The opinion of the court was delivered by: Lewis A. Kaplan, District Judge
This document relates to: All Cases
In the wake of the collapse of Parmalat, the Office of the Public Prosecutor of the Court of Milanretained Dr. Stefania Chiaruttini, a private consultant, as a technical consultant in connection with criminal proceedings in Italy. Defendant Deloitte Touche Tohmatsu ("DTT") moves in limine for an order excluding from evidence for any purpose (a) the reports and slides prepared by Dr. Chiaruttini to assist the Public Prosecutor, and (b) the opinion testimony she gave at her deposition in this matter.*fn1 Dr. Enrico Bondi, the Extraordinary Commissioner of Parmalat, as well as certain of the plaintiffs, resist the motion.
Dr. Chiaruttini is a consulente tecnico (or consulente tecnico di parte), translated properly as technical consultant or party-retained technical consultant,*fn2 who provides assistance to litigants in Italian proceedings.*fn3
The role of a technical consultant in the Italian system is to assist a party's counsel in arguing its case to the court. The reports and opinions of such a consultant are considered equivalent to the argument of counsel.*fn4 While a technical consultant is obliged to be truthful in referring to material facts, he or she is free to be guided by the interests of the client in giving opinions.*fn5
According to her report, Dr. Chiaruttini was engaged by the Office of the Public Prosecutor to act as technical consultant to it in a criminal proceeding arising out of the Parmalat scandal and specifically to answer two questions:
"1) whether Deloitte & Touche S.p.A. ["Deloitte-Italy"], in the performance of its assignment with regard to the certification of the company and consolidated financial statements of PARMALAT FINANZIARIA S.p.A. for the fiscal years 1999/2002, correctly applied the established principles of auditing and the current provisions issued by the CONSOB;*fn6
"2) whether, in the event that it failed to apply the established principles and the provisions referred to above, Deloitte & Touche S.p.A. issued false certificates with regard to the accounts of the company and, in particular, omitted to indicate the information necessary to understand the real proprietary, economic and financial situation of the company that was the subject of the audit."*fn7
In the course of her work, Dr. Chiaruttini examined certain Deloitte-Italy work papers as well as certain papers of Parmalat Group companies seized by the Milan Public Prosecutor, various Parmalat documents provided by Dr. Bondi, interrogations of five Parmalat insiders, certain Parmalat accounting records, and a report by PricewaterhouseCoopers.*fn8 She met with the Public Prosecutor, often on a daily basis,*fn9 and was retained also by Dr. Bondi.*fn10 Notably, she never spoke to any witnesses from DT-Italy or any other Deloitte firm, never sought their version of events, and admittedly was constrained by her inability to review many pertinent documents, including the work papers and related files of DTT member firms that audited financial statements of Parmalat subsidiaries.*fn11
Dr. Chiaruttini rendered an extensive report to the Public Prosecutor, which is 130 pages long in translation. In the course of explicating the basis for Dr. Chiaruttini's opinions with respect to the two questions posed by the Public Prosecutor, the report sets forth an extensive narrative account concerning the Parmalat scandal and the activities of DT-Italy. As Dr. Chiaruttini has no personal knowledge concerning any of these events, this entire narrative was assembled on the basis of the materials Dr. Chiaruttini reviewed and, it appears, things she was told by others.*fn12
In March 2006, Dr. Chiaruttini summarized her conclusions in testimony in a criminal trial in the Court of Milan, using slides she had prepared.*fn13
Subsequently, Class Plaintiffs noticed Dr. Chiaruttini's deposition. In response to an inquiry from DTT's counsel, class Lead Counsel represented that she was being offered as a fact witness.*fn14 Nevertheless, plaintiffs elicited a great deal of opinion testimony during the examination. Dr. Chiaruttini, however, declined to sign the protective order in this case, thus ...