Judge Sue L. Robinson: A Party Cannot Use Confidential Information as "both a shield and a sword"
In a recent simple, and straightforward opinion, Judge Robinson granted a plaintiff's motion to exclude expert testimony where the expert report relied on knolwedge of work done for a government agency which was not able to be disclosed. Siemens Medical Solutions USA, Inc. v. Saint-Gobain Ceramics & Plastics, Inc., C.A. No. 07-190-SLR, Memo. Order (D. Del. Aug. 20, 2008).
A constant theme in opinions resolving disputes over discovery is fairness and this opinion was no exception. Judge Robinson stated that her analysis need only "start and end" with the "fundamental principle of fairness." Id. at 2. The expert in this case was employed by a government agency and prohibited from producing his work product. His expert report in the litigation, however, relied on his recollection of some of this government work. The court found that the expert cannot rely on the recollection of this work product where the work product itself is otherwise shielded from discovery. Id.
For a copy of the opinion see here.