DP4

DecisionPoint
http://proethica.org/ontology/cases#DecisionPoint

DP4

Before accepting the adverse product liability engagement, must Engineer A conduct and document a substantive assessment of whether confidential information from the prior ABC Manufacturing patent litigation engagement could be deployed against ABC Manufacturing's interests, and what must she do if such information is potentially implicated?

Engineer A must assess whether the confidential or proprietary information she acquired about ABC Manufacturing's technical processes and litigation strategy during the first patent litigation engagement could be implicated in — or provide an unfair advantage in — the subsequent adverse product liability engagement, and must determine what safeguards, if any, are required before proceeding.

Before accepting Attorney X's retention, systematically identify and document all technical, strategic, and proprietary information acquired during the ABC Manufacturing patent litigation engagement, assess whether any such information is relevant to or could provide an advantage in the product liability matter, and condition acceptance on a determination that no such information is implicated — disclosing the audit process and conclusions to Attorney X as part of the proactive disclosure obligation.

Accept the retention on the basis that the patent litigation and product liability matters are facially unrelated in subject matter, without conducting a formal audit of potentially overlapping confidential information, relying on the general principle that unrelated matters do not trigger the former-client consent prerequisite — accepting the risk that unanticipated informational overlap may later be identified and challenged.

Contact ABC Manufacturing prior to accepting Attorney X's retention, disclose the nature of the proposed adverse engagement, and seek ABC Manufacturing's explicit informed consent — treating the former-client relationship as sufficient to trigger the consent prerequisite regardless of the unrelatedness of the matters, thereby applying a more conservative standard than the NSPE Code strictly requires but eliminating the risk of confidential information challenge.

Engineer A — Forensic Expert Witness