Floorgraphics v. News America Mktg. in-Store Serv.
| Decision Date | 05 February 2008 |
| Docket Number | Civil Action No. 04-3500 (AET). |
| Citation | 546 F.Supp.2d 155 |
| Parties | FLOORGRAPHICS, INC., Plaintiff, v. NEWS AMERICA MARKETING INSTORE SERVICES, INC., et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
Nathan Marc Edelstein, Nathan M. Edelstein, PC, Lawrenceville, NJ, for Plaintiff.
Steven P. Goodell, Herbert, Van Ness, Cayci & Goodell, PC, Princeton, NJ, for Defendants.
These matters have come before the Court by Defendants' News America Marketing In-Store Services, Inc., et al. ("Defendants") for Motions in Limine to exclude the trial testimony of Floorgraphics, Inc.'s ("Plaintiff") proposed Experts Willard Bishop [dkt. entry no. 148]; William Carrington [dkt. entry no. 149]; Luke Cats [dkt. entry no. 150]; Edward McLaughlin [dkt. entry no. 151]; John Wills [dkt. entry no. 152]; and Paul Farris [dkt. entry no. 152], returnable October 15, 2007. Plaintiff filed opposition to all of these motions on September 17, 2007. Defendants replied on October 1, 2007. The Court conducted oral argument on November 16, 2007.1
For the reasons stated herein, Defendants' motions with regard to Edward McLaughlin and Willard Bishop are granted. Defendants' motions with regard to Luke Cats, William Carrington, John Wills, and Paul Farris are denied.
Plaintiff and Defendants compete in the in-store marketing industry. They both enter into exclusive contracts with retail and wholesale grocery stores, drug stores, and mass merchandisers ("retailers") to install ads on the shelves and floor of the retailers' stores. Both Plaintiff and Defendants then sell and place ads on the shelves and floor of their stores. They also sell and place ads for consumer packaged goods manufacturers (CPGs) in those retailers' stores.
In this lawsuit, Plaintiff alleges that Defendants engaged in a variety of illegal and tortious practices designed to oust Plaintiff from its retailer contracts, poison Plaintiffs relationships with CPG advertising clients, and run Plaintiff out of business. Defendants' conduct allegedly includes providing false and misleading information about Plaintiff's business and products to clients. Plaintiff also alleges Defendants unfairly structured its bids to retailers in order to falsely portray Defendants' bids as more attractive than Plaintiff's. Plaintiff also alleges tortious interference because Defendants "allegedly hacked into" its password-protected website. Defendants dispute each of Plaintiff's allegations.
In order to prove its case, Plaintiff has attempted to offer these six witnesses as experts pursuant to Federal Rule of Evidence 702. Defendants objected to every one of Plaintiff's proposed experts with these five in limine motions. Each expert will be discussed in turn.
Dr. Carrington is being offered as an expert to discredit Defendants' 2002 audit that measured placement compliance of Plaintiff's, specifically by comparing Plaintiff's contractual obligations to place floor advertisements in supermarkets and other retail stores against Plaintiff's actual performance in doing what it was contracted to do. Here, Defendants argue that Dr. Carrington is not qualified pursuant to Federal Rule of Evidence 702.
Dr. Carrington is an accomplished economist and statistician with a plethora of professional and academic experiences. He received his doctorate degree in economics from the University of Chicago and his Bachelor of Arts degree in economics from Duke University. (Carrington Rep. at ¶ 4.) In addition, he has taught economics and statistics at both the graduate and undergraduate levels at both the University of Chicago and Johns Hopkins University. (Pl.'s Carrington Opp. Br. at 3.) Dr. Carrington also worked for two years as an economist for the' Bureau of Labor Statistics, where he developed questionnaires and other survey methodology for the Bureau's data collection programs. (Carrington Rep. at ¶ 4.) Dr. Carrington has published widely on economic analysis in various journals on a variety of industries, principally applying economic and statistical principles to the context of labor economics. (Pl.'s Carrington Opp. Br. at 4.)
Mr. Cats is being offered as an expert to determine whether Defendants "gained unauthorized access to the content of a password-protected website owned by Plaintiff that contained pictures of floor ads that Plaintiff either had placed in past advertising cycles or intended to place in future cycles." (See Cats Rep. at 1.) Plaintiff provided Mr. Cats with a CD containing four files that purported to be copies of the original data that resided on Plaintiff's computer network. Id. at 3.
The first file is a compressed archive of Plaintiff's web server logs for the period from September 8, 2003 to September 8, 2004. Id. at 3. Mr. Cats, relying on this data, concluded that Defendants accessed Plaintiff's password-protected website eleven (11) times on seven (7) days from October 6, 2003 through January 13, 2004 and viewed images of the floor ads. Id. at 7-8; 12. Furthermore, Mr. Cats concluded that Plaintiff's website must have been password-protected. Id. at 5; 7-8; 12. Mr. Cats further opined that the investigation that Defendant conducted after it learned of from Plaintiff about the access to Plaintiff's website was deficient. Id.
Mr. Cats did not create the CD that was provided to him by Plaintiff. Mr. Cats marked the CD "for identification purposes with the client property number 0203-0004; CP000001," made an "exact copy" of the CD, "downloaded the CD to a server," and stored the Plaintiff's provided original in a safe. (See Cats Rep. at 3-4.) Cats relied solely upon the deposition testimony of Michael Povoski, a former employee of Plaintiff. (See Def.s' Cats Br. at 3.) Mr. Cats did not discuss with Mr. Povoski the steps that Mr. Povoski took to create the CD. Id.
In Mr. Cats' report, he ran a program to compare the data in the "apache-logs-040908-all.tar.gz" file with the data that Mr. Povoski had saved to the Plaintiffs network in September of 2004. (Cats Rep. at 4.) The data matched, which led Mr. Cats to believe that the file on the CD "is a complete and accurate copy of the compressed log file saved to the network." Id. Mr. Cats did nothing, however, to ensure or confirm that the data on the network was itself unaltered and complete. (See Cats Dep. at 56-57.) Mr. Cats conceded that the logs could have been altered before he received them. Id. at 54-55.
The second file is called "illegal-access.txt." It purports to be an excerpt from the apache-logs file that contained all of the "logs files showing access to Plaintiffs password protected site" from an IP address that Mr. Cats links to Defendant. (Def.s' Cats Br. at 4.) He submitted this program without running a program to compare the data in the "illegal-access.ext" file with the data that Mr. Povoski previously saved to the Plaintiffs network. (Cats Dep. at 64.) After Mr. Cats read the report of Defendants' computer expert, he did perform the comparison. Mr. Cats did not conduct "any analysis to determine whether there had been any alteration or modification to the data on that log prior to it being saved." Id. at 64-65. Mr. Cats also noted that the data on the file could have been manipulated "fairly easily". Id. at 65.
The third and fourth files are (1) a file called "login-screen.jpg" that purports to be a screen capture of a web browser requesting the website www.floorgraphics. com/clients and (2) a file called "oldclients-website.tar.gz," which Mr. Cats identified as a compressed archive of the entire contents of the www.floorgraphics. com/clients website. (Cats Rep. at 3.) Mr. Cats did not run a comparison program on these files to confirm that the underlying data from the network was both unaltered and complete. (Def.s' Cats Br. at 5.) Mr. Cats opines that Defendants "could have downloaded and saved files in a short period of time, and subsequently printed or emailed the files to others while offline." (Cats Rep. at 9.) He could not, however, determine from the logs what the user did with the information. (Cats Dep. at 74.) Mr. Cats also conceded that he did not have "any idea" of the types of images that Defendant allegedly viewed on the website, but rather he simply "reconstructed" his conclusions from the admittedly unverified logs, instead of actually viewing the web pages that formed the basis of those conclusions. (Def.s' Cats Br. at 6.)
Mr. Cats also concludes that Plaintiffs website was password-protected because the data on the CD reflected a "pop-up box requesting a user name and password" to enter Plaintiffs website. (Cats Rep. at 5.) Mr. Cats, however, did not determine the adequacy of the password protection of Plaintiffs website and did not independently conclude that the alleged access by Defendants was "unauthorized". (Def.s' Cats Br. at 6; Cats Dep. at 48-50; 74-75.)
Mr. Cats also criticized the internal investigation that Defendants conducted after their management was informed that someone with Defendants had allegedly accessed Plaintiffs website. (Cats Rep. at 11-12.) Mr. Cats conceded, however, that he did not know much about the circumstances surrounding Defendants' investigation and that his initial conclusions about the investigation were inaccurate because Defendants had actually completed at least one of the investigatory steps that Mr. Cats faulted them for not taking. (Cats Dep. at 126-28.)
Although Mr. Cats did not assess the reliability of four underlying files that were provided to him from Plaintiff, there is uncontradicted evidence from Plaintiffs head of information technology, Mr. Povoski, that shows that Plaintiffs computer logs were unaltered and entirely reliable. (Pl.'s Cats Opp. Br. at 1.) Also, Defendants' own computer expert, Mr. Brill, admitted that there was no...
To continue reading
Request your trial
-
Ca Inc. v. Simple.Com Inc.
...party opposing computer generated data must put forth more than mere assertions of tampering. See Floorgraphics, Inc. v. News Am. Mktg. In–Store Servs., 546 F.Supp.2d 155, 169–70 (D.N.J.2008) (noting that since there was not even a “shred” of evidence that the computer files were in any way......
-
Ramos v. Simplexgrinnell LP
...assumptions, and those assumptions are not a basis for excluding Dr. Crawford's testimony. See Floorgraphics, Inc. v. News Am. Mktg. In–Store Servs., Inc., 546 F.Supp.2d 155, 173–74 (D.N.J.2008) (denying defendants' Daubert motion where the expert made assumptions, among other things, that ......
-
Wisconsin v. Indivior Inc. (In re Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust Litig.), MDL NO. 2445
...in terms of safety are not entitled to any weight. Such testimony is admissible. See Floorgraphics, Inc. v. News Am. Mktg. In-Store Servs., Inc., 546 F. Supp. 2d 155, 168 (D.N.J. 2008) (admitting expert who was proffered to identify methodological flaws in defendants' audit). 2. Subjective ......
-
Equal Emp't Opportunity Comm'n v. Faps, Inc.
...testimony of Dr. LaJeunesse rests on sound methodology and will assist the trier of fact. See Floorgraphics, Inc. v. News Am. Mktg. In-Store Servs., Inc., 546 F. Supp. 2d 155, 168 (D.N.J. 2008) (citing In re Paoli, 35 F.3d at 742). FAPS argues that Dr. LaJeunesse's testimony is unreliable b......