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.
In May 2011, plaintiffs’ counsel engaged D4 to provide e-discovery consulting services in connection with the case, primarily related to the aforementioned emails. Plaintiffs’ agreement was with D4’s Advisory and Consulting Group, a separate group within the D4 organization. Plaintiffs’ counsel had previously used these same consultants in a related action against a separate hospital system.
Nixon Peabody was immediately informed of the arrangement and just as immediately it objected. D4 responded by providing assurances that the services it would provide to plaintiffs would not involve the documents it had scanned and that no D4 employees who had been involved in that work would be involved in the consulting work. Despite these assurances, Nixon Peabody persisted in its objections.
No Risk to Confidential Information
Magistrate Judge Leslie G. Foschio began his analysis by stating that an expert or consultant should be disqualified only if the moving party could show that there had been a confidential relationship in which confidential or privileged information relating to the current litigation had been disclosed. To be considered an expert or consultant in the first place, the person or entity must provide opinions or professional advice based on specialized knowledge or training, he said.
Here, the judge stopped at that very first hurdle, ruling that the scanning and coding services D4 provided did not qualify as expert or consulting services:
In this case, the record does not demonstrate, as is Defendants’ burden, that the scanning of Defendants’ paper documents by D4 or the objective type of coding of the scanned documents provided by D4 and Infovision21 to Defendants involved services requiring specialized knowledge, skill, training or education establishing D4’s or its representative, Karahasanovic’s, status as an expert or consultant in regard to the delivery of these services.
Rather, Judge Foschio found that scanning is a “routine clerical function, such as photocopying paper documents,” and that the objective coding performed here was “also of a more clerical nature, such as routine data entry activity and did not constitute expert or consulting services.”
Here, neither the scanning nor objective coding services for Nixon provided by D4 and Infovision21 constituted expert or consultative services that required or involved access to Defendants’ confidential information, specifically, litigation strategies constituting attorney work product or other privileged information, access more typically incident to rendering expert witness or expert consulting services relating to the merits of particular claims or defenses in the context of litigation. … Defendants do not demonstrate any direct connection between the scanning and coding work performed by D4 and Infovision21 and Defendants’ production of Defendants’ ESI, particularly Defendants’ e-mails relevant to the ESI issues in this case.
For these reasons, the judge determined that there was no need to protect defendants from the risk of possible prejudicial disclosure of their confidential information as a result of D4’s providing consulting services to plaintiffs.
The judge also dismissed defendants’ contention that D4 should be disqualified because it “switched sides” in the case. There was no evidence that the D4 employee who handled the scanning and coding project received any confidential information from Nixon or conveyed any confidential information to D4’s Advisory and Consulting Group, the judge concluded.
Because there is no presumption that a party has disclosed confidential information to an expert, … there is, contrary to Defendants’ unsupported supposition, no vicarious disqualification of the asserted expert’s firm (i.e., D4) or of a second expert (i.e., Coons and Courtney) employed by the same firm who is later retained by the party’s adversary.
The decision in this case should not be interpreted to mean that vendors will never be barred from serving on opposite sides of the same case. Here, the services provided to either side involved separate divisions within D4. Further, the services were of very different natures, with D4 providing only “clerical” scanning and coding in one instance, and providing predictive coding coding in the other instance. Perhaps most notably, none of the scanned and coded documents were involved in the predictive coding work, which focused on emails. Had the services D4 initially provided to the defendants gone even a little ways beyond scanning and coding, this case might well have had a different outcome.