Tuesday, December 12, 2006

Computer Expert Must Examine Product, Says Seventh Circuit

"To qualify as an expert on software, an expert should, at a minimum, examine the product and software upon which the expert bases his opinion," the Seventh Circuit held yesterday in Autotech Tech. Ltd. P'ship v. Automationdirect.com, No. 05-4544 (7th Cir. Dec. 11, 2006) (Easterbrook, Bauer, & Evans, JJ.). The case involved two businesses, Autotech and ADC, who entered into a joint venture to develop and market EZTouch computer screens. Without telling Autotech, ADC later joined forces with another manufacturer to market a competing product under the brand name C-More. In its action to enjoin ADC from selling the C-More product, Autotech's computer expert opined that the C-More touch screen was an EZTouch clone that ADC developed based on proprietary information from Autotech. His testimony was excluded because his only acquaintance with the C-More product came from his review of an advertisement created by ADC for the general public.


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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.