Lawyers Sued Over ‘Pirated’ Expert Report

Researcher Lindsey Olson has filed a copyright infringement lawsuit against a series of defense attorneys, alleging they pirated an expert report she created.

According to Olson, her research firm, In Lux Research (ILR), created a 27-page report that highlighted the alleged bias of those who lived in Washington, DC, against suspected participants in the January 6 attack on the Capitol building.

The report was meant to support a motion to move the criminal trial to a different venue. According to Olson, two firms paid $30,000 for a license to use the report and used it to support two cases, submitting it in April 2022. 

However, she alleges that other lawyers, including some public defenders, also used the report without her permission and is suing several of them for copyright infringement.

According to CBS News, one of those targets is defense attorney Kira West. According to Olson, West “pirated a copyrighted expert report and used that report in three separate criminal cases for the very purpose the report was originally created.”

In all the cases filed, Olson claims that the fair market value of the report is $30,000 per use. Despite the report, none of the defendants succeeded in having the court transfer their case to another jurisdiction.

Still, the lawsuits raise interesting questions about copyright and its application to expert witness reports. It’s a combination we don’t see a great deal of, and that’s for some very simple reasons.

Copyright and Expert Witness Reports

Disclosure: I regularly serve as an expert witness in copyright and plagiarism-related matters. I have filed many reports in cases, but this is not my particular area of expertise, nor have I worked in criminal cases. 

From a copyright standpoint, expert witness reports exist in a very unusual space. They tend to be very expensive as expert witnesses often command very high hourly rates, and such reports can take a great deal of time. 

However, once they are submitted and filed with the court, they become public record. For example, you can view and download Olson’s report here. Unless the report is sealed for one reason or another, anyone can view or access it via PACER, CourtListener and other services.

But that doesn’t mean that the report isn’t protected by copyright. An expert witness report is a work of creative authorship featuring text, images and other material that is protectable under copyright law. 

It’s also worth noting that, typically, the lawyers who paid for the report don’t own the copyright in it. Though the lawyers have a license, either implied or written, to use the report in the case, they don’t own the copyright unless they were transferred it. 

This is because expert witnesses are generally not employees of the firms that hire them, and such reports are not considered works made for hire.

But most of the time this isn’t an issue. Most expert witness reports are single-use. They apply solely to the case for which they were created and would need to be rewritten or modified to apply to a different case. 

Second, it’s generally accepted that the expert who wrote the report would be willing to testify in support of it. As such, copying an expert report without first securing the author’s testimony could create problems down the road. 

However, the January 6 attack on the Capitol produced a unique situation. One that made copying and reusing an expert report not only possible, but seemingly inevitable.

What Happened in This Case

Ultimately, two things made this case special.

First, the January 6 attack created a situation in which hundreds of defendants faced very similar charges based on very similar facts. Though some details varied from individual to individual, the broad strokes of what they were charged with and why were essentially the same.

Second, the report isn’t specific to any one case. Instead, it’s a general study of potential jurors’ feelings and possible biases in the D.C. area, compared with other regions (namely, Florida, North Carolina, and Virginia). 

In short, this report could easily apply to any of the hundreds of other cases, and it appears, at least in some of those cases, lawyers submitted it as evidence. However, they did so without consulting Olson, obtaining her permission or offering any payment.

As a result, Olson has filed these lawsuits, alleging copyright infringement. 

Note: The CBS report (and other coverage) says these are lawsuits over “plagiarism,” but that is inaccurate. Not only is plagiarism not something that you can sue over, but the reports were attributed when filed. The issue is over the lack of a license to use the report.

To that end, Olson has a fairly straightforward case. Her report was copied and resubmitted without her permission. That is a fairly straightforward claim of copyright infringement. 

Though it was in the public record, that doesn’t mean it’s in the public domain under copyright law. We’ve seen lawyers sued for copying briefs, so similar litigation is not unheard of.

As long as Olson has taken care of all the technicalities, such as copyright registration, she is in a decent position. 

That said, Olson may have one issue. The $30,000 she is claiming likely wasn’t for the license to use the report. Most experts are paid an hourly rate for creating the report, and the license is not a separate charge. The courts will have to determine what a reasonable license fee is, but that could be difficult as expert reports aren’t typically relicensed to other firms.

To be clear $30,000 is not unreasonable for a report of this size and complexity. But that amount covers the time to generate the report, not just the license to use it. It will be interesting to see if and how the courts address that issue.

Bottom Line

For all the reasons stated above, we don’t see much litigation in this space. Expert reports are typically single-use, and the expectation that the expert will testify makes using one without permission rare.

Oddly enough, what this might more directly compare to is academic research. Such research is often cited in legal cases, and it’s almost certain that, at some point, lawyers have uploaded and shared studies as part of their filings instead of just referencing them. 

Publishers, or whoever holds the copyright to such studies, would be within their rights to file a lawsuit over distribution. Once again, such instances are rare, but it’s at least a theoretical possibility.

So, if you are a lawyer, it is worth being careful about what you submit as part of your case and ensuring that you have the right to do so. Though litigation over legal filings is still relatively rare, as this case shows, it does happen.

In the end, this is another unusual case in copyright law, but it’s one that should serve as a warning to lawyers everywhere.