By David Hricik, Mercer Law School
An order by Judge Alsup in Oracle Am., Inc. v. Google, LLC (N.D. Cal. Jan 28, 2020 (here)) reflects an unusual fact pattern. The court had appointed an expert (in docket 2143, which by itself says a lot) who worked with the firm of Charles River Associates (“CRA”). Google had an expert, Dr. Leonard. Google notified Oracle that Dr. Leonard was to become “affiliated” with CRA, prompting Oracle to file an “objection” with the court.
In response, Judge Alsup issued an order stating the most it could say so far was “that Dr. Leonard (and Google) have made this move at their peril.” He asked for motion practice and an appropriate record.
Expert witnesses are not subject to the same rules of conflicts of interest as lawyers (even when a lawyer is serving as an expert witness). I know of cases where opposing parties choose experts who end up at the same firm, but never one where a court-appointed expert is affiliated with the same firm as a party’s expert. If it is a conflict — and one that can’t be obviated by a screen of Dr. Leonard and other appropriate measures (I can think of many) — presumably Google will suffer disqualification of its expert, which would presumably cause tremendous problems with its case if, as you’d think, Dr. Leonard is serving an important and non-cumulative role.
Interesting problem.
It will be interesting to see where it lands. To me, the key difference with the migrating lawyers scenario, and even experts-in-the-same-firm scenario, is the court-appointed nature of the expert. If I were either party, I might have issues with this, and I certainly would, if I were the judge, worry about the appearance of impropriety.
The fact of the matter is that this case has been pending since 2010. Lives change, people switch jobs and change companies. Judge Alsup has probably seen a revolving door of more than a dozen law clerks/staff during the time this case was pending, some of whom are working for the law firms representing parties to cases before him. I know for a fact that attorneys who once worked for law firms on one side of the Google/Oracle case now work for law firms representing the other side, and are being properly “screened” off from participation at their new firms (and done with full knowledge of all sides). The legal profession has multiple mechanisms (including ethical walls) and a tradition of being able to accommodate legitimate opportunities by avoiding overly formulaic application of the ethical rules.
Judge Alsup should not have tried to block a legitimate career move by Dr. Leonard here; experts and consulting firms are not bound to imputed disqualification rules that govern lawyers. CRA would obviously have set up a strict ethical wall between these two experts, assuming they’d even be in a position to collaborate anyway (since most damages experts work independently and are often not even provided common office space). Dr. Leonard’s presence at CRA would not have impugned the impartiality of the court-appointed expert.
Dr. Leonard and CRA did it right, they told the judge about the possible affiliation before it came to pass. This is a nothingburger, and it is a shame that a mercurial judge like Alsup has to turn it into an opportunity for headlines with a scarecrow order using the word “disqualification.” The scarecrow will work; in the end, nothing will come of this and Dr. Leonard will just go somewhere else. No one is going to risk the wrath of an unpredictable judge like Alsup.
Realizing that this particular story is a ‘cross-thread’ from the Hricik side of the blog, and most likely here on the main side to help breathe a little life back into the Hricik side (due at least in some part to a medical hiatus), I would recommend a post picking up and exploring Dave Boundy’s view that attorney candor has somehow been abrogated and repealed from any court dealings, and that the level of “zealous representation” fully provides for deliberately misleading spin on questions presented to higher courts in the appeals process.
Surely the notion that a level of spin that makes the ‘question presented’ from a pair of parties seeking a higher court review entirely incompatible with each other does not invoke ANY ethical constraint is a worthy topic for a side of the blog directed to ethical practice of law.
…and one that is self-inflicted.
Should not somebody have paused for a moment and thought, “hm, this might blow up in our face?”
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