In Hayward Prop., LLC v. Commonwealth Land Title Ins. Co., No: 17-cv-06177 SBA, 2021 WL 4923379 (N.D. Cal. August 31, 2021), the District Court for the Northern District of California applied the same test in a bad faith case that is applied in many other United States District Courts when confronted with a motion to disqualify an expert witness:
Generally, “disqualification of an expert is warranted based on a prior relationship with an adversary if (1) the adversary had a confidential relationship with the expert and (2) the adversary disclosed confidential information to the expert that is relevant to the current litigation.” Id. 1092-93 (citing Wang Labs, Inc. v. Toshiba Corp., 762 F. Supp. 1246, 1248 (E.D. Va. 1991)). If only one of those two factors is present, disqualification likely is inappropriate.
Hayward Properties, 2021 WL 4923379, at *2. The same expert witness was retained in what might be called an underlying action to testify on different issues, the expert testified by declaration:
It did not concern “any issues relating to title insurance, coverage, duties to defend, breach of contract, bad faith, or ‘Brandt’ fees,” i.e., the matters at issue in this action.
Hayward Properties, 2021 WL 4923379, at *2.
In part here pertinent, the Court found that "the two actions do not involve the same defendant, the same causes of action, or the same underlying legal issues." Hayward Properties, 2021 WL 4923379, at *4.
The motion to disqualify this expert in the bad faith case was denied under the universal standard for expert witness disqualification applied to the facts in the record here.
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