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Magistrate Judge Joel Schneider denies defendant’s request to disqualify plaintiff’s expert for previously working with defense counsel

Magistrate Judge Joel Schneider, sitting by designation, recently denied defendant Materia, Inc.’s motion to disqualify plaintiff Evonik Degussa DmbH’s expert on inequitable conduct issues. Evonik Degussa DmbH v. Materia, Inc., et al., C.A. No. 09-636-NLH-JS (D. Del. Apr. 2, 2014). Materia argued that disqualification was proper because its co-defense counsel, Nixon Peabody, retained the expert in the past “regarding an ‘ethics matter.'” Id. at 1. Materia argued that it would be substantially prejudiced because the past engagement would “stymie its effective cross-examination,” and that “fundamental fairness” warranted disqualification. Id. at 1-2. Magistrate Judge Schneider disagreed. “[D]isqualification is a drastic measure which should not be imposed except where absolutely necessary.” Id. at 2. Disqualification was inappropriate because Materia did not show that it was “objectively reasonable” for it to conclude that it had a confidential relationship with the expert and there was no evidence that any relevant confidential information was relayed to the expert. Id. at 2-3. Further, “policy and fairness” did not warrant disqualification because “[t]here is nothing unfair if Nixon Peabody is requried to cross-examine an expert it previously retained in an entirely unrelated matter.” Id. at 4. Evonik, on the other hand, would be prejudiced if its expert is disqualified because Evonik has the “right to qualified experts of its choice.” Id.

Evonik Degussa DmbH v. Materia, Inc., et al., C.A. No. 09-636-NLH-JS (D. Del. Apr. 2, 2014)

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