Plaintiffs filed a Daubert motion against defendant’s expert Gregory E. Smith, in part because he relied upon personal knowledge of a license in the prepaid card industry, but this license was not produced for this case. Here, Mr. Smith testified that a license between Barry Fiala as licensor and two licensees reflects rates of 4.8 cents per card. The court rules that “because Mr. Smith relied on the license, did not produce the license, and was unable at deposition to elaborate on the details of the license, he may not make reference to this license or its contents.”
Based upon his publicly-available CV, he has worked at least one other Fiala case and so apparently tried to use that knowledge here. Presumably the license at issue is not public domain, or it could have been produced here.
Alexsam, Inc. v. Shell Oil Company, et. al., 2-08-cv-00015 (E.D. TX, 10/14/11, Order) (Schneider)