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Practice Pointers for Working with Expert Witnesses in Bankruptcy Court

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Practice Pointers for Working with Expert Witnesses in Bankruptcy Court A NEW YORK LAW JOURNAL SPECIAL SECTION WWW. NYLJ.COM Litigation MONDAY, APRIL 16, 2012 Practice Pointers for Working With Expert Witnesses in Bankruptcy Court held to resolve several issues, including the debt- BY CHRISTOPHER R. HARRIS ors’ total enterprise value. Confirmation of the plan AND H. GREGORY BAKER was opposed by the Official Committee of Equity Security Holders, primarily on the grounds that the ITIGATORS are called upon to participate plan undervalued the debtors, and that a global in bankruptcy proceedings in a variety of settlement—upon which the plan was based— L ways, including frequently to prepare for did likewise. Id. at 567. The determination of the and conduct hearings. As in any court, such hear- debtors’ total enterprise value came down to a ings provide parties the opportunity to introduce battle of the experts between the debtors’ witness evidence, including expert testimony, to enable and the equity holders, both of whom employed the court to resolve issues of fact. standard valuation methodologies (discounted While similar in many respects to any other cash flow, comparable companies, and precedent litigation, there are some important nuances of comparable transactions). Following a detailed bankruptcy court practice to be mindful of, espe- review of the experts’ opinions, the bankruptcy cially when working with expert witnesses. A few court confirmed the plan, finding that it did not factors that may distinguish bankruptcy court violate 11 U.S.C. §1129(b)’s “fair and equitable” litigation are: requirement because the debtors’ total enterprise • the lack of juries—bankruptcy judges are the value did not exceed the total enterprise value sole fact finder, and tend to possess a great deal of underlying the proposed settlement. Id. at 579. BIGSTOCK experience and sophistication, particularly regard- Feasibility. Expert witnesses are also com- ing complex commercial and financial matters; This article provides some examples of how monly called to opine on the feasibility of • the speed of bankruptcy proceedings relative expert witnesses are used in bankruptcy court, proposed reorganizations in Chapter 11 bank- to disputes in many other courts; and and an overview of some issues that practitioners ruptcies. Chapter 11 sets forth a list of require- • the fact that the customary federal privilege should be mindful of when working with experts ments that must be met before a plan will be protections afforded to expert witness commu- in bankruptcy court. approved, including the so-called “feasibility” nications and work product may not always be Experts in Bankruptcy Litigation requirement, which requires that: “Confirma- available in bankruptcy court. tion of the plan is not likely to be followed by Experts are called upon to offer opinions in the liquidation, or the need for further financial myriad circumstances in bankruptcy court. Some reorganization, of the debtor or any successor common examples are: to the debtor under the plan, unless such liq- Valuation. Expert witnesses are frequently uidation or reorganization is proposed in the CHRISTOPHER R. HARRIS is a partner at Latham & Wat- called upon to provide their opinion as to the plan.” 11 U.S.C. §1129(a)(11). The feasibility of kins in New York, where he is a member of the litigation value of property at issue in the bankruptcy. For the plan of reorganization was one of several department and the restructuring, insolvency and work- outs practice group. H. GREGORY BAKER is a litigation example, in In re Chemtura, 439 B.R. 561 (Bankr. issues that was the subject of a hearing on the associate at the firm. S.D.N.Y. 2010), a plan confirmation hearing was plan of reorganization in In re 20 Bayard Views, MONDAY, APRIL 16, 2012 445 B.R. 83 (Bankr. E.D.N.Y. 2011). There, the Under Rule 702, the trial court judge serves the same—that is, the judge—the need to make debtor—a developer of a residential condomin- as “gatekeeper,” and excludes expert witnesses [gatekeeping] decisions prior to hearing the ium in Williamsburg, Brooklyn—offered a plan who are deemed not qualified, reliable, or able testimony is lessened”). Given the conflicting of reorganization that was objected to by the to provide relevant testimony. Daubert v. Merrell views among courts as to when the Rule 702 debtor’s largest secured creditor. At the hearing Dow Pharmaceuticals, 509 U.S. 579, 589 (1993). analysis will be applied, practitioners should on the plan, the bankruptcy court heard expert The gatekeeper’s duty, in essence, is to ensure review the practices of the bankruptcy court testimony by witnesses from both parties on that the fact finder is not tainted by evidence that in which they are appearing to determine feasibility, ultimately finding that the plan was does not meet “the same level of intellectual rigor whether the court will exercise its gatekeep- feasible. Id. at 103. that characterizes the practice of an expert in the ing duties before or after an expert witness Solvency/Fraudulent Transfers. Expert wit- relevant field.”Kumho Tire v. Carmicheal, 526 U.S. has testified. nesses can also be useful to help sort through sol- 137, 152 (1999). Privilege Concerns vency in the context of fraudulent transfer claims, Because the judge rather than a jury serves which can be one of the most contentious issues as fact finder in bankruptcy court, however, the Bankruptcy court practitioners working with in bankruptcy court. As one example, in In re Fidel- rationale for a bankruptcy judge to exercise expert witnesses should also be aware that the ity Bond and Mortgage, 340 B.R. 266 (Bankr. E.D. his or her gatekeeper duties before testimony generally-applicable federal rules of privilege apply Pa. 2006), the bankruptcy court heard competing occurs may be less compelling. While some in some, but not all, contexts. Under Rules 26(b) opinions from expert witnesses on the debtor’s bankruptcy courts have consistently applied (4)(B) and 26(b)(4)(C) of the Federal Rules of Civil solvency at the time that certain transfers were the Rule 702 analysis before permitting experts Procedure, drafts of expert reports, and commu- made, ultimately concluding that the debtor was nications between counsel and experts, are not solvent. Id. at 290. discoverable. Rule 26, however, only applies to Some other common examples include pro- adversary proceedings, not contested matters.1 viding testimony concerning the level of com- Chapter 11 sets forth a list of F.R.B.P. 7026. pensation of employees, e.g., In re Main, No. requirements that must be met So what happens in contested matters? Rule 00-cv-35, 2000 WL 1796417, at *6 (E.D. Pa. Nov. before a plan will be approved, 9014 of the Federal Bankruptcy Rules specifically 28, 2000) (noting that during inquiry into the including the so-called precludes application of Rule 26(a)(2) of the Fed- reasonableness of compensation, bankruptcy eral Rules of Civil Procedure, which requires dis- court relied in part on testimony of expert wit- “feasibility” requirement. Expert closure of expert reports, to contested matters, ness), and testimony about industry standards witnesses are commonly called unless the bankruptcy court directs otherwise. In and regulations, e.g., In re American Camshaft to opine on the feasibility of practice, this means that while there may be no Specialties, 444 B.R. 347, 364 (Bankr. E.D. Mich. proposed reorganizations in need to prepare an expert report in a contested 2011) (parties to proceeding used expert wit- mater, if one is in fact prepared and produced, it nesses to render opinions as to whether trans- Chapter 11 bankruptcies. may not receive Rule 26(b)’s protections afforded fers fell within industry standards). These are to drafts and communications with attorneys. One but a few of the many scenarios in which sci- to testify, other bankruptcy courts have permit- solution is to obtain a stipulation from the other entific, technical or specialized knowledge of ted the expert testimony in the first instance, parties or an order from the court explaining what an expert could help a bankruptcy court judge and later addressed whether the testimony privilege protections will apply. understand facts or issues in a given case. satisfied the Rule 702 standard. CompareIn re Expert Witnesses as Advisers Admissibility of Testimony Citadel Broadcasting, Case No. 09-17442 (BRL), 2010 Bankr. LEXIS 1606, at *17 (Bankr. S.D.N.Y. Another privilege concern arises from the Rule 702 of the Federal Rules of Evidence gov- 2010) (bankruptcy court exercised gatekeeping frequent practice of having a debtor’s advisers erns the admissibility of expert witness testimony role and barred testimony of expert witness serve as expert witnesses. Unlike in most litiga- in federal court, including in bankruptcy court, on valuation of radio broadcasting company), tions, in bankruptcy court litigation the subject and provides: and In re Med Diversified, 334 B.R. 89, 92 (Bankr. of testimony usually involves ongoing issues. As A witness who is qualified as an expert by E.D.N.Y. 2005) (exercising “role as the gate- a result, oftentimes a business adviser will be knowledge, skill, experience, training, or edu- keeper,” and determining that proposed wit- in the best position also to serve as an expert. cation may testify in the form of an opinion ness did not satisfy Daubert standard as to A common example of such an arrangement is or otherwise if: direct testimony, but could testify as a rebuttal having investment bankers, consultants, or other (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of witness to plaintiffs’ proposed expert), with financial advisers provide expert testimony about fact to understand the evidence or to deter- Deal v. Hamilton Cty. Bd.
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