Free Motion in Limine - District Court of Federal Claims - federal

Case 1:98-cv-00720-GWM
Not Reported in F.Supp.2d 2002 WL 31027957(N.D.II1.) (Cite as: 2002 WL 31027957(N,D,II1.))

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Filed 04/18/2005

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Onlythe Westlaw citation is currently available. UnitedStates District Court, N.D.Illinois, Eastern Division. BUILDERS ASSOCIATION OF GREATER CHICAGO, Plaintiff, CITYOF CHICAGO, municipal corporation, a Defendant. No. 96 C 1122. Sept. 10,2002. Upon defendanfs objections to United States Magistrate Judge Brmvn's discovery order, the District Court, Moran, Senior Judge, held that plaintiffs expert was entitled to an opportunityto test defense expert's results derived from the Census Bnreau database before those results could be admitted. Objections denied. Federal Civil Pmcedure~:=~O 170Ak0k. Defendant was required to produce to plaintiff the census data nfilized by defense expert in preparing the tables that were included in his expert reports; plaintiff's expert wasentitled to an opportunityto test defense expert's results derived from the Census Bnreau database before those results could be admitted. MEMORANDUM OPINION AND ORDER MORAN, Senior J. *1 On May 22, 2002, Magistrate Judge Brown entered an order that, in relevant part, states as follows: The defendant must produce to the plaintiff the census data utilized by Dr. Bates in preparing the tables that are included in either of his expert reports. Defendantobjects to the order. Although the parties tend to argue the issue in some~vhat categorical terms, its nuancesappear rather clearly in the careful and extendeddiscussions before Judge Brmvn several occasions. Tbe United States on Census Bureau collects data in a database from the

reports of reporting individuals and entities. Those reports are the raw data collected, but they are confidential; experts rely upon the collective statistical data derived fromthose reports; and no one is claiming any need or right to have access to the raw data of those reports. Much collective statistical data is published and is available to the public. Noone is claiming any need to access that information other than through the readily available means. The issue here relates to an intermediate access. The Census Bureau database can be a treasure trove of information for researchers interested in specific questions not easily answered by the published information. They need to access the database with programsspecifically tailored to obtain information relevant to their specific questions. The Census Bureau, it appears, is agreeable to providing that access but only under controlled conditions. Presumably wishesto assure itself that the raw data it are protected from disclosure and that the programs are legitimate and reasonable research tools. To that end it requires that putative researchers obtain advance approval for access, submit their programs for prior review, and use Census Bureau computers for their research. That approval can be a rather lengthy process. Dr. Bates, an expert for the City, has that approval and has accessed the Census Bureau database on several occasions. He has copies of some of the programshe used and does not have copies of others, although he believes he can replicate those programs. Plaintiffs expert has not sought and does not have that approval. Weagree with Judge Brownthat plaintiffs expert musthave had an opportunity to test Dr. Bate's results derived from the Census Bureau database before those results can be admitted(while the issue arises in the context of a motionto compel,that is the flip side of admissibility). Is that possible? Judge Brown's ruling relates to her responsibility to complete discovery so as to schedule disposifive motions or trial. This court has the responsibility to role on any dispositive motions, and we assumethat it is unlikely that the ruling will ultimately come downto Dr. Bates' massagingof census data. Andthe court will schedule the trial date, which obviously will follow by some time the completion of discovery. There would appear, therefore, somewhat less time constraints on resolving this matter here than before

© 2005 Thomson/West.No Claim to Orig. U.S. Govt. Works.

Case 1:98-cv-00720-GWM
Not Reported in F.Supp.2d (Cite as: 2002 ~'VL31027957,"1 (N.D.IIL)) Judge Brmva.

Document 313-7

Filed 04/18/2005

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*2 Perhaps plaintiffs expert should seek approval. Indeed, since he and Dr. Bates seem to be locked into a continuing adversarial dialogue, he maywell be interested in having access to the same resources. Defendant has asked the CensusBureau to permit Dr. Bates to reran his programs~vith plaintiffs expert present. If flaat happens, it could determine whether the replicated programs are indeed the same, obtaining the same results. But that does not wholly resolve this problem.A slight but appropriate change in programfocus mayyield substantially different results. Plaintiffs expert must havethe opportnnity to test the validity of those results by addressing different questions, i.e. different programs, to the

database. Andthat he cannot do, cannot decide what changes in programs he needs for testing, until he know what programs Dr. Bates used. But then, perhaps, Dr. Bates, given his access, can mnthose altered programs. Werecognize that plaintiff cannot just say it has no access and be done with it; it has some responsibility to pursue reasonable means of acquiringa wayto test defendant'sresults. The upshot of all this is that we deny the City's objections, ~vhile leaving open the possibility of satisfying Judge Brown'slegitimate concerns. 2002 WL 31027957(N.D.Ill.) END OF DOCUMENT

© 2005 Thomson/West.No Claim to Orig. U.S. Govt. Works.