Technology Expert Witness’ Analysis of Call Detail Records Admitted

This case concerns Defendant’s alleged transmission of illegal robocalls. Plaintiff, Office of the Attorney General, State of Florida, Department of
Legal Affairs brought this action pursuant to the Telemarketing and
Consumer Fraud and Abuse Prevention Act. Apparently, Smartbiz courts
robocaller customers by allowing them to place a high volume of calls in quick
succession, billing only for the duration of completed calls – sometimes in as little as .6 second increments and ignoring clear indicia of fraudulent call traffic.

Plaintiff retained Mike Rudolph “as an expert witness to analyze several relevant datasets, specifically: Defendant’s Call Detail Records (“CDRs”), consumer voicemail recordings provided by YouMail, traceback data provided by the Industry Traceback Group (“ITG”), and consumer complaint data provided by the Attorney General.” 

Defendant filed a motion to strike Rudolph’s expert testimony “because it does not carry the hallmarks of reliability.”

Defendant argued that Rudolph’s testimony and methods are unreliable because they are based on confidential and proprietary processes, use algorithms and codes to do much of the work, have not been peer reviewed, have an error rate of less than 1% that is inherently suspect, and cite the average length of Defendant’s calls as a metric.

Technology Expert Witness

Mike Rudolph is the CTO and Chief Architect of YouMail’s telephony, cybersecurity, and robocall mitigation platforms. Rudolph works directly with Fortune 500 organizations, service providers, and working groups, employing AI, machine learning, and forensic analytics to combat illegal and unwanted calls. Moreover, Rudolph holds over a dozen patents featuring a number of startups and public companies adding intelligence through AI and expert systems to highly scaled platforms in communications, compliance and governance, business process management, activity monitoring, background checks, and consumer advertising.

Want to know more about the challenges Mike Rudolph has faced? Get the full details with our Challenge Study report. 

Discussion by the Court

Rudolph prepared an Expert Report describing several types of analysis using different methodologies including the following:

• First, is the behavior call analysis which identifies indicia of fraudulent or otherwise unwanted calls in Defendant’s CDRs and consists of five sections of his Summary of Findings: (1) Analysis of “Snowshoeing” Calling Tactics, (2) Analysis of Low Answer Rates and Short Duration Calls, (3) Analysis of Phone Number Spoofing, (4) Analysis of Recipient Geographic Location, and (5) Analysis of Telemarketing Hours and Do-Not-Call-Registry (DNC) Data.

• Next, Rudolph analyzed Defendant’s CDRs in conjunction with YouMail Consumer Voice Call Evidence, which consists of call records for calls to YouMail subscribers, recordings of voicemails left by those calls, and transcriptions of those voicemails, identifying examples of calls that Defendant transmitted to YouMail subscribers; third, Rudolph performed an analysis of traceback information to identify patterns in Defendant’s traceback responses to the ITG.

• Finally, Rudolph analyzed Defendant’s CDRs and YouMail data in conjunction with consumer complaint data supplied by Plaintiff to identify individuals who complained about the types of calls Defendant transmitted. 

According to Plaintiff, Defendant’s contentions that Rudolph’s methods are unreliable because they use algorithms and have not been peer reviewed are not relevant to the type of expert opinion Rudolph has produced. Defendant relies primarily on factors relevant to scientific testimony to rebut the reliability of Rudolph’s methodology, but Rule 702 does not bar non-scientific expert evidence, and allows expert opinions based on technical or other specialized knowledge.

This Court found that Defendant’s issues with Rudolph are insufficient to warrant the exclusion of his testimony and are best addressed on cross-examination.

Held

The Court denied the Defendant’s Daubert motion to exclude the testimony and report of Mike Rudolph.

Key Takeaway:

Rudolph submitted a comprehensive expert report on the relevant datasets, which the Court admitted because the Defendant’s arguments against it were unpersuasive. It was held that the expert’s opinions should not be excluded, but rather be subjected to “vigorous cross-examination” and “presentation of contrary evidence.

Case Details:

Case Caption:	Office Of The Attorney General, State Of Florida, Department Of Legal Affairs V. Smartbiz Telecom LLC
Docket Number:	1:22cv23945
Court:	United States District Court, Florida Southern
Order Date:	September 3, 2024