Consulting with Counsel

Non-Testifying Consulting Roles

Not every case requires a testifying expert. In many digital marketing disputes, attorneys benefit most from a consulting expert who works behind the scenes to help the legal team understand the technical issues, develop case strategy, and prepare for depositions and trial without being disclosed as a testifying witness. A non-testifying consulting expert operates under the protection of the work product doctrine, which means that the consultant's analysis, opinions, and communications with counsel are generally shielded from discovery.

This consulting role allows for more candid evaluation of the strengths and weaknesses of the digital marketing issues in a case. As a consulting expert, I can provide frank assessments of both favorable and unfavorable evidence, help counsel understand which arguments are strongest and which are vulnerable to challenge, and assist in developing a litigation strategy that accounts for the technical realities of the digital marketing evidence. The consulting relationship also provides flexibility: if the case evolves and a testifying expert becomes necessary, the engagement can be restructured accordingly, though the transition requires careful attention to disclosure obligations.

Discovery Support

Digital marketing discovery presents unique challenges for attorneys who are not immersed in the field. Advertising platforms, analytics tools, and marketing automation systems generate enormous volumes of data in formats that are unfamiliar to most legal professionals. Knowing what data to request, how to evaluate whether production is complete, and how to interpret the data once received requires specialized knowledge.

Drafting Discovery Requests

I help legal teams draft interrogatories, requests for production, and requests for admission that target the most relevant digital marketing data. This includes identifying the specific platform reports, data exports, and configuration records that should be requested, using technically precise language that leaves the opposing side less room to produce incomplete or unresponsive data, anticipating common objections to digital marketing discovery and structuring requests to address them, and prioritizing requests based on which data is most likely to be material to the claims or defenses at issue.

Evaluating Produced Data

Once the opposing side produces digital marketing data, I review it for completeness and reliability. Common issues include incomplete data exports that cover only portions of the relevant time period, aggregated data that obscures important details, data from secondary sources when primary platform data was requested, and formatting issues that make the data difficult to analyze. I help counsel identify gaps in production and draft follow-up requests or motions to compel where necessary.

Helping Counsel Understand Digital Marketing Terminology

Effective litigation requires that the legal team understand the subject matter well enough to make strategic decisions, examine witnesses, and argue motions. Digital marketing involves a dense vocabulary of platform-specific terms, industry jargon, and technical concepts that can be a barrier for attorneys encountering these issues for the first time.

I work with legal teams to build their understanding of the relevant terminology and concepts. This is not a superficial glossary exercise. It involves explaining how each relevant platform works at a functional level, what the key metrics mean and why they matter, how different marketing channels interact and influence each other, where the common sources of dispute and misunderstanding lie, and what the industry standards and best practices are for the types of marketing activity at issue. This education enables counsel to conduct more effective depositions, draft more precise discovery requests, and make better-informed strategic decisions throughout the case.

Evaluating Opposing Experts

When the opposing side discloses a digital marketing expert, counsel needs to understand whether that expert is qualified, whether their methodology is sound, and where their analysis may be vulnerable to challenge. As a consulting expert, I evaluate opposing experts on several dimensions.

• Qualifications assessment — Whether the opposing expert has genuine hands-on experience with the specific platforms, channels, and techniques at issue, as opposed to general marketing knowledge or academic credentials without practical application
• Methodology review — Whether the opposing expert's analytical approach is appropriate for the questions being addressed and whether it meets the reliability standards required under Daubert or the applicable evidentiary framework
• Report analysis — A detailed review of the opposing expert's report to identify unsupported opinions, data handling errors, logical gaps, and areas where the conclusions exceed what the evidence supports
• Deposition preparation — Developing questions and lines of inquiry for counsel to use during the opposing expert's deposition, targeting the specific weaknesses identified in the analysis
• Daubert challenge support — Providing the technical analysis needed to support motions to exclude or limit the opposing expert's testimony

Deposition Preparation for Marketing Witnesses

Cases involving digital marketing disputes often require the deposition of marketing professionals, whether they are party employees, agency representatives, or third-party vendors. These witnesses may have deep knowledge of the marketing activities at issue but limited experience with the deposition process. Conversely, counsel may have extensive litigation experience but limited familiarity with the marketing topics that will be covered.

I help bridge this gap by working with counsel to identify the key marketing topics to cover during depositions and developing technically precise questions that probe the critical issues. I also assist in preparing the legal team's own marketing witnesses for deposition by helping them organize their knowledge, anticipate likely questions, and communicate clearly about technical subjects. This preparation helps ensure that marketing witnesses provide accurate and complete testimony about the digital marketing activities, decisions, and results at issue.

Identifying Additional Data Sources

Digital marketing evidence extends well beyond the major advertising platforms and analytics tools. Depending on the issues in the case, there may be valuable evidence in places that counsel might not think to look. I help legal teams identify and pursue these additional data sources.

• Web archives — The Wayback Machine and other web archiving services that preserve historical versions of websites, landing pages, and online content
• DNS and domain registration records — WHOIS history, DNS change logs, and domain transfer records that can establish timelines and ownership
• Social media archives — Archived posts, advertisements, and audience data from social media platforms that may no longer be accessible through the platforms themselves
• Email marketing records — Campaign data, subscriber lists, and delivery reports from email marketing platforms
• Affiliate and referral tracking systems — Data from affiliate networks and referral tracking tools that document marketing partnerships and their financial terms
• CRM and marketing automation logs — Lead tracking, campaign attribution, and customer journey data from systems like Salesforce, HubSpot, or Marketo
• Third-party competitive intelligence tools — Historical data from services like Semrush, Ahrefs, SimilarWeb, and SpyFu that track website traffic, search rankings, and advertising activity over time

Identifying these sources early in the litigation helps counsel make informed decisions about discovery strategy and ensures that relevant evidence is preserved before it becomes unavailable.

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