US federal judges facing complex antitrust matters should become more comfortable using an obscure tool that allows for the appointment of independent experts, a California judge overseeing high-profile litigation between Epic Games and Google told MLex. The pitch comes as judges across the US face heavier workloads and thorny fact-finding challenges due to the growing prevalence of expert involvement in cases.
US federal judges facing complex antitrust matters should become more comfortable using an obscure tool that allows for the appointment of independent experts, a California judge overseeing high-profile litigation between Epic Games and Google told MLex. MLex previously reported that US District Judge James Donato could become a trend-setter following his decision to invoke Federal Rule of Evidence 706 to appoint an independent economist that is helping him scrutinize a proposed settlement in antitrust litigation between the companies that could reshape competition in app store markets across the globe (see here).
Rule 706 is an “underutilized resource” for courts, Donato said during a telephone interview. “I'm not alone in this view … but it's definitely a minority view among judges.”
Because judges typically don't discuss the nitty gritty of case-management issues with one another out of respect for the principle of judicial independence, Donato said he was in the early stages of drafting an article to "open the door to at least thinking about this."
His pitch comes as judges across the US face greater workloads and fact-finding challenges due to the growing prevalence of expert involvement in cases.
— Room to run —
Donato pushed back against the idea that independent experts should primarily be employed in non-adversarial proceedings like motions for settlement approval.
The judge said he sees “plenty of room to run” when it comes to having a third-party expert advise judges during adversarial proceedings, including so-called Daubert motions that seek to disqualify an opponent’s expert.
Along with assessing the substantive content of reports authored by experts, judges face “enormously time consuming burdens” associated with disputes over expert qualifications because “everybody Dauberts each other.”
Since coming to the federal bench in 2014, Donato said, reliance on expert witnesses in all of his cases has “exploded” for reasons that remain unclear.
Cases involving relatively modest financial stakes and levels of complexity will have at least one expert on each side, but typically judges regularly see “many, many more,” according to Donato.
“It just cannot be that every other expert that you didn’t pay for is dumb as dirt,” Donato told MLex, recalling a similar sentiment he had previously expressed during open court. “But everybody assumes that’s true and then brings these motions.”
US District Judge Yvonne Gonzalez Rogers, one of Donato’s colleagues in the US Northern District of California and a veteran of separate app store antitrust litigation involving Epic and Apple, has spoken publicly on multiple occasions about the challenges judges face when dealing with experts (see here and here).
Despite concerns among the judiciary about the credibility of “hired guns,” she told an audience of antitrust practitioners in 2022 that throwing someone out of a case is “the exception, not the rule” when dealing with a line-up of experts holding prestigious professional and academic backgrounds.
— Independent voices —
Because it’s “not easy” to get a fair assessment of alleged monopolization in the tech sector, Donato said, he appointed Massachusetts Institute of Technology professor and former US Department of Justice antitrust economist Nancy Rose to provide a “totally independent voice” with “no stake in either side.”
Donato isn’t the only federal judge with antitrust litigation on his docket that is grappling with such issues.
The importance of expert credibility has featured prominently in high-profile monopolization litigation involving Big Tech defendants like Amazon and Google, but also in merger cases involving everything from air travel to handbags (see here and here)
US District Judge Richard Boulware, whose district in Nevada has seen cases on the cutting edge of modern algorithmic price-fixing litigation, gave a tongue-in-cheek talk in 2025 that suggested one potential way to address the “cult” around antitrust law would be to embrace the value of “non-expertise” (see here).
For Donato, the case between Epic and Google is the first time he has used Rule 706 in an antitrust case — but he intends to do so again when the opportunity arises.
Prior experience with antitrust law before being appointed to the federal bench during the Obama administration included a good understanding of consulting shops, academics and other experts in the competition field, the judge said.
“When you get to be a federal judge, you tend to have a lot of water under the bridge,” Donato said.
But even without such experience, finding the right independent expert should be “very easy,” according to the judge. While keeping in mind potential conflicts, one potential way to start the search would involve asking each party to nominate three people.
— AI ‘experts’ —
The judge also noted ongoing technological developments poised to both empower judges and challenge them in a world where expert-related workloads are a perpetually “rising tide.”
The day will come — perhaps in the next five years or so — when Donato will permit his clerks to use artificial intelligence technology, he said. “I just don’t think it’s there yet.”
Also on the horizon is a world where judges will have to contend with expert reports generated by so-called AI agents with minimal human supervision.
“That day is coming,” Donato said. “No doubt about it.”
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