Forensic Accounting Expert Witness Testimony Allowed in Trade Secrets Litigation

The plaintiffs hired a Forensic Accounting Expert Witness to provide testimony.  The defendants filed a motion to exclude, which was denied by the court.

Facts:  This case (Hunters Run Gun Club, LLC et al v. Baker – United States District Court – Middle District of Louisiana – June 4th, 2019) involves a claim of misappropriation of trade secrets.  The plaintiffs allege that the defendant misappropriated the plaintiff’s trade secrets and business information and left to work for the competition.  The plaintiff also alleges that the defendant also caused financial hardship to the plaintiffs.  The plaintiffs hired Harold Asher, CPA (Forensic Accounting Expert Witness) to provide testimony.  The defendants have filed a motion to exclude the expert witness testimony of Mr. Asher.

Discussion:  Asher was hired by the plaintiffs to provide expert testimony related to the alleged financial losses that the plaintiffs contend were caused by the defendants.  The defendants argue that Asher’s opinions should be excluded because a) he did not base his opinions on enough facts or data. b) he did not conduct an investigation into the alleged causation asserted by the plaintiffs, and c) does not utilize appropriate or reliable principles or methodology.

The defendants argue that Asher did not consider the plaintiffs financial data from 2007 to 2011 and thus, was insufficient.  The defendants also argue that Asher’s opinions are the result of unsupportable assumptions, which are not supported by any evidence.  In addition, the defendants cite a case in which Asher was excluded from providing expert testimony.  The plaintiffs point out that the case cited by the defendants was distinguished by the Eastern District of Louisiana.

In addition, the plaintiffs do not contend that the underlying financial information was inaccurate.  The basis of the Plaintiffs argument is that Asher chose what he considered to be the historically relevant time period for the purposes of formulating his opinion.  The court opines that this allegedly narrow focus does not render the resulting opinions unreliable.

The defendants argue that causation is a necessary prerequisite for damages and that Asher did not perform an independent investigation into the factual assertions and did not establish a causal connection between the action of the defendants and the plaintiffs alleged damages.  The court opines that causation is a question of fact that is to be determined by the trier of fact.  The court continues by noting that if the trier of fact finds that causation is lacking, the damages question is not reached.

Last, the court opines that the methodology used by Asher to determine his loss calculations is commonly accepted and are admissible.

Conclusion:  The motion to exclude the expert witness testimony of Harold Asher is denied.