The Use of Third-Party Surveys in Litigation
IPWatchdog, July 3, 2023
In their article “The Use of Third-Party Surveys in Litigation,” published in IPWatchdog, Analysis Group Vice President Peter Hess and Senior Analysts Hana Dai and Jacob Judd examine the use of non-litigation surveys in recent cases. While many surveys proffered as evidence are designed and fielded for the particular case at hand, litigants will sometimes attempt to introduce surveys that have been conducted independent of litigation. These non-litigation or “third-party” surveys – which have been offered as evidence in false advertising, patent, and antitrust cases, among others – have had mixed success in court. Some have been admitted precisely because, having been conducted independent of the matter at hand, they are viewed as more objective than surveys created by experts for a particular case. Others, conversely, have been excluded for not being tied closely enough to the facts of the litigation.
The authors highlight key factors that may influence a third-party survey’s admissibility and consider recent examples of both admitted and rejected surveys across a variety of practice areas. They conclude by offering guidance on assessing whether and how to introduce such surveys.
Authors
Dai H, Hess P, Judd J