1. Mandamus. A court issues a writ of mandamus only when (1) the relator has a clear right to the relief sought, (2) a corresponding clear duty exists for the respondent to perform the act, and (3) no other plain and adequate remedy is available in the ordinary course of law.
2. Mandamus: Proof. In a mandamus action, the party seeking mandamus has the burden of proof and must show clearly and conclusively that such party is entitled to the particular thing the relator asks and that the respondent is legally obligated to act.
3. Verdicts: Evidence: Appeal and Error. Recommended factual findings of a special master have the effect of a special verdict, and the report upon questions of fact, like the verdict of a jury, will not be set aside unless clearly against the weight of the evidence.
4. Mandamus: Words and Phrases. A writ of mandamus is issued to compel the performance of a purely ministerial act or duty, imposed by law upon an inferior tribunal, corporation, board, or person.
5. __: __. Mandamus is a law action and is an extraordinary remedy, not a writ of right.
[286 Neb. 307]
6. Attorneys at Law: Expert Witnesses. The central concern in cases in which counsel has retained a side-switching expert is whether counsel has unfairly obtained confidential information about the opposing party.
Original action. Writ of mandamus denied.
George E. Clough, of Clough Law Office, and Paul H. Schwartz, of Shoemaker, Ghiselli & Schwartz, L.L.C., for relators.
Jay C. Elliott, of Elliott Law Office, P.C., L.L.O., Kirk T. May and Jeremy M. Suhr, of Rouse, Hendricks, German & May, P.C., and William G. Dittrick and Kenneth W. Hartman, of Baird Holm, L.L.P, for intervenor Lansing Trade Group, LLC.
No appearance for respondent.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, and Cassel, JJ.
I. NATURE OF CASE
This action presents the question whether a law firm should be disqualified for retaining an expert who, prior to being retained, consulted with opposing counsel on the same matter. Lansing Trade Group, LLC, and Lansing Ethanol Services, LLC (collectively Lansing), commenced an action against Mid America Agri Products/Horizon, LLC, and other defendants (collectively Horizon) over certain "forward corn contracts." Counsel for Horizon attempted to retain a grain industry expert and conveyed confidential information to him. Lansing's counsel later retained the same expert. The district court for Lincoln County, Nebraska, the respondent in this proceeding, sustained Horizon's motion to disqualify the expert from testifying but overruled Horizon's subsequent motion to disqualify Lansing's counsel. Horizon filed this original action seeking a writ of mandamus requiring the district court to disqualify Lansing's counsel. For the following reasons, we deny the writ. [286 Neb. 307]
II. SCOPE OF REVIEW
A court issues a writ of mandamus only when (1) the relator has a clear right to the relief sought, (2) a corresponding clear duty exists for the respondent to perform the act, and (3) no other plain and adequate remedy is available in the ordinary course of law. Schropp Indus, v. Washington Cty. Atty.'s Ofc, 281 Neb. 152, 794 N.W.2d 685 (2011). The party seeking mandamus has the burden of proof and must show clearly and conclusively that such party is entitled to the particular thing the relator asks and that the respondent is legally obligated to act. Id.
Recommended factual findings of a special master have the effect of a special verdict, and the report upon questions of fact, like the verdict of a jury, will not be set aside unless clearly against the weight of the evidence. See Larkin v. Ethicon, Inc., 251 Neb. 169, 556 N.W.2d 44 (1996).
1. COMMUNICATIONS WITH HORIZON'S COUNSEL
Lansing brought an action against Horizon in 2009 relating to "forward corn contracts." Lansing is the plaintiff in the underlying action and the intervenor in the present action. Horizon is the defendant in the underlying action and the relator in the present action. In November 2010, James Nesland, a lead defense attorney for Horizon, contacted Howard J. O'Neil as a possible expert witness for Horizon. They discussed the National Grain and Feed Association (NGFA) Grain Trade Rules.
According to Nesland, O'Neil said he could serve as a defense expert despite being well acquainted with Lansing. Nesland claimed that because of O'Neil's experience as an expert and willingness to assist the defense, Nesland "reasonably believed that [their] communications were in confidence." Once O' Neil agreed to be a defense expert, Nesland shared his thoughts, opinions, impressions, and ideas concerning the testimony he believed important regarding the NGFA. He specifically discussed his views about the case. [286 Neb. 308]
O'Neil claims he did not recall Nesland's providing him with proprietary information. Nesland received an e-mail from O'Neil dated January 6, 2011, stating that O'Neil did not have time to work on the case. O' Neil recommended another expert, whom he copied on the e-mail, but he had "'not shared any of your [proprietary] information with him.'" Nesland and O'Neil corresponded about another expert Horizon might retain.
After February 2011, Robert Christie, Nesland's cocounsel, undertook primary responsibility for developing Horizon's experts. About 2 months later, Christie contacted O'Neil, and at that time, O' Neil was available to discuss the case on a confidential basis.
During their conversation on May 4, 2011, O'Neil informed Christie that he was not comfortable testifying because of his long-term relationship with a company named "The Andersons, " a part owner of Lansing. Christie said that O' Neil had no objection to confidentially acting as a nontestifying consultant and opining on NGFA rules and related issues. Based on assurances from O'Neil that their communications were confidential, Christie discussed confidential information, including his opinion on the issues where O'Neil's expertise was relevant.
O' Neil described the conversation as an "exchange of pleasantries" and a general discussion of NGFA rules. O'Neil said he told Christie he could not consult for him against Lansing. Christie then asked whether O'Neil would be willing to discuss NGFA rules generally, which he agreed to do. O'Neil said he did not remember discussing a company named "The Andersons" and did not believe Christie shared confidential information and did not consider anything in their conversation confidential. O'Neil said Christie told him that Lansing's position was incorrect and that Lansing had not lived up to its contracts. O'Neil understood this to mean Horizon was adverse to Lansing. He did not recall that anyone from Horizon gave him any other impressions or strategies regarding the case.
Christie said that a few days later, he and O' Neil exchanged views and opinions. Christie remembered confirming O'Neil's [286 Neb. 309] agreement to keep information confidential. Following this second conversation, Christie received a $225 invoice from O'Neil for the May 4, 2011, call. The firm paid the invoice. This was the only invoice ...