When Should eDiscovery Vendors Be Disqualified?

Abstract

As a general proposition, courts have inherent authority to disqualify parties and their representatives and consultants from participating in litigation. Attorneys, expert witnesses, and litigation consultants may face disqualification motions in the event of a conflict of interest. With the rapid expansion of the eDiscovery industry, however, a new question has arisen: If an eDiscovery vendor has a potential conflict of interest, when should it be disqualified? What standard should apply?

To put the problem in perspective, imagine that you manage discovery at a law firm representing the defendant in a contentious wage and hour dispute, and you recently hired an eDiscovery vendor to assist you in scanning and coding your client’s documents, at a cost of $50,000. Two months later, you receive notice from your vendor that the plaintiff’s counsel has requested its services in connection with the same case. How would you react? Would you expect a court to disqualify the vendor if it accepted the engagement? This scenario occurred in Gordon v. Kaleida Health, resulting in the first judicial order squarely addressing vendor disqualification. The Kaleida Health court ultimately denied the defendant’s motion to disqualify, allowing the vendor to continue participating in the case.

Part II of this Article will discuss and critically examine the Kaleida Health order, which currently stands as the de facto leading authority on vendor disqualification. Part III will compare two existing standards for disqualification: rules applying to experts or consultants and rules applying to attorneys. Part IV of this Article will argue in favor of courts adopting key features of the law of attorney disqualification, especially the presumption of shared confidential communication and imputation of shared confidences, when considering whether to disqualify vendors. Part V, the conclusion, will synthesize the lessons learned from Kaleida Health with the arguments for adopting a less permissive disqualification standard for vendors.

Keywords: ediscovery, e-discovery, civil procedure, litigation, disqualification

JEL Classification: K4, K40, K41, K49