The opinion of the court was delivered by: EDELSTEIN
Frederic G. Withington, a nonparty to this antitrust action between the United States and International Business Machines Corporation (hereinafter IBM), has moved this court "for an Order, pursuant to Rule 45 of the Federal Rules of Civil Procedure and Section 2304 of the Civil Practice Law and Rules of the State of New York,"
quashing and vacating a subpoena directing him to appear and testify on behalf of the United States in the above-captioned proceeding.
Although the motion papers fail to isolate the grounds for the requested order, the three supporting affidavits and the accompanying memorandum of law reveal the essential argument: Mr. Withington claims that he is being summoned to testify not as an individual with first-hand knowledge of the facts of this litigation but rather as an expert witness and that, as an unwilling expert, he may not be compelled to testify. Mr. Withington asserts that the information which he understands the Justice Department will seek to elicit from him at trial is proprietary and should be protected from involuntary revelation. Additionally, while movant's memorandum of law fails even to mention this assertion, it is argued in the accompanying affidavits that certain unspecified contractual relationships that exist between Mr. Withington's current employer, Arthur D. Little, Inc. (hereinafter ADL) and IBM would create a conflict of interest should Mr. Withington be compelled to testify on behalf of the plaintiff.
The Department of Justice does not dispute that it intends to call Mr. Withington to testify as an expert. It contends, however, that this court has the power to compel Mr. Withington to testify on plaintiff's behalf and that such power should be exercised since "Mr. Withington's knowledge and expertise in the [electronic data processing] industry would provide relevant information on the issues in this action." Memorandum in Opposition to Motion to Quash and Vacate the Subpoena Served upon Frederic G. Withington, at 4. For the reasons set forth below, the court has determined that the instant motion must be denied.
The law to which this court must adhere does not support Mr. Withington's central contention that an unwilling expert may not be compelled to testify. In Carter-Wallace, Inc. v. Otte, 474 F.2d 529 (2d Cir. 1972), cert. denied, 412 U.S. 929, 37 L. Ed. 2d 156, 93 S. Ct. 2753 (1973), uncited by movant, the Second Circuit was confronted with the argument that the requirement of unavailability prevented the receipt of the prior testimony of certain expert witnesses notwithstanding the fact that the witnesses lived beyond the reach of the court's subpoena power. It was claimed that the rule that a court's lack of power to compel attendance at trial is sufficient proof of unavailability is inapplicable with respect to expert witnesses whose "opinions could under no circumstances be obtained through court process." 474 F.2d at 536. In disposing of this somewhat curious argument, Judge Friendly, writing for the majority, conclusively answered the question raised by Mr. Withington's motion:
Carter-Wallace's reliance on the court's alleged lack of power to compel expert testimony is misplaced. The weight of authority holds that, although it is not the usual practice, a court does have the power to subpoena an expert witness and, though it cannot require him to conduct any examinations or experiments to prepare himself for trial, it can require him to state whatever opinions he may have previously formed. Boynton v. R. J. Reynolds Tobacco Co., 36 F. Supp. 593 (D. Mass. 1941); United States v. 284, 392 Square Feet of Floor Space, 203 F. Supp. 75 (E.D.N.Y. 1962) (dictum); see 4 Moore, Federal Practice P 26.66 , at 26-469 (1972); 8 Wigmore [Evidence] § 2203(2)(c) [3d ed. 1940].
Id. To this rejection by the Court of Appeals of Mr. Withington's essential argument, it need only be added that an even stronger basis may be said to exist in the case at bar for recognizing the court's power to compel expert testimony than existed in Carter-Wallace. This is not an attempt by a litigant in a private controversy to support its case through the assistance of an unwilling expert. Instead, here is involved an attempt by the United States to summon a member of the public to testify in a major government antitrust case, a case which, by definition, greatly affects the commonweal. See Pennsylvania Co. for Insurances on Lives and Granting Annuities v. City of Phila., 262 Pa. 439, 105 A. 630 (1918).
Ignoring Carter-Wallace, Mr. Withington cites People ex rel. Kraushaar Bros. & Co. v. Thorpe, 296 N.Y. 223, 72 N.E. 2d 165 (1947) for the proposition that in New York an expert cannot be subpoenaed to testify against his will. It is then asserted that under Rule 43(a) of the Federal Rules of Civil Procedure, Kraushaar should control the disposition of this motion.
This court cannot agree. The Second Circuit's opinion in Carter-Wallace, issued twenty-five years after Kraushaar and concerning an appeal from a trial in the Eastern District of New York, erases all doubts that this court, sitting in New York, has the power to compel an expert to testify. Further consideration of Kraushaar and other New York cases relying upon it is, therefore, unnecessary.
During the pendency of this motion, the Federal Rules of Evidence became effective. A careful examination of those rules, however, reveals that they leave unaltered the conclusion, compelled by Carter-Wallace, that this court has the authority to compel Mr. Withington to comply with the subpoena.
It is true that Carter-Wallace did not address an alleged conflict of interest which might result from compelling an expert witness to testify. However, Mr. Withington's reliance on this argument to thwart plaintiff's subpoena is misplaced. This argument, not even mentioned in the "supporting" memorandum of law,
is cast in the affidavits in vague and conclusory terms. Thus Mr. Withington claims that "aside from the normal conflict of interest " which would exist if he was compelled to testify since "IBM has been a client of ADL for many years," such testimony would be a "conflict of interest with respect to [his] obligations to [his] employer" since Mr. Withington has been "advised that ADL, in some capacity, is actually participating in [IBM's defense]." Withington affidavit at 3 (emphasis supplied). To this statement by Mr. Withington, counsel for ADL adds in his affidavit that:
IBM is presently a client of ADL, and ADL is performing services for IBM under a number of contracts. Therefore, ADL management does not believe it to be proper or appropriate for Mr. Withington to appear as an expert witness on behalf of the Justice Department in this proceeding.
Bradford affidavit at 2 para. 4.
Apart from the overgeneralized and indefinite nature of Mr. Withington's assertions concerning unspecified contracts and undefined relationships, the court is simply not persuaded that Mr. Withington's argument relating to an alleged conflict of interest is a sufficient ground for denying the court access to his testimony, the precise subject-matter of which is not even yet known. Nor, it appears, would Professor Moore accept such an argument. In a section devoted to pre-trial discovery from adverse party's experts, Professor Moore restates the "general American rule" that ...