Tuesday, August 6, 2013

Conflicts & Disqualifications Avoided

Law Firm May Stay in Case Despite Hiring Expert Who Had Talked With Opposing Party
  • "A law firm that hired an expert who previously spoke to the opponent about the same case won't be disqualified where the firm overcame the presumption that the expert shared the other side's confidences with the firm, the Nebraska Supreme Court ruled July 19 (Mid America Agri Prods./Horizon, LLC v. Rowlands, Neb., No. S-12-473, 7/19/13)."
  • "In an opinion by Justice John F. Wright, the court decided that a firm is not invariably disqualified when it hires an expert who has acquired confidences from a client's opponent. The firm is presumed to have learned the opponent's information, but this presumption is rebuttable, the court held."
  • "The trial court barred O'Neil from testifying as an expert for Lansing, but it declined to disqualify Lansing's counsel due to a dearth of evidence that O'Neil had communicated confidential information about Horizon to Lansing's counsel."
  • "Before addressing the presumption issue, the court had to decide whether experts are “support persons” under Nebraska's unique rule on former-client conflicts... The rule defines “support person” to mean any nonlawyer associated with a firm, including law clerks, paralegals, legal assistants, secretaries, messengers, “and other support personnel employed by the law firm.” Experts aren't mentioned. The court decided that experts such as O'Neil are not support persons under the rule."
Judge Refuses to Disqualify EDD Vendor for Playing Both Sides
  • "On Friday, Kaleida, the largest non-profit health care provider in Western New York, filed papers with the U.S. District Court in Buffalo reaffirming its stance that Foschio erred and D4 should have been disqualified. Kaleida had originally hired D4 in 2010 after Kaleida was sued by a group of employees in a wage-and-hour class action alleging that they were owed regular and overtime wages."  
  • "According to Foschio's opinion, Kaleida did not retain D4 for its e-discovery consulting services. Instead, Kaleida's attorneys at Nixon Peabody had decided to use predictive coding to go through its gigantic cache of 300,000 to 400,000 emails, and had hired D4 to provide scanning and coding services. In 2011, D4 entered into a contract to provide e-discovery consulting services to the plaintiffs. Despite D4's representation that its consultants had not been involved in the project for Nixon Peabody, Kaleida and Nixon Peabody objected."
  • "According to Foschio, there was no conflict of interest because D4's involvement with Kaleida was limited to scanning and coding documents and that Kaleida failed to show that D4 had access to any confidential information. Foschio drew a distinction between D4's duties to Kaleida, which he called "a routine clerical function" and similar to photocopying documents, and the consulting services D4 provided to the plaintiffs, which Foschio described as "requiring expert knowledge or skills." Foschio held that D4 had not provided expert services to Kaleida, merely routine clerical work. As such, Foschio ruled that there was no conflict of interest when its consultants signed up to provide expert services to the plaintiffs."

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