Court Refuses to Disqualify E-Discovery Vendor for ‘Switching Sides’ in Case
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Can an e-discovery vendor “switch sides” in a case, performing services first for one side and then for the other?
A U.S. magistrate judge has denied a motion seeking to disqualify an e-discovery consulting company for precisely that reason. Finding that the company was never privy to the moving party’s confidential information or litigation strategies, the judge found no reason to disqualify the company from continuing to participate in the case.
The ruling came in the case Gordon v. Kaleida Health, a contentious wage-and-hour class action against a major regional hospital system, filed in 2008 in the Western District of New York. We have twice before written about the case on this blog with reference to the magistrate judge’s recommendation that the parties use predictive coding to achieve cost-effective review of some 200,000-300,00 emails. (See Court’s Suggestion to Use Predictive Coding Leads to Dispute over Cooperation and None of Your Beeswax! (Or, Do I Have to Invite Opposing Counsel to my Predictive Ranking Party?).)
The disqualification motion, filed by Kaleida, involved the company D4, a Rochester, N.Y., based provider of litigation support and e-discovery services and consulting. In 2010, the law firm representing Kaleida, Nixon Peabody, contracted with D4 to perform e-discovery services in the case. According to the court’s opinion, the services consisted primarily of scanning and coding 50-80 boxes of paper documents.
Beginning in March 2011, D4 scanned the documents in Rochester, then sent them to a subcontractor, Infovision 21 in Ohio, for coding. The coding was “objective,” meaning it was based on certain categorical information about the documents, not on judgment calls or subjective factors. The court noted that D4′s work was limited to those tasks and that Nixon Peabody obtained additional e-discovery consulting services from its own, in-house Legal Technology Services department and that it engaged both the Ricoh Company and Pangea3 to provide other e-discovery services.
Read original articleTags: consulting company, Kaleida Health, Nixon Peabody
