authority on expert disqualification. Accordingly, the first issue properly addressed is whether or not attorney conflict analysis provides appropriate guidance in a motion to disqualify an expert.
In a thorough comparison of the roles of an attorney and expert and upon review of the applicable Canons of the American Bar Association Code of Professional Responsibility
, Judge Broderick declined to summarily apply attorney conflict standards to experts. E.E.O.C. v. Locals 14 and 15, Int'l Union of Operating Engineers, 72 CV 2498, 1981 WL 163 at *4 (S.D.N.Y. 1981) (experts "do not serve as advocates, but as sources of information. . . . and, if they testify, to help the trier of fact to understand the relevant evidence").
Other courts have ruled similarly. See, e.g., English Feedlot v. Norden, 833 F. Supp. at 1501 (the expert disqualification standard must be distinguished from the attorney-client relationship because experts perform very different functions in litigation than attorneys"); Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271, 281 (S.D. Ohio 1988) (attorneys occupy "a position of higher trust, with concomitant fiduciary duties, to a client than does an expert consultant"). Further, while the issue has not been raised here, some courts have stressed that "if experts are too easily subjected to disqualification, unscrupulous attorneys and clients may attempt to create an inexpensive relationship with potentially harmful experts solely to keep them from the opposing party." English Feedlot v. Norden, 833 F. Supp. at 1505 (citing Paul v. Rawlings, 123 F.R.D. at 281-82). Accordingly, this court will not be guided by stringent attorney-client conflict standards in determining whether JLC should be disqualified.
Some federal courts have applied a two-pronged test when faced with a motion to disqualify an expert on the basis of the expert's prior relationship with a party: "First, was it objectively reasonable for the first party who retained the expert to believe that a confidential relationship existed? Second, did that party disclose any confidential information to the expert?" English Feedlot v. Norden, 833 F. Supp. at 1502 (citing Mayer v. Dell, 139 F.R.D. 1, 3 (D.D.C. 1991)). See also Palmer v. Ozbek, 144 F.R.D. 66, 67, (D. Md. 1992); Wang v. Toshiba, 762 F. Supp. at 1248.
While there are no cases in this circuit setting forth the test specifically as such, the expert disqualification cases undertake a similar analysis. See, e.g., Michelson v. Merrill Lynch Pierce Fenner & Smith, Inc., No. 83 Civ. 8898, 1989 WL 31514 (S.D.N.Y. March 28, 1989) (affirming magistrate judge's findings that in prior relationship with party, long-term relationship with expert was not commenced and that during the initial consultation, privileged communications were not divulged); Nikkal Industries Ltd. v. Salton Inc., 689 F. Supp. 187 (S.D.N.Y. 1988) (affirming magistrate judge's findings that in prior relationship with party, expert was not retained and no privileged communications were divulged); E.E.O.C. v. Locals 14 and 15, Int'l Union, 1981 WL 163 at *5 (declining to "extend the same prophylactic rule governing attorneys to experts").
1. Existence of a Confidential Relationship
It appears that JLC accepted an engagement with the Receiver on the Ambassador-RCA related work. Tr. 152. However, the parties diverge on whether or not JLC actually commenced the engagement. The inconsistent testimony is largely irrelevant.
Whether it would make a difference if JLC was officially retained or not by the Receiver on Ambassador, the court agrees with Coopers & Lybrand's accounting expert
-- this is a "distinction without a difference." Tr. 320-21. The inquiry is not a "bright line test", i.e., the emphasis is not on whether JLC was retained, per se. Paul v. Rawlings, 123 F.R.D. at 278. Rather, the appropriate inquiry is: did JLC and the Receiver have a "relationship which permitted [the Receiver] reasonably to expect that any communications concerning [Ambassador] would be maintained in confidence by [JLC]." Id. at 278; see also Great Lakes v. Harnischfeger, 734 F. Supp. at 336.
Because of the involvement between JLC and the Receiver on BRICO, and for purposes of this analysis, the court finds that a relationship was established between JLC and the Receiver such that it was objectively reasonable for the Receiver to assume a confidential relationship.
The existence of a confidential relationship, however, does not end the inquiry. In order to warrant disqualification, disqualifying information about Ambassador must also have been transmitted to JLC. See Paul v. Rawlings, 123 F.R.D. at 279.
2. Disclosure of Confidential Information