May 25, 2018 Practice Points

When Is an Expert "Independent" for Purposes of a Protective Order?

All attorneys should be reminded of the costs and risks that accompany the retention of an allegedly "partisan" expert.

By Joseph V. Schaeffer

Protective orders are so common as to be almost routine. In theory, protective orders promote truth-seeking and reduce discovery disputes by giving the producing party greater confidence that its confidential information won't be misused. In practice, however, protective orders can give rise to their own set of discovery disputes.

A recent case from the U.S. District Court for the Southern District of California provides one example specific to retained expert witnesses. The issue in Pacific Marine Propellers [PMP] v. Wartsila Defense, Inc. was simple: Did PMP's expert, Paul Moore, qualify as an "independent expert" to whom PMP could disclose "confidential" and "attorney's eyes only" documents under the Southern District's form protective order? No. 17-cv-555, 2018 WL 2059512 (S.D. Cal. May 3, 2018). Moreover, none of the relevant facts were in dispute. Moore had a long-standing professional and personal relationship with PMP employees, and he had advised PMP on the naval contracts (and Wartsila's qualifications for those contracts) underlying the parties' procurement dispute. But, Moore was not a PMP employee, and had agreed to forgo future employment with PMP for a period of years if qualified as an independent expert.

In determining whether those facts made Moore a PMP partisan outside the protective order's scope, the court relied on the following five-factor balancing test:

(1) the expert’s position within the receiving party’s business as an officer, shareholder or employee; (2) the extent of the expert’s regular employment or association with the receiving party; (3) the expert’s 'present involvement in the receiving party’s competitive decisions, including participation in or advice related to research;' (4) 'the potential for future involvement of the expert in the receiving party’s competitive decisions;' and (5) if the expert is not deemed independent, whether the expert is willing to “forego future involvement with the receiving party.'

Id. at *3 (citations omitted).

Applying those factors, the court showed little hesitation in qualifying Moore as an "independent expert." While acknowledging that Moore's past assistance to PMP might suggest partisanship, the court discounted its importance because several years had passed and Moore not only was independently employed but also agreed to forgo future employment with PMP. Additionally, the court was not persuaded that the threat of sanctions was insufficient to dissuade Moore from disclosing Wartsila's confidential information.

For attorneys practicing in jurisdictions where an expert must be "independent" to qualify under a protective order, Pacific Marine Propellers provides a concise summary of the relevant factors and a straightforward application. All attorneys, though, should be reminded of the costs and risks that accompany the retention of an allegedly "partisan" expert.

Joseph V. Schaeffer is with Spilman Thomas & Battle, PLLC in Pittsburgh, Pennsylvania.

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).