MYRON H. THOMPSON, Chief Judge.
This longstanding litigation is again before the court, this time on the defendants' appeal, filed on September 2, 1994,
A. First 20 Years of Litigation
In 1972, this court entered injunctions requiring the Alabama Department of Mental Health and Retardation to bring its facilities into compliance of certain minimal constitutional "standards." See Wyatt v. Stickney, 344 F.Supp. 373 (M.D.Ala.1972), aff'd in relevant part, 503 F.2d 1305 (5th Cir.1974); Wyatt v. Stickney, 344 F.Supp. 387 (M.D.Ala. 1972), aff'd in relevant part, 503 F.2d 1305 (5th Cir.1974). Fourteen years later, on September 22, 1986, the court approved a consent decree which resolved the plaintiffs' and defendants' continued conflicts over the adequacy of the state's funding and administration of facilities under the court-ordered standards.
In 1991, a new round of litigation began. On January 18, 1991, the defendants brought a motion for a finding that they have met their obligations under the 1986 decree and for an order terminating this lawsuit, and, on January 22, 1993, the plaintiffs brought a motion to enforce the 1986 consent decree. Both motions are set for trial in January 1995.
B. 1992 Settlement Efforts
In 1992, the parties attempted to enter into an agreement to establish formal procedures for settlement of the current round of litigation. At the urging of counsel for plaintiffs, defense counsel agreed to include in their settlement proposal that Provencal and another expert, Clarence Sundram, would serve as a consultant in the settlement process, but on the express condition that the two experts could not thereafter be used by plaintiffs. Provencal had served as an expert for plaintiffs in 1982 and 1983. Defense counsel wrote to plaintiffs' counsel that, "I am assuming that when Mr. Provencal and Mr. Sundram are involved in this process,
The plaintiffs' counsel responded that he could not agree to the last part of the proposal prohibiting the plaintiffs from using Provencal in the future. He wrote that, "Plaintiffs are agreeable to not retaining Clarence Sundram or Jerry Provencal as expert witnesses in the upcoming round of litigation (if it cannot be avoided), but we cannot agree that these two experts would be barred from testifying about what they know as a result of working with the Department and from giving opinions based on that knowledge."
The plaintiffs and the defendants were unsuccessful in their efforts to reach an agreement establishing procedures for a settlement process.
C. 1993 Settlement Efforts
Later, in 1993, the parties made another attempt to reach an agreement establishing formal procedures for the possible settlement of this litigation. In August 1993, the parties executed a "Mental Retardation Outline for 90-day Agreement."
The agreement further provided that the plaintiffs' attorneys were to have access to "information relevant to development of the plans" under the agreement, and that attorneys for both the plaintiffs and the defendants "may freely communicate with [the experts] so long as there is no ex parte communication."
The agreement failed to result in a settlement of this litigation.
D. Litigation Resumes in 1994
In early July 1994, the plaintiffs retained Provencal again as their own expert.
A. Standard of Review
This court may not modify or set aside a magistrate judge's ruling on a non-dispositive issue, such as the one now pending before the court, unless the ruling is clearly erroneous or contrary to law. 28 U.S.C.A. § 636(b)(1)(A); Fed.R.Civ.P. 72(a).
B. Confidential Relationship
Both the plaintiffs and the defendants agree that, under appropriate circumstances, a court has the inherit power to disqualify an expert from participating in litigation before it. See, e.g., English Feedlot, Inc. v. Norden Laboratories, Inc., 833 F.Supp. 1498, 1501 (D.Colo.1993); Wang Laboratories, Inc. v. Toshiba Corp., 762 F.Supp. 1246, 1248 (E.D.Va.1991); Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271, 277-78 (S.D.Ohio 1988). In deciding whether to disqualify a party's expert, a court should be informed by a number of factors, including the following: first, whether the other party had a confidential relationship with the expert; second, whether it was objectively reasonable for the other party to believe that it had such a relationship; and, third, whether the other party did, indeed, disclose confidential information to the expert. English Feedlot, 833 F.Supp. at 1502; Palmer v. Ozbek, 144 F.R.D. 66, 67 (D.Md.1992); Mayer v. Dell, 139 F.R.D. 1, 3 (D.D.C.1991); Wang Laboratories, Inc. v. Toshiba Corp., 762 F.Supp. at 1248; Paul, 123 F.R.D. at 278; see also Wang Laboratories, Inc. v. CFR Associates, Inc., 125 F.R.D. 10 (D.Mass.1989); Marvin Lumber & Cedar Co. v. Norton Co., 113 F.R.D. 588 (D.Minn.1986).
Guided by these concerns, the court is convinced that the defendants did not establish
This conclusion is reinforced by a detailed reading of the 90-day agreement itself. First, the agreement provides that the plaintiffs counsel shall have access to "information relevant to development of the plans" under the settlement process.
The defendants point to a memorandum, dated December 2, 1993, from Associate Commissioner Billy Ray Stokes to Provencal, stating that "I will appreciate it if you, as our consultant for this planning process, will send me a written statement indicating your support of the MR plans."
Finally, the court believes that there are compelling practical reasons for reaching the conclusion that it does. These reasons dictate that, absent compelling equitable reasons to the contrary, any substantial ambiguity regarding whether there is a confidential relationship between an attorney and an expert should be resolved against the attorney seeking to invoke the relationship. First, lawyers are in the best position to development
The court further rejects the defendants' contention that Provencal was privy to privileged and confidential information that he could likely use on behalf of the plaintiffs. The defendants point to three items that they contend support their contention that Provencal received privileged information: first, a memorandum, dated December 2, 1993, from Provencal to Associate Commissioner Stokes, inclosing a plan for "settlement considerations" by the Commissioner;
As to the two memoranda, they were not marked confidential. In addition, they were generated as a part of the 90-day agreement and, as a result, the plaintiffs, along with Provencal, had full access to them. Finally, associate commissioner Stokes's statements — that Provencal received confidential or privileged information — are not credible. The statements are, at most, only conclusory. But more importantly, Associate Commissioner Stokes knew that any information furnished to Provencal during the during the 90-day agreement could also be made available to counsel for plaintiffs.
The defendants suggest that the mere "threat or potential threat that confidences
In any event, the court is convinced that, in this case, there was no threat or potential threat that confidences would be disclosed to Provencal as a part of the 90-day agreement. As the court has explained, the defendants fully understood that the information furnished to Provencal could not be kept confidential and that the plaintiffs could conceivably use him in future litigation.
Finally, the court concludes that a balancing of the competing interests compels the conclusion that it reaches. See English Feedlot, Inc., 833 F.Supp. at 1504-05; Paul, 123 F.R.D. at 281-82. Provencal is an expert in the field of mental retardation and has had a long standing relationship with the plaintiffs. At this stage of these proceedings, it would be an undue burden — indeed it would be unfair — to require that the plaintiffs retain another expert who would then have to familiarize herself or himself with the details of this case. Moreover, the evidence is clear that the defendants never understood that the information furnished to Provencal would be kept confidential and never understood that Provencal could not be used as an expert by the plaintiffs in the future. The plaintiffs' retention of Provencal for the current round of litigation will not in any way prejudice defendants.
C. Provencal's Character
The defendants contend that Provencal should be disqualified for the following reasons: first, he wrongfully removed some pages from some original documents belonging to the defendants; second, his testimony in an affidavit submitted to the court is untrue; and, third, he acted unethically by accepting employment with the plaintiffs after having participated as a consultant in the 90-day agreement.
As to the first issue, the court finds that Provencal took the pages from the documents, but only by mistake. Because the pages were available through discovery, he had no reason to take them intentionally without permission. Also, the pages were eventually returned to the defendants and the defendants were in no manner prejudiced or harmed by Provencal's innocent actions. Provencal should not be disqualified for this reason.
As to the second issue, the court finds that Provencal's testimony in his affidavit does not warrant his disqualification. The defendants contend that Provencal was untruthful when he stated in his affidavit that, "The record material was provided as I requested, however, professional staff at [Glenn Ireland Developmental Center] declined to be interviewed at all."
Finally, as to the third issue raised by the defendants — that Provencal acted unethically in accepting employment with the plaintiffs — the court finds no basis for disqualification. For the reasons already given, the court finds that Provencal did not have a confidential relationship with the defendants and that he did not receive any confidential or privileged information from them. By accepting employment with the plaintiffs, Provencal did not act unethically.
Accordingly, upon consideration of the appeal filed by the defendants on September 2, 1994,
In addition, although the court has, by analogy, drawn upon the law regarding attorney-client relationships, the court should not be understood as implying that the law on attorney-client relationships applies wholesale to attorney-expert relationships. The two relationships implicate different interests and concerns. English Feedlot, Inc., 833 F.Supp. at 1501.