eDiscovery Daily Blog

• July 18, 2013

A few weeks ago, we covered a case where the plaintiffs’ motion to compel the defendant to meet and confer to establish an agreed protocol for implementing the use of predictive coding software was dismissed (without prejudice) after the defendants stated that they were prepared to meet and confer with the plaintiffs and their non-disqualified ESI consultants regarding the defendants’ predictive coding process.  The sticking point may be the ESI consultant in dispute.

As reported by Victor Li in Law Technology News (Judge Refuses to Disqualify EDD Vendor for Playing Both Sides), the defendant in Gordon v. Kaleida Health is taking its fight to the U.S. District Court to have eDiscovery vendor D4 Discovery disqualified from working on the case on behalf of the plaintiffs.  In their initial objection on June 5 and their July 12 filing, Kaleida Health claimed that New York Magistrate Judge Leslie Foschio erred and that D4 should have been disqualified.  As the article notes, “Kaleida’s attorneys at Nixon Peabody had decided to use predictive coding to go through its gigantic cache of 300,000 to 400,000 emails, and had hired D4 (in 2010) to provide scanning and coding services. In 2011, D4 entered into a contract to provide e-discovery consulting services to the plaintiffs. Despite D4’s representation that its consultants had not been involved in the project for Nixon Peabody, Kaleida and Nixon Peabody objected.”

In his ruling, Foschio ruled that there was no conflict of interest for reasons including:

• D4’s involvement with Kaleida was limited to scanning and coding documents;
• Kaleida failed to show that D4 had access to any confidential information;
• D4’s duties to Kaleida were “a routine clerical function” (similar to photocopying documents) while services provided to the plaintiffs were “requiring expert knowledge or skills”;
• D4 had only been hired to code objective information into assigned fields and was not asked to identify substantive case issues or make subjective decisions about the documents;
• D4 had actually subcontracted its work for Kaleida to Infovision 21.

Conversely, Kaleida and its attorneys at Nixon Peabody argued that there was a confidential relationship with D4 and that D4 had access to sensitive information, arguing that the plaintiffs’ attorneys at Thomas & Solomon spoke directly to Amir Karahasanovic, the D4 employee who had handled the Kaleida job, violating that confidential relationship.

Li’s article also quotes Electronic Discovery Reference Model (EDRM) co-founder George Socha (a thought leader interviewee on this blog for the past three years), who referenced the EDRM’s Model Code of Conduct (our previous post about it here) as a means to encourage vendors to avoid these types of situations.  In Guideline 9 of Principle 3 (Conflicts of Interest) of the code, it states “Service Providers should not proceed with an engagement where one or more conflicts have been identified until those conflicts have been resolved and the resolution is adequately memorialized to the satisfaction of all parties involved.”

So, what do you think?  Are there some services or situations where it’s acceptable for an eDiscovery provider to work on both sides of a case?  Or should providers only do so if both parties agree?  Please share any comments you might have or if you’d like to know more about a particular topic.

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