Judge Sue L. Robinson recently denied a plaintiff’s emergency request seeking to disqualify an opposing expert witness based on the expert’s earlier consultations with the plaintiff, pursuant to a confidentiality agreement, regarding the litigation. Butamax Advanced Biofuels LLC v. Gevo, Inc., Civ. No. 11-54-SLR (D. Del. Oct. 10, 2012). The plaintiff’s emergency request was based on its contention that the plaintiff previously sought to retain the expert, and in the process engaged in substantive discussions regarding how the plaintiff would respond to certain arguments expected to be made by the defendant. Id. at 1-2. The emergency request provided: “Through the confidential relationship, [the expert] at least learned counsel’s [modus operandi] and decision-making process. Yesterday, [the expert] indicated he will consult for [the defendant’s] counsel on the same matters. The Court should exclude [the expert] and preclude [the defendant] from contacting him further.” Civ. No. 11-54-SLR, D.I. 531.
The Court explained that the disqualification of an expert witness is justified where it was “(1) … objectively reasonable for the party seeking disqualification to have concluded that a confidential relationship existed with the expert; and (2) … confidential or privileged information actually [was] disclosed to the expert.” Id. at 2 (citing Syngenta Seeds, Inc. v. Monsanto Co., Civ. No. 02-1331, 2004 WL 2223252, at *1 (D. Del. Sept. 24, 2004)). The Court added that “[a]ffirmative answers to both inquiries ordinarily compel disqualification; however, ‘disqualification is likely inappropriate if either inquiry yields a negative response.’” Id. at 3 (quoting Wang Laboratories, Inc. v. Toshiba Corp., 762 F. Supp. 1246, 1248 (E.D. Va. 1991)).
Here, the Court assumed that because the expert signed a confidentiality agreement, the first prong of the inquiry was satisfied. Id. at 5-6. The Court found, though, that the second prong of the inquiry was not satisfied, because no confidential or privileged information was disclosed to the expert by the plaintiff’s attorney. Id. at 6. The record showed that the expert had not been retained by the plaintiff, nor received any fees or confidential documents from the plaintiff. Id. In fact, the plaintiff’s attorneys had refused to provide the expert “with even publicly available documents from the litigation, e.g., the declarations of two other EC Commission members that had been submitted on behalf of [the plaintiff].” Id. at 6 n.5. The Court found that “the nature of the relationship and of the information allegedly disclosed instantly is much too abbreviated to warrant such a drastic sanction [as disqualification].” Id. at 6. The Court added that allowing the expert to testify on behalf of the defendant would not call into question the integrity of the judicial process, especially where, as here, the expert was “one of a limited number of individuals with expertise related to [the subject matter of his testimony].” Id. at 7.