Mid America Agri Products/Horizon, LLC v. Rowlands

Summary

The Nebraska Supreme Court denied a writ of mandamus seeking disqualification of opposing counsel after a side-switching expert had consulted with the relators’ attorneys and was later retained by the opposing party. The court held that the expert was not a “support person” under Nebraska Rule of Professional Conduct § 3-501.9 and that an irrebuttable presumption of shared confidences applies only to individuals who obtained confidential information as lawyers. Disqualification of counsel therefore required a fact-specific showing that confidential information was unfairly obtained and threatened to taint further proceedings.

Holdings

1. Horizon was not entitled to mandamus because it failed to establish clearly and conclusively a clear right to disqualification or a corresponding legal duty requiring the district court to disqualify Lansing's counsel.
2. A retained litigation expert is not a support person within the meaning of § 3-501.9(f).
3. An irrebuttable presumption of shared confidences applies only to individuals who obtained confidential information while working as lawyers; a side-switching expert is subject instead to a rebuttable presumption.
4. The order disqualifying O'Neil from testifying implicitly prohibited all further contact by O'Neil with Lansing and its counsel and disqualified O'Neil from any further participation in the matter after the March 30, 2012, disqualification order.

Questions Presented

1. Whether a retained expert who previously received confidential information from opposing counsel is a support person under Nebraska Rule of Professional Conduct § 3-501.9(f).
2. Whether an irrebuttable presumption of shared confidences applies when a side-switching expert previously received confidential information from one party and is later retained by an adverse party.
3. Whether Horizon established a clear right and corresponding legal duty warranting mandamus to disqualify Lansing’s counsel.
4. Whether the district court’s order disqualifying O’Neil from testifying also prohibited him from further consulting or participating in the matter.

Disposition

writ_denied