The US District Court ND Illinois in 840 F.Supp,2d 1072 (2012) dealt with a motion to disqualify an expert witness for using confidential information he learned in a prior arbitration proceeding.
In the case at bar, Allstate submitted to Electrolux a report pursuant to Federal Rule of Civil Procedure 26(a)(2)(B) which, appropriately, included a list of the facts and data considered by Keefe in forming his expert opinion. One of the forty items on the list was “Information on Electrolux dryer fires subject to confidentiality agreements.” Def. Mem. Ex. A, at 3.
The court stated:
- Whether an expert may consider or rely upon confidential information, which has not been produced to the other side, in an expert report.
- Whether a party may cross-examine an expert on confidential information which the expert has seen in another similar case, but which has not been produced, considered, or relied upon in the present case.
- Whether an expert witness should be disqualified from testifying because 1079*1079 he had access to relevant and confidential information through his retention as a consulting expert in an unrelated but factually similar case.
The court concluded:
For the reasons set forth in this opinion, the Court denies Defendant’s Motion to Strike Expert Report or Disqualify Expert from Offering Testimony. In order to maintain a level playing field under Rule 26(a)(2) the Court holds as follows:
- Keefe shall not consider or rely upon confidential information received in the Carrier One arbitration in the preparation of his expert report in this case.
- Keefe shall strike any reference to such information from the Appendix to his report and otherwise modify his report if necessary.
- Keefe must produce all non-confidential information considered and relied upon in the preparation of his report, if he has not already done so.
- Defendant shall not cross-examine Keefe on any confidential information from the Carrier One arbitration.
- To the extent identical or similar information marked confidential in the Carrier One arbitration has been produced in a non-confidential form elsewhere, it may be considered and relied upon by Keefe in the preparation of his expert report or used by Defendant in cross-examining Keefe.