Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
Issue Date: 15 August 2003
CASE NO: 2003-SOX-15
In the Matter of:
DAVID WELCH,
Complainant,
v.
CARDINAL BANKSHARES CORP.,
Respondent.
ORDER DENYING MOTION IN LIMINE,
COMPELLING DISCOVERY, AND DENYING MOTION
FOR EXPEDITED RESPONSE
On June 16, 2003, Cardinal Bankshares Corporation ("Respondent") filed an "Objection to Qualifications of Expert" which I construe as a motion in limine seeking the exclusion of testimony by an expert witness identified by David Welch ("Complainant") pursuant to my prehearing order. Complainant filed a response thereto on June 9, 2003. For the reasons stated below, Respondent's motion is denied.
On July 24, 2003, Complainant filed a Motion for In Camera Inspection requesting that I review unredacted copies of certain documents which, prior to their production to Complainant, had been partially redacted by Respondent based upon a claim of attorney-client privilege. Respondent filed its opposition to the motion on July 30, 2003, and I thereafter granted Complainant's motion in an order dated August 1, 2003. On August 7, 2003, Respondent submitted for my in camera inspection the documents in question. I have now reviewed those documents and, for the reasons stated below, grant Complainant's request to compel disclosure of the redacted information.
On August 12, 2003, Respondent filed a Motion for Expedited Response asking that Complainant be required to respond on or before August 18, 2003 to certain discovery requests it served on Complainant August 12, 2003. Complainant responded to the motion the same day it was filed. For the reasons stated below, the motion is denied.
A. Respondent's Motion In Limine.
On May 29, 2003, pursuant to my prehearing order, Complainant designated Timothy P. Chinaris as an expert witness in this case. Complainant also provided Respondent with a copy of the witness's curriculum vitae that same date. On June 16, 2003, Respondent filed a pleading styled "Objection to Qualifications of Expert"
[Page 2]
(hereinafter "Mot. In Limine") in which it stated:
Respondent objects to the qualifications of this proposed expert on the grounds that his field of expertise is the law. Having an expert opinion on a legal issue within the province of the court to decide is an improper encroachment on the prerogative of the court.
Mot. In Limine at 1-2. An attachment to the motion reflects that: this witness is presently an Assistant Professor of Law and Law Library Director at the Appalachian School of Law in Grundy, Virginia; he has taught various legal ethics and professional responsibility courses; and he previously served as, inter alia, Ethics Director for the State of Florida Bar.
On June 9, 2003, Complainant filed an opposition to Respondent's motion. The opposition states, inter alia, that Professor Chinaris's testimony is relevant and admissible to the issues presented in this case including Respondent's assertion that allowing Complainant to have his personal attorney with him during meetings of Respondent's Audit Committee would have abrogated the attorney-client privilege enjoyed by Respondent and its attorneys.
As noted above, the sole basis for Respondent's motion to exclude Prof. Chinaris's testimony is that such testimony amounts to "an expert opinion on a legal issue" which I must decide in this case. However, Respondent has misconstrued the substance of Prof. Chinaris's opinion.
1 I note that neither the affidavit submitted to me by Complainant's counsel on June 17, 2003 as part of his prehearing submission, nor the affidavit submitted recently as Complainant's "Non-Stipulated Exhibits" (Comp. Exh. 29), contain a paragraph "18."
2 Complainant asserts that "[t]he proffered expert testimony will address the legitimacy of Cardinal's ‘attorney/client privilege defense' which arose when [Complainant] requested he be accompanied by his attorney when he met with Cardinal's Audit Committee in September 2002." Claimant's Response to Respondent's Objection to Qualifications of Expert at 2.