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The Intellectual Property StrategistFeaturesExpert WitnessesIntellectual PropertyLitigation

Survey Says: Tips on Getting Over the Daubert Hurdle

By Rebecca Kirk Fair, Peter Hess and Vendela Fehrm
July 01, 2020

Surveys can provide useful evidence in litigation if they are conducted by a qualified expert employing reliable methods that survive a Daubert challenge. To be admissible, expert testimony must be "relevant to the task at hand" and rest on a "reliable foundation" (Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)). In the first of a series of articles drawing on our review of over 300 U.S. court rulings in cases involving surveys, including over 150 Daubert motions, we provide some suggestions for getting survey evidence admitted for consideration in court. Our recommendations fall under two broad categories: relevance and reliability.

To Be Relevant, Make Sure You're Addressing the Right Questions

According to the Federal Rules of Evidence, "[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the evidence." (FRE 401.) From this rule, a few guidelines for survey admission follow.

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