The opinion of the court was delivered by: Conboy, District Judge:
Currently before the Court is an unusual motion — a motion
by a non-party to withdraw his affidavit voluntarily given to
the plaintiff and submitted by the plaintiff on his motion for
summary judgment. Before discussing the legal ramifications of
the motion, we will briefly set out the relevant facts.
Plaintiff, Robert D. Krumme ("Krumme"), worked for Cluett,
Peabody & Co., Inc. ("Cluett") from 1969 to 1986. In 1986,
Cluett was acquired by defendant, West Point-Pepperell, Inc.
("WPP") in a friendly takeover. Krumme left Cluett, along with
the other senior executive officers, after its acquisition by
WPP and the elimination of the corporate headquarters functions
in New York City. Cluett now operates as a division of WPP.
Since 1989, WPP has been controlled by William Farley, who
acquired control after a hostile
takeover attempt.*fn1 On March 24, 1989, Krumme brought this
suit against WPP seeking a lump sum payment of the deferred
compensation allegedly owed to him under an amendment to a
deferred compensation agreement as a result of the change in
control at WPP. That amendment, as signed, calls for the
actuarial assumptions contained in the Cluett Employee
Retirement Plan (the "Plan") to be utilized in calculating his
lump sum benefits.
On November 13, 1989, Krumme served a cross-motion for
summary judgment and his papers in opposition to WPP's motion
for partial summary judgment.*fn2 Included in those papers was
an affidavit of F. Thomas Senior ("Senior"), a partner in the
actuarial firm of Kwasha Lipton ("Kwasha"). Senior's affidavit
relates, in large part, to Cluett's Plan. Senior had provided
actuarial services to Cluett with respect to the Plan from 1969
until early 1987, at which time the actuary for WPP assumed
full responsibility for Cluett's actuarial work.
On November 16, 1989, Krumme alleges that Senior telephoned
Krumme's counsel to report that Earl Shanks, an employee of one
of the companies controlled by William Farley, telephoned
Kwasha to complain about Senior's testifying for or submitting
an affidavit in support of the plaintiff in this action. Mr.
Shanks purportedly demanded that Kwasha investigate what Shanks
claimed was a conflict of interest. Apparently, another of
William Farley's companies, Farley Northwest Industries, Inc.
(now called Fruit of the Loom, Inc.), employs Kwasha to manage
an employee savings plan. That savings plan account is not
related to this action but does provide in excess of $100,000
a year in annual revenues for Kwasha.
On November 22, 1989, Senior, by counsel representing himself
individually and Kwasha, moved to withdraw his November 13,
1989 affidavit (the "November 13 Affidavit") submitted by
Krumme in support of his cross-motion for summary judgment.
After reviewing the matter with other partners at Kwasha, and
with Kwasha's counsel, Senior states that he concluded that the
use of his affidavit "would involve an actual or potential
conflict of interest on [his] part." See Affidavit of F. Thomas
Senior, sworn to Nov. 22, 1989 ("Senior 11/22/89 Aff."), at ¶
5. We note, however, that he is not attempting to withdraw his
affidavit because it is false, misleading, or prejudicial, but
solely because of this "conflict." Senior's motion to withdraw
the November 13 Affidavit was submitted without a memorandum of
On November 29, 1989, Krumme applied for an order to show
cause to bring on a motion to enjoin WPP and any of its
affiliates, including William Farley, Farley, Inc., and Farley
Northwest Industries, Inc., from directly or indirectly
interfering with or bringing pressure on Krumme's witnesses in
this action (including Senior) designed to prevent their
testifying or submitting affidavits on Krumme's behalf and
requested a temporary restraining order to this effect. Relying
on defense counsel's assurances that they did not, and would
not, interfere with or bring pressure on Krumme's witnesses,
the Court concluded that a temporary restraining order was not
necessary. Consequently, we arranged a briefing schedule for
the motion to withdraw Senior's November 13 affidavit, inviting
Senior*fn3 as well as WPP, who would also like to see the
affidavit withdrawn, to present us with some authority for this
extraordinary proposition. Krumme was also asked to submit
papers in opposition.
Essentially, the papers submitted raise three issues: whether
an expert's testimony may be compelled; whether there is an
actuary-client privilege; and whether the purposes of the
Federal Rules of Evidence would be furthered or hindered by the
withdrawal of the evidence.
Compelling Expert Testimony
WPP contends that Senior's testimony should be limited to his
factual knowledge, for which he may be subpoenaed, and that any
expert opinion voiced by Senior should be stricken or excluded.
Krumme maintains that not only could he subpoena Senior to
testify to his personal knowledge of the facts relating to this
case, but he could also compel Senior to testify as to his
expert testimony because there is no constitutional, common law
or statutory privilege against the compulsion of expert
testimony. In support of this proposition Krumme cites two
federal cases: Kaufman v. Edelstein, 539 F.2d 811 (2d Cir.
1976), aff'g, United States v. International Business Machines
Corp., 406 F. Supp. 178 (S.D.N.Y. 1975); Carter-Wallace, Inc. v.
Otte, 474 F.2d 529, 535-38 (2d Cir. 1972), cert denied,
412 U.S. 929, 93 S.Ct. 2753, 37 L.Ed.2d 156 (1973). While these
cases do indeed stand for the proposition cited, it must be
recognized that Kaufman was a federal antitrust action, and
Carter Wallace was a patent infringement case. Accordingly,
while these cases are relevant where federal law is applicable,
because the present case is predicated upon diversity
jurisdiction, the Court is Erie bound to apply state law to
this issue. Tenzer v. Lewitinn, 599 F. Supp. 973, 975 (S.D.N Y
1985). By contrast, the New York cases stand for the
proposition that courts may "not . . . compel a witness to give
his opinion as an expert against his will." People ex rel.
Kraushaar Bros. & Co. v. Thorpe, 296 N.Y. 223, 225,
72 N.E.2d 165 (1947). Accord Heffernan v. Norstar Bank of Upstate New
York, 125 A.D.2d 887, 889, 510 N.Y.S.2d 248 (3d Dep't 1986); In
re Estate of Rothko, 80 Misc.2d 140, 142, 362 N.Y.S.2d 673
(Surr.Ct. 1974).*fn4 These cases, however, are distinguishable
factually from the instant case.
In People ex rel Kraushaar Bros., a tax certiorari
proceeding, a relator subpoenaed an involuntary expert witness
who previously had prepared an appraisal of the property in a
suit for the prior owner. The witness refused to accept a fee
and declined to testify as to the value of the premises. The
trial court ruled the witness was required to testify with
regard to what he had seen on the premises, as any lay witness
would be required, but he had a right to refuse to answer
questions pertaining to his expert opinion. People ex rel.
Kraushaar Bros., 296 N.Y. at 224, 72 N.E.2d at 166. The New
York Court of Appeals affirmed, stating that "[w]e think the
better rule is not to compel a witness to give his opinion
against his will." Id. at 225, 72 N.E.2d at 166. The court in
Heffernan v. Norstar Bank, 125 A.D.2d 887, 889, 510 N.Y.S.2d
248 (3d Dep't 1986), merely cited People ex rel. Kraushaar
Bros., for the proposition that an expert may refuse to give
testimony unless compensated, but that issue was not the one
before the court for resolution; rather, the court was looking
at the competency of the expert's testimony. In In re Rothko,
80 Misc.2d 140, 142, 362 N.Y.S.2d 673, 675 (Surr.Ct. 1974), an
affidavit was solicited of an expert and submitted to the court
in opposition to an application for a preliminary injunction.
In the affidavit, the expert testified regarding price
practices in the art field but did not offer his estimates for
the particular paintings in issue, never having seen them to
appraise them. At trial, the other side then sought to subpoena
this witness to give expert testimony on the valuation of the
particular art works in question. The court quashed the
subpoena, citing People ex rel. Kraushaar Bros., that an expert
should not be compelled to give his opinion against his will.
We observe that these cases concern an expert's testimony at
trial. Furthermore, the experts in People ex rel. Kraushaar
Bros. and in In re Rothko were subpoenaed against each's will.
The purpose of the rule, as set out in the New York case
authority, is not to compel experts to perform work that they
do not want to do. An ancillary purpose is that no expert
should have to work pro bono. Thus, applying the rule of People
ex rel. Kraushaar Bros. to the instant case, we note that
neither Senior nor WPP challenges Senior's competence or his
ability to serve as an expert witness, although WPP does ask
that his testimony be excluded since they claim it was based on
the "confidential work performed for the opposing party." WPP's
Brief in Support of Motion to Withdraw Affidavit at 5.
Furthermore, this is not a case where an expert is being
compelled to perform work against his will. Senior's work, a
fifteen page affidavit which undoubtedly required considerable
time to prepare, is already completed. Moreover, we must assume
that he was well aware of what he was doing when he submitted
the sworn statement to this court of his own volition. Thus, we
conclude that, Senior should not be afforded the protection of
the New York case authority discussed above on this summary
judgment motion, given that his affidavit was not compelled,
but rather, he voluntarily allowed it to be presented to the
The Actuary/Client Privilege
WPP and Senior next argue that Senior should be allowed to
withdraw his affidavit because it would involve an actual or
potential conflict of interest. Senior 11/22/89 Aff. at ¶ 5.
Senior claims that this potential conflict of interest or the
appearance of a conflict of interest, is in violation of the
Guides to Professional Conduct of the American Academy of
Actuaries (the "Code"), specifically Guides 2(b) and 2(d).*fn6
See WPP's Brief in Support of Motion to Withdraw Affidavit,
Exhibit A for full text of the Code. We note, however, that
Senior does not delineate the ...