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MOTION BY THE FEDERAL TRADE COMMISSION TO EXCLUDE THE 

TESTIMONY OF DR. PATRICK SCHAUMONT

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Kevin H. Moriarty (DC Bar No. 975904) 

Cathlin Tully (NY Bar) 

Shameka L. Walker (DC Bar No. 493891) 

Jarad Brown (CA Bar No. 294516) 

Katherine E. McCarron (DC Bar No. 486335) 

James A. Trilling (DC Bar No. 467273) 

Federal Trade Commission 

600 Pennsylvania Avenue NW, Mail Drop CC-8232 

Washington, DC 20580 

P: (202) 326-2949/F: (202) 326-3062 

kmoriarty@ftc.gov; ctully@ftc.gov; swalker@ftc.gov, 

jbrown4@ftc.gov; kmccarron@ftc.gov; jtrilling@ftc.gov 

Attorneys for Plaintiff Federal Trade Commission 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

FEDERAL TRADE COMMISSION, 

Plaintiff, 

v. 

D-LINK SYSTEMS, INC.,

Defendant. 

CIVIL ACTION NO. 

3:17-CV-00039-JD 

MOTION BY THE FEDERAL TRADE 

COMMISSION TO EXCLUDE THE 

TESTIMONY OF DR. PATRICK 

SCHAUMONT 

Hearing Date: November 8, 2018 

Hearing Time: 10:00 a.m. 

Location: Courtroom 11, 19th Floor 

ORAL ARGUMENT REQUESTED 

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TABLE OF AUTHORITIES 

Cases

Brown v. China Integrated Energy Inc., No. 11cv02559, 2014 WL 12576643, at *6 (C.D. Cal. 

Aug. 4, 2014) .............................................................................................................................. 5 

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ........................................... 4 

French v. Allstate Indemnity Company, 637 F.3d 571 (5th Cir. 2011) ......................................... 14 

Hangarter v. Provident Life & Accident Insuance Co., 373 F.3d 998 (9th Cir. 2004) ................... 5 

Hirata v. Southern Nevada Health District. No. 2:13-CV-2302-LDG-VCF, 2016 WL 10706085, 

at *2–3 (D. Nev. May 31, 2016) ................................................................................................. 8 

Kingsbury v. U.S. Greenfiber, LLC, No. CV 08-00151, 2013 WL 7018657, at *2 (C.D. Cal. Nov. 

5, 2013) ....................................................................................................................................... 8 

Krise v. SEI/Aaron's, Inc., No. 1:14-CV-1209-TWT, 2017 WL 3608189, at *3 (N.D. Ga. Aug. 

22, 2017) ..................................................................................................................................... 5 

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) .................................................................... 4 

Lewert v. Boiron, 212 F. Supp. 3d 917 (C.D. Cal. 2016) ............................................................... 7 

Lust v. Merrell Dow Pharmaceuticals Inc., 89 F.3d 594 (9th Cir. 1996) ....................................... 5 

Mariscal v. Graco, Inc., No. 13cv02548, 2014 WL 4245949, at *7 (N.D. Cal. Aug. 27, 2014) 5, 7 

McGlinchy v. Shell Chemical Co., 845 F.2d 802 (9th Cir. 1988) ................................................... 5 

Mesfun v. Hagos, No. CV-03-02182, 2005 WL 5956612, at *18 (C.D. Cal. Feb. 16, 2005)......... 9 

Nelson v. Matrixx Initiatives, No. C 09-02904, 2012 WL 3627399, at *12 (N.D. Cal. Aug. 21, 

2012) ........................................................................................................................................... 7 

Ollier v. Sweetwater Union High School District, 768 F.3d 843 (9th Cir. 2014)........................... 5 

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Salinas v. Amteck of Kentucky, Inc., 682 F. Supp. 2d 1022 (N.D. Cal. 2010) ................................ 8 

Tyree v. Boston Scientific Corporation, 54 F. Supp. 3d 501(S.D.W.Va. 2014) ............................. 7 

United States v. 87.98 Acres of Land More or Less in the County. of Merced, 530 F.3d 899 (9th 

Cir. 2008) .................................................................................................................................... 5 

United States v. Chang, 207 F.3d 1169 (9th Cir. 2000).................................................................. 4 

United States v. Rushing, 388 F.3d 1153 (8th Cir. 2004) ............................................................. 10 

United States v. Shafi, No. 15-CR-00582-WHO-1, 2018 WL 3159769, at *5 (N.D. Cal. June 28, 

2018) ........................................................................................................................................... 9 

Volk v. United States, 57 F.Supp.2d 888 (N.D. Cal. 1999) ............................................................. 5 

Western Parcel Express v. United Parcel Service of America, Inc., 65 F. Supp. 2d 1052 (N.D. 

Cal. 1998) .................................................................................................................................... 5 

Rules

Federal Rule of Evidence 403 ....................................................................................................... 14 

Federal Rule of Evidence 703 ......................................................................................................... 9 

Federal Rules of Evidence 702 ........................................................................................... 1, 4, 5, 7 

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NOTICE OF MOTION TO EXCLUDE EXPERT TESTIMONY 

On November 8, 2018, at 10:00 a.m., pursuant to Civil Local Rule 7-2, the Federal Trade 

Commission (“Plaintiff,” “FTC,” or the “Commission”) will and hereby does move this Court to 

exclude the testimony of Dr. Patrick Schaumont in support of D-Link Systems, Inc. (“D-Link 

Systems”) under Rule 702 of the Federal Rules of Evidence and related case law. 

INTRODUCTION 

Dr. Schaumont’s testimony must be excluded entirely because he is not an expert in the 

field in which he purports to offer an opinion: secure software development practices. Although 

he has distinguished academic credentials regarding the design of computer chips, he is not an 

expert in the practical, experiential field of engaging in, or evaluating, the practices required to 

develop software that is secure from vulnerabilities. Prior to his work on this matter, he had not 

heard of the two frameworks he claims to use to arrive at his opinions. 

Dr. Schaumont’s testimony also must be excluded on the separate ground that all of his 

conclusions rely on unsupported assumptions. In arriving at his conclusions about the “testing 

and remediation” of D-Link Systems’ devices, Dr. Schaumont only makes observations about the 

testing, and simply assumes that the remediation would take place. Dr. Schaumont testified that 

this assumption was based on his belief that it is, in his words, “common sense” that a company 

would remediate vulnerabilities. This assumption, however, is contradicted by undisputed facts. 

It also assumes away what is a central inquiry of this case: whether D-Link Systems deceived 

consumers when it promised that it engaged in reasonable software development practices. Dr. 

Schaumont’s decision to simply credit D-Link Systems as having acted reasonably, by assuming 

“common sense” practices, renders his entire opinion unreliable and unhelpful to the Court. 

Given these extraordinary circumstances, it is appropriate for the Court to exclude Dr. 

Schaumont’s testimony now, even though the Court will serve as the finder of fact. The FTC 

should not be required to refute Dr. Schaumont’s unsupported testimony when it is clear now tha 

he is unqualified to testify and that his conclusions are unreliable. There will be no prejudice to 

D-Link Systems to exclude Dr. Schaumont because (a) many of his “opinions” simply parrot

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information found in other documents, and (b) D-Link Systems has disclosed another expert on 

identical subjects, rendering Dr. Schaumont’s anticipated testimony cumulative. 

BACKGROUND 

If trial proceeds in this matter, the FTC will establish that D-Link Systems has made 

various promises to consumers that the routers and IP cameras (“D-Link devices”) it markets and 

sells are secure from unauthorized access. These promises are false and misleading. The FTC 

will show that the D-Link devices have many serious, foreseeable, easily-preventable, and 

undisputed security vulnerabilities that permit unauthorized access to D-Link routers and IP 

cameras. For further information, the FTC refers the Court to the Background section of the 

FTC’s Motion for Summary Judgment, filed contemporaneously with this Motion. 

In its Motion for Summary Judgment, the FTC explains that there are no genuinely 

disputed material facts regarding the falsity of D-Link Systems’ claims regarding the security of 

D-Link devices.1 If necessary, however, the FTC will present the testimony of its security

expert, Mark Graff, who will opine, among other things, that D-Link Systems lacked the 

procedures to be able to effectively prevent or address security vulnerabilities. D-Link Systems, 

in turn, has disclosed two expert witnesses to offer opinions on this topic—Dr. Patrick 

Schaumont and Jerome Radcliffe—both of whom purport to opine on whether secure software 

development practices were used for D-Link devices. 

The field of “secure software development” has been recognized since at least 2002, 

when Microsoft released its “Secure Software Development Lifecycle,” which established a 

terminology and structure for implementing a process designed to lead to secure software 

systems.2 Although there is no one “correct” way to develop software, a secure software 

development program has certain hallmarks that can be identified and evaluated by qualified 

1

 See FTC’s Mot. for Summ. J. on Liability on Counts 2, 3, and 6 (filed contemporaneously). 

2

 Moriarty Decl. Ex.1, Graff Decl. incorporating Expert Report of Mark G. Graff, CISSP (“Graff Report”) ¶ 47. 

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A. I did not.10

Put quite simply, Dr. Schaumont is not an expert in the field of secure software development 

practices. He has never worked in this field,11 and he has never evaluated companies in this 

field.12 Dr. Schaumont at deposition even declined to describe himself as an expert in the field 

of secure software development.13

In addition to lacking the requisite expertise, Dr. Schaumont’s conclusions are predicated 

on several unsupportable assumptions. For example, Dr. Schaumont blindly assumes, contrary 

to the undisputed facts, that all vulnerabilities identified during the pre-release testing of D-Link 

devices were also remediated. At deposition, Dr Schaumont explained “my report is based on 

the assumption that if you get the testing report, it listed a vulnerability issue, then common 

sense, as a computer engineer, tells you that you need to fix that problem before shipping the 

product.”14 But, his assumptions are contradicted by undisputed facts.15 These warrantless 

assumptions undercut the reliability of Dr. Schaumont’s opinions. 

LEGAL STANDARD 

To be admissible under Federal Rule of Evidence 702, an expert opinion must be “not 

only relevant but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993); 

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). Reliability means the expert witness 

has “a reliable basis in the knowledge and experience of the relevant discipline.” Kumho, 526 

U.S. at 149. An expert witness qualified to testify on an analogous subject matter still may not 

be qualified to testify on the relevant subject matter. See United States v. Chang, 207 F.3d 1169, 

1172 n.2 (9th Cir. 2000) (expert in international securities not necessarily expert at identifying 

counterfeit international securities). 

10 Id. 58:14-19.

11 Id. 20:7-9 (“Q. Have you ever done consulting work in the field that you're offering an opinion in this case?

A. No, I did not.”).

12 Id. 16:5-11 (“I have not evaluated secure embedded software practices of a company before.”).

13 Id. 12:1-13:4; 14:8-15:2.

14 Id. 40:6-10.

15 See, e.g., infra Part III.C (Dr. Schaumont assumed certain testing was not ad hoc during a certain time period; but,

the other proffered D-Link Systems expert described the very same testing during the very same time period as ad

hoc).

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Although Rule 702 “contemplates a broad conception of expert qualifications,” 

Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1015 (9th Cir. 2004), the 

requirements are not satisfied by “peripheral contact and mere familiarity” with the subject 

matter on which opinions will be offered. Brown v. China Integrated Energy Inc., No. 

11cv02559, 2014 WL 12576643, at *6 (C.D. Cal. Aug. 4, 2014) (internal quotation marks 

omitted). The party offering the expert’s opinions has the burden to prove such qualifications. 

United States v. 87.98 Acres of Land More or Less in the County. of Merced, 530 F.3d 899, 904 

(9th Cir. 2008); Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996). 

“[I]t is a proper exercise of the Court’s discretion to exclude witness testimony that is 

based on ‘unsupported assumptions and unsound extrapolation.’” Mariscal v. Graco, Inc., No. 

13cv02548, 2014 WL 4245949, at *7 (N.D. Cal. Aug. 27, 2014) (quoting McGlinchy v. Shell 

Chem. Co., 845 F.2d 802, 807 (9th Cir. 1988)). “When expert opinions are not supported by 

sufficient facts, or when the indisputable record contradicts or otherwise renders the opinions 

unreasonable, they cannot be relied upon.” W. Parcel Express v. United Parcel Serv. of Am., 

Inc., 65 F. Supp. 2d 1052, 1060 (N.D. Cal. 1998). The party offering the expert testimony bears 

the burden of establishing the reliability of the assumptions. Krise v. SEI/Aaron's, Inc., No. 

1:14-CV-1209-TWT, 2017 WL 3608189, at *3 (N.D. Ga. Aug. 22, 2017) (“If the expert 

predicates his testimony on an assumption that is belied by the evidence, the expert’s testimony 

is properly excluded. The party offering the expert's testimony has the burden to prove it is 

admissible by a preponderance of the evidence.” (citations omitted)). 

Even though “the Daubert gatekeeping obligation is less pressing in connection with a 

bench trial,” Volk v. United States, 57 F.Supp.2d 888, 896 n. 5 (N.D. Cal. 1999), it is nonetheless 

proper for a Court to exclude the expert testimony when it is unreliable and unsupported by the 

facts. Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 861 (9th Cir. 2014) (excluding 

expert witnesses at a bench trial because conclusions were based on personal opinions and 

speculation rather than on a systematic assessment of the facts). 

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ARGUMENT 

Dr. Schaumont’s credentials have nothing to do with the field in which he has offered an 

opinion. He admitted his bona fide expertise is in an ancillary field, that he is only “familiar” 

with the concepts at issue in this case, and that he did not know information central to his 

conclusions prior to his engagement. Key aspects of Dr. Schaumont’s report merely parrot the 

conclusions of a third party, with no added analysis. Moreover, Dr. Schaumont admitted to 

making assumptions contrary to undisputed facts, rendering his opinion unreliable and unhelpful 

to the trier of fact. Finally, Dr. Schaumont’s anticipated testimony is cumulative of another DLink Systems’ expert’s testimony, and can be excluded for that reason alone. 

I. Dr. Schaumont Is Not an Expert in the Field of his Opinion.

D-Link Systems proffers Dr. Schaumont as a putative expert capable of offering an

opinion in this case regarding whether the secure software development practices for D-Link 

devices were reasonable. This is an opinion that requires expertise in understanding and 

evaluating how companies develop software. Dr. Schaumont has no such expertise. Rather, Dr. 

Schaumont’s credentials relate to an entirely separate field—the design of cryptographically 

secure hardware and software on embedded systems. 

Dr. Schaumont does not claim to be an expert, or even experienced, in secure software 

development.16 He admits that he lacks experience and expertise in: (a) evaluating a company’s 

secure software development practices; and (b) knowing what practices are involved in 

developing secure software.17 Instead, he describes his knowledge of the practices relevant to 

this case as a mere “familiarity.”18 An expert’s passing familiarity with the subject matter of an 

expert opinion does not constitute expertise, no matter how expert he may be in related fields. 

16 Id. 12:1-13:4. Dr. Schaumont’s reluctance is not false modesty. He readily admits expertise in other fields. Id. 

12:22-13:2 (“I am an expert in the design of embedded systems and secure systems, secure embedded systems, 

which include embedded software as well as secure embedded software.”). 

17 Id. 12:1-13:4. 

18 Id. 12:8-14 (“Q. Are you an expert in evaluating companies’ secure software development practices? A. I am 

familiar with software development practices, I am familiar with secure software and embedded software, and as a 

result, I understand the practices which are being applied by companies that develop secure embedded software.”). 

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v. U.S. Greenfiber, LLC, No. CV 08-00151, 2013 WL 7018657, at *2 (C.D. Cal. Nov. 5, 2013)

(excluding expert in real estate disclosures in case involving Cocoon insulation who “had never 

heard of Cocoon insulation prior to becoming familiar with this case . . . . Even if Beardmore is 

generally aware of disclosure requirements with respect to the sale of real estate, he has no basis 

to opine on disclosures relating to this particular insulation product.”); see also Salinas v. Amteck 

of Kentucky, Inc., 682 F. Supp. 2d 1022, 1030 (N.D. Cal. 2010) (excluding expert where expert 

lacked the professional training and expert qualification to offer an opinion in the narrow field of 

consumer warnings).23 Due to Dr. Schaumont’s lack of familiarity with BSIMM, his opinion on 

this subject matter is unhelpful to the Court in understanding the evidence or determining a fact 

in issue.24

Because Dr. Schaumont lacks the requisite experience and expertise, his testimony 

should be excluded. See also Hirata v. Southern Nevada Health District. No. 2:13-CV-2302-

LDG-VCF, 2016 WL 10706085, at *2–3 (D. Nev. May 31, 2016). In Hirata, the Court excluded 

the testimony of an “accomplished professional” who was qualified to testify to the “quality and 

thoroughness of the Health District’s pool inspections.” Id. at *2. In her report, however, the 

expert strayed from her core expertise to opine that defendant Health District (which conducted 

the pool inspections) suffered from a “toxic” workplace and “unrealistic” job expectations. Id. 

Such opinions, however, required an expertise in “human resources or human resources 

management,” which was beyond her expertise. Id. Similarly, in this case, Dr. Schaumont 

strays from his expertise in the design of secure embedded systems to discuss a superficially 

related, but entirely separate field: The process of developing software securely. Cf. id. 

(“Osinski’s general aquatics expertise does not qualify her to testify on the Health District’s 

23 Because BSIMM is indisputably a well-known tool in the field, Dr. Schaumont’s lack of familiarity with BSIMM 

disqualifies his entire opinion. At the very least, his lack of familiarity with this tool disqualifies the following of 

his opinions that rely on his BSIMM conclusions: Moriarty Decl. Ex. 2, Schaumont Report ¶¶ 70-72, 82, 94-96, 99, 

114; Moriarty Decl. Ex. 3, Schaumont Rebuttal Report ¶¶ 3-6, 13, 14, 57, 63. 

24 One concrete example of the unhelpfulness of Dr. Schaumont’s opinion is that he testified that he believed 

BSIMM had been “implemented” or “adopted,” but he was not sure that it was being used: “I do not know whether 

or not they are using BSIMM.” Moriarty Decl. Ex. 4, Schaumont Dep. 166:21-167:2. 

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Dated: September 21, 2018 Respectfully submitted, 

 /s/ Kevin H. Moriarty 

Kevin H. Moriarty (DC Bar No. 975904) 

Cathlin Tully (NY Bar) 

Shameka L. Walker (DC Bar No. 493891) 

Jarad Brown (CA Bar No. 294516) 

Katherine E. McCarron (DC Bar No. 486335) 

James A. Trilling (DC Bar No. 467273) 

Federal Trade Commission 

600 Pennsylvania Avenue NW, Mail Drop CC-8232 

Washington, DC 20580 

P: (202) 326-2949/F: (202) 326-3062 

kmoriarty@ftc.gov; ctully@ftc.gov; 

swalker@ftc.gov, jbrown4@ftc.gov; 

kmccarron@ftc.gov; jtrilling@ftc.gov 

Attorneys for Plaintiff Federal Trade Commission 

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