DeLuca

Following trial and appeal in cross-actions, a single cause of action remained for trial between the parties. The plaintiff in the remaining action informed the defendant that he would be using, as an expert witness, an expert who had testified on behalf of the defendant in the prior trial. The defendant objected on the ground that the expert possessed confidential attorney-client and work product information, learned when he was retained on behalf of the defendant. The defendant then moved to disqualify the plaintiff’s counsel from further representing the plaintiff, on the basis that the plaintiff’s counsel had obtained access to the confidential information possessed by the expert. The trial court granted the motion and disqualified the plaintiff’s counsel. On appeal by the plaintiff and his disqualified counsel, we conclude that the defendant failed in its burden to establish the expert possessed confidential information materially relevant to the pending proceedings. We therefore will reverse.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Underlying Action

The attorney disqualification issue arose in the context of a dispute between State Fish Company, Inc. (State…