Counsel’s Ex Parte Communication With Opposing Expert Does Not Justify Disqualification

The court denied plaintiff's motion to disqualify defense counsel after counsel contacted plaintiff's expert for information before the expert's deposition and did not identify himself as defendant's attorney. "Before the [expert’s] deposition, defense counsel . . . sent an inquiry through [the expert’s] company’s website. [Counsel] identified himself as “Mike,” with a [Gmail] contact email address . . . [Counsel] did not use his [law firm] email address and did not reveal that he represented the defendant. . . . The court recognizes that [defense counsel's] contact with [plaintiff’s expert] before his deposition could appear inappropriate, but finds that when weighing the prejudices and considering the plaintiff’s delay in filing the motion, the severe sanction of disqualification is not warranted. . . . It wasn’t until eight months after [plaintiff's expert's] deposition and almost a month after the settlement negotiation efforts failed that plaintiff filed the instant motion to disqualify. . . . [T]he timing of the motion supports the conclusion that the communication between [defense counsel] and [plaintiff's expert] did not raise a serious concern to plaintiff and did not reach the level of communication that warrants disqualification."

The Ipatt Group, Inc., et. al. v. Scotts Miracle-Gro Company, 2-09-cv-02419 (NVD June 17, 2013, Order) (Ferenbach, M.J.).