Abraham v. Leigh

Background

Robyn Abraham moved to disqualify Nicole Hyland, Defendant’s proposed substitute expert witness. Defendant proposed Hyland to replace Lawrence Fox, who was medically unable to participate at trial. Abraham argued that, earlier in the litigation, she had consulted with attorneys at Hyland’s law firm and provided confidential information about the case.

Defendant opposed the motion and submitted a declaration from Ronald Minkoff, a partner at Frankfurt Kurnit Klein & Selz PC. Minkoff confirmed that he spoke with Abraham about the case on October 15, 2020, for approximately half an hour. He did not independently remember receiving nonpublic or confidential information about the dispute’s merits, but emails indicated that the conversation concerned a contempt motion related to Abraham’s discovery conduct and a fee dispute with her prior counsel.

Legal Standard

The court explained that it has inherent authority to disqualify an expert witness when necessary to protect the fairness and integrity of the adversarial process. The party seeking disqualification generally must show both that it had an objectively reasonable belief that a confidential relationship existed with the expert or the expert’s firm and that confidential or privileged information relevant to the litigation was disclosed.

The court used Rule 1.18 of the New York Rules of Professional Conduct as general guidance. That rule protects information learned from a prospective client and can disqualify a lawyer’s firm when the lawyer received information that could significantly harm the prospective client in the same or a substantially related matter. The rule may allow a firm to avoid disqualification through measures such as limiting the lawyer’s exposure to information, promptly notifying the firm, screening the lawyer from the matter, preventing the lawyer from sharing in the fee, and giving written notice to the prospective client.

Court’s Analysis

The court concluded that Abraham satisfied her burden on the present record. Because Minkoff confirmed that the consultation occurred, the court found that Abraham qualified as a prospective client and had an objectively reasonable belief that she had established a confidential relationship with Minkoff.

The court was also inclined to find that Abraham disclosed confidential information during the consultation. Although Minkoff did not recall receiving confidential information about the merits, the court stated that its history with the litigation prevented it from completely separating the contempt motion from the underlying dispute. The court therefore believed it likely that Abraham disclosed confidential or privileged information relevant to the current litigation.

The court further found that Defendant provided no assurance that information Minkoff learned had not been shared with Hyland. Defendant had presented Minkoff and Hyland together as substitute experts, which suggested collaboration on the matter. Defendant also provided no indication that the firm had implemented screening measures, prevented the flow of information between Minkoff and Hyland, or prevented Minkoff from sharing in payments directed to the firm in connection with the case.

Disposition

The court granted Abraham’s motion to disqualify Hyland as Defendant’s substitute expert witness. The ruling was without prejudice to Defendant submitting a further response about any efforts by Frankfurt Kurnit Klein & Selz PC to screen Hyland from confidential information obtained through Abraham’s consultation with Minkoff. The court permitted any supplemental filing by June 3, 2022, at 12:00 p.m., and directed the Clerk of Court to terminate the motion at docket entry 701.