have gained general acceptance in the field in which it belongs." Pennsylvania adopted Frye in Commonwealth v. Topa, 369 A.2d 1299 (Pa. 1977).

Federal and Pennsylvania law changed. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the U.S. Supreme Court effectively overruled Frye in federal courts, holding that the case law was inconsistent with the applicable evidentiary rules, namely, Rule 702 of the Federal Rules of Evidence. In Daubert, the court held that the twin standards of Federal Rule 702—relevance and reliability—were incompatible with the stricter "general acceptance" standard of Frye and so Daubert and Federal Rule 702 overruled Frye. Pennsylvania Rule of Evidence 702 followed the federal rule and Daubert.

Federal Rule 702 states that a "witness who is qualified as an expert by knowledge, skill, experience, training or education" may testify in the form of an opinion or otherwise if the "expert's scientific, technical or other specialized knowledge is beyond that possessed by the average layperson," the testimony is based on sufficient facts or data, the expert's scientific, technical or other specialized knowledge will "help the trier of fact to understand the evidence or to determine a fact in issue," the testimony is the product of reliable principles and methods and is "based on sufficient facts or data" and, the expert has reliably applied the principles and methods to the facts of the case. Note that the requirement that the court shall allow expert testimony when the expert, "by knowledge, skill, experience, training, or education," can testify in the form of an opinion or otherwise if … the expert has reliably applied the [relevant scientific] principles and methods to the facts of the case," means that the court can deem the expert testimony admissible if it recounts a substantive scientific truth generally accepted by the scientific community or if the expert has derived his or her conclusion in a proper, scientific manner, regardless whether the scientific community as a whole has reached any conclusion as to the matter at hand or has reached the same conclusion.

While the above discussion of federal and state Rule 702 requirements in the wake of Daubert and other opinions is important to gaining an understanding of what is legally required of an expert, there are several other requirements which will be somewhat shaped by the coronavirus pandemic and shutdown. Expert reports, for example, should be objective, expansive, general to the topic and specific to the matter simultaneously. Such reports should be written clearly; specialized language should be used, but explained, defined, and used in a way such that a nonexpert can understand it. Reports, including conclusions, should be forceful but nothing therein should be overstated.

All of the aforementioned requirements are key to any expert, and should always be kept in mind, but they do not touch upon what may change radically as a result of the pandemic and shutdown. Such changes will arise from the specifics of the digital world and how they have changed as a result of the shutdown.

Experts and the Shutdown

Prior to the shutdown, there were some general truths about IT and the business world, the latter including the legal world. Partners in large businesses and law firms particularly did as little as possible to write down (whether by pen or computer) and organize their thoughts pertaining to digital communications. Partners, usually older than those they oversaw, came of age prior to the proliferation of digital technology, and did not try to learn about such technology so as to catch up to the present day. Instead, burdening a young associate with translating ideas into digital communications was considered a rite of passage.

During the pandemic, almost all businesses that have struggled to stay open, and have increasingly used digital communications for meetings, sales, and other transactions which prior to the shutdown were done in person. Those digital communications applications (think Zoom) have been set up in businesses typically by IT experts, who oversee them and tend to any problems that arise, but are used by all personnel, very much including the partners who prior to the pandemic would have handed off anything using such digital devices to associates, assistants and others reporting to them.

One of the consequences of the changes between the pre-pandemic and pandemic digital worlds is that, in the former, experts tended to be young and talk in jargon, while in the pandemic world, experts can be in their 20s through their 70s, with the latter staying away from jargon and translating technical terms to common ones as they explain their actions. This change is important for the obvious reason that in-house expertise will cost a business considerably less than bringing in an IT expert every time an issue arises. It is also important in a far different way: it changes who will come off as "convincing" as an expert before a trier of fact.

While an expert can obtain a college degree (B.S. or advanced degree) in the field, and while more and more experts now are obtaining those degrees, many prior to the pandemic simply had backgrounds in working in the field. As expertise is spread across all at a business, it is more likely that anyone at that business testifying as an expert will have a college degree, very often an advanced degree (such as a J.D.), and so will speak not so much in jargon but, generally, with a larger vocabulary and demonstrating his or her education and intelligence. Experts will have to be prepped to speak simply and clearly to triers of fact.

As stated above, most experts arising during the pandemic will most likely be younger than those who presented to triers of fact prior to the pandemic. To a trier of fact, age can cut both ways: some triers of fact will discount a young expert simply because of age, but increasingly, most will expect and accept a young expert. Experts were surprisingly young prior to the pandemic, since such fields as digital forensics were new and so producing young experts, and because those fields were attractive to young people as they paid well and could be entered into relatively early in a person's career, without needing a doctorate, a medical degree, a law degree or any other degree that required many years of study, research and writing. A party may try to "read" a trier of fact to determine whether a younger or older expert will be the most convincing to the trier of fact and then present the best choice, but such ability to "read" is a rare gift and most parties will avoid such a step, especially if the party has tried it before and it had led to bad results.

One very important consequence of rethinking the role of experts as a result of the pandemic is that in-house experts usually will have to review their actions with outside experts (or, rarely, in-house experts who possess the expertise of outside experts) and then both will present to the trier of fact. The in-house expert may know how to take important steps in the digital world, but probably will not know why they work and how to gather evidence in a "legal hold" and present such evidence so as to demonstrate to the trier of fact that the evidence has not been added to, removed or otherwise altered. The outside expert should be able to review the evidence and explain the latter points to the trier of fact, as well as explain whatever application is involved in the creation, transmission or production of digital documents and other artifacts. Thus, the in-house expert can gather the evidence and describe how it was used during the events that gave rise to the cause of action, while the outside expert can explain how the applications work, whether they worked properly in the matter at hand, and how the trier of fact can know that the evidence being presented is authentic.

Conclusion

As a result of the pandemic, more people in the business world have come to depend upon digital devices and applications to create, manipulate or view digital data. This change will lead to many, many persons presenting testimony as "experts" to explain how such devices, applications and data were used. Those people will be smart but by no means necessarily general IT experts. Their testimony and the digital data they offer will be inspected by outside IT experts (and less frequently, in-house experts of the same caliber) who will authenticate the data, applications and devices presented and explain to the trier of fact how they work. It would not be surprising that, after a few years of hearing outside experts testify to the authenticity of devices, applications and data, courts will determine that the testimony will no longer be necessary. At that point, what was strange and unusual when digital data burst on the scene will have become so commonplace that it will no longer require explanation. If that change takes place, we can credit the pandemic with at least one good outcome.

Leonard Deutchman is a legal consultant retired from one of the nation's largest e-discovery providers, KLDiscovery, where he was vice president, Legal. Before joining KLDiscovery, he was a chief assistant district attorney at the Philadelphia District Attorney's Office, where he founded the Cyber Crime Unit and conducted and oversaw hundreds of long-term investigations involving cyber crime, fraud, drug trafficking and other offenses. Contact him at [email protected].