Specialized Knowledge, Skill, Training and Education

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 reports 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.