This entry is provided by guest blogger, Aaron Goodisman, Valora’s Chief Technology Officer.
Oh, I feel for D4; I really do. Let me explain:
Law Technology News
on a case in which D4 Discovery acted as litigation support vendor for
both defendant and plaintiff, albeit at different times and performing
different functions. Naturally, when defendants Nixon Peabody
(working for Kaleida Health) found out, they objected to U.S. Magistrate Judge Leslie Foschio, but he refused
to disqualify D4 as a vendor for the plaintiffs.
Sounds like a win for D4, no? As a vendor with many clients in the
litigation support space, Valora doesn't like to turn away work any more
than the next guy. And, as professionals with over a decade of
experience in the legal field, I'm confident that we could maintain
appropriate walls of confidentiality between project teams, as D4
asserts they have done.
The problem lies in judge Foschio's rationale for the refusal to
disqualify. What the judge essentially said is that D4's scanning and
objective coding for Nixon Peabody does not include
expertise or consulting, and that it did not expose D4 to any
confidential information about the case or Nixon Peabody's case
strategy. As an experience scanning and coding provider, this is simply incorrect.
“Objective” coding refers to tagging documents with information that can
be objectively determined, without rendering any kind of opinion. In
this regard, at least, judge Foschio's rationale makes some sense. That type
of information is sufficiently objective that Valora uses software to
determine it for most documents. No opinions there.
On the other hand, the design of a scanning and coding project is
absolutely a consulting activity: which information is captured for
which types of documents, which collections get extra information
tagged, which are fast-tracked, which get an extra quality control pass.
How the various containment and attachment relationships are captured
among documents, folders, binders, boxes. To an experienced litigation
support person, those decisions speak volumes about the case.
For proper and accurate scanning and coding to have occurred, D4 had to have access to, and
indeed looked at, every single one of the documents in the case,
including any that Nixon Peabody later withheld as privileged.
Again, I have no reason to believe that D4 violated their
confidentiality responsibilities to either party, nor does it appear
that Nixon Peabody is claiming that. Rather, what's happening here is
that a judge has said that the services D4 provides do not require “specialized
knowledge, skill, training or education.” That's just wrong.
Valora's clients come to us precisely because we provide those things. Kaleida continues to maintain that D4 should have been disqualified from
working with the plaintiffs. I'm sure it's standard legal practice,
but it feels like somebody's defending the value of such services, at least a little.