A district judge in Arkansas allowed an expert librarian to testify about how American Library Association (“ALA”) cataloging policies attempt to accommodate a variety of concerns and interests.
Plaintiffs and their minor children are residents of Crawford County and users of its Library System. In late 2022 or early 2023 the Crawford County Library System implemented a policy under which its library branches must remove from their children’s sections all books containing LGBTQ themes, affix a prominent color label to those books, and place them in a newly-created section called the “social section.” Plaintiffs alleged this policy was imposed on the Library System by the Crawford County Quorum Court in response to political pressure from constituents who objected, at least partly on religious grounds, to the presence of these books in the children’s section.
On May 26, 2023, Plaintiffs filed this lawsuit against Crawford County, claiming that the aforementioned policy violated the First Amendment to the United States Constitution.
Plaintiffs retained an expert witness named Daniel N. Joudrey, who is a professor of information organization and cataloging at the Simmons University School of Library and Information Science. Joudrey submitted an expert report that discussed the Cataloging Code of Ethics and the ALA’s Bill of Rights, and opined that Defendants’ actions were inconsistent with those standards as well as with the historical practices and understandings of libraries.
Defendants filed a motion to exclude Joudrey’s opinions under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and Federal Rule of Evidence 702.
Library and Information Science Expert Witness
Daniel N. Joudrey is a Professor at Simmons University School of Library and Information Science, where he teaches information organization and cataloging. Prior to coming to Simmons, Joudrey was a teaching fellow and research assistant at the University of Pittsburgh for Dr. Arlene G. Taylor, a well-known cataloging authority. Joudrey was also a metadata policy intern at the Library of Congress. Before that, he worked for an international non-profit social services organization. Joudrey holds a Ph.D. and an MLIS (Master of Library and Information Science) from the University of Pittsburgh. He has been a member of the American Library Association for nearly 25 years.
He is the author of two widely used textbooks in the LIS field, The Organization of Information and Introduction to Cataloging and Classfication.
Discussion by the Court
Joudrey opined that a library “wanting to operate consistently with First Amendment principles and allow its patrons to receive information without unnecessary impediment should follow the Cataloging Code of Ethics and American Library Association’s Bill of Rights.”
Defendants contended that Joudrey’s testimony did not satisfy any of the four Rule 702 requirements.
Joudrey’s specialized knowledge will not help the Court to understand the evidence or to determine a fact in issue
First, Defendants argued that Joudrey’s specialized knowledge will not help the Court to understand the evidence or to determine a fact in issue. The Court disagreed, and believed that expert testimony about library cataloging industry standards is more likely than not to help it understand the evidence in this case. After all, the central issues and disputes in this case concerned Defendants’ library cataloging practices, whether or to what extent those practices interfered with Plaintiffs’ First Amendment right to access information, and how (if at all) the Court should order Defendants to modify those library cataloging practices.
Joudrey’s opinions were not based on sufficient facts
Second, Defendants argued that Joudrey’s opinions were not based on sufficient facts, because he simply assumed the truth of facts given to him by Plaintiffs’ counsel instead of independently investigating the facts on his own. Setting aside the (disputed) question of whether Joudrey performed any independent factual investigation, this argument ignored the United States Supreme Court’s observation that “more than 200 years” of “settled evidence law” allows an expert to “express an opinion that is based on facts that the expert assumes, but does not know, to be true.” See Williams v. Illinois, 567 U.S. 50, 57, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012).
When an expert bases his opinion on assumed facts, then “it is up to the party who calls the expert to introduce other evidence establishing the facts assumed by the expert.” Indeed, the Federal Rules of Evidence expressly permitted this practice, authorizing an expert to “base an opinion on facts or data in the case that” he has either “personally observed” or “been made aware of.” So the Court disagreed with Defendants on this point as well.
Defendants argued that Joudrey’s opinions are not the product of reliable principles and methods
Third, Defendants argued that Joudrey’s opinions are not the product of reliable principles and methods. To some extent, Defendants rehashed their argument about insufficient factual investigation to support this point as well; to that same extent, the Court disagreed as already stated above.
Additionally, Defendants characterized Joudrey’s opinion as being that “the only way to ‘operate consistently with First Amendment principles and allow its patrons to receive information’ is to follow the ALA’s policies,” and they criticized him for failing to “explain why the ALA policies are the only way to comply with the First Amendment.” The Court did not believe this to be an accurate characterization of Joudrey’s opinions. The Court reviewed Joudrey’s expert report and his deposition testimony, and did not find any place where he opined that compliance with ALA policies is the “only” way to comply with the First Amendment. Rather, he opined that if a library wants to operate consistently with First Amendment principles, then it “should” adhere to ALA cataloging policies.
Joudrey’s opinion is not that following ALA policies is the only way of complying with the First Amendment; rather, it is that following ALA policies serves a variety of salutary goals, including “aligning with First Amendment principles.”
Joudrey’s opinions do not reflect a reliable application of his principles and methods to the facts of the case
Finally, Defendants argued that Joudrey’s opinions did not reflect a reliable application of his principles and methods to the facts of the case.
This particular argument rested on two premises. One is that Joudrey walked back a couple of his opinions when pressed on them during his deposition. The other is that Joudrey improperly expressed a legal conclusion when he opined that libraries wishing to comply with the First Amendment should follow ALA policies. As for the first premise, the Court did not see this as undermining Joudrey’s reliability. To the contrary, it showed a willingness to acknowledge when one misspeaks and to adjust one’s opinions to account for new information. As for the latter premise, the Court already rejected it in the preceding two paragraphs.
Held
Ultimately, if this case proceeds to a bench trial then it will be the Court’s duty to consider all the evidence, including Joudrey’s testimony, and assign it the weight the Court believes it deserves. The Court sees no need to exercise its discretion now in a manner that would preemptively tie its own hands later. For all the foregoing reasons, Defendants’ motion to exclude Joudrey’s testimony will be denied.
Key Takeaway:
The Court reviewed Joudrey’s expert report and his deposition testimony, and did not find any place where he opined that compliance with ALA policies is the “only” way to comply with the First Amendment. Rather, he opined that if a library wants to operate consistently with First Amendment principles, then it “should” adhere to ALA cataloging policies. When elaborating on this opinion in his deposition, Joudrey explained: “I thought that if they were operating consistently within these documents . . . that it would result in libraries still having the latitude to organize their materials by creating special displays” and “would result in, you know, following general principles of the profession which align with First Amendment principles, . . . and it would align with how a trained librarian would understand the field.”
In other words, Joudrey’s opinion is not that following ALA policies is the only way of complying with the First Amendment; rather, it is that following ALA policies serves a variety of salutary goals, including “aligning with First Amendment principles.”
To be clear, and as Joudrey repeatedly acknowledged in his deposition, he is not a lawyer and is not qualified to opine on what the law is nor on whether Defendants have complied with the law in this case. Such determinations are ultimately the prerogative of this Court. But the Court sees nothing improper about permitting expert opinion testimony regarding how ALA cataloging policies attempt to accommodate a variety of concerns and interests which bear upon a librarian’s profession, which include but are not limited to First Amendment principles. As Defendants conceded, Joudrey is “equipped to opine on the ‘best practices’ touted by the ALA.”
Case Details:
| Case Caption: | Virden Et Al V. Crawford County, Arkansas Et Al |
| Docket Number: | 2:23cv2071 |
| Court Name: | United States District Court, Arkansas Western |
| Date: | May 16, 2024 |
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