concurring in result.
I agree that the seope of the Michigan litigation was more broad than the issue determined in Benton County. For this reason I agree that collateral estoppel does not preclude litigation of the issue here involved. However, I disagree that the use of collateral estoppel can be categorized as offensive collateral estoppel here. Hayworth is attempting to use the Michigan judgment as a shield not as a sword. She is not attempting to say that an affirmative fact has been established in the Michigan litigation which binds Frue-hauf in Fruehauf's posture as a defendant in this case. Rather, Hayworth is claiming that Fruehauf is the initiator- moving party here because Fruehauf filed the motion to preclude Hayworth from using the witness. Under such situation, Fruchauf had the burden of carrying the affirmative of the issue and was, in the words of Tofany v. NBS Imaging Systems, Inc. (1992) 3d Dist.Ind.App., 597 N.E.2d 23, 27 "a plaintiff (or a party similarly situated) ...". Hayworth, then, is using the Michigan judgment as a shield claiming that Frushauf is estopped from successfully asserting that Hayworth should not be permitted to use the witness. Hayworth seeks to utilize the doctrine of collateral estoppel in a defensive rather than an offensive posture.
In any event, however, I agree that issue preclusion does not apply here because the issues are not the same, nor is the one subsumed in the other.
With regard to the focal issue, the trial court order appealed from reads in pertinent part as follows:
"... Hagelthorn ... is RESTRAINED, ENJOINED, AND PROHIBITED from testifying in this action, either upon deposition or at trial and from consulting or discussing with or disclosing to any party in this action, directly or indirectly, Frue-hauf Corporation's trade secrets, confidential information, or matters of Attorney-client privilege or work product." Record at 462.
At first blush, it would appear that the order sweeps more broadly than necessary to safeguard Fruchauf from the divulging of privileged or otherwise protected matters. The order absolutely prohibits Hagelthorn from testifying either by way of deposition 6 or in open court upon any subject or with respect to any matters within his personal knowledge. To be sure, to the extent that Hagelthorn's deposition or testimony at trial might compromise trade secrets, or violate the attorney-client privilege, that testimony might be successfully challenged. However, it may be questioned whether Hayworth should have been precluded from discovering other matters within the knowledge or expertise of Hagelthorn which would not fall within the protected categories. In this regard, it could be argued that Hagelthorn might well be qualified to testify with reference to various areas of his expertise as to general principles of product liability law. - Hagel-thorn left Fruehauf's employ in 1982, more than six years before the incident in issue. In addition, his expertise was not drawn solely from his Fruehauf employment. He was a member of various professional associ*607ations from which he undoubtedly gained independent knowledge. Furthermore, he had operated a trailer engineering consulting service for over ten years prior to this law suit. - In this light, it would seem that Hagel-thorn's testimony was entitled to be proffered, subject to appropriate objection if it threatened to stray into forbidden areas.
On the other hand, it is quite possible to give emphasis to the obvious practical difficulty in separating Hagelthorn's knowledge and expertise as gained independently from such knowledge and expertise as gained from Fruchaut's trade secrets or from Fruchauf attorney-client communications. - In this light, therefore, it was not unreasonable for the trial court to opt for the more protective ruling and to exclude all testimony by Hagel-thorn. In instances such as this case, it is not likely that the plaintiff would be unable to find other competent expert witnesses to cover the desired subject matter.
Subject to the caveats expressed herein, I concur.
. Not all depositions are intended to be used as trial testimony. Discovery depositions are very much a recognized and encouraged part of our pre-trial procedure. Ind.Rules of Trial Procedure, Rule 26. Of course part (C)(7) of the Rule carries protections against disclosure of the type information which Fruchauf here wished to guard. Be that as it may, it would seem that a discovery deposition might appropriately cover unprotected and unprivileged matter.