Order Overruling Objection to Nistica's Choice of Expert Witness, Finisar Corporation v. Nistica, Inc., 13-cv-03345-BLF-JSC (Magistrate Judge Jacqueline Corley)
Fans of spy thrillers know that it can be dangerous to know too much about an individual or secrets held by a conglomerate or the government. Nistica's technical expert, Dr. Keren Bergman, narrowly escaped disqualification after Finisar complained that Dr. Bergman was conflicted because of her prior, allegedly confidential conversation with Finisar's counsel on another matter, and the close relationship that Dr. Bergman and her lab share with Nistica. Based on these circumstances, Finisar objected under the Protective Order to Dr. Bergman having access to Finisar's confidential information in the litigation, hoping to effectively prevent her participation.
Siding with Nistica on its request to overrule the objection, Magistrate Judge Corley highlighted the need for an objecting party to identify specific examples of confidential information previously shared with an expert. The opinion further highlighted that it is the expert's relationship with the opposing party, not the hiring party, which controls the inquiry.
It was undisputed that, for a previous case, Dr. Bergman had a phone call with Finisar's outside counsel. Finisar's counsel claimed that, during that call and a follow-up call, he had disclosed confidential legal strategies to Dr. Bergman. Dr. Bergman remembered things differently—namely, introductory calls for potential engagement without any disclosure of confidential information.
Finisar also complained that Dr. Bergman enjoyed too close a relationship with Nistica. Finisar pointed to the friendship between Dr. Bergman and Nistica's CEO. Finisar also noted that Dr. Bergman's lab signed an NDA and purchased certain products from Finisar, and that Dr. Bergman had extensive interactions with Finisar's VP of sales.
Magistrate Judge Corley summarized the case law for disqualification of experts: "courts generally find disqualification warranted based on a prior relationship with an adversary if (1) the adversary had a confidential relationship with the expert and (2) the adversary disclosed confidential information to the expert that is relevant to the current litigation."
Based on this framework, the Court held that Dr. Bergman's relationship with Nistica might be fertile grounds for a cross examination, but did not provide grounds for disqualification. In any event, the evidence showed only a normal, professional relationship between Dr. Bergman and Nistica.
Turning to Dr. Bergman's past connection to Finisar, Magistrate Judge Corley found that Nistica failed to establish any kind of continuing confidential relationship that would warrant disqualification. Rather, the prior calls appeared to be merely introductory in nature, and did not involve discussion of substance. And critically, Finisar did not identify with particularity any confidential Finisar information allegedly shared with Dr. Bergman.
In overruling Finisar's objection, Magistrate Judge Corley concluded by noting that disqualification would also be against public policy based on the delay it would introduce. She also explained that experts should be allowed to participate in introductory conversations without fear of later disqualification. A party objecting to an expert should keep these public policies in mind, and do its best to identify specific confidential information to which an expert was privy to warrant an objection. As Tom Clancy's protagonist Jack Ryan might advise, keep your friends close, and your enemies closer, by knowing exactly what you told them, and when.
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