_________________________________________ MOTION IN LIMINE DENIED: January 9, 1998 _________________________________________ GSBCA 13625 MARON CONSTRUCTION CO., INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Charles S. Kirwan of Charles S. Kirwan & Associates, Pawtucket, RI, counsel for Appellant. Kevin S. Anderson, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. DeGRAFF, Board Judge. In May 1993, Maron Construction Co., Inc. (Maron) and the General Services Administration (GSA) entered into a contract that called for Maron to perform construction work at the Pastore Federal Building and Post Office in Providence, Rhode Island. In November 1995, Maron submitted a claim to GSA, asserting that GSA breached the contract and delayed Maronžs completion of its work. In June 1996, GSA denied Maronžs claim. This appeal followed. Pending is GSAžs motion to disqualify one of Maronžs proposed expert witnesses. For the reasons set out below, GSAžs motion is denied. Background Before awarding a contract to Maron, GSA entered into a contract with Mead Consulting, Inc. (Mead). Meadžs contract required it to provide GSA with Construction Quality Management (CQM) services during design and construction of the Pastore project. Mead entered into a subcontract with Sverdrup Associates, Inc. (Sverdrup) to provide various services, including reviewing the construction contractoržs schedule submittals. Because the schedules that Maron submitted were not acceptable to GSA, GSA asked Mead to help Maron develop an acceptable schedule. Mead turned to Sverdrup for assistance and Sverdrup assigned one of its employees, Jay Husband, to assist Maron. Mr. Husband had not previously been involved with the Pastore project. In June 1994, Mr. Husband met with GSA and Mead representatives. GSA presented its view of the scheduling specifications, including logic, manloading, costloading, and contract completion date requirements. Mr. Husband discussed his views of the scheduling specifications. During July 1994, Mr. Husband met with Maron representatives in order to develop a schedule and Maron submitted a schedule that was acceptable to GSA. Mr. Husband had no further involvement with the Pastore project. In March 1997, during the course of this appeal, GSA served Maron with interrogatories and asked Maron to identify the expert witnesses Maron expected to call to testify at a hearing. In response to GSAžs interrogatories, Maron named Anthony Lee and Scott Danzer as its expert witnesses and identified Mr. Danzer as its scheduling expert. On July 9, 1997, Maron deposed GSAžs scheduling expert and he explained the procedures he used in order to reach his conclusions. Early the next week, Maron contacted Mr. Husband and asked him to review GSAžs expertžs report in light of his deposition testimony. Mr. Husband prepared a report, dated July 14, 1997, which finds fault with several of the methods used by GSAžs expert in forming his opinion. Mr. Husbandžs report is based, in part, upon knowledge he gained when he helped Maron develop its July 1994 schedule. Specifically, Mr. Husband knew that Maron prepared schedule submittals before July 1994, and he knew that one of Maronžs schedules contained a completion date five months later than another of Maronžs schedules. Mr. Husband apparently knew something about Maronžs job progress. He also knew the scope of his assignment for working with Maron. On July 16, 1997, Maron sent Mr. Husbandžs report to GSA. On July 17, 1997, GSA objected to Maronžs hiring Mr. Husband and said that it would seek to preclude Maron from using him as an expert witness. GSA says that Mr. Husband worked on one other GSA project and might be called to testify as a fact witness on behalf of GSA in connection with that project. As far as we can tell, Maron has not supplemented its interrogatory responses to identify Mr. Husband as an expert witness in this appeal. No hearing date has been set and so neither party has filed a hearing witness list. Discussion GSA states two grounds for its motion to disqualify Mr. Husband from serving as an expert witness for Maron. First, Maron did not identify Mr. Husband as an expert witness in response to GSAžs interrogatories. Second, GSA says that Mr. Husband has a conflict of interest because he previously worked for GSA on the Pastore project. Failure to identify Mr. Husband GSA argues that Mr. Husband should be disqualified from serving as an expert witness for Maron because GSAžs interrogatories asked Maron to identify the expert witnesses Maron expected to call to testify at a hearing, and Maronžs responses did not name Mr. Husband as one of its witnesses. GSA has not established that Maronžs interrogatory responses are inaccurate or incomplete, because GSA has not shown that Maron intends to call Mr. Husband to testify as an expert witness at a hearing in this appeal. Maron has not listed Mr. Husband on a hearing witness list because no hearing has been scheduled. In response to GSAžs interrogatories, Maron identified Mr. Danzer, not Mr. Husband, as its scheduling expert, so perhaps Maron does not intend to call Mr. Husband to testify. Because Maron has not said that it intends to call Mr. Husband to testify at a hearing in this appeal, there is no basis for us to conclude that Maron failed to respond to GSAžs interrogatories accurately and, thus, no basis for us to disqualify Mr. Husband. Even if Maron were to supplement its interrogatory responses to identify Mr. Husband as an expert witness it intends to call to testify, GSA has not established that we should disqualify Mr. Husband from testifying. GSA says that Mr. Danzer should be capable of providing the scheduling expertise needed by Maron. Perhaps this is true, but this is not a reason for disqualifying Mr. Husband. GSA also says that, because discovery has closed, it would be precluded from obtaining discovery concerning Mr. Husbandžs opinions and it would be žfundamentally unfairž if we were to reopen discovery to permit GSA to conduct such discovery. We do not see what would be unfair about reopening discovery in order to permit GSA to conduct discovery concerning Mr. Husbandžs opinions. No hearing has been scheduled in this appeal and none will be scheduled until the Board issues its decisions on the extensive dispositive motions filed by the parties. The schedule in this appeal can, therefore, easily accommodate discovery into Mr. Husbandžs opinions. If Maron intends to call Mr. Husband to testify as an expert witness, it should immediately supplement its interrogatory responses. If Maron does so, GSA can take whatever time it reasonably needs to conduct discovery into Mr. Husbandžs opinions. Conflict of interest GSA argues that Mr. Husband should be disqualified from serving as an expert witness for Maron because, as an employee of a subcontractor to GSAžs CQM contractor, he helped Maron develop a schedule for the Pastore project. Maron counters that there is no reason to disqualify Mr. Husband because he was not privy to any of GSAžs confidential information. GSA says that it is not required to establish that Mr. Husband gained any of GSAžs confidential information in order to have him disqualified. GSA also says that, during the June 1994 meeting with Mr. Husband, GSAžs employees gave Mr. Husband their views concerning the scheduling specifications, and it is possible that information obtained by Mr. Husband during the meeting could be used to GSAžs disadvantage if Mr. Husband is permitted to testify as an expert witness for Maron. GSA notes that Mr. Husbandžs report is based, in part, upon what he learned when he helped Maron develop its July 1994 schedule. Most courts use a two-part test in order to decide whether to disqualify an expert: First, was it objectively reasonable for the party moving to disqualify the expert to conclude that it had a confidential relationship with the expert? Second, did the moving party disclose any confidential information to the expert? If the party moving for disqualification can establish that the answers to both questions are yes, then the court will either disqualify the expert or take some other appropriate action. If the answer to either question is no, then disqualification is not appropriate. Koch Refining Co. v. Jennifer L. Boudreaux MV, 85 F.3d 1178 (5th Cir. 1996); Cordy v. Sherwin-Williams Co., 156 F.R.D. 575 (D.N.J. 1994); English Feedlot, Inc. v. Norden Laboratories, Inc., 833 F. Supp. 1498 (D. Colo. 1993); Wang Laboratories, Inc. v. Toshiba Corp., 762 F. Supp. 1246 (E.D. Va. 1991); Mayer v. Dell, 139 F.R.D. 1 (D.D.C. 1991). When deciding whether to disqualify experts, the courts look closely at the facts. In answering the first question, courts look at things such as whether the parties had an employment agreement and, if so, whether it incorporated any confidentiality requirements; whether the party moving for disqualification made it clear to the expert that they were entering into a confidential relationship; whether the party moving for disqualification provided the expert with any documents or facts related to the case and, if so, whether the expertžs actions upon receipt of the documents or facts were consistent with a confidential relationship; whether the parties had any kind of continuing or long-standing relationship, especially if that relationship concerned a matter related to the litigation; and whether the expert provided the moving party with an expert opinion. In answering the second question, courts look to see whether the moving party provided the expert with attorney-client privileged material, attorney work product, trade secrets and similar proprietary information, or other information that could not be discovered during litigation. Koch Refining Co. v. Jennifer L. Boudreaux MV, 85 F.3d 1178 (5th Cir. 1996); Cordy v. Sherwin-Williams Co., 156 F.R.D. 575 (D.N.J. 1994); English Feedlot, Inc. v. Norden Laboratories, Inc., 833 F. Supp. 1498 (D. Colo. 1993); Wang Laboratories, Inc. v. Toshiba Corp., 762 F. Supp. 1246 (E.D. Va. 1991); Mayer v. Dell, 139 F.R.D. 1 (D.D.C. 1991). Applying this two-part test in our case, we conclude that GSA has not established that it had an objectively reasonable belief that it was entering into a confidential relationship with Mr. Husband. No one has suggested that GSAžs contract with Mead contained any kind of confidentiality provisions which could have flowed down into Meadžs contract with Sverdrup. There is no evidence that GSA made clear to either Sverdrup or Mr. Husband that they were entering into a confidential relationship. Mr. Husband worked on one other GSA project and he met with GSA one time concerning the Pastore project, so there was no long- standing relationship between Mr. Husband and GSA. Mr. Husband never provided GSA with any expert opinion. Certainly GSA and Mr. Husband had a professional relationship concerning the Pastore building. The issue, however, is whether GSA had an objectively reasonable belief that the relationship was confidential. We find no evidence to support the existence of such a belief. Even if GSA and Mr. Husband had entered into a relationship that GSA reasonably believed was confidential, GSA has not established that it provided any confidential information to Mr. Husband. GSA says that, during its one meeting with Mr. Husband, it presented him with GSAžs view of scheduling specifications, including logic, manloading, costloading, and contract completion date requirements. GSA does not explain how this information is subject to any kind of privilege, is work product, or is otherwise protected from discovery. GSA does not tell us why, in the absence of some national security consideration, an agencyžs view of contract requirements would be considered confidential. Mr. Husbandžs July 14, 1997 report does not establish that GSA provided him with any confidential information that could be used to GSA's disadvantage. The report shows that Mr. Husband knew something about Maronžs job progress and its scheduling submittals, but such information was hardly confidential, considering that the information was also available to Maron. Also, considering that Maron knew what Mr. Husband was doing for GSA, the scope of Mr. Husband's assignment was not confidential. In addition to utilizing the two-part test set out above, some courts also consider the competing policy interests involved in deciding whether to disqualify an expert. On the one hand, courts want to permit parties to hire the experts they desire, to permit experts to pursue their professions, to ensure access to experts with specialized knowledge, and to guard against a party engaging a troublesome expert for the sole purpose of barring another party from using that expert. On the other hand, courts also want to prevent conflicts of interest and to maintain the integrity of the judicial process. Cordy v. Sherwin-Williams Co., 156 F.R.D. 575 (D.N.J. 1994); English Feedlot, Inc. v. Norden Laboratories, Inc., 833 F. Supp. 1498 (D. Colo. 1993). In our case, these policy interests do not compel us to disqualify Mr. Husband. GSA has not established that there is any conflict of interest, or that the integrity of the Boardžs processes would be eroded if Mr. Husband serves as an expert for Maron. Finally, in its motion, GSA relies primarily upon the decisions in Marvin Lumber & Cedar Co. v. Norton Co., 113 F.R.D. 588 (D. Minn. 1986), and LHL Realty Co., GSBCA 10651, 92-3 BCA  25,126, in support of its position. In both Marvin Lumber and LHL Realty, the party moving to disqualify the expert had a long-standing relationship with the expert and had previously disclosed confidential information to the expert. Thus, the facts of those two cases are significantly different from the facts presented here, and the results reached in those cases are consistent with our decision. Decision GSAžs motion in limine to disqualify Maronžs expert is DENIED. ______________________________ MARTHA H. DeGRAFF Board Judge