By Memorandum Order entered by The Honorable Sue L. Robinson in Butamax Advanced Biofuels LLC v. Gevo, Inc., Civil Action No. 11-54-SLR (D.Del., October 10, 2012), the Court denied Plaintiff Butamax’s request attempting to exclude Dr. Ron Caspi from serving as an expert witness for Defendant Gevo. Butamax claimed that it had entered a confidentiality agreement and consulted with Dr. Caspi in the same action prior to his retention by Gevo and had shared some attorney work-product with him during brief telephone conversations. Id. at 3-5.

In evaluating Butamax’s motion to disqualify, the Court recognized that, although there is no bright line rule for expert disqualification, “courts have generally adopted a two-part inquiry: (1) was it objectively reasonable for the party seeking disqualification to have concluded that a confidential relationship existed with the expert; and (2) was confidential or privileged information actually disclosed to the expert.” Id. at 2. The burden of proof of those factors rests with the party seeking disqualification. Id. at 3.

After analyzing the pertinent factors, the Court found that there was a confidential relationship created between Butamax’s counsel and Dr. Caspi. Id. at 5. However, the Court also found that the comments made to Dr. Caspi by a junior lawyer working on the Butamax legal team in response to the hypothetical posed by Dr. Caspi – which Butamax claimed constituted attorney work-product – did not constitute confidential information sufficient to disqualify Dr. Caspi from consulting for Gevo. Id. at 6.

A complete copy of the Memorandum Order is attached.