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Hinterberger v. Catholic Health System, Inc.

United States District Court, Second Circuit

May 21, 2013

GAIL HINTERBERGER, et al., Plaintiffs,
v.
CATHOLIC HEALTH SYSTEM, INC., et al., Defendants.

MICHAEL J. LINGLE, SARAH E. CRESSMAN, of Counsel THOMAS & SOLOMON, LLP, Rochester, New York, Attorneys for Plaintiffs.

MARK A. MOLLOY, TODD R. SHINAMAN, JOSEPH A. CARELLO, of Counsel NIXON PEABODY, LLP, Buffalo, New York, Attorneys for Defendants.

DECISION and ORDER [1]

LESLIE G. FOSCHIO, Magistrate Judge.

JURISDICTION

By order of Hon. William M. Skretny, dated January 6, 2010 (Doc. No. 243), this matter was referred to the undersigned for all non-dispositive pretrial matters pursuant 28 U.S.C. § 636(b)(1)(A). The matter is presently before the court on Defendants' Motion To Disqualify Consulting Expert filed October 2, 2012 (Doc. No. 351) ("Defendants' motion").

BACKGROUND

This action, pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 218, and New York State Wage and Hour Laws, N.Y. Labor Law § § 190, 650 (McKinney's 2002) ("Plaintiffs' state claims"), filed May 22, 2008 seeks unpaid regular wages and overtime pay for work during Plaintiffs' meal breaks, shift preparation time and required training. Defendant Catholic Health System, Inc. is a major regional hospital system and provider of related health care services. Plaintiffs are a group of Defendants' hourly employees, primarily nurses and other health care professionals, clerical, and maintenance workers. Conditional certification of Plaintiffs' collective action under Plaintiffs' FLSA claim pursuant to 28 U.S.C. § 218(b), limited to Plaintiffs who provide direct patient care, was granted on October 21, 2009 (Doc. No. 221). On October 5, 2012, Plaintiffs filed, pursuant to Fed.R.Civ.P. 23, a motion for class certification of Plaintiffs' state claims (Doc. No. 356). Discovery has been stayed as of January 28, 2013, pending disposition of Defendants' motions to decertify Plaintiffs' FLSA collective action (Doc. No. 397) and for summary judgment on Plaintiffs' state law claims (Doc. No. 437).

Defendants' motion was filed together with Attorney Declaration In Support Of Motion To Disqualify Consulting Expert (Doc. No. 351-1) ("Molloy Declaration") attaching Exhibit A (Doc. No. 351-2) ("Molloy Declaration Exh. A") and a Memorandum of Law In Support Of Motion To Disqualify Plaintiffs' Expert Consultant (Doc. No. 351-3) ("Defendants' Memorandum"). In opposition, Plaintiffs filed, on October 19, 2012, a Memorandum of Law In Opposition To Defendants' Motion To Disqualify Consulting Expert (Doc. No. 373) ("Plaintiffs' Memorandum"), the Affirmation Of Sarah E. Cressman In Opposition To Defendants' Motion To Disqualify Consulting Expert (Doc. No. 374) ("Cressman Affirmation") attaching exhibits A-F (Doc. No. 374-1) ("Cressman Affirmation Exh. (s) ____"), and the Affirmation of Amir Karahasanovic (Doc. No. 375) ("Karahasanovic Affirmation"). On October 26, 2012, Defendants filed a Reply Memorandum of Law In Further Support of Motion To Disqualify Plaintiffs' ESI Expert Consultant (Doc. No. 381) ("Defendants' Reply Memorandum") together with a Reply Attorney Declaration In Further Support of Motion To Disqualify Consulting Expert (Doc. No. 381-2) ("Shinaman Reply Declaration").[2] Oral argument was deemed unnecessary. Based on the following, Defendants' motion should be DENIED.

FACTS[3]

D4, located in Rochester, New York, provides litigation support services to law firms and corporations including E-Discovery[4] services such as computer forensics, consulting, paper document scanning, [5] coding[6] and storage or hosting[7] of documents in digital form on web-based platforms allowing computerized access to a database and the processing of electronically stored information ("ESI"). Karahasanovic Affirmation § § 3-4. On February 12, 2010, D4 and Nixon Peabody, LLP ("Nixon"), Defendants' attorneys, entered into a Master Services Agreement ("Master Service Agreement" or "the Agreement") under which D4 was to perform services to Nixon in connection with the instant case. Molloy Declaration § 3 (D4 "e-discovery services" to be provided); Molloy Declaration Exh. A;[8] Karahasanovic Affirmation § 4 (D4 provides "litigation support services"). As relevant, the Agreement required D4 to hold in confidence "all matters relating to Client's [Nixon's] business and those of [Nixon's] client's business, " and information designated as confidential by Nixon. Molloy Declaration § 4; Molloy Declaration Exh. A Section 3 of the Agreement ("Section 3").

As D4's director of sales, Karahasanovic assists D4's clients in "obtaining the best solution for their litigation needs, " however, Karahasanovic is "not a member of D4's consulting group, " known as "D4's Advisory and Consulting group, " Karahasanovic Affirmation § 20 ("the D4 Advisory and Consulting Group" or "the Advisory and Consulting Group"), and does "not provide consulting or expert services, " particularly "ediscovery expert guidance, " as does the Advisory and Consulting Group, nor does Karahasanovic provide "expert witness services to [D4's] clients." Karahasanovic Affirmation § 5. D4 was not engaged in 2010 to perform E-Discovery consulting services for Nixon, such as the "identification, collection, processing, review and production" of ESI and related consulting services in this case, Karahasanovic Affirmation § § 7-8; Molloy Declaration § 6, nor was Karahasanovic retained by Nixon to serve as a consultant or potential expert witness. Karahasanovic Affirmation § 5.

Nixon maintains in-house staff, its Legal Technology Services department, with the capability of providing E-Discovery and ESI consulting services to Nixon in connection with this and other cases. Cressman Affirmation § § 16, 17; Cressman Affirmation Exhs. E & F. Nixon recently engaged the Ricoh Company, an E-Discovery services provider, to assist it in using the predictive coding software, a specialized software package Defendants recently decided to use to facilitate the review of Defendants' voluminous e-mails responsive to Plaintiffs' production demands using relativity software. Cressman Affirmation § § 11, 18; Cressman Affirmation Exh. C at 1; Plaintiffs' Memorandum at 14. Nixon has also engaged Pangea3, a leading provider of E-Discovery and ESI review services. Cressman Affirmation § 17; Cressman Affirmation Exh. F. Plaintiffs' counsel does not have an in-house litigation support capability to provide ESI consulting assistance. Cressman Affirmation § 19.

Beginning in March 2011 Nixon requested D4 to provide scanning and coding services for 5-10 boxes containing Defendants' paper documents relating to this case.[9] Molloy Declaration § 6; Karahasanovic Affirmation § § 7, 9-11, 13. Nixon also serves as counsel to defendants in Gordon v. Kaleida Health, 08-CV-378S(F), another action in this court alleging claims similar to the instant action against the region's other major hospital system (" Gordon " or "the Gordon case"). Molloy Declaration § 3; Karahasanovic Affirmation § 7 ("D4 was asked to scan and code paper documents" for Nixon in the Gordon case). Defendants in the Gordon case are represented by Susan C. Roney, Esq. ("Roney"), another member of the Nixon firm. Molloy Declaration § 4. The "strategy" for the performance of D4's work in this, the Hinterberger case, for which D4 was paid $5, 000, and Nixon's "working relationship with D4" was "expected to be substantially similar" to D4's scanning and coding work for Nixon in the Gordon case. Molloy Declaration § § 6-7; Defendants' Memorandum at 4.

The scanning and coding of Defendants' documents took place at D4 facilities in D4's scanning department located in Rochester. Karahasanovic Affirmation § § 7, 9-10, 13-14. D4's objective coding of the documents, as requested by Nixon, Karahasanovic Affirmation § 10, required a D4 employee, or "coder, " reviewing the document and enter "certain categorical information [regarding the Defendants' form] into a form or database." Karahasanovic Affirmation § 11. For example, the Karahasanovic Affirmation would be coded as "affirmation, " and "Karahasanovic" as its author. Karahasanovic Affirmation § 11. Objective coding involves the coders being "shown examples of the document categories and instructed to code the documents by filling in fields in a database." Karahasanovic Affirmation § 12. The coders of Defendants' documents, which presented Defendants' "forms, "[10] "were not asked to identify substantive issues or make subjective decisions" concerning the relevance or import of the documents or their contents to the issues in the case. Id. The coding fields, or "assigned fields, " included, for example, the beginning and end of the document, box sources (referring presumably to the storage boxes in which the documents were contained and delivered for scanning and coding), cost center and employee number, to be used in the objective coding process and were established by Nixon following discussions between Karahasanovic and Nixon representatives, Colleen Durawa and Josh Headley, Nixon's Senior Legal Technology Specialist ("Headley).[11] Karahasanovic Affirmation § § 13, 15, 17; Cressman Affirmation § 18. As D4's representative, Karahasanovic's discussions with Nixon's staff members were limited to formulating a list of document types, field categories, and the handling of illegible documents in order to facilitate D4's scanning and objective coding of the documents. Karahasanovic Affirmation § § 10-12, 15, 18. Karahasanovic did not discuss case strategy or the contents of the documents with Nixon's representatives. Karahasanovic Affirmation § 17.

In August 2011, Karahasanovic informed Roney that D4 wished to perform services for Plaintiffs in the Gordon case and was told by Roney that the Defendants in Gordon objected to such work based on an "inherent and obvious conflict of interest." Molloy Declaration § 8. Subsequently, after D4 decided, notwithstanding Roney's objection, to assist Plaintiffs, Karahasanovic advised Molloy of D4's intention to work for Plaintiffs in Gordon. Karahasanovic Affirmation § 21. Later, in early 2012, Karahasanovic informed Molloy that D4's Advisory and Consulting was assisting Plaintiffs in the Hinterberger case by providing "consulting services" presumably regarding "ESI, " Karahasanovic Affirmation § 19. Molloy objected to D4 performing any services for Plaintiffs for the same reason as had Roney in Gordon. Molloy Declaration § 9; Defendants' Memorandum at 5 n. 2.[12] According to Molloy, Karahasanovic acknowledged Nixon's objections and gave Molloy the impression D4 would decline to work for Plaintiffs. Molloy Declaration § 10.[13] In the spring or early summer of 2012, Karahasanovic advised Molloy that D4 had been providing ESI consulting services to Plaintiffs in the Gordon case and this action. Id. § 13; Karahasanovic Affirmation § 19. Karahasanovic recalled that Molloy objected to D4 providing ESI consulting services to Plaintiffs in this action. Karahasanovic Affirmation § 19. When in early 2012 Karahasanovic learned from Molloy that Nixon objected to D4 providing ESI consulting services to Plaintiffs in this case, Karahasanovic was unaware D4's Advisory and Consulting Group, led by Peter Coons ("Coons"), a D4 Senior Vice-President, along with Cynthia Courtney ("Courtney") another D4 vice-president who had recently joined D4 earlier in 2012 had been providing such services to Plaintiffs. Id. § § 19-20. Neither Coons nor Courtney were involved in performing the scanning and coding services D4 provided to Nixon in connection with this case, nor has Karahasanovic provided any information about this work to Coons or Courtney. Karahasanovic Affirmation § § 21-23. Karahasanovic has had no communications with Coons or Courtney regarding D4's consulting work for Plaintiffs' in this case. Karahasanovic Affirmation § § 21-23. As expressed to Karahasanovic, Molloy's objection to D4's Advisory and Consulting Group's ESI consulting services to Plaintiffs was not based on Karahasanovic having had access to Defendants' or Nixon's confidential information in connection with D4's scanning and coding of Defendants' documents. Karahasanovic Affirmation § 19.

Like defendants in Gordon, Defendants in Hinterberger, claim they "shared confidential information under a reasonable expectation of confidentiality" with D4. Shinaman Reply Declaration § § 7-8. "[G]iven Plaintiffs' counsel's extensive discussions with Mr. Karahasanovic regarding D4's project for Defendants and Kaleida and their [Plaintiffs' attorneys'][14] curious insistence on using D4 to consult regarding [Defendants'] Custodians [of Defendants' e-mails], " as part of Defendants' motion, Defendants also requested that the court consider disqualifying Plaintiffs' counsel as well as D4. Id. § 9.

Approximately one year prior to the filing of Defendants' motion, in an attempt to resolve technical issues regarding production of Defendants' ESI, Defendants' attorneys, specifically Molloy and Shinaman, participated in several telephone conference calls, on October 13, 2011, December 1, 2011, and June 20, 2012, with Plaintiffs' counsel, in which Coons also participated, without any objection by the Nixon attorneys, Cressman Affirmation § 4, a fact acknowledged contemporaneously by Defendants. Cressman Affirmation § 9; Cressman Affirmation Exh. C (Letter from Mark A. Molloy, dated February 10, 2012, to the court advising that the parties had conducted "multiple meet and confer' discussions" regarding ESI discovery issues in which "the parties' respective ESI experts/consultants have participated" and stating that such discussions "served as a tool for idea-sharing and seeking compromises between the parties with regard to ESI issues" in the case).[15] Molloy also informed the court that Defendants had provided Plaintiffs with a "proposed list of custodians [of Defendants' e-mails]" to facilitate a keyword search of the e-mails. Id. at 3. In February 2012, Courtney participated in "numerous telephonic conferences" regarding enforcement of Plaintiffs' third party subpoena with Shinaman and Roney without objection by them. Cressman Affirmation § 10. No objection to the participation or Plaintiffs' use of Coons in the various conferences regarding ESI issues is expressed in Molloy's letter. Cressman Affirmation § 9; see Cressman Affirmation Exh. B ( passim ).

At a discovery status conference conducted on January 11, 2012 by the court with the parties in both the Gordon and Hinterberger cases, Plaintiffs' counsel, Michael J. Lingle ("Lingle"), advised the court, confirmed by Roney, that the Gordon defendants objected to Plaintiffs' use of D4 to assist Plaintiffs in addressing ESI matters. Cressman Affirmation § § 6-8; Molloy Declaration § 9. Following discussion of the status of the ESI discovery issues in Gordon and Defendants' objection to D4's ESI consulting services to Plaintiffs in that case, in response to the court's question as to whether a similar issue regarding Plaintiffs' use of D4 as Plaintiffs' ESI consultant in this case had been raised by Defendants in Hinterberger, Plaintiffs' counsel stated: "It's [Plaintiffs' use of D4] not a problem in this case." Cressman Affirmation Exh. A at 4. Although Defendants' attorneys in this action, Molloy and Shinaman, were present during the conference, Cressman Affirmation § 6; Cressman Affirmation Exh. A at 1, 4, neither Molloy nor Shinaman contradicted Lingle's representation to the court at that time, i.e., that unlike defendants' objection in Gordon, which had been previously discussed at length by Lingle and Roney with the court on the record, Plaintiffs' use of D4 was not a "problem" in this [ Hinterberger ] case after the court raised the issue with Plaintiffs' counsel on the record. Cressman Affirmation § 7 ("when the Court inquired as to the status of ESI discovery in this case, " alluding specifically to the D4 matter discussed in Gordon, the court clarified that the issue was "to assist you [Plaintiffs' counsel] in reviewing -, " Cressman Exh. A at 4, yet "defense counsel in this case remained silent"). Id.

Beginning in February 2012, Defendants' counsel participated in telephone conference calls with Plaintiffs' counsel in which Courtney participated, without Defendants' objection, and provided, with Defendants' awareness, consulting assistance to Plaintiffs regarding the subject matter of the conference call, specifically Plaintiffs' efforts to enforce a subpoena in Maryland against a non-party to obtain documents relevant to Plaintiffs' claims in this case. Cressman Affirmation § 10. In those calls, neither Molloy nor Shinaman expressed to Plaintiffs' counsel any objection to D4 providing ESI consulting services to Plaintiffs, or Coons and Courtney's participation in the conference calls. Id. It was not until Defendants stated in a September 13, 2012 email to Plaintiffs that Defendants objected to D4 providing ESI consulting services to Plaintiffs that Plaintiffs learned of Defendants' objections. Cressman Affirmation § 11; Cressman Affirmation Exh. C (e-mail from Todd Shinaman to Sarah Cressman dated September 13, 2012) ("[w]e [defendants in the Hinterberger case] are aware that Kaleida [defendants in Gordon ] has raised an objection related to D4's involvement in these cases... [and] [b]ecause the substantive objection obviously impacts Catholic Health Systems [the primary defendant in Hinterberger ] as well, we are taking the same position in regard to D4's participation."). In response to Plaintiffs' assertion that Defendants had not earlier raised such objection Defendants stated that "we [defendants in Hinterberger ] preserved our objection while making a good faith effort to resolve the issue." Cressman Affirmation Exh. D at 1-2 (e-mail from Todd Shinaman to Sarah Cressman dated September 27, 2012). Plaintiffs received no response from Defendants to Plaintiffs' responding e-mail, dated September 27, 2012, requesting Defendants specifically "direct [Plaintiffs] to those [Defendants'] communications [to Plaintiffs]" constituting Defendants' "preservation of objections' by defendants to plaintiffs' use of D4 as an ESI consultant." Cressman Affirmation Exh. D (e-mail of September 27, 2012 from Sarah Cressman to Todd Shinaman). Defendants state Defendants' objection to Plaintiffs' use of D4 for ESI consulting in this case was made by Molloy in his August 2011 and February 2012 conversations with Karahasanovic. Shinaman Reply Declaration § 4 (citing Molloy Declaration § 9 referencing, without giving a date, a telephone conversation with Karahasanovic and Karahasanovic Affirmation § 19 (referencing an "early 2012" telephone conversation with Molloy). Neither the Molloy Declaration § 9 nor the Karahasanovic Affirmation § 19 states Molloy informed Karahasanovic in August 2011 of Defendants' objection.

Defendants' objection to D4's ESI consulting assistance to Plaintiffs as stated in the September 13, 2012 e-mail from Shinaman to Cressman, Plaintiffs' counsel, Cressman Affirmation Exh. C at 1, was sent "less than 2 hours prior to the parties' previously scheduled [telephone] conference to discuss defendants' announced intention to utilize predictive coding as the search methodology for their [Defendants'] ESI [Defendants' e-mails] production." Cressman Affirmation § 11. Defendants' objection followed by one-week defendants' objection to Plaintiffs use of D4 as communicated to Plaintiffs' counsel by Roney in the Gordon case. Roney Declaration, Exh. E at 1 (e-mail from Susan Roney to Sarah Cressman dated September 7, 2012) ( Gordon Doc. No. 377-6). Defendants' motion in this case followed the filing of defendants' motion in Gordon. Based on the following, Defendants' motion should be DENIED.

DISCUSSION

A. Disqualification of D4.

The court's authority to disqualify a party's expert or consultant is based on "its inherent power to preserve the integrity of the adversary process.'" Eastman Kodak Company v. Kyocera Corporation, 2012 WL 4103811, at *7 (W.D.N.Y. Sept. 17, 2012) (quoting 1210 Colvin Avenue, Inc. v. Tops Markets, L.L.C., (" 1210 Colvin Avenue, Inc. ), 2006 WL 3827429, at *4 (W.D.N.Y. Dec. 28, 2006) (disqualification of trial consultants providing litigation services to adversary (citing Hempstead Video, Inc. v. Village of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005) and Eastman Kodak Company v. Agfa-Gevaert N.V., 2003 WL 23101783 (W.D.N.Y. Dec. 4, 2003) (citing Popular, Inc. v. Popular Staffing Servs. Corp., 239 F.Supp.2d 150, 152 (D.P.R. 2003)))). Disqualification of a party's expert is "designed to protect the integrity of the judicial process by ensuring that experts do not use, even unwittingly, confidential information that they learned from a party in the course of an earlier engagement against that party in a later lawsuit." Kyocera Corporation, 2012 WL 4103811, at *8 (expert cannot separate confidential information learned from first party during course of later litigation because "the human brain does not compartmentalize information in that manner.'"). Id. (quoting Pellerin v. Honeywell Int'l Inc., 2012 WL 112539, at *3 (S.D. Cal. Jan. 12, 2012)). See also Grioli v. Delta Int'l Machining Corp., 395 F.Supp.2d 11, 14-15 (E.D.N.Y. 2005) (noting that courts also recognize public interest in maintaining integrity and fairness of judicial process but that disqualification of experts is "rare"). However, against the public interest in preserving judicial integrity and fairness, courts must also balance the parties' right to the assistance of experts "who possess specialized knowledge'" and the right of such experts to "pursue their professional calling.'" Mays v. Reassure America Life Ins. Co., 293 F.Supp.2d 954, 957 (E.D.Ark. 2003) (quoting English Feedlot, Inc. v. Norden Laboratories, Inc., 833 F.Supp. 1498, 1504-05 (D.Colo. 1993) (citations omitted)). Disqualification of an expert or consultant generally requires counsel hold an objectively reasonable belief in the existence of a confidential relationship with the challenged expert or consultant to avoid waiver, Wang Laboratories, Inc. v. Toshiba Corporation, 762 F.Supp. 1246, 1249-50 (E.D.Va. 1991) (citing caselaw), and that during the relationship there was a disclosure of "confidential or privileged information to the expert that is relevant to the current litigation." Agfa-Gevaert N.V., 2003 WL 23101783, at *1 (citing Greene, Tweed of Delaware v. DuPont Dow Elastomers, LLC, 202 F.R.D. 426, 428 (E.D. Pa. 2001)). Where circumstances indicate disclosure of confidential information to an expert was "highly unlikely, " disqualification will be denied. Mays, 293 F.Supp.2d at 957.

The burden is on the party seeking disqualification to show party's counsel's "objectively reasonable" belief that a confidential relationship existed with the expert or consultant and that the party's confidential information was "actually disclosed" to the expert or consultant. The Topps Company, Inc. v. Productors Stani Sociedad Anomina Industrial y Commercial, 2001 WL 406193, at *1 (S.D.N.Y. Apr. 20, 2001) (burden on party seeking disqualification) ; Wang Laboratories, Inc., 762 F.Supp. at 1249 (courts may disqualify consultants where there is "persuasive evidence that a lawyer was objectively reasonable in assuming the existence of a confidential relationship and that confidential information was disclosed."). "[T]he party seeking disqualification may not meet its burden with mere conclusory or ipse dixit assertions, '" Kyocera Corporation, 2012 WL 4103811, at *8 (quoting Greene, Tweed of Delaware, Inc., 202 F.R.D. at 429); see also In re Orthopedic Bone Screw Prods. Liab. Litig., 1995 WL 925673, at *6 (E.D.Pa. May 5, 1995) (disqualification of plaintiff's expert denied where "concrete evidence" failed to show defendant's confidential information was disclosed during meeting with expert); Nikkal Indus., Ltd. v. Salton, Inc., 689 F.Supp. 187, 191 (S.D.N.Y. 1988) ("meaningful inquiry into the existence of the relationship" required). "[S]pecific and unambiguous disclosures that if revealed would prejudice the party, '" are required. Kyocera Corporation, 2012 WL 4103811, at *8 (quoting Hewlett-Packard Company v. EMC Corp., 330 F.Supp.2d 1087, 1094 (N.D. Cal. 2004)).

Defendants first contend that because D4 had provided scanning and coding services to Defendants and later agreed to provide Plaintiffs with ESI consulting services, D4 has "switched sides" in this litigation and [D4] must be disqualified. Defendants' Memorandum at 4. According to Defendants, where an expert or consultant like D4 has "switched sides" disqualification is required regardless of whether Defendants held a reasonably objective belief that D4 provided the scanning and coding services to Defendants during a confidential relationship and that in reliance on such confidential relationship Defendants provided confidential information to D4. Id. ("In cases like the present... where an expert has switched sides in litigation, satisfying the test [for disqualification] is not necessary and an expert must be disqualified because of the inherent and obvious nature of the conflict" (citing Koch Refining Company v. Jennifer L. Boudreau M/V (" Koch "), 85 F.3d 1178, 1881 (5th Cir. 1996))).[16] Defendants' initial contention is in error for several reasons.

Disqualification of an expert or consultant is justified by the need to avoid the "risk of prejudice from possible disclosure and use of confidential client communications" by an opponent and the fundamental unfairness that would arise if "an expert hired by a party, who at that party's expense obtains specific knowledge and expertise in the issues involved in the litigation, [were permitted] to then be hired by the opposing party and allow the opposing party to reap the benefits of that work." Great Lakes Dredge & Dock Company v. Harnischfeger Corp. (" Great Lakes "), 734 F.Supp. 334, 336 (N.D. Ill. 1990) (citing Paul v. Rawlings Sporting Goods Company, 123 F.R.D. 271, 277 (S.D. Ohio 1988)). See also Kyocera Corporation, 2012 WL 4103811, at *8 (purpose of disqualification of experts is to avoid misuse "even unwittingly" of confidential information obtained from prior party to engagement with challenged expert). Implicit in this rationale is that in an expert or consultant-client relationship such confidential information may be obtained as necessary to the effective delivery of the expert's or consultant's services, typically opinions or specialized knowledge, helpful to the party's conduct of the litigation. For example, where a former employee through his employment garners detailed knowledge of the development of an employer's patent such intimate knowledge of the employer's technical information enables the employee to serve an adversary as an expert in a later infringement action based on the patent and gives the alleged infringer an unfair advantage warranting disqualification of the expert. See Agfa-Gevaert, 2003 WL 23101783, at *5 (allowing former employee who helped develop plaintiff's patented process to serve as defense expert would give defendants an "unfair advantage" requiring disqualification); Cordy v. Sherwin-Williams Co., 156 F.R.D. 575, 582-83 (D.N.J. 1994) (where plaintiff's accident reconstruction expert formed opinion as to causal factors of railroad crossing accident based in part on plaintiff's attorney's impressions and investigation provided to expert, expert was disqualified from later serving and providing contrary opinion as defendant's trial expert on same issue). Here, in opposition to Defendants' motion, Plaintiffs argue, Plaintiffs' Memorandum at 1, that ...


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