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Malibu Media, LLC v. Tashiro

United States District Court, S.D. Indiana, Indianapolis Division

November 19, 2014

MALIBU MEDIA, LLC, Plaintiff,
v.
KELLEY TASHIRO, N. CHARLES TASHIRO, Defendants.

ORDER ON PLAINTIFF'S MOTION TO EXCLUDE TESTIMONY AND EVIDENCE PROFFERED BY DELVAN NEVILLE

MARK J. DINSMORE, Magistrate Judge.

This matter comes before the Court on Plaintiff's Motion in Limine to Exclude Testimony and Evidence Proffered by Delvan Neville. [Dkt. 142.] For the reasons set forth below, the Court DENIES Plaintiff's motion.

I. Background

Malibu Media, LLC ("Plaintiff") filed suit against Kelley and N. Charles Tashiro, ("Defendants"), alleging infringement of Plaintiff's copyrighted movies. [Dkt. 124 at 1.] Plaintiff claims that Defendants used a BitTorrent client to copy and distribute Plaintiff's works, including those related to Plaintiff's X-Art website. [ Id. at 6-7.]

On June 20, 2014, Plaintiff filed a motion for sanctions against Defendants for alleged destruction of evidence and perjury. [Dkt. 130 at 1.] Plaintiff claims that Defendants erased numerous files from one of their computer hard drives, including files related to BitTorrent usage and files similar to Plaintiff's copyrighted movies. [ Id. at 3-4.]

In responding to this motion, Defendants included a declaration from Delvan Neville. [Dkt. 137-1.] Neville stated that he is the owner of "Amaragh Associates, LLC, a digital forensics company specialized in BitTorrent investigation, " and that he was "engaged in freelance computer repair and troubleshooting since the late 1990s, including recovering lost data from storage devices." [ Id. ¶ 2.] Neville provided background on the process of electronic file deletion and explained that he had examined the hard drive at issue. [ Id. ¶¶ 2-23.] He agreed that files had been deleted from the hard drive, but stated that he recovered the deleted files, searched them, and found no evidence that the deleted files contained Plaintiff's copyrighted works. [ Id. ¶¶ 22-24.]

On March 28, 2014, Defendants served on Plaintiff their Expert Witness List and Report, identifying "Delvan Neville for the purpose of: his review of the hard drives in the Tashiro household, and all opinions derived therefrom, including, but not limited to, the fact that no Malibu Media, LLC works are on the hard drives in the Tashiro household." [Dkt. 153-1.] Neville's attached report included a copy of the declaration previously executed in response to the motion for sanctions, [ id. at 3-7], and a copy of Neville's curriculum vitae, including his employment, degrees, publications, previous testimony, and presentations. [ Id. at 8-12.]

On August 8, 2014, Plaintiff filed the current motion to exclude any testimony or evidence offered by Mr. Neville. [Dkt. 142.] Plaintiff claims Neville should not be allowed to testify as proposed in his expert report because 1) he "has no knowledge, skill, experience, training or education in computer forensics, " [ id. at 1], and 2) Neville's conclusions are not reliable. [ Id. at 7.]

II. Discussion

Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), govern the admissibility of expert testimony. They establish "a three-step analysis: the witness must be qualified as an expert by knowledge, skill, experience, training, or education; the expert's reasoning or methodology underlying the testimony must be scientifically reliable; and the testimony must assist the trier of fact to understand the evidence or to determine a fact in issue." Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007) (citations omitted). "[T]he admissibility of all expert testimony is governed by the principles of Rule 104(a). Under that Rule, the proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence." Fed.R.Evid. 702 Advisory Committee's Note (2000 Amendments); see also Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

1. Qualification As an Expert

A witness may be qualified to testify as an expert based on "knowledge, skill, experience, training, or education." Fed.R.Evid. 702. "[A] court should consider a proposed expert's full range of practical experience as well as academic or technical training when determining whether that expert is qualified to render an opinion in a given area." Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). The witness's qualifications must relate to his testimony: "Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony." Carroll v. Otis Elevator, 896 F.2d 210, 212 (7th Cir. 1990).

Neville plans to testify about his examination of the Defendants' hard drive and whether any files related to Malibu Media's copyrighted works were found after his recovery of the deleted files. [ See Dkt. 153-1, 5.] The question is thus whether his knowledge, skill, experience, training, or education qualify him to opine on recovery and analysis of deleted files. Carroll, 896, F.2d at 212; see also Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010) (quoting Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir.1994)) ("The question we must ask is not whether an expert witness is qualified in general, but whether his qualifications provide a foundation for [him] to answer a specific question.'")

The Court agrees with Plaintiff that Neville's "education" does not qualify him to testify as an expert about recovery of deleted files. Neville received a B.S. in Radiation Health Physics from Oregon State University and is pursuing a Ph.D. in the same field. [Dkt. 153-1 at 8.] He states that this frequently involves "projects revolving around electronics & software development, " [ id. ], but this vague assertion that ...


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