Shadow Traffic Network v. Superior Court

In Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, a law firm representing the plaintiff met with several individuals at the Deloitte & Touche firm to discuss their possible retention as expert witnesses to testify at the upcoming trial. ( Shadow Traffic, supra, 24 Cal.App.4th at pp. 1071-1072.) The meeting, which lasted one hour, included discussion of the pending lawsuit. (Ibid.) None of the Deloitte & Touche experts were retained by plaintiff. ( Id. at p. 1072.) Less than a month later, defendant's counsel contacted Deloitte & Touche and retained one of the individuals who had been present at the meeting with plaintiff's law firm as its expert witness to testify at trial. (Ibid.) Plaintiff moved to disqualify defendant's law firm from further participation in the case on the ground that the firm had gained access to privileged and confidential information transmitted to Deloitte & Touche. (Ibid.) The expert's participation in the suit was not in issue because he had agreed to withdraw from the case. ( Id. at pp. 1072-1073.) In affirming the trial court's order granting plaintiff's motion, the Court of Appeal considered three issues: (1) Did the expert have a confidential relationship with plaintiff's law firm; (2) did he receive confidential information in the course of that relationship; and (3) did he share that information with defendant's law firm? ( Shadow Traffic, supra, 24 Cal.App.4th at pp. 1078-1087.) In addressing the first issue, the appellate court held as a matter of law that communications to a potential expert in a retention interview can be confidential "as long as there was a reasonable expectation of such confidentiality." ( Shadow Traffic, supra, 24 Cal.App.4th at p. 1080.) For this proposition, the court relied on federal precedents holding that a motion to disqualify an expert requires proof both that it was objectively reasonable for the moving party (or its attorneys) to conclude that its prior relationship with the expert was confidential and that confidential information was in fact disclosed to the expert. ( Id. at p. 1083, fn. 11.) As to the question of whether any confidential information had been transmitted to the expert, there were conflicting declarations in the Shadow Traffic record. The plaintiff's recusal motion was supported by declarations from members of its law firm asserting that plaintiff's litigation and trial strategies were extensively discussed at their meeting with Deloitte & Touche, and that the participants agreed to maintain everything discussed in confidence. ( Shadow Traffic, supra, 24 Cal.App.4th at pp. 1082-1084.) Deloitte & Touche participants in the meeting submitted declarations disputing both of these assertions. ( Id. at pp. 1082-1083.) The Court of Appeal deferred to the trial court's resolution of these factual issues, finding that the plaintiff's declarations constituted substantial evidence that privileged and confidential information had been disclosed to the Deloitte & Touche expert in confidence. ( Id. at pp. 1083-1084.) Regarding whether plaintiff's confidential information was passed along to defendant's attorneys, the Court of Appeal held that once the expert was shown to have obtained such information from plaintiff's attorneys, a rebuttable presumption arose that he disclosed the information to the opposing side. ( Shadow Traffic, supra, 24 Cal.App.4th at pp. 1084-1087.) According to the Shadow Traffic court, this presumption shifts to the party opposing the recusal motion the burden of proving that it obtained none of its adversary's confidential information in the course of its relationship with the expert. ( Id. at p. 1085.) In Shadow Traffic, defendant submitted declarations stating that its attorneys had never asked their retained expert about his conversations with plaintiff's attorneys and that he had never sought to divulge that information. ( Shadow Traffic, supra, 24 Cal.App.4th at pp. 1085-1086.) The appellate court upheld the trial court's determination that these declarations were inadequate to rebut the presumption of shared confidences. (Ibid.) The court noted that both sides consulted Deloitte & Touche on the issue of damages. ( Id. at p. 1086.) Even if the expert made no express disclosure of what he knew about plaintiff's damages theory, the court found it "highly unlikely" that the information would not unconsciously shape his work for the defendant. (Ibid.) Moreover, the court noted that the issue of whether a party has carried its burden of establishing the nonexistence of a presumed fact is "for the trier of fact to decide, not a reviewing court." ( Id. at p. 1087.)