Consulting Experts and Improper Contact
As the usage of consulting experts increases, so does the need for vigilance with respect to an issue that often does not make it into reported opinions – the problem of allegedly improper contact with an opponent’s expert. Because consulting experts do not have to be, and usually are not disclosed, innocent contact with an opponent’s consultant happens with some frequency. The “trick” is what happens after that initial, innocent contact.
The complications from this type of contact were highlighted recently in Mid-America Agri Products/Horizon LLC v. Rowlands, No. S-12-473, 2013 WL 3783865 (Neb. July 19, 2013). There the Nebraska Supreme Court considered the remedies that should be employed where plaintiffs admittedly had engaged an expert who first was consulted by defense counsel.
In a nutshell, the facts were that defense counsel contacted the expert in question and shared confidential thoughts and impressions about the case. When defense counsel later began preparing his experts for trial, the expert in question advised apparently for the first time that he was uncomfortable testifying for the defendants because of a relationship the expert had with some of the owners of the plaintiff corporations. (Still the expert billed defense counsel for some of their conversations). When plaintiffs’ counsel later contacted the expert about possibly testifying in the case, the expert advised that he “believed another lawyer had contacted him regarding the same case” but he did not remember the attorney’s name.
Plaintiffs engaged the expert. In what doubtlessly was a surprising development, defense counsel learned that plaintiffs had retained the expert when plaintiffs disclosed the expert’s report. After extensive, factually intensive motion practice that ultimately made its way to the Nebraska Supreme Court, the expert was disqualified from all expert roles in the case, including all non-testifying consulting expert roles.
Bad though that may sound for the plaintiffs, plaintiffs actually had dodged a bullet. The problem of improper contact with an opponent’s expert goes far beyond routine discovery and disclosure issues – it implicates fundamental concerns with the judicial process. Courts can and sometimes do disqualify counsel from continuing in a case after improper expert contact. The question of “fault,” though relevant, is not nearly as important as the question of whether counsel obtained confidential information from their opponent.
In Rowlands, for example, the Nebraska Supreme Court first considered whether the expert had obtained confidential information and whether defense counsel reasonably had believed that the information conveyed to the expert would be kept confidential. As both of those criteria were satisfied, the Court applied a rebuttable presumption of shared confidences, shifting to plaintiffs the burden to rebut the presumption or face the possible disqualification of not just the expert, but also their counsel.
Plaintiffs’ counsel did rebut the presumption. The court made clear that had the presumption not been rebutted, the question of disqualification would depend – not on “fault” – but on the question of “whether continued representation by counsel [would] taint further proceedings.”
That is the key “take away” from the decision. Due to the impact on the judicial process, potential improper contact with an opponent’s expert is far more problematic than a routine discovery dispute. Counsel must address immediately any potentially improper contact with an opponent’s expert, being sure not only that the expert avoids disclosure of potentially confidential information, but also making sure that counsel can demonstrate the same later should a court apply a rebuttable presumption of shared confidences and shift to counsel the burden to rebut the same.