Jerry Newmaker v City of Fortuna (C-12-4675-PJH)
Defense had exclusive control over critical video evidence, which they shared with their forensic expert. However, only an overly compressed inaccurate video version was disclosed in discovery, and thus plaintiff's expert was denied knowledge that a more accurate version existed. While both video versions would have appeared visually similar during playback, they were vastly different during a frame-by-frame comparison or forensic analysis.

Defense's expert was only aware of the accurate video version, which he referenced within his video enhancement report. Plaintiff's expert was only aware of the discovery video, which he referenced within his video enhancement report. Plaintiff's attorney, nor the court, were aware that each expert had been given different evidence, and neither expert was aware that two different video versions existed.

Plaintiff's expert (me) was hired to perform video enhancement, but I was not hired to test the authenticity of that video. Since the only video evidence provided to me was fatally inaccurate, any enhancement opinions derived would thus become inaccurate. After the Rule 26 submission deadline, defense shared my report with their expert, who's rebuttal report correctly identified that flawed data results in flawed opinions.

Defense used that rebuttal report in their pre-trial motion for summary judgment, claiming that I lacked expertise in video compression. This claim could have been easily refuted by my CV, yet the MSJ was granted before I learned of the rebuttal report or could correct the record. It was not until after the MSJ that I was first made aware of, and given access to, the video evidence used by the defense expert.

In November of 2016, Judge W. Fletcher of the Ninth Circuit Court of Appeals reversed and remanded this matter stating, "We review for abuse of discretion a district court's decision to exclude expert testimony and other evidence during summary judgment proceedings." I wrote a new report, and was once again scheduled to testify as an expert in this matter, but the case settled before trial.

To prevent me and my clients from being ambushed by inaccurate discovery in the future, I now perform some evidentiary authenticity testing even when the client does not purchase that service. To help my industry peers, I teach doing this as an industry best practice, and have added authenticity testing tools into the VideoCleaner forensic software that I created to assist law enforcement and the forensic community.