The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
OKLAHOMA DIGITAL ABSTRACT, LLC, )
an Oklahoma limited liability company, )
)
Plaintiff, )
)
v. ) Case No. 18-CV-398-TCK-JFJ
)
IMERSION GLOBAL INCORPORATED., )
a Texas corporation, )
)
Defendant. )
OPINION AND ORDER
Before the Court is the Motion to Exclude Certain Opinion Testimony by Defendant
Imersion Global Incorporated’s Expert Witness Terri Parrish (“Parrish”) (Doc. 39) filed by
Plaintiff Oklahoma Digital Abstract, LLC (“ODA”). Defendant Imersion Global Incorporated
(“Imersion”) opposes the motion. Doc. 49.
I. Background
On October 16, 2013, ODA and Imersion entered into two letter agreements, pursuant to
which Imersion was to assist ODA in developing abstract plants in Wagoner County and Rogers
County, Oklahoma. Imersion was tasked with, inter alia, taking scanned images of real property
records provided by ODA and creating an electronic index of those documents. Plaintiff
contracted with CourthouseDirect.com, Inc. (“CourthouseDirect.com”) to use a software platform
created by CourthouseDirect.com for hosting the indexes.
Imersion loaded the Wagoner County index onto the CourthouseDirect.com platform.
However, in February 2016, before the Rogers County index could be completed and uploaded to
the CourthouseDirect.com platform, control of ODA was transferred to Randy Dittmann. At the
time, Dittmann controlled several other Oklahoma abstract plants which utilized a software
platform known as halFILE. Dittmann decided that the Rogers County and Wagoner County
indexes should use the halFile platform instead of the CourthouseDirect.com platform.
Subsequently, Plaintiff ceased all communications with Imersion, and on August 1, 2018, it filed
suit against Imersion and its principal, Anil K. Adoni.1 In its Complaint, ODA asserts that because
of high error rates in the electronic index of documents Imersion created, and Imersion’s failure to
correct those errors, ODA had to hire eData Services, U.S., LLC (“eData”) to complete the
services; that eData will have to rekey all of the Rogers County and Wagoner County documents
and ensure that the stapling was correct; and that ODA anticipates paying hundreds of thousands
of dollars to correct the errors.
Imersion’s expert, Parrish, was tasked with reviewing the sufficiency of the abstract plants
Imersion prepared for Wagoner County and Rogers County, and determining whether they
appeared to meet the requirements of the Oklahoma Abstractors Board. At the conclusion of her
review, Parrish opined (i) that she would have recommended that the Wagoner County database
be certified and (ii) that while the Rogers County database was not complete, it “was progressing
in a reasonable manner which could have resulted in a process that would have met the
qualifications of the rules and laws of the Oklahoma Abstractors Board resulting in the potential
for Certificate of Authority being issued.” Doc. 49, Ex. 1, Parrish Letter of August 28, 2019, p.
8.
1 The Court granted Adoni’s Motion to Dismiss the claim against him on November 26, 2019.
Doc. 67.
ODA challenges Parrish’s methodology and conclusions, arguing that she applied an
erroneous standard of what search features a digital abstract plant must have to meet the statutory
requirements of Oklahoma law.
The requirements for an abstract plant are set out in 1 O.S. § 21(2), which states:
2. “Abstract plant” shall consist of a set of records in which an entry has been made
of all documents or matters which legally impart constructive notice of matters
affecting title to real property, any interest therein or encumbrance thereon, which
are filed, recorded and currently available for reproduction in the offices of the
county clerk and the court clerk in the county for which such abstract plant is
maintained. Such records shall consist of:
a. an index in which notations of or references to any documents that
describe the property affected are included, according to the property
described or in which copies or briefs of all such documents that
describe the property affected are sorted and filed according to the
property described, which is compiled from the instruments of record
affecting real property in the county offices and not copies or
reproduced from any county index; and
b. an index or files in which all other documents, pending suits affecting
real property and liens, except ad valorem taxes and special
assessments, are posted, entered, or otherwise included, according to the
name of the parties whose title to real property or any interest therein or
encumbrances thereon is affected, which is compiled from the
instruments of record affecting real property in the county offices and
not copied from any county index.
Parrish conducted searches to show whether specific documents from Wagoner County
could be found on the CourthouseDirect.com database created by Imersion. ODA argues that in
Oklahoma “abstracts are always built by searching the legal description for documents that are not
identified,” and “Parrish’s methodology (looking on CourthouseDirect.com for identified
documents) does not prove her conclusion (that Courthouse Direct can use searches by legal
description to retrieve all documents needed to build an abstract).” Id.
II. Applicable Law
Federal Rule of Evidence 702 (“Rule 702”) provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts
of the case.
When an objection to an expert’s testimony is raised, the court must perform Daubert
gatekeeper duties before the jury is permitted to hear the evidence. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 149 (1999). These gatekeeper duties require the Court to determine both (1) that the
expert witness is qualified to offer the opinions he or she is espousing and (2) that the proponent
of the expert witness has proved by a preponderance of the evidence that expert’s opinions are
both relevant and reliable. Kumho Tire, 526 U.S. at 141, 152. When the testimony of an expert is
challenged, the proponent of the testimony bears the burden of establishing its admissibility.
United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc); FED. R. EVID. 104(a).
“Under Daubert, any step that renders the analysis unreliable . . . renders the expert’s
testimony inadmissible. This is true whether the step completely changes a reliable methodology
or merely misapplies that methodology renders the expert’s testimony inadmissible.” Goebel v.
Denver and Rio Grande Western R. Co., 346 F.3d 987, 992 (10th Cir. 2003).
This list is not exclusive, and district courts applying Daubert have broad discretion to
consider a variety of other factors. Dodge v. Cotter Corporation, 328 F.3d 1212, 1222 (10th Cir.
2003) (citing Kumho Tire, 526 U.S. at 150). “[T]he test of reliability is ‘flexible,’ and Daubert’s
list of specific factors neither necessarily nor exclusively applies to all experts or in every case.
Rather, the law grants a district court the same broad latitude when it decides how to determine
reliability as it enjoys in respect to its ultimate reliability determination.” Kumho Tire, Id. at 141-
42 (emphasis in original).
III. Analysis
ODA challenges the relevance and reliability of Parrish’s opinion, arguing that her
methodology is faulty. Citing 1 O.S. § 21(2), it asserts that in Oklahoma, an abstract is built by
(1) searching the index of the abstract plant for a property by its legal description, and then (2)
searching the index of the abstract plant for the names of all parties identified in the documents
returned by the first search in order to ensure that there are no encumbrances which may affect the
title. It argues that Parrish’s methodology—which focuses only on documents that describe the
property and are sorted and filed according to the property (per 1 O.S. § 21(2)(a))—ignores
documents described in § 21(2)(b)—an index or files in which other documents, pending suits
affecting real property and liens—are filed. ODA also challenges Parrish’s opinion that the 4.7
percent error rate in the documents she found is well within the norms of “human error” and should
be ignored.
A. Methodology
Parrish used the following methodology to evaluate the plant in Wagoner County: At the
Wagoner County Clerk’s office, she performed 10 to15 traditional searches by legal description,2
two of which reflected the chain of title back to sovereignty. Doc. 62, Ex. 1, Parrish Dep.at 18:10-
2 In her deposition, Ms. Parrish testified that she performed five searches by lot and block number
and five searches by section, township and range. Doc. 62, Ex. 1, Parrish Dep. at 15:8-25.
However, in her report, she stated that she performed eight lot and block number searches and
seven metes-and-bounds searches. Id., Ex. 2, Parrish Report at p. 7.
19:22. She took handwritten notes of the documents identified in these searches and then, working
from her home computer, attempted to pull those documents up using Imersion’s
CourthouseDirect.com digital platform. Id. at 14:9-15. She did not, however, attempt to build an
abstract by entering a legal description into the CourthouseDirect.com database and obtaining a
spreadsheet of all documents required to create a digital abstract. Id. at 29:15-24; 44:11-14; 77:11-
16.
Because data from Rogers County had not yet been loaded onto the CourthouseDirect.com
platform, Parrish could not use the same methodology that she used for Wagoner County. Doc. 62,
Ex. 2, Parrish Report, p. 7. Therefore, she pulled 50 documents from the county clerk’s office and
court clerk’s office and checked to see if the documents could be located on an Excel spreadsheet
furnished to her by Imersion. Id. She reported that she was able to find all 50 documents on the
spreadsheet. Id.
Parrish testified that “paper” abstracts are built by searching the county clerk’s tract books
by legal description and noting deeds and conveyances, as well as the names of persons listed on
those documents. Id., Ex. 1, Parrish Dep. at 63:11-64:24. Then the names are used to check the
court clerk’s documents for additional instruments that need to be included in the abstract. Id.,
63:24-64:2.
ODA argues that Parrish “lower[ed] the bar” below the requirements set by § 22(2) by
concluding Imersion’s indexes were adequate because she could locate all the documents she set
out to find “either by legal description, grantor-grantee search or by document book and page.”
Id., Ex. 2, Parrish Report, p. 7. It asserts that her method was backwards and completely unhelpful
in determining the quality of the abstract plants at issue because she already knew the documents
she was looking for, and then used multiple search methods to find them, which—for the most
part—she did. It also points out that Parrish admitted to identifying an error rate of 4.7 percent in
the documents she found. While Parrish claims this is well within the norms of “human error” and
should be ignored, this is the error rate after multiple rounds of testing and correction of the errors
identified by ODA over a period of several years.
B. Discussion
Parrish’s first opinion addresses the question of whether the Wagoner and Rogers County
databases would meet the requirements of the Oklahoma Abstractors Board. However, the
question framed by Imersion and answered by Parrish—whether the Oklahoma Abstractor Board
would now approve the plants and issue Certificates of Authority for them—does not address the
principal complaint by ODA—that the database initially put together by Imersion was so riddled
with errors, it would not have been certified, and that ODA had to spend a considerable amount
of time and money correcting the errors. More fundamentally, and unlike the process of actually
creating a database, Parrish already knew what documents she was looking for. Therefore, her
methodology does not address the sufficiency of Imersion’s work with respect to the requirements
of § 21(2)(b)— that is, creation of an index or files in which other documents, pending suits
affecting real property and liens—are filed. These documents are essential to locating documents
that might not have been located in the search for documents described in § 21(2)(a).
Moreover, Parrish’s second opinion—that the 4.7 percent error rate in the 1,000 Wagoner
County documents she set out to find did not affect her ability to locate the documents, and was
an acceptable error rate—is also based on flawed methodology. This is the error rate after
extensive work by ODA and Imersion (at ODA’s expense) to correct errors in Imersion’s work.
ODA’s complaint is that the original error rate was unacceptably high, and required extensive
correction that cost ODA in terms of time and money.
IV. Conclusion
For the reasons set forth above, ODA’s Motion to Exclude Certain Opinion Testimony by
Defendant Imersion Global Inc.’s Expert Witness Terri Parrish (Doc. 39) is granted.
ENTERED this 27th day of December, 2019.