U.S. Home Corporation v. Settlers Crossing, L.L.C. et al
Filing
603
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 10/3/13. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
U.S. HOME CORPORATION
:
v.
:
Civil Action No. DKC 08-1863
:
SETTLERS CROSSING, LLC, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this contract
dispute
is
an
objection
filed
by
Plaintiff/Counter-Defendant
U.S. Home Corporation and Counter-Defendant Lennar Corporation
(together,
“Lennar”)
to
an
order
entered
by
United
States
Magistrate Judge William G. Connelly on June 21, 2013, granting
an
emergency
motion
for
Defendant/Counter-Plaintiff
(ECF No. 545).
protective
iStar
order
Financial,
Inc.
filed
by
(“iStar”).
The issues are fully briefed and the court now
rules pursuant to Local Rule 105.6, no hearing being deemed
necessary.
For the reasons that follow, the objection will be
overruled.
I.
Background
On June 7, 2013, iStar filed a motion for protective order
seeking, inter alia, to quash a subpoena served by Lennar on
iStar’s
testifying
expert,
Geosyntec
Consultants,
Inc.
(ECF No. 519).1
(“Geosyntec”).
In support of its motion, iStar
attached the declaration of its attorney, John A. Rosans.
No. 519-3).
Lennar opposed the motion, relying on the attached
declaration of its general counsel, Mark Sustana.
1, at 4-7).
(ECF
(ECF No. 523-
The competing declarations and associated exhibits
set forth the relevant facts as follows.2
iStar contacted Geosyntec’s office in Columbia, Maryland,
on
or
about
March
11,
2010,
“for
the
purpose
of
discussing
whether Geosyntec could provide consultant services to assist
[iStar] in preparing for trial.”
(ECF No. 519-3 ¶ 3).
After
conducting a conflicts check, Geosyntec advised iStar that it
“had done work for Lennar and its holding companies in the past”
and “had some active but completely unrelated Lennar projects on
the west coast,” but that “none of the former or then current
work
for
other
Lennar-related
entities
posed
interest with respect to this litigation.”
a
conflict
of
(Id. at ¶¶ 3, 6).
1
Geosyntec is “a specialized consulting and engineering
firm that works with private and public sector clients to
address new ventures and complex problems involving our
environment, natural resources, and civil infrastructure.” (ECF
No. 519-4, at 6). It has “a staff of more than 800 engineers,
scientists, and related technical and project support personnel
serving clients from more than 50 offices throughout the U.S.
and locations in Australia, Canada, Ireland, Malaysia, and the
United Kingdom.” (Id.).
2
Due to inconsistent pagination, references to page numbers
in these documents are to those designated by the court’s
electronic case management system.
2
On
or
about
August
11,
2010,
iStar
“consulting expert” in this matter.
engaged
Geosyntec
as
a
(Id. at ¶ 7).
In March 2013, iStar approached Geosyntec “for the purpose
of
discussing
whether
[it]
would
be
suited
to
serve
as
a
testifying expert on matters unrelated to Geosyntec’s previous
work product, which had been conducted and prepared pursuant to
the [consulting] engagement letter.”
(Id. at ¶ 8).
During a
meeting on March 22, Geosyntec reconfirmed that its “work for
Lennar
was
unrelated
to
this
litigation
and
the
substantive
issues raised therein and that it otherwise did not pose any
conflict of interest for Geosyntec.”
(Id.).
iStar engaged
Geosyntec as a “testifying expert” on or about April 12.
(Id.).
On May 15, counsel for iStar served its expert reports on
Lennar
and
other
parties,
including
Geosyntec environmental engineer.3
a
report
prepared
by
a
Soon thereafter, counsel for
Lennar contacted iStar’s attorney to advise that “Geosyntec[] is
and has been a consultant with Lennar on a variety of matters
and, as a result, has a conflict that precludes Geosyntec from
3
According to the report, Geosyntec was retained by iStar
(1) “to review and evaluate information in documents related to
the development of certain specified properties in Maryland for
which evidence of prior biosolids application was identified and
to compare such evidence to information related to past
biosolids application at the . . . property”; (2) “to conduct
additional research related to this subject and to prepare this
report on our findings”; and (3) “to review information related
to [the property] as well as [other] properties” (i.e., for
comparison). (ECF No. 519-4, at 5).
3
acting adverse to Lennar’s interest in this case.”
(ECF No.
519-5).
On the same date, Lennar’s counsel directly contacted
general
counsel
for
Geosyntec
and
“made
Geosyntec’s work for iStar in this litigation[.]”
3 ¶ 10).4
inquiry
about
(ECF No. 519-
Geosyntec reported this conversation to counsel for
iStar, advising that “it would revisit its historical retention
in
this
litigation
and
its
conflict
of
interest
processes.”
(Id.).
The
next
day,
Geosyntec’s
general
counsel
sent
the
following email to counsel for Lennar:
Please be advised that I have looked into
the history of this matter.
When the
a
engagement
was
commenced
in
2009,[5]
conflicts check was conducted.
Geosyntec
concluded that there was no conflict of
interest because it had done no work for
Lennar at or near the site in question, the
Geosyntec personnel involved have never been
4
Counsel for Lennar asserts that he contacted Geosyntec’s
counsel “to disclose the situation” and “to assess how it might
impact Lennar.”
(ECF No. 523-1 ¶ 10).
He recalls that
Geosyntec’s counsel “was not personally aware of Geosyntec’s
representation of iStar” at the time and that “nothing even
remotely touching upon iStar’s confidential information was or
could have been discussed.” (Id. at ¶ 11).
5
There are numerous references in the record to the initial
contact between iStar and Geosyntec occurring in 2009, rather
than 2010, as iStar’s counsel asserts in his declaration.
Lennar suggests that inconsistencies such as these are evidence
of iStar’s deceptive motive in retaining Geosyntec.
In truth,
however, whether the initial contact was made in 2009 or 2010 is
of no real significance.
The declarations provided by counsel
for iStar and general counsel for Geosyntec both reflect that
iStar first engaged Geosyntec in 2010. (ECF No. 519-3 ¶ 7; ECF
No. 528-1 ¶ 3).
4
contracted
to
any
work
whatsoever
for
Lennar, and there was no potential breach of
confidentiality obligations that were in
place
with
Lennar
when
this
project
commenced.
Geosyntec’s understanding of conflict rules
applicable
to
engineers
and
scientists
(where projects are approached on the basis
of objective and technical expertise) is
that
they
are
different
from
those
applicable to lawyers.
The mere existence
of
a
client
relationship
on
unrelated
project assignments does not necessarily
present a conflict as long as there is no
breach of confidentiality.
There is of course a possibility that the
existence of the client relationship could
make it difficult to express an opinion that
could be adverse to the relationship and it
is considered necessary to disclose the
client relationship at the time of the
subsequent engagement.
Therefore, the fact
that Geosyntec had a relationship with
Lennar was disclosed to [iStar’s counsel] at
the time of the engagement, and [iStar]
elected to retain Geosyntec nevertheless.
Because we believe that no conflict exists,
and because of our commitment in undertaking
engagement with [iStar’s counsel], we feel
that we are obligated to continue to perform
that engagement.
Our approach in dealing
with these engagement issues has evolved
with time and our current procedures would
require notification to Lennar prior to
accepting an expert witness role where
Lennar is an adverse party – not because we
view it as a conflict in our profession, but
because of the relationship issues involved.
This was not the policy at the time of the
engagement in question.
(ECF No. 519-6, at 2).
5
A string of accusatory communications between counsel for
iStar and Lennar followed.
regarding
viewed
Lennar’s
as
26(b)(4)
direct
constituting
and,
by
considerations.”
iStar expressed its “deep concern”
contact
“a
with
clear
extension,
Geosyntec,
violation
rais[ing]
(ECF No. 519-7, at 2).
of
which
Federal
significant
it
Rule
ethical
Lennar complained that
iStar had “known about Geosyntec’s engagement by Lennar since
2009 and that [it] nevertheless elected to employ Geosyntec as
an
expert
.
.
.
,
substantial
new
assignments
involving
counsel].”
even
matters
as
from
[the
Geosyntec
Lennar,
office
continued
including
of
to
accept
confidential
Geosyntec’s
general
(ECF No. 519-8).
The parties were required by Judge Connelly – to whom the
case was referred for resolution of discovery disputes and other
non-dispositive
pre-trial
matters
–
reports advising of their progress.
to
submit
weekly
status
In a status report dated
May 24, counsel for iStar represented to the court, in relevant
part:
As indicated in last week’s update, iStar
served three expert reports on May 15, 2013.
Among iStar’s experts was an environmental
engineer from Geosyntec Consultants, a firm
with offices nationwide and that employs
over
1,000
engineers,
geologists,
scientists, and other technical specialists.
Geosyntec has done no work for Lennar
related to this property or this litigation.
iStar, however, has learned the Lennar’s
general counsel, Mark Sustana, contacted
6
Geosyntec
directly
on
Monday
Geosyntec’s retention and work
matter.
regarding
in this
Also
on
Monday,
counsel
for
Lennar
separately wrote to our office and claimed
that Geosyntec “is and has been a consultant
with Lennar on a variety of matters and, as
a result, has a conflict that precludes
Geosyntec from acting adverse to Lennar’s
interest in the case.”
We, along with
Geosyntec, steadfastly disagree.
Prior to
our retention of Geosyntec on this matter in
2009, it is our understanding that Geosyntec
conducted an internal conflicts check and
concluded that there was no conflict of
interest. It is also our understanding that
Geosyntec has never done work for Lennar
related
to
the
Bevard
site
or
this
litigation, that the Geosyntec personnel
involved in this matter had never been
contracted to any work for Lennar, and that
Geosyntec
internally
ensures
that
its
confidentiality obligations to Lennar (and
to iStar) are maintained.
By email on
Tuesday
–
as
necessitated
by
Lennar’s
counsel’s direct contact with Geosyntec –
Geosyntec confirmed to Lennar directly that
no conflict exists.
(ECF No. 523-1, at 22).
By
a
letter
to
Judge
Connelly
dated
May
30,
responded:
Geosyntec has served as a consultant to
Lennar since at least 2006.
Since that
time, Geosyntec has represented Lennar in a
variety of matters, including confidential
matters directly for the office of Lennar’s
General Counsel, for which Lennar has paid
Geosyntec hundreds of thousands of dollars.
Geosyntec
has
continued
to
accept
new
matters from Lennar through the present –
Geosyntec currently is working with Lennar
on
highly
sensitive
projects.
The
7
Lennar
relationship between Geosyntec and Lennar is
so significant that Geosyntec currently
identifies Lennar as a representative client
on its website.
(ECF No. 519-10, at 2).
Citing its “surprise” to learn that
iStar was aware of Lennar’s relationship with Geosyntec at the
time of initial engagement, as well as its concern regarding the
change
in
conflict
Geosyntec’s
policy
counsel,
Lennar
referenced
complained
in
the
that
it
letter
did
from
not
know
“when [Geosyntec’s] policy changed, when it began working on its
expert
engagements
for
[iStar]
(as
opposed
to
simply
being
retained), or why [Geosyntec] continued to accept matters from
Lennar without any communication regarding its adverse retention
by [iStar’s counsel].”
(Id. at 3).
Counsel for Lennar advised
that, “[a]s a result of these events, including the fact that we
now have received directly contradicting statements from [iStar]
and
Geosyntec,[6]
Geosyntec
and
Lennar
[iStar]
is
forced
relating
to
to
seek
Geosyntec’s
discovery
engagement
potential discovery abuses that may have occurred.”
6
from
and
(Id. at 4).
Counsel for iStar initially told Lennar that “Geosyntec
for the first time disclosed that it had done work for Lennar on
other matters in other states” in 2013 (ECF No. 519-9, at 2),
but later recalled that “someone from Geosyntec’s Tennessee
office . . . had done a conflicts check in 2010 and, in so
doing, had mentioned . . . that Geosyntec had done unrelated
work for Lennar-related entities on the west coast, but which
did not pose a conflict” (ECF No. 523-1, at 35).
8
On or about May 31, Lennar served a subpoena duces tecum on
Geosyntec, seeking production of a number of documents described
in an attached schedule, including:
1.
All conflict of interest policies and
procedures in effect from 2007 to present .
. . [;]
2.
All document security and
retention
policies
from
2009
present[;]
document
to
the
3.
All documents, including communications
with [iStar] related to conflict of interest
checks performed by Geosyntec for its work
on the [] [l]itigation[;]
4.
All documents from January 2009 to
present
related
to
efforts
to
screen
individuals working on the [] [l]itigation
from information obtained in connection with
Geosyntec’s work for Lennar[;]
5.
All communications to and/or from any
individual working on the [] [l]itigation
regarding information Geosyntec obtained in
connection with its work for Lennar[;]
6.
All invoices
iStar
.
.
.
[l]itigation[;]
issued by Geosyntec
related
to
the
to
[]
7.
All engagement and/or retention letters
with iStar . . . related to the []
[l]itigation[; and]
8.
All communications with iStar . .
regarding Geosyntec’s work for Lennar[;]
.
(ECF No. 519-11, at 11).
iStar’s
emergency
motion
approximately one week later.
for
protective
order
followed
iStar’s primary argument was that
9
“the subpoena served on Geosyntec by Lennar must be quashed
because it seeks documents that are not relevant to any party’s
claim or defense.”
(ECF No. 519-2, at 13).
that
documents
the
requested
were
Lennar countered
“particularly
relevant
in
light of the conflicting statements made by Geosyntec and iStar”
regarding the circumstances of the engagement.
14).
(ECF No. 523, at
Specifically, Lennar cited the fact that “an affiliated
company” of Lennar retained Geosyntec in 2009 in relation to “a
very
large
development
project
in
California”
“continue for as long as fifteen years.”
that
was
to
(ECF No. 523-1 ¶ 4).
The underlying consulting contract provides, in relevant part,
that “neither Consultant nor any partner, director, employee, or
agent
of
Consultant
.
.
.
shall,
without
specific
written
authorization of Owner . . . [e]ngage in any employment or enter
into any contract or agreement which conflicts with Consultant’s
obligations under this Agreement[.]”
(Id. at ¶ 5).7
According
to Lennar, “the evidence suggest[ed] that Geosyntec [] breached
these
obligations,”
which
–
along
with
iStar’s
inconsistent
representations regarding the circumstances of the engagement
7
The declaration of Geosyntec’s general counsel, Paul J.
Sanner, attached to iStar’s reply papers, addressed this
contract: “[t]he sweeping nature of the proposed restriction was
specifically addressed and narrowed in the negotiations with the
end result that it restricted activities only adverse to Lennar
with respect to the two California projects in question,” which
was “an approach consistent with the Code of Ethics for
Engineers
focus[ed]
on
project
by
project
conflicts
evaluations.” (ECF No. 528-1 ¶ 4).
10
and/or
when
it
first
learned
of
the
relationship
between
Geosyntec and Lennar – “entitled [Lennar] to discovery regarding
the facts.”
On
motions
(ECF No. 523, at 15).
June
21,
hearing
the
parties
before
Judge
participated
Connelly.
in
After
a
telephonic
the
parties
summarized the arguments set forth in their motion papers, Judge
Connelly ruled as follows:
I find that in 2010 [] iStar retained
Geosyntec’s Columbia, Maryland[,] office for
consulting services in this case.
And
looking
at
Geosyntec’s
website
it
is
apparent that they employ approximate[ly] a
thousand engineers, geologists, scientists
and other technical specialists and have
dozens of offices across the country and
overseas.
Recently, specifically in March and
April
of
2013,
iStar
changed
the
relationship
from
one
of
a
consulting
relationship to one of a testifying expert
relationship and they therefore went ahead
and retained Geosyntec as a testifying
expert.
While this was going on and even
before, it is apparent from the papers that
since 2006 and maybe even before, Geosyntec
has done work on behalf of Lennar[,] [w]hich
is not unreasonable to expect because I
believe that Lennar is the second largest
home builder in the United States.
This
work was done apparently on other unrelated
matters.
I have been told in the papers
that Geosyntec had performed a conflicts
check and informed iStar that there was no
conflict of interest [].
Con[flict]
rules
of
engineers
and
scientists
are
different
from
those
11
applicable to lawyer[s].
And the mere
existence of a client relationship on an
un[related] project, assignment, does not
necessarily present a conflict as long as
there is no breach of confidentiality.
And in this matter Geosyntec had done,
according to their papers or what their
representations were and their e-mail and
the like, no work for Lennar at or near the
[site] in question for this litigation . . .
[a]nd that Geosyntec personnel from the
Columbia,
Maryland[,]
office,
which
is
apparently doing the work for iStar, had
never been contracted to do any work
whatsoever for Lennar.
Now, Lennar has invited my attention to
a 2009 contract in which a Lennar affiliate
engaged
Geosyntec
for
a
real
estate
development project in California.
And the
agreement provides, among other [things,
that] neither Geosyntec nor any partner,
director, employee or agency of Geosyntec
shall without specific authorization of
owner – which I assume refers to the
affiliate of Lennar – . . . engage in any
employment or enter into any contract or
agreement which conflicts with consultant’s
obligation under this agreement.
The [c]ourt does not find this contract
controlling as there has been no analysis of
how
Geosyntec’s
performance
under
its
agreement with regards to the property in
California, with an affiliate of Lennar, in
any way relates to the expert service being
related by the separate Geosyntec office
here in Columbia, Maryland, and personnel
associated with that office.
And I find that there has not been any
specific use of confidential information
obtained from Lennar by Geosyntec. Nor do I
find that there has been any conflict of
interest that has been proven up in this
case.
12
As a result I am going to go ahead and
grant the [m]otion to [q]uash the May 30th,
2013[,]
subpoena
served
on
Geosyntec
Consultants and direct that the [d]eposition
of Geosyntec, which is apparently occurring
right now, . . . be completed [by] not later
than July 1st of 2013.
(ECF No. 545-2, at 23-25).
same
date,
the
court
By a paperless order entered on the
granted
iStar’s
order, quashing Lennar’s subpoena.
motion
for
protective
(ECF No. 532).
On July 8, Lennar filed the pending objection to Judge
Connelly’s
ruling.
(ECF
No.
545).
iStar
filed
opposition
papers on July 25 (ECF No. 554) and Lennar submitted a reply on
August 12 (ECF No. 565).
II.
Standard of Review
Under 28 U.S.C. § 636(b)(1)(A), non-dispositive pretrial
matters may be referred to a magistrate judge for hearing and
determination.
A district judge may modify or set aside any
portion of a magistrate judge’s non-dispositive ruling “where it
has been shown that the magistrate judge’s order is clearly
erroneous
72(a);
receive
or
Local
contrary
Rule
further
to
law.”
301.5.a.
evidence
Id.;
“The
or
also
[district]
recommit
magistrate judge with instructions.”
see
the
Fed.R.Civ.P.
judge
matter
also
to
the
28 U.S.C. § 636(b)(1)(C).
Under the clearly erroneous standard, the
reviewing court is not to ask whether the
finding is the best or only conclusion
permissible based on the evidence.
Nor is
13
may
it to substitute its own conclusions for
that of the magistrate judge.
See Tri–Star
Airlines, Inc. v. Willis Careen Corp., 75
F.Supp.2d
835,
839
(W.D.Tenn.
1999).
Rather, the court is only required to
determine whether the magistrate judge’s
findings are reasonable and supported by the
evidence.
Id.
“It is not the function of
objections to discovery rulings to allow
wholesale relitigation of issues resolved by
the magistrate judge.”
Buchanan v. Consol.
Stores Corp., 206 F.R.D. 123, 124 (D.Md.
2002).
Int’l Ass’n of Machinists & Aerospace Workers v. Werner–Matsuda,
390 F.Supp.2d 479, 485 (D.Md. 2005).
III. Analysis
Lennar contends that the court did not make “the findings
requisite for the issuance of a protective order.”
545,
at
8).
More
specifically,
it
argues,
“iStar
(ECF No.
did
not
articulate any specific injury it would suffer as a result of
the subpoena, and Magistrate Judge Connelly did not find any
injury.”
finding
(Id. at 8-9).
that
“there
Lennar also faults Judge Connelly for
has
not
been
any
specific
use
of
confidential information obtained from Lennar by Geosyntec” and
that no “conflict of interest [had] been proven up in this case”
because those findings “were not raised in or necessary to the
resolution of iStar’s motion, and . . . were not supported by
any evidence in the record.”
(Id. at 9).
It further maintains
that “[t]he Protective Order [] is contrary to law because it is
14
implicitly
and
incorrectly
premised
on
subpoenaed information was not relevant.”
a
finding
that
the
(Id. at 10).
It is true that Judge Connelly’s ruling was “premised on a
finding that the subpoenaed information was not relevant,” but
that finding was neither “contrary to law” nor “incorrect,” as
Lennar suggests.
26(b)(1),
Pursuant to Federal Rule of Civil Procedure
“[p]arties
may
obtain
discovery
regarding
any
nonprivileged matter that is relevant to any party’s claim or
defense.”
“Information is relevant, for discovery purposes, if
it ‘bears on, or . . . reasonably could lead to other matter[s]
that could bear on, any issue that is or may be in the case.’”
Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D. 193, 199
(N.D.W.Va. 2000) (quoting Oppenheimer Fund, Inc. v. Sanders, 437
U.S.
340,
350
(1978));
see
also
Fed.R.Civ.P.
26(b)(1)
(information sought must be “reasonably calculated to lead to
the discovery of admissible evidence”).
Under Rule 26(c)(1), “[a] party or any person from whom
discovery is sought may move for a protective order . . . to
protect [itself] from annoyance, embarrassment, oppression, or
undue burden or expense” and “[t]he court may, for good cause,
issue an order to protect a party or person” when such a showing
is made.
Similarly, Rule 45(c)(3)(A)(iv) requires a court to
quash a subpoena that “subjects a person to an undue burden.”
“This undue burden category ‘encompasses situations where the
15
subpoena seeks information irrelevant to the case.’”
HDSherer
LLC v. Natural Molecular Testing Corp., --- F.R.D. ----, ----,
2013 WL 4427813, at *2 (D.S.C. July 31, 2013) (quoting Cook v.
Howard,
484
curiam)).8
Fed.Appx.
805,
812
n.
(4th
7
Cir.
2012)
(per
Thus, “if the discovery sought has no bearing on an
issue of material fact” – i.e., if it is not relevant – “a
protective
order
is
proper.”
Tilley
v.
United
States,
270
F.Supp.2d 731, 735 (M.D.N.C. 2003); see also Baron Financial
Corp. v. Natanzon, 240 F.R.D. 200, 203 (D.Md. 2006) (citing
Tilley for the same proposition).
Despite
Lennar’s
present
argument
to
the
contrary,
the
court was bound to assess the relevance of the documents sought
by the subpoena and any such assessment necessarily entailed
consideration of whether a potential conflict of interest was
presented.
If a potential conflict were shown, the documents
would be relevant, and potentially discoverable, to the extent
that they could support disqualification of the expert.
the
other
hand,
no
potential
conflict
was
If, on
presented,
the
subpoena would not relate to any material issue in the case,
thus militating in favor of a protective order.
8
“Although Rule 45(c) sets forth additional grounds on
which a subpoena against a third party may be quashed[,] . . .
those factors are co-extensive with the general rules governing
all discovery that are set forth in Rule 26.”
HDSherer LLC,
2013 WL 4427813, at *2 (quoting Cook, 484 Fed.Appx. at 812).
16
Lennar’s position is essentially premised on the erroneous
notion that its existing relationship with Geosyntec gives rise
to a prima facie conflict of interest.
In its view, the duty
Geosyntec owes is akin to an attorney who undertakes concurrent
representation of adverse clients.
As Judge Connelly correctly
noted, however, “[c]on[flict] rules of engineers and scientists
are different from those applicable to lawyer[s].”
545-2, at 24).
(ECF No.
Indeed, an attorney owes a “fiduciary duty of
undivided loyalty and allegiance” to his client.
Cinema 5, Ltd.
v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir. 1976).
Thus,
“[w]here an attorney takes part in a suit against an existing
client, the propriety of the conduct ‘must be measured not so
much against the similarities in litigation, as against the duty
of
undivided
clients.’”
loyalty
which
an
attorney
owes
to
each
of
his
Stratagem Dev. Corp. v. Heron Intern. N.V., 756
F.Supp. 789, 792 (S.D.N.Y. 1991) (quoting Cinema 5, 528 F.2d at
1386).
But the same rules do not apply to non-attorney expert
witnesses.
61,
65
greater
See W.R. Grace & Co. v. Gracecare, Inc., 152 F.R.D.
(D.Md.
than
1993)
the
(“the
ordinary
duties
of
expert”).
an
attorney-expert
As
one
commentator
explained:
An expert is not the client’s “champion,”
pledged faithfully to seek the client’s
goals.
Indeed, in many ways the expert’s
role is precisely the opposite.
She must
remain
independent
of
the
client
and
17
are
detached, if not wholly aloof, from the
client’s goals. There is no reason that an
objective expert could not conclude – and
explain – that a party is correct in one
case and wrong in another.
Consequently,
there is no general ethical principle that
prevents an expert from accepting concurrent
engagements both for and adverse to the same
party.
Steven Lubet, Expert Witnesses: Ethics and Professionalism, 12
Geo.
J.
Legal
Ethics
465,
474
(1999)
(internal
footnotes
omitted); see also Kirk v. Raymark Industries, Inc., 61 F.3d
147,
164
(3d
Cir.
1995)
(“despite
the
fact
that
one
party
retained and paid for the services of an expert witness, expert
witnesses are supposed to testify impartially in the sphere of
their expertise”).
While non-attorney testifying experts do not have absolute
freedom of action, any potential conflict of interest must be
assessed in terms of whether the concurrent relationship relates
to
the
same
confidential
subject
matter
information
is
and
whether
involved.
an
this
In
exchange
regard,
of
the
opinion of the United States District Court for the Eastern
District
of
Virginia
in
Wang
Laboratories,
Inc.
v.
Toshiba
Corporation, 762 F.Supp. 1246 (E.D.Va. 1991), is instructive.
Wang, 762 F.Supp. at 1246, was a patent infringement suit in
which first the plaintiff and then the defendant “engaged the
same expert for the same purpose, namely to furnish an opinion
on the validity of the patents in issue.”
18
When the plaintiff
learned
that
the
defendant
would
be
calling
the
expert
to
testify at trial, it filed a motion “to disqualify the expert
and for leave to conduct discovery aimed at ascertaining what
use, if any, the expert made of [the plaintiff’s] putatively
confidential information.”
disqualify,
the
court
Id.9
In addressing the motion to
initially
noted
that
“no
one
would
seriously contend that a court should permit a consultant to
serve as one party’s expert where it is undisputed that the
consultant was previously retained as an expert by the adverse
party
in
the
information
retention.”
same
from
litigation
the
adverse
Id. at 1248.
and
party
had
received
pursuant
to
confidential
the
earlier
“Less clear,” it continued, “are
those cases where, as here, the parties dispute whether the
earlier
retention
occurred.”
Id.
and
passage
of
confidential
information
Nevertheless, the court found a toehold in a
9
In the instant case, Lennar did not move to disqualify the
expert or for leave to take discovery in support of such motion.
Rather, it simply served its subpoena independently in the hope
that it might thereby uncover information that would support a
future motion to disqualify. Procedurally, this tactic puts the
proverbial cart before the horse.
Lennar cites no authority
demonstrating that, absent leave of court, discovery may be
sought from an opposing party’s testifying expert to establish
whether there is a basis for filing a motion to disqualify, nor
is the court aware of any.
Indeed, its subpoena was based
entirely on the speculative notion that Geosyntec’s alleged
breach of the California contract and iStar’s inconsistent
representations regarding the circumstances of the engagement
“entitled it to discovery regarding the facts.”
(ECF No. 523,
at 15).
19
“two-step inquiry” set forth in Paul v. Rawlings Sporting Goods
Co.,
123
F.R.D.
271,
277
(S.D.Ohio
1988).
Id.
In
this
analysis, courts are to consider:
First, was it objectively reasonable
for the first party who claims to have
retained the consultant . . . to conclude
that a confidential relationship existed?
Second,
was
any
confidential
privileged information disclosed by
first party to the consultant?
or
the
Wang, 762 F.Supp. at 1248; see also W.R. Grace, 152 F.R.D. at 64
(applying the two-part Paul analysis).
“[a]ffirmative
answers
disqualification,”
which
to
is
The court explained that
both
“likely
inquiry yields a negative response.”
inquiries
inappropriate
Id.
compel
if
either
In other words, “even
if counsel reasonably assumed the existence of a confidential
relationship, disqualification does not seem warranted where no
privileged
or
confidential
information
passed.”
Id.
(citing
Paul, 123 F.R.D. at 279 (expert not disqualified where there was
a “lack of communication of any information of either particular
significance
or
which
can
be
readily
identified
as
either
attorney work product or within the scope of the attorney client
privilege”)).
Otherwise, the court explained, “lawyers could
then disable potentially troublesome experts merely by retaining
them, without intending to use them as consultants,” which would
constitute an “attempt[] only to prevent opposing lawyers from
20
obtaining an expert” that “should not be countenance[d].”
Id.;
see
that
also
W.R.
“sometimes
Grace,
152
disqualification
F.R.D.
at
motions
are
64
(recognizing
brought
for
purely
strategic purposes”).
In applying the Paul analysis to the facts presented, the
Wang court found “affirmative responses to both questions.”
at 1249.
Id.
In that case, it was “indisputable that [plaintiff’s
counsel] disclosed confidential work product material to [the
expert]”
and
“the
totality
of
circumstances
point[ed]
convincingly to the conclusion that [plaintiff’s counsel] was
reasonable
in
assuming
the
existence
relationship with [the expert].”
Id.
of
a
confidential
Thus, the plaintiff’s
motion to disqualify was granted, thereby rendering moot the
discovery request.
In the instant case, by contrast, it is undisputed that
Geosyntec has had no involvement with Lennar with respect to the
subject matter of the litigation.
iStar
have
repeatedly
Moreover, both Geosyntec and
represented
to
the
court
that
the
particular Geosyntec office retained by iStar has never had any
relationship with Lennar and that no one from Geosyntec who
worked on the case had previously done work for Lennar.
Even
assuming, as Lennar suggests, that it reasonably believed it had
a confidential relationship with Geosyntec based on the contract
for unrelated services in California, there is no indication
21
that there was, or could have been, any confidential information
disclosed
by
relationship
Lennar
that
to
Geosyntec
could
have
had
in
any
the
context
bearing
on
of
that
Geosyntec’s
competence to serve as iStar’s expert in this case.
Nor is
there even an allegation that such information was, in fact,
disclosed to iStar.
In sum, as Judge Connelly properly found, “there has not
been any specific use of confidential information obtained from
Lennar by Geosyntec,” nor was there “any conflict of interest
that [was] proven up in this case.”
Consequently,
the
lead
discovery
to
the
subpoena
of
was
not
(ECF No. 545-2, at 22).
“reasonably
admissible
calculated
evidence,”
to
Fed.R.Civ.P.
26(b)(1), and because responding to a request for irrelevant
documents
self-evidently
constitutes
an
“undue
burden
or
expense,” Rule 26(c)(1); Rule 45(c)(3)(A)(iv), Judge Connelly
properly
found
good
cause
for
the
issuance
of
a
protective
order.
IV.
Conclusion
For
overruled.
the
foregoing
reasons,
Lennar’s
objection
will
be
A separate order will follow.
________/s/_________________
DEBORAH K. CHASANOW
United States District Judge
22
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