Avoid eDiscovery Conflicts: Hire a Vendor that Only Supports the Plaintiff’s Bar
Whether eDiscovery vendors and consultants are “experts” for purposes of conflict of interest analyses can be a complicated question, as the plaintiff learned in Gordon v. Kaleida Health, et al., No. 08-CV-378S(F) (W.D.N.Y. May 21, 2013). There, Plaintiff’s eDiscovery vendor, D4, scanned and coded approximately 400,000 emails at a cost of $50,000. Counsel for Defendants then sought to hire D4 to perform work regarding the same case.
Plaintiff (represented by counsel Nixon Peabody) objected and moved to disqualify the vendor from working with Defendants on the same case. Plaintiff asserted that in the process of working with the eDiscovery vendor, Plaintiff had disclosed “mental impressions” of the case to the vendor. Defendants claimed that no conflict existed because a different team of people from D4 would work with Defendants’ ESI. In this instance, U.S. Magistrate Judge Leslie G. Foscio of the Western District of New York sided with Defendants, concluding that D4’s work was more “clerical” than consultative, and concluding that Plaintiff had failed to show (i) a confidential relationship existed; (ii) it had ever disclosed anything confidential to D4, or (iii) that D4 acted in an “expert” capacity.
As the use of eDiscovery vendors become more commonplace in even minor litigations, courts are likely to increasingly grapple with whether an eDiscovery vendor can be disqualified due to a conflict of interest. A law review article in the Tennessee Law Review analyzed the issue in 2014, and called for the adoption of stricter disqualification rules for eDiscovery vendors in recognition of the broad access to confidential information given to eDiscovery vendors.
One way for plaintiff attorneys to protect their clients from potential problems in this arena is to retain ILS, one of the only eDiscovery vendors that exclusively provides eDiscovery services for plaintiff’s bar.