In Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, the Court of Appeal stated that where counsel retains an expert consultant with confidential information concerning the opponent’s case, there is a rebuttable presumption that the expert shared that confidential information with the counsel that retained him or her, which requires disqualification. See Evid Code §606 on the effect of a presumption. To prevent disqualification, the presumption must be rebutted with an affirmative evidentiary showing that no confidential materials were transmitted. This showing has been met by including the writings that were transmitted and what topics were discussed verbally, which would demonstrate that the offending material was not transmitted. However, be mindful that it is not just the precise materials, but also the benefit of the confidential materials that must be rebutted:
“Even assuming that [the lawyer subject to disqualification] did not expressly ask [the subject expert] about the contents of his discussion with [the opponent] and that [the expert] did not explicitly disclose the information to [the lawyer], [The lawyer] could still obtain the benefit of the information because the data, consciously or unconsciously, could shape or affect the analysis and advice [the expert] rendered to [party facing disqualification]. Given that both [plaintiff] and [defendant] consulted [the expert] on the same issue…it is highly unlikely that [the expert] could conscientiously discharge his duty to [defendant] as its retained expert and at the same time discharge his duty not to divulge confidential information received from [plaintiff].” (Shadow Traffic Network at page 1086)
There are two cases that courts look to in deciding whether opposing counsel should be disqualified under Shadow Traffic— Collins v. State of California (2004) 121 Cal.App.4th 1112 and Shandralina G. v. Homonchuk (2007) 147 Cal.App.4th 395.
Collins involved a personal injury action. Plaintiffs’ counsel hired an expert witness on the subject matter of windshields. Unbeknownst to Plaintiffs’ counsel, two Defendants had hired the expert as a consultant. After Plaintiffs’ counsel disclosed the retained expert, defendants brought a motion to disqualify plaintiffs’ counsel. The trial court granted the motion to disqualify. Plaintiffs appealed.
The Court of Appeals reversed the disqualification of counsel. The court references the following three findings supporting the denial of the motion to disqualify:
(1) The plaintiff firm had no notice of the expert’s dual status until defense counsel raised the issue because the expert never disclosed his dual retention. (In other words, the lawyer did not know of the prior retention)
(2) The plaintiff firm ceased all direct contact with the expert after his dual role was revealed. (The lawyer immediately took steps to prevent further communication with the expert)
(3) Most importantly, the undisputed evidence demonstrates that no confidential information originating from the defendants, or their attorneys was transmitted by the expert to Plaintiff counsel. (The lawyer affirmatively showed what was disclosed, and no opinions or confidential information was involved, i.e., photographs and the police report.) (Collins, at page 1116)
What swayed the Appellate Court was Plaintiff counsel’s declaration explaining what specific information was provided and the subject matter of their preliminary conversations. The declaration from counsel continued that there was a specific discussion when the conflict was brought to their attention and detailed the timing of the prior consultant relationship with the Defendants. The court then applied Shadow Traffic and held that the presumption was overcome. The lesson from Collins is this: an innocent contact with an opposing expert is not enough to be disqualified, but be prepared to demonstrate both your innocence and that the communications that were made did not involve confidential material of the opposition.
Shandralina G. involved a medical malpractice action, where plaintiff attempted to hire the defendant’s consultant as an expert witness. The court notes that the only information transmitted was whether the doctor had a conflict (he claimed no) and the transmittal of medical records that had previously been produced in litigation and was therefore, not confidential. The Defendant (who was seeking disqualification) was still the client of the consultant. Nonetheless, the trial court ordered disqualification, finding that Plaintiff counsel had the burden to establish he did not receive any confidential information from the expert.
The Appellate Court reversed. The court concluded that the party seeking disqualification has the burden of first proving that confidential information was imparted to the challenged expert to raise the presumption that it was transmitted to the opponent. In seeking disqualification, however, the Defendant did not attempt to prove that his confidential information was provided to the consultant to raise the presumption that the Plaintiff had received any from the consultant. Since no proof was provided, the burden was not satisfied. The court justified its decision by concluding:
“There is no competent evidence of sufficient substantiality that [ the expert] disclosed confidential information to [the counsel facing disqualification] during the conversation. Accordingly, the misallocation of the burden of proof cannot be deemed harmless, and we reverse the order disqualifying [counsel]. ” Shandralina G. at page 417.
Pursuant to Shadow Traffic, an expert and counsel can be disqualified if the expert retained by counsel has confidential information obtained from the opposing party in the litigation. Under Collins and Shandralina G. , the party making the motion to disqualify opposing counsel for obtaining confidential information about his case must first establish that confidential information was transmitted to the consultant or expert, to raise the presumption that the expert shared that with opposing counsel. Once the presumption is in play, the party opposing disqualification must then affirmatively demonstrate that no confidential information was in fact obtained. Stated more simply: if you are seeking disqualification, show that you gave the expert confidential information. Counsel opposing the motion to disqualify must be prepared to show that they were not given any confidential information from the expert in order to defeat the motion.