Free Appendix - District Court of Delaware - Delaware

Case 1:04—cv—01560-JFC Document 18-2 Filed 05/26/2005 Page 1 014
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Jzlrmvtated
MANUAL FOR
COMPLEX
LITIGATION
THIRD
2003
3 DAVID F. Hmm

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i 21. Pretrial Procedures 2 1.493
j HC Text .4 Discovery
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21.493 Sampling/Opinion Surveyszw
‘ Statistical methods may often be useful to estimate, to specified levels of accuracy the
characteristics of a "population" or "universe" of events, transactions, attitudes, or . (
2 opinions by observing those characteristics in a relatively small segment or “sample”
of the population. The use of acceptable sampling techniques, in lieu of discovery and
presentation of voluminous data from the entire population, may produce substantial
savings in time and expense. In some cases, sampling techniques may provide the
l only practicable means to collect and present relevant data.258[102] V
» The choice of appropriate methods will depend on the purpose to be accom-
V. plished. A distinction must be drawn between sampling for the purpose of generating
Y A data about a population to be offered for its truth, and sampling in the nature of
as polling tomeasure opinions, attitudes, and actions by a population. _
In the case of the former, the reliability and validity of estimates about the
population derived from sampling are critical. The methods_ used must conform to
e generally recognized statistical standards. Relevant factors include whether:
• the population was properly chosen and defined; .
• the sample chosen was representative of that population;
• the data gathered were accurately reponed; and V -
• the data were analyzed in accordance with accepted statistical principles.
Laying the foundation for such evidence will ordinarily involve expert testimony
and, along with disclosure of the underlying data and documentation, should be taken
up by the court well in advance of trial. Even if the court finds deficiencies in the
proponent’s showing, the court may receive the evidence subject to argument going
to its weight and probative value.2’9 _ _
Sampling for the purpose of establishing the characteristics of a population must
· be distinguished from sampling (e.g., opinion polls or surveys) for the purpose of
questioning individuals about such matters as their observations, actions, attitudes, V
beliefs, or motivations. Such sampling is not intended toestablish the truth of an
objective fact, but rather to provide evidence of public perceptions. The four factors ·
listed above are relevant to assessing the admissibility of a survey but need to be
. applied in light of the particular purpose for which the survey is offered. In addition,
assessment of the validity of a survey should take into account whether: ( ·
• the questions asked were clear and not leading; ,
• the survey was conducted by qualified persons following proper interview proce-
dures; and
• the process was conducted so as to ensure objectivity (e.g., was the surveyconducted l l
in anticipation of litigation and by persons connected with the parties or counsel or
aware of its purpose in the litiption?).
257. For a more detailed discussion of the use of surveys, see Reference Manual on Scientific
Evidence (Federal judicial Center 1994).
258. For example, in In re Shell Oil Refinery 136 F.R.D. 588 (E.D. la. 1991), a statistical expert .
profiled the compensatory damage claims of the class members to assist the jury in fixing the amount
of punitive damages. _
259. See E. 8:}. Gallo \Wnery v Gallo Cattle Co., 967 F.2d 1280, 1292 (9th Cir. 1992); McNeilab,
Inc. v American Home Prods. Corp., 848 F.2d 34, 38 (2d Cir. 1988).
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. Case 1.04-cv-01560-JFC Document 18-2 Filed 05/26/2005 Page 4 of 4
21.494 · ,21. Pretrial Procedures
P .49 Special Problems FJC Text
When sampling or survey evidence is proposed to be offered, parties may want to
consider whether details of the proposed sampling or survey methods should not be
l l disclosed to the opposing parties before the work is done (including the specific
questions that will be asked, the introductory statements or instructions that will be
_ given, and other controls to be used in the interroga[103]tion process). Objections
can then be raised promptly and corrective measures taken before the survey is
completed. A meeting of the parties' experts can expedite the resolution of problems
affecting admissibility
Objection is sometimes raised that an opinion survey although conducted accord- `
ing to generally accepted statistical methods, involves impermissible hearsay. When A
` the purpose of a survey is to show what people believe—but not the truth of what
` they believe—the results are not hearsay2°° ln the rare situation where an opinion
survey involves inadmissible hearsay experts may nevertheless be allowed to express
. opinions based on the results of the survey2‘1 _
21.494 Extraterritorial Discovery
` Discovery directed at witnesses, documents, or other evidence located outside the
United States will often create problems, since many countries view American pretrial
t e discovery as inconsistent with or contrary to their laws, customs, and national
, · interests.2°2 The need for evidence located outside the United States should be _
l ( explored early in the proceedings to allow for the extra time that may be required to _
_ obtain it and consider ways to minimize cost and delay or to develop altemate
L . methods of proof when the evidence cannot be obtained. For example, the parties
' ‘ may achieve substantial savings by paying a willing deponent to come the United
1 States or, if permitted by the laws of the host country conducting short`depositions
t’ e » telephonically
F The following factors may affect whether, to what extent, and in what manner
I * foreign discovery is conducted:
5 { • laws of the United States. The procedures for obtaining evidence from other ·
: countries are prescribed by (1) the Federal Rules of Civil Procedure, particularly Rule
, J 28(b) (depositions in a foreign country) ;265 (2) statutes, particularly 28 U.S.C. § 1781 ·
- ' (transmittal of letter rogatory or request), § 1783 (subpoena of person in a foreign
. country), and§ 1784 (contempt); and (3) international agreements, particularly the
Y 260. See Fed. R. Evid. 801(c), 803(3). ‘
1 261. See Fed. R. Evid. 703.
r 262. In civil law jurisdictions in which the gathering and presentation of evidence is under the -
. ‘ control of the courts and not the litigants, taking a deposition may be considered the performance
' _ of a judicial act by another sovereign. In addition, many common law jurisdictions disfavor discovery
C I requests directed at obtaining material other than evidence to be presented at trial. See, e.g., Rio
, , Tinto Zinc Corp. y Westinghouse Elec. Corp., [1978] 1 All E.R. 434 (I-l.L 1977); Extraterritorial
t Discovery in International Litigation 24 (PLI 1984).
r , 263. See also Fed. R. Civ. R 44(a) (2) (authentication of foreign ollicial record). This rule must be
e read in conjunction with the 1981 Hague Convention Abolishing the Requirements of legalization
,’ . . for Foreign Public Documents, October 5, 1981 (entered in force for the United States on October ·
_ 15, 1981), 527 U.N.T.S. 189, T.IA.S. No. 10072, reprinted following the rule; see also 28 U.S.C.
; §§ 1740, 1741, 1745. .
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