Academic journal article Defense Counsel Journal

Disqualifying an Opponent's Expert When the Expert Is Your Client's Former Employee

Academic journal article Defense Counsel Journal

Disqualifying an Opponent's Expert When the Expert Is Your Client's Former Employee

Article excerpt

An employee confidentiality agreement is important as courts are reluctant to preclude the former employees' testimony under privileges

A LITIGANT may be able to disqualify his adversary's expert consultant when the expert is the party's former employee.(1) This situation will occur in the defense of a strict products liability action in which the plaintiff has retained the manufacturer's former engineer as an expert consultant.(2) The situation also may arise in patent infringement suits,(3) or whenever else technical experts are employed to battle relatively large commercial enterprises.(4)

To combat these situations, the defendant may seek an order of the court to disqualify the expert. Or as a preemptive move, the manufacturer may seek a permanent injunction against the former employee from consulting with its adversaries in litigation. This action usually would be based on attorney-client privilege and work product doctrine or breach of a confidentiality agreement. These actions also could conceivably be based on fiduciary duties to protect trade secrets, even in the absence of a confidentiality agreement.(5)

CHANGING SIDES CASES

Changing sides cases involve a motion by one party to have an opposing party's expert disqualified because the expert has previously consulted with the moving party in the same or substantially related litigation. In order to succeed, the moving party must prove, first, that a confidential relationship existed between the moving party and the expert, and, second, that the expert was exposed to confidential information to the extent that it would be unfair for the opposing party to utilize the expert.(6) Contrary to attorney disqualification, no presumption arises that confidential communications were made to the expert, and the moving party has the burden of proving that there were confidential communications.

Several competing interests are involved in changing sides cases, including (1) the expert's interest in pursuing the expert's profession, (2) the moving party's interest in not having its confidential communications revealed, and (3) the opposing party's interest in obtaining the expert's assistance and testimony. The manner in which these competing interests balance out ultimately depends on whether there was a confidential relationship and the extent of the communications involved.

In Conforti & Eisele Inc. v. Division of Building and Construction.(7) the Appellate Division of the Superior Court of New Jersey granted the moving party's injunction to enjoin the adversary's utilization of an expert previously retained by the moving party. A general contractor, Conforti & Eisele had been retained by the New Jersey to complete two phases of a construction project. Conforti sued the state in a contractual dispute arising from this relationship, and it retained an expert who had been used previously by the state in litigation involving a different phase of the same construction project. Although the state decided not to retain the expert as to this litigation, it had discussed this litigation with the expert and had permitted him free access to its files.

The court found that the expert was an agent of the state's attorneys when he was retained by the state in the previous litigation, and that any confidences revealed to him at that time were protected by the attorney-client privilege. In addition, the court relied on the analogous field of trade secrets and stated that it would be "fundamentally unfair" to allow the state's adversary to benefit from that which took time and expertise to develop, albeit in the context of a lawsuit.

The court also stated that the expert wasn't being deprived of a living, but rather only was being deprived of disclosing the state's confidential information. The expert could offer its services to anyone else except the state's adversary in this particular litigation.(8)

In Paul v. …

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