Bonnie Berthiaume, et al., Plaintiffs,

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1422

Bonnie Berthiaume, et al., Plaintiffs,

Robert Berthiaume, et al.,
Respondents,

vs.

Allianz Life Insurance Company of North America,
Appellant,

Imeriti, Inc., d/b/a Imeriti Financial Network, Defendant.

Filed June 1, 2020
Reversed and remanded
Ross, Judge

Hennepin County District Court
File No. 27-CV-17-15118

Amy S. Conners, Katherine S. Barrett Wiik, Jennifer L. Olson, Brian J. Linnerooth,
Best & Flanagan LLP, Minneapolis, Minnesota (for respondents)

Aaron D. Van Oort, Jeffrey D. Hedlund, Larry E. LaTarte, Jeffrey P. Justman, Faegre
Drinker Biddle & Reath LLP, Minneapolis, Minnesota (for appellant)

Considered and decided by Segal, Chief Judge; Ross, Judge; and Cochran, Judge.
S Y L L A B U S
An attorney whom one party in litigation has identified to serve as an expert witness
to testify against the attorney ’s former client should be disqualified from serving as an
expert witness if it was objectively reasonable for the former client to believe that a
confidential relationship existed between it and th e attorney and if the client disclosed to

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the attorney confidential info rmation that either regards th e same subject matter or is
directly related to the subject matter about which the attorney proposes to testify.
O P I N I O N
ROSS, Judge
The plaintiffs in this class-action laws uit against a life-insurance company alleged
that the company is liable fo r losses they suffered from an elaborate fraud perpetrated by
an independent insurance agent affiliated with the company. The plaintiffs identified as
their testifying expert witn ess an attorney who previous ly represented the insurance
company. The company moved the district court to disqualify the expert based on his prior
relationship with the company, asserting th at the attorney had advised the company on
regulatory and litigation matters , including the company’s mon itoring of its independent
insurance agents, and claiming that confidential information relating to the case had been
disclosed to him during the prior representati on. The district court denied the motion to
disqualify. This interlocutory appeal requires us to decide the proper standard governing a
motion to disqualify an attorney from serving as an expert witness adverse to his former
client. Because we now adopt an expert-dis qualification standard that differs from the
standard the district court applied, we reve rse the district court’s decision and remand for
it to decide the disqualification motion anew.
FACTS
The class-action plaintiffs—respondents in this appeal—asse rt in their civil
complaint that Sean M eadows, who is now serv ing a 25-year sentence in federal prison,
defrauded his retirement-age clients (including respondents) of mo re than $10 million.

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See United States v. Meadows , 866 F.3d 913, 915–17, 92 1 (8th Cir. 20 17) (affirming
Meadows’s sentence to 300 mont hs in prison following his 2014 guilty plea to a Ponzi
scheme that violated various federal statutes). The complaint alleges that Meadows was an
agent of appellant Allianz Insurance Compa ny and that Allianz knew about his illegal
practices but failed to properly supervise hi m or warn Allianz cust omers. Meadows sold
annuity products for Allianz from roughly 2004 to 2014. The complaint also alleges that
Meadows illegally and unethically encouraged his clients to surrender annuities early and
to invest in new annuities, costing the c lients thousands in charges and netting Meadows
high commissions from Allianz. The complaint asserts claims for consumer fraud, false
statements in advertising, deceptive trade practices, deceptive acts against senior citizens
or disabled persons, negligence, and ai ding and abetting fraud. The plaintiff class
comprises individuals who bought an Allianz annuity or product from Meadows and were
defrauded.
During discovery, the respondents identifie d attorney Michael Rothman to serve as
their expert witness. They also disclosed Rothman’s expert report, which indicated his
intent to testify as to whet her Allianz complied with indust ry standards and whether its
practices caused the respondents’ losses. This was the flashpoint of the current dispute and
is the focus of this appeal. According to A llianz (and not conteste d by the respondents),
Rothman had served as Allianz’s attorney for a decade beginning in 2000.
When Allianz first retained Rothman as outside counsel in 2000, he was practicing
with the law firm of Barger & Wolen in Los Angeles. Rothman joined the Minneapolis law
firm of Winthrop & We instine in 2002 and continued to represent Allianz. Rothman

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advised and represented Allia nz on a variety of regulato ry, compliance, and litigation
issues. He frequently handled matters relate d to Allianz’s annuity business, including
reviewing its annuity-product marketing materials, advising Allianz about market-conduct
examinations, negotiating a settlement in a lawsuit brought by the Minnesota Attorney
General about the suitability of the comp any’s annuity products, and coordinating
strategies to defend against class actions . Rothman represented Allianz until he left
Winthrop in 2010.
After Rothman left Winthrop, he bega n serving as Minnesota Commissioner of
Commerce, a position he held from January 2011 through Novemb er 2017. His duties
included overseeing the administration and en forcement of state insurance laws and
regulations. He stepped down from his po sition as commissioner to campaign for the
position of Minnesota Attorney General. He currently operates his own law firm, Rothman
LLC.
Allianz moved the district court to disq ualify Rothman as an expert witness based
on his representation of Allianz from 2000 to 2010. Allianz argued that disqualification
was necessary because, during his represen tation of Allianz, Rothman had received
extensive confidential info rmation about the company’s annuity business and had
participated in its annuity litigation strategies , and he now intended to testify about some
of the same annuity policies and procedures on which he had previously advised Allianz.
In a declaration opposing Allianz’s motion to disqualify, Rothman stated that he did “not
possess confidential documents” from his prio r representation, did not rely on any

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confidential information in fo rming his opinions, and did not use information relating to
the prior representation to Allianz’s disadvantage.
The district court observed that Minne sota caselaw is silent on the standard
governing disqualification of an attorney-e xpert adverse to a fo rmer client. Allianz
proposed the expert-disqualification standard that some federal courts have adopted. Under
this test, an expert with a prior relationship to an adverse party should be disqualified if it
is objectively reasonable for the adverse pa rty to believe that it had a confidential
relationship with the expert and the advers e party disclosed confidential or privileged
information to the expert dur ing the course of the prior relationship. The respondents
proposed a standard based on Minnesota Rule of Professional Conduct 1.9(c). Under this
standard an attorney could testify as an expert witness against a former client as long as he
does not reveal information rela ting to the prior representati on or use the information to
the former client’s disadvantage.
The district court adopted the respondents’ proposal and analyzed Allianz’s motion
under the rule 1.9(c) standard. It opined that the federal standard would create a “blanket
disqualification” preventing atto rneys from taking on an advers e role to a former client.
Applying the attorney-conduct standard, the di strict court reasoned that Allianz did not
identify any part of Rothman’s expert report showing that he “used or revealed confidential
information” relating to his prior representati on. The district court therefore determined
that Rothman’s disqualification was not required.
Allianz successfully petitioned this court under Minnesota Rule of Civil Appellate
Procedure 105 for discretionary interlocutory review of the di strict court’s order denying

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Allianz’s motion to disqualify. We decided that Allianz ha d “identified the important,
unsettled, legal issue of what standard applie s in Minnesota to dete rmine when attorneys
seeking to offer expert testimony adverse to former clients should be disqualified,” and we
now answer that question.
ISSUE
What standard should the district court apply to determine whether to disqualify an
attorney identified as an expert witness adverse to the attorney’s former client?
ANALYSIS
Allianz appeals from the district court’s denial of its motion to disqualify Rothman
as the respondents’ expert witness. We ordinarily review a district court’s decision whether
to disqualify an expert witness for an abuse of discretion. Williams v. Wadsworth ,
503 N.W.2d 120, 123 (Minn. 1993). But the is sue of determining th e standard that the
district court should apply to a disqualific ation motion presents a legal question that
we review de novo. See State ex rel. Swanson v. 3M Co. , 845 N.W.2d 808, 817
(Minn. 2014) (determining that the district court did not consider “all legally relevant
factors” under the correct legal standard fo r attorney disqualification). The standard
governing expert-witnesses disq ualification is an issue of first impression in Minnesota
regardless of whether the proposed expert is an attorney.
The parties urge us to adopt different st andards. Allianz urges us to adopt the
expert-disqualification standard adopted by ma ny federal courts (the “federal standard”),
which would apply to all potenti al experts regardless of the expert’s profession. Allianz
summarizes the standard as follows:

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[A]n expert must be disqualified when: (1) the moving party
had an objectively reasonable expectation that it had a
confidential relationship with the expert; and (2) privileged or
confidential information of th e party was disclosed to the
expert. Implicit in most cases, and explicit in some, is the
requirement that the expert’s pr ior engagement for the party,
or the confidential or privile ged information the expert
received, must relate to the subject matter of the current
litigation.

(Citation omitted.) The res pondents ask us to adopt a standa rd that would apply only to
attorney-experts, leaving open the question of the standard (or standards) that should apply
to experts in other fields. The standard th e respondents advocate arises from Minnesota
Rule of Professional Conduct 1.9(c) (the “attorney-conduct standard”), which provides as
follows:
A lawyer who has formerly represented a client in a
matter or whose present or former firm has formerly
represented a client in a matter shall not thereafter:
(1) use information relating to the representation to
the disadvantage of the former client except as these rules
would permit or require with resp ect to a client, or when the
information has become generally known; or
(2) reveal information re lating to the representation
except as these rules would permit or require with respect to a
client.

For the reasons we state below, we believe th at the federal standard is better suited than
the attorney-conduct standard to govern attorney-expert disqualification motions.
Because Minnesota caselaw has not addre ssed this issue, we may look to other
jurisdictions for guidance. See State v. Willis, 898 N.W.2d 642, 646 n.4 (Minn. 2017). We
begin by outlining how the federal standard first emerged.
The earliest cases discussed the
standard for expert disqualification in the context of experts generally, not specifically

8
attorneys serving as experts, but they nonetheless looked for guidance from rules governing
attorney conduct. In an early case, Conforti & Eisele, Inc. v. Div. of Bldg. & Constr., a New
Jersey trial court addressing an expert-disqualification issue characterized the question as
whether the expert acted as an agent of the attorney involved in the litigation in which the
expert was identified to provide testimony. 405 A.2d 487, 489–90 (N.J. Super. Ct. Law
Div. 1979). Finding that the expert became an agent for the attorney when the expert was
hired for the litigation, the court then applie d the rules for attorney-client privilege and
determined that the expert should be disqualified. Id. at 490–92. Several years later, a
federal district court in Minnesota facing an expert-disqualification motion cited Conforti
and applied similar reasoning. Marvin Lumber & Cedar Co. v. Norton Co., 113 F.R.D. 588,
590–91 (D. Minn. 1986). In holding an expert witness to the same disqualification standard
as an attorney, the district court reasoned that “there is no sound ba sis for application of
any different rule on the sole rationale that an expert, rather than an attorney, is the subject
of the [disqualification] motion.” Id. at 591.
As more federal district courts confronted the issue, they began to move away from
a direct parallel between attorneys and other cla sses of expert witnesses. The first district
court to do so, in Paul v. Rawlings Sporting Goods Co. , reasoned that its authority to
disqualify an expert witness derived from its inherent power to ensure the fairness and
integrity of judicial pro ceedings. 123 F.R.D. 271, 277 –78 (S.D. Ohio 1988). The Paul
court declined to apply “bright-line” rules that would disqualify an expert based solely on
the existence of a contractual relationship between the expert and the adverse party. Id. at
278. It instead crafted a two-part inquiry that looked at “first, whether the attorney or client

9
acted reasonably in assuming th at a confidential or fiduciary relationship of some sort
existed and, if so, whether the relationship developed into a matter sufficiently substantial
to make disqualification or some other judicial remedy appropriate.” Id. The Paul court
went on to explain that the “crucial focus” regarding the second inquiry was the nature of
the communications between the attorney and the expert, and the extent to which the parties
viewed those communications as significant or confidential. Id. at 279–80. Turning away
from earlier courts’ standard based on attorney-client privilege, the Paul court considered
that the rationales for protecting attorney-clie nt confidentiality do not apply equally to
communications with an expert. Id. at 280–81. This was especially so for two reasons:
because many communications between an expert witness and a client are not privileged,
and because an attorney occupies a “position of higher trust” than an expert, so there is less
of a stigma with an expert who switches sides in litigation than with an attorney. Id. at 281.
Many federal courts have adopted some ve rsion of the two-part standard that the
Paul court articulated. Although courts have described the standard using varying
language, the two elements are essentially the same: whether a confidential relationship
existed between the expert and the adverse party, and whether confidential information was
disclosed during that relationship. This sta ndard has been formally adopted by the Fifth
Circuit and applied by federal district courts in at least six other circuits. See Koch
Refining Co. v. Jennifer L. Boudreau M/V , 85 F.3d 1178, 1181 (5th Cir. 1996); Grioli v.
Delta Int’l Mach. Corp. , 395 F. Supp. 2d 11, 13–14 (E.D.N .Y. 2005); Hewlett-Packard
Co. v. EMC Corp., 330 F. Supp. 2d 1087, 1092–93 (N.D. Cal. 2004); Stencel v. Fairchild
Corp., 174 F. Supp. 2d 1080 , 1083 (C.D. Cal. 2001); Cordy v. Sherwin-Williams Co. ,

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156 F.R.D. 575, 580 (D.N.J. 1994); W.R. Grace & Co. v. Gracecare, Inc., 152 F.R.D. 61,
64–65 (D. Md. 1993); English Feedlot, Inc. v. Norden Labs., Inc., 833 F. Supp. 1498, 1502
(D. Colo. 1993); Mayer v. Dell , 139 F.R.D. 1, 3 (D.D.C. 1991); Wang Labs., Inc. v.
Toshiba Corp., 762 F. Supp. 1246, 1248 (E.D. Va. 1991); Great Lakes Dredge & Dock Co.
v. Harnischfeger Corp. , 734 F. Supp. 334, 337–38 (N.D. Ill. 1990). The federal district
court in Minnesota has also applied this standard in unpublished orders. See CarboMedics,
Inc. v. ATS Med., Inc., No. 06-cv-4601, 2008 WL 5500760, at *3 (D. Minn. Apr. 16, 2008);
United States v. Larkin, Hoffman, Daly & Lindgren , No. 3-92-789, 1994 WL 627569, at
*1–2 (D. Minn. Apr. 12, 1994) . Although the standard ha s been applied primarily by
federal courts, some state courts have also adopted it. See Mitchell v. Wilmore, 981 P.2d
172, 175 (Colo. 1999); Roundpoint v. V.N.A. Inc. , 621 N.Y.S.2d 161, 163 (App. Div.
1995); Formosa Plastics Corp., USA v. Kajima Int’l, Inc., 216 S.W.3d 436, 448 (Tex. App.
2006); Turner v. Thiel, 553 S.E.2d 765, 768 (Va. 2001); State ex rel. Billups v. Clawges ,
620 S.E.2d 162, 167 (W.Va. 2005).
In addition to the two-part inquiry, many courts also consider “the public interest in
allowing or not allowing an expert to testify.” Koch, 85 F.3d at 1181. Although a few courts
list the public-interest consideration as a separate, third element of the inquiry, see, e.g.,
Grioli, 395 F. Supp. 2d at 13–14, most merely consider it as part of the two-step analysis,
see, e.g. , Hewlett-Packard, 330 F. Supp. 2d at 1093 ( listing the two factors and also
analyzing policy considerations). The policy in terests that would fa vor disqualifying an
expert are to prevent conflicts of interest a nd to maintain the integrity of the judicial
process. Koch, 85 F.3d at 1182. The policy interests against disqualifying an expert are to

11
ensure that the parties have access to expert witnesses with specialized knowledge and to
allow experts to pursue their professional calling. Cordy, 156 F.R.D. at 580. Courts are
particularly concerned that, “if experts are too easily subjected to disqualification,
unscrupulous attorneys and clients may attempt to create an inexpensive relationship with
potentially harmful experts solely to keep them from the opposing party.” English Feedlot,
833 F. Supp. 2d at 1505. Consideration of the public interest allows courts to balance the
competing interests and determ ine the extent to which the parties may be prejudiced by
ordering or not ordering disqualification.
Although most courts applying the federal st andard have done so in the context of
non-attorney experts, a few have applied th e standard to attorneys serving as experts
adverse to former clients. See, e.g., Domercant v. State Farm Fire & Casualty Co. , No.
1:11-cv-02655, 2013 WL 1190 4719, at *3 (N.D. Ga. May 15 , 2013) (applying federal
standard to plaintiffs’ expert who had served as outside counsel to defendant insurance
company and performed mostly insurance defense work); Ross v. Am. Red Cross ,
No. 2:09-cv-905, 2012 WL 2090511, at *1–2 (S.D. Ohio Jan. 11, 2012) (applying standard
to expert who had previously served as adverse party’s general counsel); Grioli,
395 F. Supp. 2d at 12–14 (applying standard to plaintiffs’ expert in products-liability
lawsuit who had previously re presented adverse party in defending products-liability
lawsuits). In choosing to apply the federal standard to an attorney-expert, the district court
in Grioli relied on the same reas oning originated by the Paul court when it first adopted
the standard for a non-attorney expert. 395 F. Supp. 2d at 13 (reasoning that the
expert-disqualification standard should differ from the attorney-client conflict standard).

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As a matter of first impression, we s ee the developing and well-reasoned federal
standard as the proper standard to apply to expert-disqualification motions in Minnesota’s
state district courts. The sta ndard is now widely accepted in federal courts and also
recognized in a number of state courts. More importantly, the fede ral standard fairly
balances the policies for and against expert disqualification. The primary policies favoring
disqualification are to protect a party’s confidential information from being disclosed and
to preserve the fairness and integrity of the judicial proceedings. See Paul, 123 F.R.D. at
277–78. These interests are paramount regardless of whether or not the proffered expert is
an attorney who previously represented the opposing party. And they are even more
significant when the expert is an attorney testifying against his former client in light of the
value of attorney-client confidentiality and its aim to prevent an a ttorney from disclosing
confidential information learned during prior representation. The federal standard does not
require a showing that the attorney-expert intends to actually use confidential information
gained during prior representation; rather, it ensures that an attorney-expert is disqualified
if there is even a risk that the attorney will rely on that confidentia l information. As one
federal court applying the standard insightf ully remarked, “the human brain does not
compartmentalize information” in a way that parses out previously obtained confidential
information from information ob tained in present litigation. Pellerin v. Honeywell Int’l
Inc., No. 11cv1278, 2012 WL 112539, at *3 (S.D. Cal. Jan. 12, 2012). The mere risk that
an attorney might disclose confidential information te nds to undermine both the
attorney-client relationship a nd the integrity of the advers arial process. The federal
expert-disqualification standard serves to prevent this type of risk.

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We clarify that, on the other side of th e balance, the federal standard does not
preclude an attorney from ever serving as an expert witness adverse to a former client.
Allianz acknowledges this limitation and advo cates for a rule that the subject of the
attorney-expert’s testimony must be “related ” to the confidential information that he
received during the prior representation. Early cases applying the federal standard did not
incorporate this caveat into the language of the standard because they involved a
non-attorney expert switching sides in the same litigation. See, e.g., Cordy, 156 F.R.D. at
576–78, 582–83 (disqualifying expert who cons ulted with one party during pretrial stage
of litigation and was later retained by opposing party to te stify at trial); Wang Labs. ,
762 F. Supp. at 1247, 1250 (same).
A review of cases applying the federal standard in the attorney-expert context
reveals that courts will disqualify an atto rney-expert when the co nfidential information
disclosed during the prior representation dealt with a subject matter that is at least directly
related to the subject matter of the expert’s proposed testimony. In Grioli, for example, the
district court disqualified the plaintiffs’ expe rt in a products-liab ility action because he
previously represented the de fendant company in products- liability actions involving the
same types of products, defects, and injuries caused. 395 F. Supp. 2d at 14–15. The district
court in Ross similarly determined that the attorney-expert should be disqualified because
his prior work as the adverse party’s genera l counsel involved oversight of litigation that
“relate[d] directly” to the present litigation—na mely, the types of injuries that claimants
allegedly incurred due to the company’s neg ligence. 2012 WL 20905 11, at *2. And in
Domercant, the district court reached the same conclusion when the plaintiffs’

14
attorney-expert, during his prior representati on of the defendant insurance company, had
regularly reviewed “time-limited demands” a nd advised the company on how to respond
to those demands. 2013 WL 11904719, at *3. Because the expert intended to testify about
the company’s handling of those demands, the di strict court disqualified him on the basis
that the proposed expert testimony “stem[med] from and relate[d] directly” to the prior
confidential relationship. Id. For these reasons we are satisfi ed that the proper inquiry is
whether the confidential information disclo sed to the attorney-e xpert during the prior
representation involves the same subject matter or directly relates to the subject matter of
the attorney-expert’s proposed testimony in the present litigation.
We choose the federal standard on its own merits, but we also see weaknesses in the
attorney-conduct standard that the respondents urge us to follow. For starters, the standard
does not seem to boast wide support. The resp ondents cite only one case that has applied
the attorney-condu ct standard to an expert -disqualification motion. See Commonwealth
Ins. Co. v. Stone Container Corp. , No. 99 C 8471, 2002 WL 3 85559, at *3–4 (N.D. Ill.
Mar. 12, 2002) (declining to disqualify an attorney-expert because the party seeking
disqualification did not show that the atto rney had used or revealed confidential
information in violation of attorney-conduct rule 1. 9(c)). More difficult for the
respondents’ position, their attorney-c onduct standard would apply only to
attorney-experts—a clear disadvantage when a rule of general application exists to cover
any challenge regardless of the expert’s profession. Experts come from myriad professions,
and each already has (or can develop) its ow n set of ethical rule s governing client
relationships. If we follow th e attorney-conduct standard pr oposed by the respondents,

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the district court would ha ve to determine a different disqualification rule on a
case-by-case and profession-by-profession basi s, identifying the ethical rules that
govern the expert’s professi on and then developing and ap plying an industry-specific
standard of disqualification. The approach would burden the district court with conducting
satellite-litigation proceedings that would necessarily lead to different results depending
on the expert’s profession and that profession’s rules. We do not believe that the standard
for expert disqualification should vary based on the nature of an expert’s profession, and
we are not aware of any court that has take n that approach. We are further persuaded by
the interest in holding expert witnesses to a uniform standard of disqualification, an interest
fulfilled by applying the federal standard.
We are not persuaded otherwise by the re spondents’ contention that it would be
inappropriate to apply the federal standard to attorney-experts given that the standard
arose from courts attempting to address conflicts of interest for non-attorney experts who
were not governed by attorney rules of prof essional conduct. It is true that early
expert-disqualification cases developed by referring to attorney professional-conduct rules
as applied to non-attorney experts. See Marvin Lumber, 113 F.R.D. at 591 (applying the
same rule for expert disqualification as attorney disqualification). And when applying the
federal standard, courts have sometimes emphasized the differences between attorneys and
experts. See, e.g. , Great Lakes , 734 F. Supp. at 338 (“Expe rts perform very different
functions in litigation than do attorneys. Experts are not ad vocates in the litigation sense
but sources of information and opinions.”). The reason for emphasizing these differences
and adopting a separate standard for expert s was because an expert switching sides in

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litigation need not be held to the same sta ndard as an attorney who switches sides in
litigation. But here the attorney not only switched sides in litigation but also switched roles
by serving as an expert. In this situation, the ordinary differences between an attorney and
an expert are of less significance, and we believe the district court should hold an
attorney-expert to the same standard as an expert in any other field.
The respondents also argue that following the federal standard would lead to the
“absurd result that would allow an attorney to act as opposi ng counsel against a former
client, but not as a testifying expert.” We do not see how this is the case. An attorney may
not represent a person in “the same or a substantially relate d matter” adverse to a former
client, absent the former clie nt’s informed consent. Minn. R. Prof. Conduct 1.9(a). The
federal standard precludes an attorney from serving as an expert witness adverse to a former
client when the client disclosed to the attorney confidential information that is the same as
or directly related to the subject of the pr oposed testimony in the present case. Although
we need not delineate the extent to which rule 1.9(a) and the federal standard overlap, it
seems clear that, if an attorn ey received confiden tial information directly related to the
subject matter of the present litigation, he would be barred from serving both as an adverse
expert and as an adverse attorney.
The respondents maintain th at we need not apply a se parate standard to govern
attorneys’ roles as expert witnesses because attorneys’ duties to former clients are already
governed by the Minnesota Rules of Profe ssional Conduct. Our holding today does not
supplant the professional-conduct rules or di minish attorneys’ duties to follow them. Our
holding recognizes that the prof essional-conduct rules are not the exclusive standards

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governing attorneys’ conduct. The rules of professional conduct themselves recognize that
they “presuppose a larger legal context shaping the lawyer’s role,” including “substantive
and procedural law in general.” Minn. R. Prof. Conduct preamble. When an attorney serves
the role of expert, he is governed not only by the rules of professional conduct but also by
the same standard for expert disqualification that applies to all other experts.
For all of these reasons, we choose the federal expert-disqualification standard. We
hold that the district court should disqualif y an expert witness—in cluding an attorney—
seeking to offer testimony against a party with whom the expert had a prior relationship if
(1) it is objectively reasonable for the adverse party to believe that it had a confidential
relationship with the expert, and (2) the advers e party disclosed to the expert confidential
information regarding the same subject matter or directly related to the subject matter about
which the expert proposes to testify in the presen t litigation. In determining whether
disqualification is warranted, a district cour t may also weigh the relevant policy interests
in the case, such as the potential prejudice to the parties.
Having determined the standa rd governing expert disqualif ication in this case, we
believe the district court is in the best pos ition to apply the standard to resolve Allianz’s
motion. We therefore remand the case to the district court to evaluate the evidence in light
of the standard.
D E C I S I O N
Because we hold that the federal standa rd is the proper standard governing a
disqualification motion for an attorney-expert witness, we reverse the district court’s order

18
denying Allianz’s disqualification motion, and we remand for the district court to apply the
standard we have adopted.
Reversed and remanded.