Kaleida Health isn’t taking a May decision by U.S. Magistrate Judge Leslie Foschio (W. District, N.Y.) lying down. Foscho refused to disqualify e-discovery vendor D4 Discovery. (Hat tip: Bob Ambrogi at Catalyst.)

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.

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