The explosion of lawsuits alleging violations of the Telephone Consumer Protection Act has spurred a cottage industry of “experts” who are willing to offer their services to provide analysis of topics like the capacity of automated telephone dialing systems (ATDS), dialer databases, and offer testimony to help identify unknown class members. But a published report is trying to provide guidance to help lawyers make sure they are asking these “newly minted” experts the right questions prior to hiring them.
Many experts are not performing a thorough analysis of call data that is provided by defendants during the discovery process, and that could lead to problems for plaintiffs and lawsuits down the line. From the report:
Many TCPA experts appear to do little actual analysis and file reports that lack scientific rigor. The dialer databases involved in Fair Debt Collection Practice Act, eavesdropping, and TCPA cases are usually the most critical evidence produced. These databases may record how many calls were made, to what numbers, when, what happened on the call, whether the recipient objected to the call, and whether a recording notification was provided.
This data is often produced during discovery in plenty of time for a full examination yet experts often simply tally the total number of calls during the class period and identify the cellular numbers called. Basic quality control measures are often skipped, resulting in incorrect conclusions and inaccurate understandings of how data was compiled.
Given the amount of damages potentially at stake (claims over $100 million are common), it’s surprising that so little is done to investigate data at the heart of these cases. Flimsy, sloppy, or perfunctory data analytics can result in conclusions that lack integrity and reliability, but these calculations are rarely effectively investigated.
The article shares five questions that attorneys should ask individuals before hiring them as TCPA experts. Those questions are:
- Is payment of your fees contingent upon class certification?
- Why haven’t you conducted testing?
- Did you examine the database for evidence of audit logs or corruption before finalizing your conclusions?
- Have you conducted an analysis like the one contained in your report for anyone other than a class action lawyer?
- What quality control testing did you perform on your findings?
In citing a number of cases that were dismissed because not enough testing was conducted, the report concludes that lawyers should be wary of anyone calling themselves a “technology” expert. Just like a podiatrist would not be called on to testify about brain surgery, a database administrator would not be considered an expert on information security.
Expose posers by asking “test questions” that a “real” expert should be able to answer, such as pertinent ISO standards or the definition of discipline specific terms of art. Failure to answer these questions can destroy an expert’s credibility.