technology, statistics and linguistics…. This topic is clearly beyond the ken of a layman and requires that any conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence.”102

Superimposing Daubert hearings on top of e-discovery proceedings will make an already costly procedure even more costly, one of the consequences that Rule 26(b)(2)(B) seeks to avoid. On the other hand, a search that would not lead to the information sought defeats the objectives of discovery. A helpful opinion on how these factors should be balanced that examines the issues a court must consider can be found in Victor Shirley, Inc. v. Creative Pipe, Inc.,103 which also contains a very brief overview of the various techniques for conducting searches of electronically stored information. A court may well require technical assistance in dealing with these issues. In some instances, a court-appointed expert or a special master appointed pursuant to Rule 53 of the Federal Rules of Civil Procedure might be more desirable than a full-fledged Daubert battle among experts, particularly if one of the parties has far fewer resources than its opponent.

C. Daubert Hearings

When a Daubert issue arises, the trial court has discretion about how to proceed.104 It need not grant an evidentiary hearing and has leeway to decide when and how issues about the admissibility of expert testimony should be determined. The burden is on the parties to persuade the court that a particular procedure is needed.105

The generally unfettered power of the trial judge to make choices emerges clearly if we look at United States v. Nacchio,106 a criminal case. The defendant claimed that the trial judge erred in granting the government’s Daubert motion to exclude his expert in the middle of the trial without an evidentiary hearing, leading to his conviction. On appeal, a divided panel of the Tenth Circuit reversed on the ground that the expert testimony had been improperly excluded and remanded for a new trial. After a rehearing, the conviction was reinstated in a 5-4 opinion. The majority rejected the defense’s central argument that the court had to take into account that this was a criminal case; the majority saw this purely as a Daubert issue and found that the burden of satisfying Daubert and convincing the trial judge to hold a hearing rested solely on the defendant. Although there may be some cases in which a reviewing court would find that the trial court abused its discretion in the procedures it used in handling a Daubert motion,107 this has

102. See Equity Analytics, 248 F.R.D. at 333.

103. 250 F.R.D. 251 (D. Md. 2008).

104. Kumho Tire Co. v. Carmichael, 526 U.S. at 137, 150 (1999).

105. For example, in the government’s RICO tobacco case, all Daubert issues were decided on the papers without any testimony being presented. United States v. Phillip Morris Inc., 2002 WL 34233441, at *1 (D.D.C. Sept. 30, 2002).

106. 555 F.3d 1234 (10th Cir. 2009).

107. See Padillas v. Stork-Gamco, Inc., 186 F.3d 412 (3d Cir. 1999).

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