Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Geoffrey Pecover; and andrew Owens, On Behalf of Themselves v. Electronic Arts

March 23, 2012

GEOFFREY PECOVER; AND ANDREW OWENS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
ELECTRONIC ARTS, INC., A DELAWARE CORPORATION,
DEFENDANT.



The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER CONCERNING DUTIES AND INSTRUCTIONS FOR COURT-APPOINTED TECHNICAL ADVISOR AND MODIFYING THE CASE SCHEDULE

United States District Court For the Northern District of California

The Court hereby notifies the parties of its intent to 13 appoint Dr. Tim Bresnahan as the Court's Technical Advisor 14 regarding economic issues in this antitrust case, if Dr. Bresnahan 15 accepts the appointment. The Court further instructs Dr. 16

Bresnahan regarding his duties and role as Technical Advisor. 17

BACKGROUND

At the hearing on January 19, 2012, this Court directed the 19 parties to meet and confer regarding the advisability of having a 20 Court-appointed expert who would advise the Court on the economic 21 issues in this case but would not testify to the jury. The Court 22 instructed the parties to consider candidates for such an 23 appointment, the subject matter on which the expert would assist 24 and what role the expert might perform. The Court noted that it 25 might require expert advice to assist it in resolving the parties' 26 competing expert testimony to rule on Defendant Electronic Arts, 27

Inc.'s anticipated motion to de-certify the class prior to its 28 summary judgment motion. On March 12, 2012, the parties filed a joint letter with the

Court. In the letter, the parties identified five candidates, 3 three of whom were selected by Defendant and two of whom were 4 selected by Plaintiffs. Plaintiffs stated that they would accept 5 one of Defendant's selections, Dr. Steven Salop. Defendant in 6 turn recognized that any of the five candidates, including the two 7 proposed by Plaintiffs, were "highly qualified" and "would be a 8 valuable resource for the Court." Joint Letter at 5. While 9

Defendant believes that appointment of a neutral economist is 10 "appropriate and reasonable," id. at 3, Plaintiffs argue that the 11 Court will be able to address adequately the issues presented in this case without expert assistance. 13

LEGAL STANDARD

"When outside technical expertise can be helpful to a 15 district court, the court may appoint a technical advisor." FTC 16 v. Enforma Natural Prods., 362 F.3d 1204, 1213 (9th Cir. 2004) 17 (citing Ass'n of Mexican-American Educators v. California, 231 18 F.3d 572, 590 (9th Cir. 2000) (en banc)). "A technical advisor is 19 a tutor who aids the court in understanding the 'jargon and 20 theory' relevant to the technical aspects of the evidence." Id. 21 (quoting Reilly v. United States, 863 F.2d 149, 158 (1st Cir. 22 1988)). "The role of a technical advisor is to organize, advise 23 on, and help the court understand relevant scientific evidence." 24 Id. (citing Ass'n of Mexican-American Educators, 231 F.3d at 590). 25

As an advisor to the Court, the role played by a technical advisor is distinct from that of an expert witness. "A technical 27 advisor may not assume the role of an expert witness by supplying 28 new evidence; nor may an advisor usurp the role of the judge by making findings of fact or conclusions of law." Id. (citing A&M 2 Records, Inc. v. Napster, Inc., 284 F.3d 1091, 1097 (9th Cir. 3 2002); Reilly, 863 F.2d at 155). Because of this distinction, 4 "[t]echnical advisors, acting as such, are not subject to the 5 provisions of Rule 706, which govern court-appointed expert 6 witnesses." Id. 7

While the Ninth Circuit does "not require strict adherence to any specific procedures regarding technical advisors," it has 9 endorsed certain "procedural steps . . . to assure the parties 10 that the court is proceeding openly and fairly appointing such individuals." FTC, 362 F.3d at 1214-1215. These steps are to

(1) utilize a fair and open procedure for appointing a neutral technical advisor;

(2) address any allegations of bias, partiality, or lack of qualification;

(3) clearly define and limit the technical advisor's duties;

(4) make clear to the technical advisor that any advice he or she gives to the court cannot be based on any extra-record information; and

(5) make explicit, either through an expert's report or a record of ex parte communications, the nature and content of the technical advisor's advice.

Id. (citing Ass'n of Mexican-American Educators, 231 F.3d at 20

611-14 (Tashima, J., ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.