by Julia Romero Peter, Esq.
The ongoing court battle regarding D4 Discovery’s alleged conflict of interest in Gordon v. Kaleida Health (W.D.N.Y. May 21, 2013) highlights the importance of ediscovery vendors taking appropriate measures to avoid conflicts of interest. In Gordon, Kaleida argues that D4 should be disqualified from providing ediscovery consulting services to plaintiffs. Kaleida engaged D4 for a scanning and objective coding project in 2010. The following year, the plaintiffs engaged D4 for ediscovery consulting services in the same case.
In May, the magistrate judge denied Kaleida’s motion to disqualify D4. Among other reasons, she found that D4’s work for Kaleida did not amount to that of an expert or consultant. Further, she found that Kaleida had not shown that D4 had access to confidential information. In contrast, Kaleida insists that their engagement involved “expert consulting services.” They further argue that they have a confidential relationship with D4 and that D4 was privy to confidential information. Kaleida also points out that plaintiffs’ counsel communicated with the D4 representative who was involved with Kaleida’s project thereby breaching that confidentiality.
The Electronic Discovery Reference Model (EDRM) provides detailed guidelines on avoiding conflicts of interest in their Model Code of Conduct. Among other things, the EDRM advises vendors to perform the following steps:
Keep “a conflicts checking system and divulge any interests that are relevant to the engagement at hand.”
Before entering into an engagement, request from the client “the caption information for the matter, the list of all legal counsel . . . and any other relevant information that will assist the Service Provider in identifying potential conflicts of interest.”
“[N]ot proceed with an engagement where one or more conflicts have been identified until those conflicts have been resolved and the resolution is adequately memorialized to the satisfaction of all parties involved.”
Set up “an ethical wall to screen out one or more employees, if required, to resolve a conflict.”
“Absent superseding contractual obligations . . . withdraw from an engagement to avoid a conflict of interest that cannot be otherwise resolved.”
Above all, vendors must operate on the principle that they disclose potential conflicts of interest “and take immediate steps to resolve it in accordance with the Guidelines . . . .”