This case stems from the brief relationship between two coworkers, Plaintiff/Counter-Defendant, Tony Blevins and Defendant/Counter-Plaintiff, Jolene Read, the nature of which is hotly debated. Both parties previously worked at MainSpring, Inc. (“MainSpring”), an information technology firm located in Frederick, Maryland. It is uncontested that the parties had sexual interactions on multiple occasions in the summer and fall of 2022, but the parties have different accounts of the nature of those interactions.
Throughout the course of their relationship, Blevins and Read met on several occasions, engaged in consensual sexual intercourse, spent hours on the phone together and exchanged hundreds of private messages with each other via text messages, Microsoft Teams and in a shared Apple note.
Plaintiff filed a motion to exclude the testimony of Defendant’s expert Ashraf Massoud.
Computer Forensics Expert Witness
Ashraf Massoud has over 14 years of experience in state law enforcement, including computer forensics investigations, criminal investigations, and internal affairs investigations. He successfully developed the computer forensic program for a large state government agency in California, which he then managed for 14 years.
Defendant stated that Massoud would testify about the Apple Note at issue in the case, which Plaintiff alleged “facilitated private and intimate communications” between the parties during the 2022 relationship.
Plaintiff argued that Massoud’s analysis boils down to a text comparison of different versions of the shared Apple Note, which would be within the realm of the jury’s expertise.
Defendant contended that Massoud’s testimony provided necessary technological explanations to the factfinder regarding what Apple Notes are, the features of Apple Note, and the editability of such Notes.
Ultimately, the Court agreed with Defendant that the testimony of Massoud should not be excluded in its entirety, but there may be limits on the scope of Massoud’s testimony. Massoud’s report showed that he has the experience and technical expertise required to provide expert testimony on these questions.
Massoud will also be permitted to testify as an expert on the differences between the text of the different copies of the Apple Note to the extent that the comparison proceeds from the Cellebrite extraction, and requires an explanation of the information provided by that extraction. He may not, however, testify as an expert solely to point out differences in printed documents that are visible to anyone. As Plaintiff pointed out, finding those discrepancies in the text is something the factfinder is more than capable of doing; an expert is unnecessary.
Held
The Court granted in part and denied in part the Plaintiff’s motion to exclude the testimony of Ashraf Massoud.
Key Takeaway:
The authenticity of the Apple Note that the parties used to communicate is a hotly contested issue. Given that the nature of their communications would provide information about the nature of their relationship, having an expert opine on Apple Notes generally, what kind of information is stored, and how individuals can interact within and edit the Notes would be helpful to the factfinder.
Defendant, Goran Gogic, was charged in a multi-count indictment with crimes related to international narcotics trafficking, in violation of the Maritime Drug Law Enforcement Act (“MDLEA”).
Subsequently, the parties filed several motions in limine concerning evidence of electronic communications that were purportedly seized and decrypted by European law enforcement.
As explained in the parties’ briefs, the communications in question were seized and decrypted by law enforcement authorities in Europe as part of a joint investigation that involved French, Belgian, and Dutch officials. Furthermore, the Government obtained electronic records of certain such communications from a French official through a Mutual Legal Assistance Treaty (“MLAT”) between the United States and France.
In order to obtain these records, a Department of Justice (“DOJ”) officer sent a written MLAT request for content associated with specific Sky user accounts, each denominated by a five-character “Sky PIN,” believed to belong to Defendant. The MLAT request specifically identified, among others, Sky PINs 28A508 and 5UIP0T as belonging to Defendant. Thereafter, French officials complied with the MLAT request and transmitted electronically a large set of spreadsheets and media files (the “Sky Evidence”).
Finally, the Defendant notified the Government of his intention to call three expert witnesses: Yehudi Moszkowicz, Andreas Milch, and Lee Koch. The Government moved to preclude any testimony and argument regarding the legality or propriety of the European law enforcement operation through which the Sky Evidence was obtained, and to preclude Defendant’s proposed experts from testifying.
Law and Legal Expert Witnesses
Yehudi Moszkowicz is a Dutch criminal defense attorney with a degree in “audio- engineering” who has experience representing clients in Europe in cases that involve encrypted phone evidence.
Moszkowicz’s two proffered reports concerned the structure and internal communications of the European governments that participated in the joint investigation, with emphasis on the purported involvement of the United States.
His analysis is based on his review of government documents and media reports that describe, inter alia, the role of Europol and the use of Dutch software to analyze communications captured from the Sky network.
The Court held that Moszkowicz’s report did not reflect any specialized knowledge and merely summarized documents that—if they had been admissible—could have been understood by a lay person. Additionally, while such information might have borne on issues raised in Defendant’s prior suppression motion, it was of minimal relevance to any issue at trial. The diplomatic details of the underlying investigation simply did not bear on the reliability of the resulting intelligence. Insofar as the defense intended to elicit Moszkowicz’s opinion about the reliability of the Sky Evidence at issue in the case, such testimony would have been speculative because, inter alia, he had not even personally reviewed the discovery.
Lee Koch
Koch’s expected testimony consisted of a single page “report” indicating that he had reviewed Sky Evidence and “agreed on all points” with the report of Milch and stated that the Sky Evidence “should be suppressed” because it was “incomplete, open to manipulation, unverifiable to an original dataset . . . contained multiple errors, contained multiple omissions, was collected and processed by unknown and unverified tools, and lacked timestamps or GPS data.”
Consequently, the Court held that the primary opinion set forth in the letter was a legal conclusion—namely, that the Sky Evidence “should be suppressed”—which would not constitute relevant or permissible testimony at trial.
Andreas Milch
Milch reviewed the Sky Evidence and drafted two lengthy reports evaluating the reliability of the data and highlighting various “anomalies” in the Chat Spreadsheets.
Those reports addressed a wide range of topics related to the Sky Evidence, including, inter alia, the functionality and format of the encryption used on the Sky network, the European “hack” operation, and various features of the Chat Spreadsheets and Media Folders. Milch’s conclusion was that the “integrity” of the Sky Evidence could not be verified due to the format in which it had been transmitted. The Court held that the integrity of the Sky Evidence is relevant to issues at trial, as it bears on the reliability of the Government’s evidence of the conspiracy.
The Court found that some (but not all) of Milch’s analysis was based on sufficient facts and sound methods—namely the close review of the Chat Spreadsheets and associated Media Folders. His speculation about the tools and methods of European law enforcement, by contrast, did not rest on a sufficient foundation. Finally, the Court held that Milch’s explication and analysis of certain topics would be helpful to the jury, who are likely to be unfamiliar with topics such as encryption, metadata and digital forensic standards that bear on the reliability of the Sky Evidence.
The Court permitted Milch to testify as an expert about the functionality and format of Microsoft Excel as well as the format and content of the Chat Spreadsheets, including metadata, in addition to general digital forensic standards and methods.
However, Milch was barred from testifying about the method by which European law enforcement captured, stored, analyzed, or decrypted communications from the Sky network and the use if artificial intelligence.
Held
The Court granted the Government’s motion in limine to preclude expert testimony as to Yehudi Moszkowicz and Lee Koch but denied it as to Andreas Milch.
Key Takeaway:
Milch is qualified to opine on the format and reliability of the Sky Evidence based on his certification as an IT forensics specialist and experience litigating multiple cases involving similar evidence. Federal Rule 702 does not require that an expert attend a specific type or number of trainings for a specific length of time, and the Second Circuit has advised that ‘the words qualified as an expert by knowledge, skill, experience, training, or education’ must be read in light of the liberalizing purpose of Rule 702.
The underlying case concerns the alleged release of toxic chemicals from a manufacturing facility in Canoga Park between 1968 and 1970 by Litton Systems, Inc., an entity now owned by Defendants Northrop Grumman Corporation and Northrop Grumman Systems Corporation (“Northrop Grumman”). Plaintiffs moved for class certification on their claims for negligence, private nuisance, and trespass relating to the contamination.
Defendants submitted an expert report by Dr. Dominique Hanssens purporting to show, among other things, that class members’ homes contained other potential sources of the relevant toxins—sources unrelated to the contamination from Litton’s manufacturing facility—such as common household cleaning products.
To reach this conclusion, Hanssens designed and conducted a survey sent by mail to homes in Plaintiffs’ Proposed Class Area (“PCA”).
Marketing Expert Witness
Dominique Hanssens is a Distinguished Research Professor of Marketing at the UCLA Anderson Graduate School of Management. He has served as the school’s faculty chair, associate dean, and marketing area chair. From 2005 to 2007 he served as executive director of the Marketing Science Institute in Cambridge, Massachusetts.
Hanssens studied econometrics at the University of Antwerp in his native Belgium. He then obtained an M.S. and Ph.D. in marketing from Purdue University. His research focuses on strategic marketing problems, in particular marketing productivity, to which he applies his expertise in data-analytic methods such as econometrics and time-series analysis.
Plaintiffs argued that Defendants tricked and coerced putative class members into responding to the survey—designed to undermine class certification—by including a two-dollar bill that was visible through the envelope window and giving survey respondents a $20 Walmart gift card. Additionally, according to Plaintiffs, Hanssens should have disclosed to participants that Northrop Grumman was sponsoring the survey and that the respondents could be undermining their legal position by responding.
Since the survey itself appeared to be facially neutral and created in accordance with accepted principles, the survey did not require the Court to take the corrective actions Plaintiff seeks.
Plaintiffs pointed to no statement that is likely to leave respondents with a false impression of the litigation or cause respondents to abandon their legal rights. And the Court found no statement in the survey to be clearly misleading or coercive. For example, the Court is not overly troubled with the statements that the recipient was sent the survey as a “resident of the greater Los Angeles area” or that “the results of this survey will not be used to try to sell you anything” and would be “kept in confidence.”
The Court believes that although Plaintiffs can come up with a misleading interpretation of these statements, they simply do not rise to the level of deception that would convince the Court to restrict the parties’ speech rights. Nor are they the type of statements that would enable the Court to craft a narrowly-tailored restriction on speech.
Held
The Court denied Plaintiffs’ motion to strike the expert report of Dominque Hanssens.
Key Takeaway:
Rule 23(d) gives the Court the power “to impose limitations when party engages in behavior that threatens the fairness of the litigation.” For example, courts have found that limitations are necessary in the wake of ex parte communications “soliciting opt-outs” or “discouraging participation in a case.” In contrast to these cases, Hanssens’ survey here was “facially neutral, did not require the participants to waive any of their rights in this litigation, and was conducted pre-certification when Defendants may generally gather information about the putative class.”
Case Details:
Case Caption:
Jed Behar Et Al V. Northrup Grumman Corporation Et Al
