In Sonate Corp. v. Beyond Meat, Inc., No. 1:23-cv-10690-IT (D. Mass. May 23, 2025), Massachusetts Indira Talwani granted Defendant Beyond’s Motion to Compel the production of pilot surveys conducted by an expert retained by Plaintiff, ruling that “the pilot surveys and their results are ‘facts or data considered’ by” the expert; therefore, the expert’s pilot surveys must be produced.

Case Discussion and Judge’s Ruling

In this case involving claims that Defendants adopted slogans infringing on Plaintiff’s registered trademark, Plaintiff disclosed an Expert Report by Dr. Thomas Maronick, who stated that Plaintiff had retained him “to design and conduct an online survey” assessing consumers’ likelihood of confusion as to those slogans. During his deposition, Dr. Maronick revealed that he had carried out two “pilot surveys.”

Dr. Maronick testified that he discarded the first pilot survey because of technological problems getting the videos mounted, and the image associated with the second survey produced “results that … didn’t make any sense”. Ultimately, Dr. Maronick settled on a survey design using the meat display floor image.  That final version of the survey was expanded to a full set of respondents and disclosed in his expert report, which referenced only this likelihood-of-confusion survey and not the pilot surveys, leading to Defendant Beyond’s motion to compel.

In discussing 2010 amendments to the Rules that addressed the potential conflict between expert disclosures and work product protection, Judge Talwani stated: “Rule 26’s protection of ‘drafts’ is designed to protect attorney work product…’The rationale for protecting attorneys [through the work-product doctrine] does not extend to testifying expert witnesses, who play a fundamentally different role in litigation.’… Second, the requirement for the written report in Rule 26(a)(2)(B) “[was] amended to provide that disclosure include all ‘facts or data considered by the witness in forming’ the opinions to be offered, rather than the ‘data or other information’ disclosure prescribed [previously].’”

In considering Vegadelphia’s argument that the pilot surveys could not have been considered by Dr. Maronick because they were discontinued, and he “formulated his likelihood of confusion opinion solely on the basis of the final, full survey”, Judge Talwani stated: “Robocast, Inc. v. Apple, Inc. is instructive. There, the District of Delaware found it ‘difficult if not impossible to believe that an expert whose opinions are predicated upon the creation of a statistically-meaningful effort could have, in the statistical sense, completely ignored the data that had been previously collected by him[,]’ even where the data from prior surveys had been deleted and the expert attested that he could no longer remember them at the time he drafted his reports…When an initial survey is fine-tuned by adjustments, ‘although the statistician may eventually ignore or forget what happened with the initial survey, he has by definition relied upon the first survey to formulate the subsequent survey; the former is effectively a stepping stone…. That is, the expert is as informed by what answers the questions provoke as by any perception that sample size may be insufficient or that the questions themselves must be altered in some respect.’”

Continuing, she said: “Dr. Maronick designed the final survey by moving from a video to still images and modifying stimuli to avoid the deficiencies he encountered in the pilot surveys. He remembered the pilot surveys and his modifications when testifying about them at his deposition. The court finds that he did consider those pilot surveys and their results in formulating his final survey. Accordingly, the court finds the pilot surveys and their results are ‘facts or data considered’ by Dr. Maronick that should have been disclosed in his expert report.” So, she ruled that the expert’s pilot surveys must be produced.

So, what do you think? Do you agree with the Court’s ruling that the expert’s pilot surveys must be produced? Please share any comments you might have or if you’d like to know more about a particular topic.

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