The value of evidence from witnesses identified using witness gathering surveys
Rachel Montagnon, S. Burke, J. Smith · Journal of Intellectual Property Law & Practice · 2013
The Court of Appeal of England and Wales has set out its requirements for the admissibility of evidence from witnesses selected using witness-gathering surveys. The Court of Appeal took a strict line in relation to evidence from witnesses identified through surveys designed to find witnesses with a particular viewpoint. The court gave specific recommendations for the presentation of the survey evidence and the selection of witnesses via such ‘pilot’ surveys, including the revelation of the details of the process of selection, recommending waiver of privilege in this regard, in order to improve the probative value of the evidence itself. Further, pilot surveys and witness gathering surveys will be at the surveying party's risk from a costs point of view. The court also disapproved of the encouragement of speculation by witnesses in areas in which they would not otherwise have ‘embarked’.