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Expert's ‘Pilot' Surveys Discoverable in Trademark Case
Day Pitney Litigation Partner Jonathan Handler was featured in the Massachusetts Lawyers Weekly article, “Expert’s ‘Pilot’ Surveys Discoverable in Trademark Case.”
In the case at issue, the judge determined that a testifying expert’s initial opinion surveys did not constitute “drafts” protected by the work product doctrine. Handler said the decision delves into a “limbo” or “overlap” area between work product and expert testimonial witness discovery that many attorneys believe was resolved by the 2010 amendments to Rule 26.
He commented, “It came down to what were these pilots? Did they resemble draft reports? Or were they something the expert generated as part of his report and in fact fell within the category of ‘facts of data’ he considered in forming his opinion? Obviously, the judge came down on the latter side.”
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