No Disqualification of Expert Who Met With Opposing Counsel Before Being Retained

The court denied plaintiff's emergency motion to disqualify an expert who had met with plaintiff regarding this same case, discussed hypothetical arguments regarding claim interpretation with plaintiff's counsel, and then was hired by defendant a week later. "[A]fter [plaintiff's counsel]. . . explained [plaintiff's] position about how the claims should be interpreted . . . [the expert] proposed an argument [defendant] might make in response. [The expert] recalls that [counsel] did not want to discuss the subject any further and did not respond with anything of substance. [Plaintiff's counsel] recalls that she responded in a substantive fashion as to how [plaintiff] would address this hypothetical. . . . [T]he hypothetical posed by [the expert] and [counsel's] unsolicited response thereto do not constitute confidential information sufficient to disqualify [the expert] from consulting for [defendant]. . . . [T]he nature of the relationship and of the information allegedly disclosed instantly is much too abbreviated to warrant such a drastic sanction."

Butamax (TM) Advanced Biofuels LLC v. Gevo Inc., 1-11-cv-00054 (DED October 10, 2012, Order) (Robinson, J.).