Commonwealth v. Read — Trial ArchiveMatthew DiSogra - Cross (Part 1)
438 linesJUDGE CANNONE: All right. Mr. Brennan and Mr. Dogra, I'm going to ask that you keep your voice up because we're going to try and keep the air conditioning on and the fans. It's a little stuffy in here. So, if you just speak directly into the microphone, that would be great.
MR. BRENNAN: Not a problem, your honor. Thank you. May I proceed, please?
JUDGE CANNONE: Good morning, sir.
MR. DISOGRA: Morning, sir.
MR. BRENNAN: Sir, are you trying to offer an opinion suggesting that Miss Read's Lexus never hit John O'Keefe on January 29th, 2022?
MR. JACKSON: Objection.
JUDGE CANNONE: I'll allow it.
MR. BRENNAN: Is that what you're doing? Is that your opinion?
MR. DISOGRA: No, sir.
MR. BRENNAN: Are you offering an opinion that Miss Read's Lexus never got in a collision before?
MR. DISOGRA: The way I stated it was none of the prior events were triggered by a collision.
MR. BRENNAN: What I'm asking you, are you offering an opinion that Miss Read's Lexus never got into a collision before January 29th, 2022 or on that day?
MR. DISOGRA: No.
MR. BRENNAN: So, when you were talking about collisions to the jury, you weren't making any suggestion that that Lexus was not in a collision, are you?
MR. DISOGRA: I think you threw a double negative in there. Can you just clarify what you meant?
MR. BRENNAN: Yeah. You are not suggesting to this jury that Miss Read's Lexus did not ever get in a collision before.
MR. DISOGRA: No, you're just saying that there's no data on the Techstream to suggest a collision. Specifically, none of the events were triggered by a collision. That's Techstream data can be triggered by a number of different things other than a collision. Isn't that true? Correct.
MR. BRENNAN: And in fact, when you talk about Techstream data, you know that Techstream data does not record a collision. You know that a collision is not one of the triggers.
MR. DISOGRA: That's correct.
MR. BRENNAN: Right. So when you were saying it wasn't triggered by a collision, it's never going to be triggered by a collision ever on Techstream data.
MR. DISOGRA: Not the collision in and of itself.
MR. BRENNAN: Correct. Right. Right. So there's other things that will trigger Techstream data.
MR. DISOGRA: Correct.
MR. BRENNAN: Like sudden acceleration.
MR. DISOGRA: The only acceleration trigger that I'm aware of on Techstream is if there's a large acceleration during what Lexus calls a PCS or a pre-collision safety event, but a large acceleration on its own, I do not believe is one of the triggers.
MR. BRENNAN: Are you sure you know a lot about Techstream data?
MR. DISOGRA: Yes.
JUDGE CANNONE: Sustained.
MR. BRENNAN: Do you know a lot about Techstream data?
MR. DISOGRA: Yes.
MR. BRENNAN: And you're saying that if a car accelerates over 30% in and of itself wouldn't initiate a trigger.
MR. DISOGRA: I'm not sure I understand.
MR. BRENNAN: You just said pre-collision is the only time sudden acceleration from your perspective would cause a triggering event. Now, I'm asking you—
JUDGE CANNONE: I'm allowing it.
MR. BRENNAN: I'm asking you if someone accelerated Miss Read's Lexus at over 30% acceleration would that cause a triggering event?
MR. DISOGRA: I am not sure what you mean by 30% acceleration.
MR. BRENNAN: Accelerator 30%. Accelerator pedal.
MR. DISOGRA: Yes. Oh yeah. There are a lot of triggers in there. There's a number of ways that these VCH events can be triggered based on the accelerator pedal angle, I think.
MR. BRENNAN: Is that— Yeah. And what is the percentage from your experience that would create a triggering event?
MR. DISOGRA: There's various— Toyota Lexus calls it high, medium to high is what they put it.
MR. BRENNAN: Do you have a number? Do you know the actual data on what percent of depressing the accelerator on the same Lexus would create a triggering event? Do you know?
MR. DISOGRA: Off the top of my head, I don't know the exact percentage down to the percentage point.
MR. BRENNAN: No, there is something different than the Techstream data. That's the EDR data.
MR. DISOGRA: Correct. Yes.
MR. BRENNAN: You would not expect, it would be abnormal for the EDR to register data based on a sideswipe between a 6,000 lb. Lexus and a 216-pound person, wouldn't it?
MR. JACKSON: Objection.
JUDGE CANNONE: I'll allow it.
MR. BRENNAN: That would be abnormal to register that data into the EDR, wouldn't it?
MR. DISOGRA: I don't know if I would use the word abnormal, but I would state that there's a minimum threshold to record in the EDR and a pedestrian impact generally wouldn't meet that. I'm sorry. A pedestrian impact generally wouldn't meet that, but I don't want to make a blanket statement as if it's always the case.
MR. BRENNAN: You're saying it would— that would not— would not. Okay. And a sideswipe or a clip has less force and impact than a head-on collision depending on the speed.
MR. DISOGRA: Correct. Generally, yes.
MR. BRENNAN: When you are discussing the triggering event, that is the moment that something registers to the car to capture data in the Techstream.
MR. DISOGRA: Correct. Correct.
MR. BRENNAN: So if I was to suggest 30% of depressing the accelerator pedal would cause a triggering event, would the triggering event be when it reaches 30%?
MR. DISOGRA: Yes.
MR. BRENNAN: The event data captures potentially part of an event, doesn't it?
MR. DISOGRA: I think it— we're into semantics a little bit and I think it depends on what you mean by event.
MR. BRENNAN: Exactly. Previously we'd been talking about an event as the data but event can mean a lot of other things. If an event's only 3 seconds long and 10 seconds of data is captured then the data will capture more than the event.
MR. DISOGRA: Correct. Correct.
MR. BRENNAN: If the event is longer, 15 seconds, 20, 25 seconds, and the data is only captured for 10, the Techstream data only captures part of the event. Correct?
MR. DISOGRA: Fair to say. Very fair.
MR. BRENNAN: So, when you're looking at the data, it doesn't tell you about the entire event. Correct?
MR. DISOGRA: The data only tells us about the window of time the data captures. There's no way to know beyond that from the data.
MR. BRENNAN: All of your equations and pluses and minuses and graphs you're talking about deal with the 10-second Techstream data that was captured.
MR. DISOGRA: Correct. They deal with event 11622 and the 10 seconds it's comprised of. Actually, they really just deal with the end of the event. That's what everything in the Aperture reports reference.
MR. BRENNAN: Fair enough. But it doesn't deal with anything that could potentially happen after those 10 seconds, does it?
MR. DISOGRA: No.
MR. BRENNAN: Or anything before?
MR. DISOGRA: No, it does not.
MR. BRENNAN: The triggering event is a spot in the middle. Captures five seconds before, five seconds after.
MR. DISOGRA: Approximately 5 seconds. It's not exact.
MR. BRENNAN: And you would have to look elsewhere for evidence to know what might have happened before.
MR. DISOGRA: Yes. Correct.
MR. BRENNAN: And you'd have to look elsewhere for evidence to see or determine what happened after.
MR. DISOGRA: Yes.
MR. BRENNAN: Do you know at the end of this triggering event, that 10-second window of data, do you know what happened with the defendant's Lexus after that 10-second of data?
MR. DISOGRA: No.
MR. BRENNAN: You have no idea, right?
MR. DISOGRA: I don't.
MR. BRENNAN: Okay. I want to just ask you some questions about your background and then leading into this case if I could. You have a bachelor's degree and a master's degree.
MR. DISOGRA: That's correct.
MR. BRENNAN: You've worked for your company for some time coming up on 13 years next month.
MR. DISOGRA: Correct.
MR. BRENNAN: You've advanced through the company.
MR. DISOGRA: Yes.
MR. BRENNAN: You presently are the director of engineering.
MR. DISOGRA: Yes.
MR. BRENNAN: Are you ACTAR certified?
MR. DISOGRA: No.
MR. BRENNAN: What is ACTAR?
MR. DISOGRA: ACTAR is a body that basically offers a certification in accident reconstruction.
MR. BRENNAN: Do you offer services as an accident reconstructionist sometimes? And you have been hired and come into court and offer opinions as an accident reconstructionist.
MR. DISOGRA: In the singular time I've testified in court, it was not specifically for accident reconstruction. It was data analysis.
MR. BRENNAN: Okay. You continue your education and you go to a number of different trainings and seminars as well as teach. Correct?
MR. DISOGRA: Correct. Regularly.
MR. BRENNAN: And when you regularly go to continuing education, you have quite a bit of continuing education that you've been through, haven't you?
MR. DISOGRA: Sorry.
MR. BRENNAN: You've been through quite a bit of continuing education.
MR. DISOGRA: Yes.
MR. BRENNAN: You focus as part of your specialty on EDRs, don't you?
MR. DISOGRA: That's correct.
MR. BRENNAN: Event data recorders.
MR. DISOGRA: Correct.
MR. BRENNAN: In fact, when you promote your services, that's one of your real specialties, isn't it?
MR. DISOGRA: Correct.
MR. BRENNAN: And it's something that not only are you schooled on and you go through the continued education, you're well published, aren't you?
MR. DISOGRA: That's correct.
MR. BRENNAN: And in your publications, you speak primarily about EDR type information.
MR. DISOGRA: Yes.
MR. BRENNAN: And that's something you are well skilled in, isn't it?
MR. DISOGRA: Yes.
MR. BRENNAN: Now, forensics or data forensics is a wide field, isn't it?
MR. DISOGRA: It is.
MR. BRENNAN: And you can do some things or many things in it. But often times people specialize in parts of data forensics, don't they?
MR. DISOGRA: Generally, yes.
MR. BRENNAN: Well, speaking of you, you specialize in EDRs.
MR. DISOGRA: True. Yes.
MR. BRENNAN: There is a difference in different subspecialties, isn't there?
MR. DISOGRA: In general?
MR. BRENNAN: Yes.
MR. DISOGRA: Yes.
MR. BRENNAN: Okay. Now, are cell phones— is that a subspecialty in digital forensics?
MR. DISOGRA: Yes.
MR. BRENNAN: Is that something you're a specialist in?
MR. DISOGRA: No.
MR. BRENNAN: IPhones. Are you a specialist in iPhones?
MR. DISOGRA: No.
MR. BRENNAN: Have you ever taken any specific training on mobile forensics?
MR. DISOGRA: No.
MR. BRENNAN: Have you ever written any papers on mobile forensics?
MR. DISOGRA: No.
MR. BRENNAN: Have you ever promoted yourself as having any type of subspecialty as an expert in mobile forensics?
MR. DISOGRA: Never.
MR. BRENNAN: In any of your continuing education— and you have a vast amount— have you ever taken any classes or seminars in mobile forensics?
MR. DISOGRA: No.
MR. BRENNAN: Have you ever taken any class or study about variances between infotainment systems and mobile forensics?
MR. DISOGRA: No.
MR. BRENNAN: Have you ever attended any seminars on variances relative to mobile forensics?
MR. DISOGRA: No.
MR. BRENNAN: Have you ever testified about variances in mobile forensics before you testified in this court today?
MR. DISOGRA: No.
MR. BRENNAN: Have you ever published anything to do with variances in mobile forensics?
MR. DISOGRA: No.
MR. BRENNAN: In this case, you had an opportunity to review a number of reports from Dr. Jud Welcher.
MR. DISOGRA: Yes. Yes.
MR. BRENNAN: And Mr. Shanon Burgess.
MR. DISOGRA: Correct.
MR. BRENNAN: In reviewing those reports, you've offered your opinions and analysis. Did you ever engage in any efforts or study in this case to obtain data?
MR. DISOGRA: Could you maybe clarify what specifically you're asking?
MR. BRENNAN: Yes. Did you ever yourself, not watch someone else do Did you ever download or obtain data in this case?
MR. DISOGRA: No.
MR. BRENNAN: Did you ever test Ms. Read's car?
MR. DISOGRA: No.
MR. BRENNAN: Did you ever get an exemplar vehicle to run any tests?
MR. DISOGRA: I did not.
MR. BRENNAN: Did you ever do any actual testing in this case?
MR. DISOGRA: No.
MR. BRENNAN: And so your role is to look at other people's work and offer opinions and criticisms basically.
MR. DISOGRA: And provide some clarity to the work. But generally, yes.
MR. BRENNAN: Clarity for who? Who asked you to provide clarity?
MR. DISOGRA: My clients in this case.
MR. BRENNAN: Your what?
MR. DISOGRA: Mr. Jackson. My client.
MR. BRENNAN: Did you ever speak to me?
MR. DISOGRA: No.
MR. BRENNAN: As an expert, when you analyze data, whether you actively got it yourself or not, do you ever give an opinion in paper called a report? You ever write a report?
MR. DISOGRA: Yes.
MR. BRENNAN: And you've seen reports in this case that you've looked at, correct?
MR. DISOGRA: Correct.
MR. BRENNAN: A number of reports by Mr. Burgess?
MR. DISOGRA: Correct.
MR. BRENNAN: Report by Dr. Welcher, also?
MR. DISOGRA: Correct.
MR. BRENNAN: Reports that you're critiquing, right?
MR. DISOGRA: Correct.
MR. BRENNAN: Did you see Ian Whiffin's reports?
MR. DISOGRA: I did not.
MR. BRENNAN: How about Jessica Hyde? Did you see her reports?
MR. DISOGRA: I did not.
MR. BRENNAN: You were asked to consider information from Mr. Whiffin's report?
MR. DISOGRA: No.
MR. BRENNAN: Well, you were asked to assume that the last user interaction on John O'Keefe's cell phone was 12:32:09. That was stated in Dr. Welcher's report.
MR. DISOGRA: So, I started my analysis at that level.
MR. BRENNAN: So none of the information did you actually personally go and vet or analyze or make any determinations about? You're just critiquing written reports.
MR. DISOGRA: Correct.
MR. BRENNAN: Well, as an expert coming into court and testifying and having opinions, you put together a PowerPoint, didn't you?
MR. DISOGRA: Yes.
MR. BRENNAN: Why didn't you ever put together a report to share the basis of your opinions and the process you went through to arrive at your opinions before you came into court?
MR. DISOGRA: Primarily, I wasn't asked to. So, I didn't do it. I wouldn't commission work without being asked to do it. And number two, the extent of my work beyond building the PowerPoint was just basic addition, just adding numbers together that already existed in the Aperture reports. So there wasn't a tremendous amount of complexity to what I engaged in.
MR. BRENNAN: What about your work product and your calculations? Did you do all this in your head or did you type it out and go through a computer program? How did you do it?
MR. DISOGRA: I used a calculator for most of it and the tables in my PowerPoint were generated in Excel which has some calculation capabilities.
MR. BRENNAN: Were you ever asked not to write a report?
MR. DISOGRA: No.
MR. BRENNAN: You had provided an initial PowerPoint.
MR. DISOGRA: Yes.
MR. BRENNAN: And then you received information from Mr. Burgess.
MR. DISOGRA: Yes.
MR. BRENNAN: And then you added new slides to your PowerPoint.
MR. DISOGRA: That's correct.
MR. BRENNAN: Mr. Burgess's report was May 8th.
MR. DISOGRA: Yes.
MR. BRENNAN: You provided your PowerPoint on May 25th.
MR. DISOGRA: Correct.
MR. BRENNAN: Did it take you that long for the calculations between when you got the report and May 25th to put together the new presentation?
MR. DISOGRA: No, it didn't.
MR. BRENNAN: Why did you wait until May 25th to provide the new information?
PARENTHETICAL: [unidentified voice]
MR. DISOGRA: : Today's the 30th.
MR. DISOGRA: That's when I was asked to do it.
MR. BRENNAN: What do you mean by that?
MR. DISOGRA: I just want to see what the date is today.
MR. BRENNAN: When you finished your PowerPoint on May 25th, did you send it to the defense on May 25th?
MR. DISOGRA: Yes, I did.
MR. BRENNAN: So, they had a copy of your PowerPoint on May 25th? Don't be shy.
MR. DISOGRA: No, I'm pretty sure it was the 25th.
JUDGE CANNONE: Sustained.
MR. DISOGRA: If it wasn't the 25th, it would have been maybe the day after, but I'm —
MR. BRENNAN: It's dated the 25th.
MR. DISOGRA: I'm almost positive I provided it on the 25th.
MR. BRENNAN: No reason for you to hold on to it for a couple extra days.
MR. DISOGRA: No, I think it was the 25th.
MR. BRENNAN: Do you know what was provided to the Commonwealth, that report?
MR. DISOGRA: No, I don't.
MR. BRENNAN: And the 25th — the report that you provided to the defense on the 25th, it had new information, didn't it?
MR. DISOGRA: It had the information from Mr. Burgess's supplemental report. That was the additions.
MR. BRENNAN: Why did you wait until the 25th to put it together?
MR. DISOGRA: That's when I was asked to do it.
MR. BRENNAN: Who asked you?
MR. DISOGRA: My clients, Mr. Jackson — he said, "Please have it to us on the 25th." We had a phone call on the 25th and discussed Mr. Burgess's supplemental report. During that phone call, he asked me to update the presentation and I did so and then provided it.
MR. BRENNAN: How did the date of the 25th come about? Why that date?
MR. DISOGRA: That's when he requested it. I think it was a Sunday, actually.
MR. BRENNAN: Okay. When you first got involved in this case, it was last fall, correct? And at that time, you received some information that Mr. Burgess wanted to look at the Techstream data or the different modules on what you later learned was the defendant's Lexus, correct?
MR. DISOGRA: Correct. Correct.
MR. BRENNAN: There was a proposal from Mr. Burgess. Mr. Burgess wanted to go back to the car and look at the modules and try to download more information from them, correct?
MR. DISOGRA: Correct. Correct.
MR. BRENNAN: And you then got involved to look at what this request was, the procedure that you wanted to follow.
MR. DISOGRA: Yes.
MR. BRENNAN: When you did that, were you given any materials about what had happened before you and Mr. Burgess both got involved?
MR. DISOGRA: I don't recall specifically and I don't think so. I think I was just provided the notice of testing that was to be done.
MR. BRENNAN: Well, you ended up drafting an affidavit.
MR. DISOGRA: I did.
MR. BRENNAN: And in drafting the affidavit, you pointed out some oversights of Mr. Burgess, didn't you?
MR. DISOGRA: I did.
MR. BRENNAN: Determining the oversights required some study of actually the data and the information that was available, wouldn't it?
MR. DISOGRA: It would.
MR. BRENNAN: So then we presume that before you wrote the affidavit pointing out the oversights, you had looked up materials.
MR. DISOGRA: I — if I recall correctly, the notice of additional testing from Mr. Burgess contained attached to it a whole report by him documenting why he thought there was an inadequate initial acquisition, why he thought the sizes were wrong. So I — I don't remember referencing anything beyond all the information that was contained in that, and whether that was compiled by somebody else or not, I don't know. That's how it was provided.
MR. BRENNAN: Did you end up looking at the report of Miss Gaffney and what had happened in the past? What the download was, Miss Gaffney's access materials.
MR. DISOGRA: If I'm remembering right again, I think Miss Gaffney's report was also attached to that same singular file.
MR. BRENNAN: You learned that the defense expert, Miss Gaffney, had downloaded data from chips.
MR. DISOGRA: Correct. Correct.
MR. BRENNAN: And Mr. Burgess was asserting that there was information missing and believed that there was missing information from the chips.
JUDGE CANNONE: In that form — sustained. Stricken. I'll hold it.
MR. BRENNAN: The conclusion Mr. Burgess had is that he believed there was missing information from the chips.
MR. DISOGRA: He did.
MR. BRENNAN: He miscalculated the size of the chips. Did you do any study to see if there was actually information missing from the original download?
MR. DISOGRA: No, I looked at the data sheets for the chips and immediately realized what the error was. The data sheets specify a size in megabits or gigabits. And Mr. Burgess had written his report in the context of megabytes and gigabytes.
MR. BRENNAN: And then you asserted — or you took the position in your affidavit — that there should be no further chip-off, no further study of those chips other than to ensure the amount of memory was sufficient.
MR. DISOGRA: It's not how I recall specifically what I said.
MR. BRENNAN: Well, let me read it because I want to try to align your words, please. "Mr. Burgess's proposed protocol labeled 'reattempt chip-off acquisition' is unnecessary because the file size of the acquisition performed by Miss Gaffney already matches the expected memory storage capacity of the components."
MR. DISOGRA: That sounds accurate.
MR. BRENNAN: If you want to see this — I don't want to read from the document. If you need to see it, let me know.
MR. DISOGRA: That's fine. I trust your reading.
MR. BRENNAN: "However, an acquisition may be conducted for the sole purposes of ensuring the contents of the memory chips have not been altered since the last testing by recording the checksum."
MR. DISOGRA: Yes.
MR. BRENNAN: Did it cross your mind at that point that there was important data in those modules that was not seen or recovered or obtained by Miss Gaffney?
MR. DISOGRA: No.
MR. BRENNAN: Did you want to know when the person was looking for more data, more information, what he thought was missing?
MR. DISOGRA: He stated — I think in his report or affidavit, I'm not sure what it was — but he stated what he thought was missing was there was a physical size difference. So, he thought there was not corrupt data, but just missing chunks of data.
MR. BRENNAN: Log-on information. You've heard of that. Ignition on, ignition off information.
MR. DISOGRA: Yes.
MR. BRENNAN: And infotainment system. That's important information when you're reconstructing an accident, isn't it?
MR. DISOGRA: It could be.
MR. BRENNAN: Well, you reviewed information in this case. Pretty important in this case, would you say?
MR. DISOGRA: Yes.
MR. BRENNAN: And so, you would not want to engage in that process without this pretty important information, would you?
MR. DISOGRA: Which process of an accident reconstruction? Sorry. So, can you restate the whole question?
MR. BRENNAN: I'll ask it again. You said you have some experience in accident reconstructions.
MR. DISOGRA: Yes.
MR. BRENNAN: Don't you want all the data available?
MR. DISOGRA: More data, the better. Generally, yes.
MR. BRENNAN: You wouldn't want to ignore data on purpose, would you?
MR. DISOGRA: No. I mean, as a data analyst, the more data, the more you get the work done.
MR. BRENNAN: Yes. And so the power log-on information that actually has date and time, that's critical in an accident reconstruction, isn't it?
MR. DISOGRA: In some accident reconstructions — in some there's no debate about when a vehicle was on or off, but if there is, then yes.
MR. BRENNAN: Not just on and off. The power log — on and off gives you the date and the time that you can match with the text data.
MR. DISOGRA: Correct.
MR. BRENNAN: Yes, it does. You know text data itself doesn't have date and time on it.
MR. DISOGRA: It can.
MR. BRENNAN: This vehicle didn't.
MR. DISOGRA: It can, but this vehicle did not. It had — this had a running time instead.
MR. BRENNAN: Correct. So this data that was not found during the initial process — that was critical data at the time.
MR. DISOGRA: I don't think prior to the process anyone knew that this particular Lexus infotainment system stored those key on and key off times.
MR. BRENNAN: Right.
MR. DISOGRA: The only person that found this out was Shanon Burgess. He found it in the process, but I don't think anybody knew in advance of this case. There was nothing out there about it. So, to my knowledge, this is the first time that this specific data has ever been released into the wild.
MR. BRENNAN: But it was on the board there — someone who went to look for it or got creative, they could maybe find it.
MR. DISOGRA: Yes, more so — if you got creative — because I don't think anyone would have been able to have the foreknowledge that there would have definitely been — that Shanon Burgess did —
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained. I'll strike it.
MR. BRENNAN: And when Shanon Burgess went to obtain that data that everybody else overlooked or didn't know about, you went with him.
MR. DISOGRA: Yes. So you had a process where he was going to now
MR. BRENNAN: Control the data and take the information that was left behind and remove it from the infotainment board.
MR. DISOGRA: Correct. He actually never specified anything about the SD card in that initial notice. So it was a departure from his protocol and it was a little surprising to me when I got there that the protocol was written with a specific focus on a number of other chips. And it became very apparent to me very quickly that the focus was not on those chips and the focus was on this SD card that had previously been unmentioned. There was nothing in there about that prior to that.
MR. BRENNAN: Did it offend you or were you impressed that he had found that?
MR. DISOGRA: I was a little confused because I went into it with an expectation. Generally, if we write a protocol, we adhere to the protocol. If we're going to deviate, we have a discussion about deviations. So I was just surprised. It's not customary to sort of shift out of nowhere. But other than that, I did not know what to think of it because I'd never heard of that.
MR. BRENNAN: Did you give any input? Did you have any knowledge about the SD card and how it worked?
MR. DISOGRA: No.
MR. BRENNAN: So when you watched Mr. Burgess remove the SD card, did you appreciate he'd have to engage in what you call reverse engineering?
MR. DISOGRA: He did not elaborate to me exactly what his whole process was at first. It sort of came out as time progressed through the first day in his office in Texas and then I learned more as we moved to the second testing in Massachusetts, but he didn't explain it to me in one go.
MR. BRENNAN: Did you at that point understand or appreciate the relevance of the SD card relative to the infotainment system and what it could do as far as the amount of information that could then be available?
MR. DISOGRA: He never spoke throughout the three days at all about what kind of data he expected from the card or would be on the card or could be. He made no mention of the data.
MR. BRENNAN: Not what he said to you, but given your expertise, did it ever dawn on you the significance or importance of this SD card that was sitting in plain sight?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained. You may rephrase.
MR. BRENNAN: Did it ever dawn on you as Mr. Burgess was recovering this information left behind that there was something important and significant about it?
MR. DISOGRA: At the time I thought it was a possibility. If you reference the initial work, a number of different memory components were identified in this infotainment. There isn't a singular memory chip. So if we're looking for data, it could be in any of them. So we found a new source of data storage and I — there could be something there. There could be nothing there. It was unknown to me, but it turned out there was.
MR. BRENNAN: Now, when you were watching Mr. Burgess work as an expert, if you felt like there was something inappropriate or he had some grave oversight, you could write a report about that, couldn't you?
MR. DISOGRA: I could.
MR. BRENNAN: Did you ever write any report in this case?
MR. DISOGRA: No.
MR. BRENNAN: So you never wrote a report for your preparation of coming in and your data in the PowerPoint presentation, right?
MR. DISOGRA: Correct.
MR. BRENNAN: You never wrote a report regarding any of your observations of Mr. Burgess.
MR. DISOGRA: Correct.
MR. BRENNAN: You said that he didn't say anything. He spoke to you quite a bit during the process, didn't he?
MR. DISOGRA: He did.
MR. BRENNAN: He showed you what he was doing.
MR. DISOGRA: He did.
MR. BRENNAN: He explained to you what he was doing.
MR. DISOGRA: He explained the process. I think you had asked me earlier about whether he explained the data and he didn't.
MR. BRENNAN: He demonstrated great proficiency, wouldn't you say?
MR. DISOGRA: He ended up with a successful acquisition of the card at the end of the process.
MR. BRENNAN: When you are considering all your equations, did you consider the timing information taken from the SD card that Mr. Burgess found regarding power on and power off of that car?
MR. DISOGRA: Yes, to the extent that he considered it in his own report. Again, I'm referencing his report.
MR. BRENNAN: But how about you? You're coming in here giving an opinion saying what's better or best practice or right. How about you? Did you consider — you personally, the one who's giving the opinions — did you consider the significance of the power on power off data as it relates to all these times?
MR. DISOGRA: Yes.
MR. BRENNAN: Yes. Are you sure?
MR. DISOGRA: Yeah. I mean, I considered it. If that's the question — did I consider it? I considered it.
MR. BRENNAN: Okay. Did you do any study yourself?
MR. DISOGRA: No.
MR. BRENNAN: Now, we agree — or you agree — that there are variances between different devices.
MR. DISOGRA: Yes.
MR. BRENNAN: So a Lexus clock that comes from the infotainment system, it's very common that it would be different than a different device like an iPhone.
MR. DISOGRA: Specifically this Lexus, I don't know if we can make the statement that it's common or not, because again this is the only time that I know of that this specific data has been analyzed. So I don't know the answer to that question.
MR. BRENNAN: Did you say on direct examination that variances between devices are common?
MR. DISOGRA: Variance between devices are common. A variance of 45 seconds, that wouldn't be remarkable on different devices. It's common in the industry.
MR. BRENNAN: Correct. And in your business, that's an accepted amount.
MR. DISOGRA: I'm not sure what you mean by accepted. The amounts are what they are and we have to correct for them. I've done analyses of clocks that are anywhere from completely correct, one second off. I've done analyses of clocks that are 25 years apart. So it's a wide range of possibilities.
MR. BRENNAN: I understand your point. Yeah. If you see as an analyst a 45-second variance or 30-second variance, that wouldn't shock you, would it?
MR. DISOGRA: No amount of variance would shock me, is the answer.
MR. BRENNAN: I want to ask you questions and go through your PowerPoint and I want to ask you your specific opinions and how you arrived at certain claims that you've made.
MR. DISOGRA: Sure.
MR. BRENNAN: Okay. If we could put up Mr. DiSogra's new PowerPoint, 5/25/25. You've made a modification to your PowerPoint.
MR. DISOGRA: Yes.
MR. BRENNAN: You've made an amendment to your PowerPoint.
MR. DISOGRA: Yes.
MR. BRENNAN: So there is something that happened. You've received new information or new data and you updated or changed your PowerPoint.
MR. DISOGRA: I did.
MR. BRENNAN: And that's an appropriate thing to do when you receive new information, isn't it?
MR. DISOGRA: Yes.
MR. BRENNAN: If you have new data, you don't want to leave it behind. You want to make the best presentation with the best data you can.
MR. DISOGRA: I'd want my presentation of the data to be as accurate as possible. So I included all the data.
MR. BRENNAN: And you would expect that from any expert, wouldn't you? If they received new information or analyzed new data and it was important, it would be an appropriate best practice to update the PowerPoint or information they're providing, wouldn't it?
MR. JACKSON: Objection.
JUDGE CANNONE: I'm going to allow that.
MR. DISOGRA: I don't know if I would tell other experts what their best practices are. I would say generally as experts we do work that our clients ask us to do. So if we're asked to do it, we do it. If our clients say, "Hey, don't do that," we don't do it.
MR. BRENNAN: Well, you like the phrase "best practice" on direct. So I'm just wondering if I can borrow that phrase.
JUDGE CANNONE: Sustained.
MR. BRENNAN: Okay, we can turn to page two. Now, this is taken from Dr. Welcher's report.
MR. DISOGRA: Yes.
MR. BRENNAN: And again, you did no testing whatsoever. You just read. Did you read all of Dr. Welcher's data? The gigabytes and gigabytes of data. Did you go through it all?
MR. DISOGRA: Not every slide. No.
MR. BRENNAN: Not — no, not just the PowerPoint. I mean, the actual massive amount of data in his study. Did you go through the data?
MR. DISOGRA: Oh, no. I didn't look at any of the data.
MR. BRENNAN: Did you ever speak to Dr. Welcher?
MR. DISOGRA: No.
MR. BRENNAN: And so when you are making assumptions on what he thought or how he analyzed, you're just guessing.
MR. DISOGRA: I am looking at what Dr. Welcher put in his trial presentation and my assumption that's baked in there is that he's going to stand behind the things he says in a presentation. So I'm taking them at face value, but as being correct.
MR. BRENNAN: Well, it's not a matter if he's going to stand behind it. You don't know why he put something in here. You just see it on the paper. You don't know what his thought process was, did you?
MR. DISOGRA: To an extent, yes, because I understand how the exemplar testing by Aperture laid the foundation to align the key-on events in the infotainment to the Lexus VCH events.
MR. BRENNAN: Based on the math he uses, that's the implication. He puts a number on the screen that the only way you could reach that number is by making that assumption. So when I looked at the math, yes, that assumption seems baked into the math he did.
MR. BRENNAN: So this seems like it's baked in that he was assuming 1:54 on John O'Keefe's phone was the end of the three-point turn?
MR. DISOGRA: Not on this slide. On a later slide, but yes.
MR. BRENNAN: Okay. And you said that variances — 30 seconds, 45 seconds — they're very common when you're comparing two different devices, right?
MR. DISOGRA: Yes.
MR. BRENNAN: Return to the next slide, please. You point out two times for the jury. The Lexus event 1:16:22 ends 12:31:43, right?
MR. DISOGRA: Yes.
MR. BRENNAN: And that's based on the clock and the infotainment system?
MR. DISOGRA: That time is based on two things: the clock in the infotainment unit and the cumulative key-on timer in the text stream data. So it's a combination of two values, which is the running clock. Correct.
MR. BRENNAN: Right. And that is compared or contrasted or coordinated with the log on-off time that was found on the SD card.
MR. DISOGRA: Yes.
MR. BRENNAN: Yes. And without that SD card, we wouldn't have that time now, would we?
MR. DISOGRA: Correct.
MR. BRENNAN: Okay. 12:32:09 isn't something you analyzed, but you just read in the report that that is information from Ian Whiffin suggesting or taking the position that was the last user interaction John O'Keefe had with his cell phone.
MR. DISOGRA: 12:32:09. That's how I understand it. There was a phone lock at 12:32:09. I did not look into the underlying reports from where that came, and you know those are two different devices, two different clocks that will have a variance.
MR. BRENNAN: Yes. You mentioned trigger event, and you said that your preference — when you're doing times — is to point it from the actual trigger event, and there was a little slap for emphasis to target you on that, right? The trigger event. That's not a standard practice or protocol that is supported by any type of literature, is it?
MR. DISOGRA: It's the methodology I teach — especially in the class I teach on the analysis of heavy vehicle data. We have the exact same problem with heavy vehicles. They all have clocks on them. And so in fact, I do a lot of clock adjustment on heavy vehicles relative to other sources. And the way I teach it — I'm not the only instructor. Collectively, the way we all teach it is we generally start the analysis at the trigger, which is not to suggest you have to do that. It's not wrong to do it a different way, but that would be the — let's call it the default methodology.
MR. BRENNAN: The default methodology. Do you have any professional literature that says that is the best time to start the analysis?
MR. DISOGRA: Not literature. I mean, that's my opinion, because that introduces the least amount of variables once you start trying to align events off of subsequent times. You just introduce more addition and subtraction — more math you have to do. So it's easiest to do t0 and align everything from there.
MR. BRENNAN: If you're lining up the end of one event with the end of another event, it's more coordinated than if you align at different spots, isn't it?
MR. DISOGRA: That could be a scenario where then you wouldn't use it, right? Like I said, it's not the only way, but it's the default way.
MR. BRENNAN: I don't disrespect your method, but there are other ways to do it that are just as legitimate as the trigger.
MR. DISOGRA: Absolutely. And that's why I didn't change the convention here. I used their convention.
MR. BRENNAN: You're not suggesting that Mr. Burgess was being misleading by choosing the end point — when he pronounced that's exactly the point he was considering. Are you?
MR. DISOGRA: No.
MR. BRENNAN: And so the word "cherrypicking" — you're not saying he was cherrypicking, are you?
MR. DISOGRA: I don't remember the context in which I used the word cherrypicking, but I don't think it was with respect to a trigger alignment.
MR. BRENNAN: So there's no legitimate professional basis for suggesting your way is better or worse than going from the front or the end of the event?
MR. DISOGRA: No.
MR. BRENNAN: So you're not offering criticism on that. So just so I understand — not criticism.
MR. DISOGRA: I pointed out that it's not typical. And I pointed out not even to say specifically that it's not typical, because even that — to your point — might sound critical. I just want to be clear that I adopted their convention. It's not the way I would have done it, but I kept that convention consistent in my analysis. So I wasn't changing in the middle — trying, you know what I mean, trying to obfuscate what I'm saying.
MR. BRENNAN: I appreciate that. I appreciate that. So if someone's looking end to end, you're not going to add 5 seconds. It's if someone went from middle to end. Could you give me that?
MR. DISOGRA: Yeah.
MR. BRENNAN: You were suggesting — those questions about, well, since you're looking at the end instead of the middle, then you got to add another 5 seconds on. That's not really an accurate analysis. If you're looking at a comparison from end to end, you wouldn't add the 5 seconds to the time of the trigger because you're starting at the end from both devices.
MR. JACKSON: Objection.
JUDGE CANNONE: I'm going to allow it if you can answer it in that form.
MR. DISOGRA: It's going to depend on if you're doing an alignment with something that is a range of values. Then you have to be consistent on where you're doing it. If you're doing discrete points, then — that's just a single point in time. There's no beginning or end. It's just a single second. So the best answer I can give is it depends on what you're doing.
MR. BRENNAN: Well, in this case, it was basing off the end of the event — the end, not the beginning. Comparing it comparatively to the end of a different device. So you wouldn't just add 5 seconds just for the heck of it.
MR. DISOGRA: You would not add 5 seconds for the heck of it.
MR. BRENNAN: You see 12:32:09 versus 12:31:43 — the middle line equals 26 seconds. Isn't that — in Dr. Welcher's slides — before — let me phrase it more cleanly — before Shanon Burgess analyzed the data more closely in his May 8th report, isn't this the exact difference in time that Dr. Welcher cites in his PowerPoint? 26 seconds.
JUDGE CANNONE: I'll sustain that.
MR. BRENNAN: Did you see, when you reviewed the reports, that Dr. Welcher uses this exact number — plus 26 seconds — in his PowerPoint?
MR. DISOGRA: I got the number from the PowerPoint. I'm sorry — not the report, but all of the numbers here on this slide are from Dr. Welcher's PowerPoint. And on the previous slide, I show that. So these are all just copied straight from that.
MR. BRENNAN: And you've labeled this "John's interaction window."
MR. DISOGRA: I did.
MR. BRENNAN: Okay. Interaction window. Do you think it might be confusing when you use "interaction window" to make it seem like the event was limited to 10 seconds?
MR. DISOGRA: No, and that's not the implication there at all. That's not what I'm trying to say.
MR. BRENNAN: That's not what you're trying to say. Fair enough. Fair enough.
MR. DISOGRA: If I can clarify what I mean by "interaction window" —
MR. BRENNAN: Please do.
MR. DISOGRA: — there's a range of times that we end up with when we start running these adjustments. So we never land on a singular point of alignment. We end up — like I show at the end — with 30 points. That's the window that I'm talking about. That's the window that I mean.
MR. BRENNAN: So if we could put up page 33 from Dr. Welcher's PowerPoint, just to illustrate what you're trying to help us with. So this represents — you've seen this, right?
MR. DISOGRA: It looks familiar, like it's from one of his slides, and if I've seen it, I did not spend a lot of time digging into it.
MR. BRENNAN: Does this look like the 10 seconds of data that would be captured from a triggering event in text data? [unintelligible]
MR. JACKSON: Objection.
JUDGE CANNONE: I'm going to see you at sidebar.
JUDGE CANNONE: So, jurors, we're going to release you for the lunchon break. We took so long here to make sure we could give you a nice full hour lnch break. So we'll see you back here in an hour.
COURT OFFICER: to the jury Can follow me please.