trueEX LLC v. Bank Of America Corporation

Background

NatWest Group plc, NatWest Markets plc, and NatWest Markets Securities Inc. (together, “NatWest”) moved to disqualify Alan Mittleman, an expert witness for platform-plaintiff trueEX LLC. NatWest relied on Mittleman’s former employment and alleged confidential relationship with NatWest and Credit Suisse. NatWest also cited provisions in Mittleman’s separation agreements that restricted disparagement and required cooperation with company attorneys in certain investigations.

Legal standard

The court explained that a party seeking to disqualify an expert generally must show two things: an objectively reasonable belief that a confidential relationship existed with the expert, and disclosure during that relationship of confidential or privileged information relevant to the current litigation. The court may also consider the public interest, including judicial fairness and the opposing party’s ability to use experts with specialized knowledge. Expert disqualification is rare, and NatWest had the burden of proving that disqualification was warranted.

Court’s analysis

The court found that NatWest did not provide specifics about any confidential information shared with Mittleman that was relevant to the case. It interpreted the separation-agreement provisions more narrowly: they prevented disparagement and required cooperation in certain investigations, but did not prohibit Mittleman from serving as an expert on matters within his professional expertise. The court also noted that Mittleman’s report did not plausibly disparage NatWest or Credit Suisse.

The report was narrowly focused on the commercial viability of trueEX’s platform in 2013. Although Mittleman gave general background based on his experience in interest-rate swaps and fixed-income trading, he did not provide details about NatWest’s or Credit Suisse’s business strategies or specific practices involved in the litigation. The court therefore concluded that he was using general industry knowledge rather than addressing confidential information about those companies.

The court further concluded that public-interest considerations favored allowing Mittleman to testify. Disqualifying experts because they had experience in the market at issue could unfairly limit parties’ access to knowledgeable witnesses, particularly in a technically complex case.

Disposition

The court concluded that NatWest failed to show that Mittleman was an improper expert witness on the narrow issue of trueEX’s predicted viability. Judge J. Paul Oetken therefore denied Defendants’ motion to disqualify Alan Mittleman. The clerk was directed to close the motions at Docket Numbers 204 and 205 in case number 18-cv-5361 and Docket Numbers 1120 and 1121 in case number 16-md-2704, and to docket the order under both case numbers.