Expert witness vs confidentiality
Discussion
I was contacted a couple of weeks ago by an ex colleague who is involved in a litigation case. He did not have the (technical) knowledge that was needed, but thought that I did and wanted to know if he could pass my details onto the lawyers. I agreed he could.
The lawyers wrote to me on Friday, and are calling me later today. I know that company A has a patent dispute with company B (and I know who the companies are) - and, from the conversation I had with my ex colleague I know roughly the kind of technical information they need - and can probably help. I can think of one specific example of this at my previous company (C) - whether that's good news to company A or company B I have no idea.
The problem is - if I was to inform the lawyers of this specific example, I feel I would be breaking confidentiality of the company I worked for.
I have never worked for either company A or company B - and no longer work for company C. In fact, company C no longer has offices in the UK as far as I know, although I don't think that makes much difference.
Thoughts? Obviously, they may ask things which don't breach any confidentiality - or maybe I won't have the information they want anyway - but I assume that if I feel the details they want were confidential to the old company, I simply have to say no?
The lawyers wrote to me on Friday, and are calling me later today. I know that company A has a patent dispute with company B (and I know who the companies are) - and, from the conversation I had with my ex colleague I know roughly the kind of technical information they need - and can probably help. I can think of one specific example of this at my previous company (C) - whether that's good news to company A or company B I have no idea.
The problem is - if I was to inform the lawyers of this specific example, I feel I would be breaking confidentiality of the company I worked for.
I have never worked for either company A or company B - and no longer work for company C. In fact, company C no longer has offices in the UK as far as I know, although I don't think that makes much difference.
Thoughts? Obviously, they may ask things which don't breach any confidentiality - or maybe I won't have the information they want anyway - but I assume that if I feel the details they want were confidential to the old company, I simply have to say no?
If you never worked for company A or B, and company C - who you did work for - is not involved in the legal action, I'm can't conceive of how you would be breaking any confidentiality clause that you'd never been bound by?
What relevance does company C have to this? Is it just that they are in the same field?
What relevance does company C have to this? Is it just that they are in the same field?
Kind of hard to comment without knowing what field you are in. But using cars (since we are on PH) as an example, say you are a drivetrain expert who used to work for Audi (company C). Then you can tell them all about FWD, AWD, full time/part time/on-demand FWD etc. But you can't tell them anything about the Audi quattro, unless it's already in the public domain.
Probably best to dig out your old contract with company C, and you'll need to think about each question to you carefully before answering.
Probably best to dig out your old contract with company C, and you'll need to think about each question to you carefully before answering.
OK - the car example has made me think of a comparable real world equivalent.
Let's say company A is Ford. Company B is Audi. And Company C is VW. Assume this happened before the VW emissions scandal.
Assume that the expertise that the lawyers want, is knowledge of whether cars are ever sold without complying with emissions regulations.
As an ex VW employee, I can say : Ah yes, in my experience they are - I can give you clear examples of how we fudged the diesel emissions.
But VW probably wouldn't like that.
It's not quite the same - but it's broadly similar.
Let's say company A is Ford. Company B is Audi. And Company C is VW. Assume this happened before the VW emissions scandal.
Assume that the expertise that the lawyers want, is knowledge of whether cars are ever sold without complying with emissions regulations.
As an ex VW employee, I can say : Ah yes, in my experience they are - I can give you clear examples of how we fudged the diesel emissions.
But VW probably wouldn't like that.
It's not quite the same - but it's broadly similar.
Given that vw and audi are the same company that's not the best example, that bit aside the vw scandal is public knowledge so no confidentially issue. If your company was using cheat devices and it wasn't known, it would breach confidentiality to release that information, although in that case as it's illegal activity you might be protected as a whistle-blower.
Perhaps take questions in writing, go away and think about it, discuss with company c legal team if in doubt?
Perhaps take questions in writing, go away and think about it, discuss with company c legal team if in doubt?
davek_964 said:
OK - the car example has made me think of a comparable real world equivalent.
Let's say company A is Ford. Company B is Audi. And Company C is VW. Assume this happened before the VW emissions scandal.
Assume that the expertise that the lawyers want, is knowledge of whether cars are ever sold without complying with emissions regulations.
As an ex VW employee, I can say : Ah yes, in my experience they are - I can give you clear examples of how we fudged the diesel emissions.
But VW probably wouldn't like that.
It's not quite the same - but it's broadly similar.
This would set the alarm bell ringing for me, because the "knowledge" the lawyers are after here is not "technical", it's more to do with Company C's "practice". An expert witness should only be about technical, engineering, scientific knowledge. There shouldn't be anything to do with a particular company's past conduct. I'd stay well clear.Let's say company A is Ford. Company B is Audi. And Company C is VW. Assume this happened before the VW emissions scandal.
Assume that the expertise that the lawyers want, is knowledge of whether cars are ever sold without complying with emissions regulations.
As an ex VW employee, I can say : Ah yes, in my experience they are - I can give you clear examples of how we fudged the diesel emissions.
But VW probably wouldn't like that.
It's not quite the same - but it's broadly similar.
Taozzz said:
This would set the alarm bell ringing for me, because the "knowledge" the lawyers are after here is not "technical", it's more to do with Company C's "practice". An expert witness should only be about technical, engineering, scientific knowledge. There shouldn't be anything to do with a particular company's past conduct. I'd stay well clear.
Thanks.Assuming they do want to know what I think they want to know - then it's not quite the same (company C wasn't doing anything shady in the way VW did, but were following customer instructions under certain specifc circumstances.
But I think you have clarified the point for me. If they want technical knowledge, they can have it. If they want any info that was specific to what we did or how we did it in company C, they can't.
To be clear - are companies C and B linked in any way beyond the field they are in (as said above Audi and VW are the same company, wasn't sure if you intended that in your example) ?
I guess it would come down to how much of this technical knowledge is privileged information. As said before if you're talking in general terms about processes or technologies then that ought to be fine, but if you give out technical info about a product, service or practice that is confidential that would obviously be a problem.
I guess it would come down to how much of this technical knowledge is privileged information. As said before if you're talking in general terms about processes or technologies then that ought to be fine, but if you give out technical info about a product, service or practice that is confidential that would obviously be a problem.
Given it's a patent dispute your knowledge will be possibly be used to determine what was known or understood in the particular field at the date of filing the patent application, which could have been many years ago. I think upon explaining to the lawyers that the technical knowledge that you have may be proprietary to an previous employer they should be able to advise you to the extent that you are useful to them.
alfie2244 said:
IANAL but what do you say if the Court asks you a question you don't want to answer?
AIUI as an "expert" you have a duty to assist the Court find the truth and as such should be independent and not there to help either side as such?
Think it's different in patent court; it's civil and each party will have their own experts to attest to their respective takes on mattersAIUI as an "expert" you have a duty to assist the Court find the truth and as such should be independent and not there to help either side as such?
JuniorD said:
alfie2244 said:
IANAL but what do you say if the Court asks you a question you don't want to answer?
AIUI as an "expert" you have a duty to assist the Court find the truth and as such should be independent and not there to help either side as such?
Think it's different in patent court; it's civil and each party will have their own experts to attest to their respective takes on mattersAIUI as an "expert" you have a duty to assist the Court find the truth and as such should be independent and not there to help either side as such?
If it's a company specific process or 'trade secret' then you shouldn't say anything.
If it's a general question about a process, product or service that is done everywhere then you should be fine.
I would be happy to advise using my expertise and technical knowledge but I would not talk about what I do/did at Company C and if they do or do not do something similar.
If it's a general question about a process, product or service that is done everywhere then you should be fine.
I would be happy to advise using my expertise and technical knowledge but I would not talk about what I do/did at Company C and if they do or do not do something similar.
Well, it wasn't too bad. They did ask about one thing that I said I wasn't willing to discuss but in general, what they wanted to know was nothing that would breach any kind of confidentiality.
It was essentially : Our interpretation of something is <this> and the other company's interpretation of the same thing is <this>.
Unfortunately, my answer was : the other company are right.
Don't think I'll be called as an expert witness, unless company B get my number!
It was essentially : Our interpretation of something is <this> and the other company's interpretation of the same thing is <this>.
Unfortunately, my answer was : the other company are right.
Don't think I'll be called as an expert witness, unless company B get my number!
davek_964 said:
Well, it wasn't too bad. They did ask about one thing that I said I wasn't willing to discuss but in general, what they wanted to know was nothing that would breach any kind of confidentiality.
It was essentially : Our interpretation of something is <this> and the other company's interpretation of the same thing is <this>.
Unfortunately, my answer was : the other company are right.
Don't think I'll be called as an expert witness, unless company B get my number!
Your role as an Expert is not to defend your client, it is to present your opinion to the court - your responsibility is to the court. I have acted as an Expert many times where I'm of the view that my client was wrong. The legal team need to know this as it enables them to mitigate costs - no point going to court if they're going to lose. It's why in many cases you'll initially be asked to provide an initial report to the legal team.It was essentially : Our interpretation of something is <this> and the other company's interpretation of the same thing is <this>.
Unfortunately, my answer was : the other company are right.
Don't think I'll be called as an expert witness, unless company B get my number!
ThorB said:
davek_964 said:
Well, it wasn't too bad. They did ask about one thing that I said I wasn't willing to discuss but in general, what they wanted to know was nothing that would breach any kind of confidentiality.
It was essentially : Our interpretation of something is <this> and the other company's interpretation of the same thing is <this>.
Unfortunately, my answer was : the other company are right.
Don't think I'll be called as an expert witness, unless company B get my number!
Your role as an Expert is not to defend your client, it is to present your opinion to the court - your responsibility is to the court. I have acted as an Expert many times where I'm of the view that my client was wrong. The legal team need to know this as it enables them to mitigate costs - no point going to court if they're going to lose. It's why in many cases you'll initially be asked to provide an initial report to the legal team.It was essentially : Our interpretation of something is <this> and the other company's interpretation of the same thing is <this>.
Unfortunately, my answer was : the other company are right.
Don't think I'll be called as an expert witness, unless company B get my number!
He told me never to get involved…
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