Suitability of expert witness testimony in accounting within damage claims in Mexico.
March 30, 2023
Recently, the civil litigation department at OLIVARES obtained a final decision from the Fourth Federal Circuit Court in Civil Matters, on behalf of a client, ordering a local Civil Court to discard expert witness testimony providing proof of accounting, which had initially been admitted. It was determined that the expert testimony was not being pertinent nor apt to demonstrate the right to obtain an indemnification.
The plaintiff sued through civil law for an indemnification for damages caused by an alleged unauthorized use by our client of a musical work in a television commercial to promote one of products, based on article 216bis of the Federal Copyright Law.
To try to demonstrate the income and economic capacity of the defendant for the sale of the products promoted in the commercial, the plaintiff offered, among others, expert evidence in accounting, which was admitted. It was ordered to make the accounting information of the defendant available to the plaintiff’s expert, including audited financial statements, trial balances and cash flow statements.
The admission of the expert evidence was challenged through an amparo trial, in which it was resolved by a judgment that is now final, that the expert evidence is not suitable at this stage of the litigation and must be dismissed, since it is first necessary to determine if harm was caused to the plaintiff, in order to quantify the damages. Likewise, it specified that it is not necessary to know the economic capacity of the defendant to determine a possible sentence, since if it is condemned to the payment of an indemnity, this will be calculated based on the parameters established in the Federal Copyright Law, according to the 40% rule established in article 216bis.
This decision is important because it constitutes a guiding criterion of the suitability and opportune moment to offer expert witness testimony to provide accounting proof, where an indemnification for damages related to a violation of the Federal Law of Copyright is claimed, as well as protecting sensitive accounting data and confidential information from illegal access.
At OLIVARES we have built a highly capable and effective civil and commercial litigation practice, with extensive experience to represent our clients in these types of claims, which is complemented by the knowledge of intellectual property, allowing us to create comprehensive strategies to cover all the needs of our clients.
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Armando Arenas joined OLIVARES in 2000 and became a partner in January 2017. He has experience working on a range of IP matters, including consulting and litigation on trademark, patent, unfair competition, trade dress protection, and misleading advertising cases before the Mexican Institute of Industrial Property (IMPI), Federal Court of Tax and Administrative Affairs (FCTA), Federal Circuit Courts (FCC) and the Supreme Court of Justice (SCJ) Regulatory Affairs and Public Acquisitions.
Alejandro Luna joined OLIVARES in 1996 and being made partner in 2005, he has been instrumental to the firm’s IP Litigation, Regulatory, and Administrative Litigation practices. He co-chairs the Life Sciences & Pharmaceutical Law industry group and coordinates the Litigation Department.
Abraham Díaz is a partner and co-chairs OLIVARES’ Privacy and IT Industry groups and has a wealth of knowledge across all areas of intellectual property (IP), with a focus on copyright, trademarks, unfair competition, litigation, licensing and prosecution matters.