Damages experts often rely upon information supplied by client personnel when performing economic damage analyses. Such information can take a number of different forms, including, but not limited to:
- Projections of financial performance, including revenues and associated costs;
- Assumptions regarding growth rates, pricing, financing opportunities, and cost structure;
- Business information, such as markets served, competitors, market share and industry trends; and
- Technical information, such as product features and specifications, and how those features and specifications contribute to the operation of a product?
While damages experts may rely on client representations and information as part of the expert engagement, it should not be done without appropriate consideration. Case law demonstrates that reliance on client-supplied information is frequently an issue subject to challenge in litigation, both with respect to admissibility of expert testimony, and the weight that should be accorded to the expert opinions regarding damages.
What the case law demonstrates
The cases analyzed suggest that the courts consider a number of key issues when evaluating the admissibility and weight of the expert testimony that relies upon client-supplied information, including but not limited to:
- The qualifications of client personnel supplying information;
- Expert acceptance of client data/information, with and without testing;
- The reliability of projections provided by the client;
- The reliability and reasonableness of assumptions used to develop client projections; and
- The context/motive within which projections were prepared.
Reflecting these considerations, the cases examined demonstrate that the courts appear to prefer that damages experts:
- Use client-supplied projections that rest on assumptions that are testable, and that have a linkage to the operative reality of the company’s business;
- Rely on representations that are made by client personnel who are qualified to make the representations based upon their day-to-day responsibilities or background;
- Consider the underlying data and assumptions that go into management provided information, and consider further corroborating evidence; and
- Use management supplied projections that are prepared in the normal course of business, as opposed to projections that are prepared solely for litigation purposes, if possible.
As is typical in many matters that turn on specific facts and circumstances, cases involving the analysis of economic damages that rely upon client-supplied data do not readily lend themselves to the application of a rigid formula. Rather, as reflected in the case law surrounding challenges to the admissibility and weight accorded to expert testimony, the courts look to whether the expert has performed adequate analysis on the client-supplied data and information, including, but not limited to, the reasonableness and testability of assumptions, the qualifications of the personnel supplying the information, and whether the data was prepared in the normal course of business.
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