E-Discovery: Mediation as the effective 'old world’ approach for 'new age’ lawyers

Mediation has been around for centuries in one form or another. With the onset of e-discovery, it behooves the careful lawyer to look back historically and adapt this dispute resolution process to the exigencies of the conflicts inherent in the new age of electronically stored information (ESI).

In doing so, it is helpful to examine aspects that many may not even realize contain "rabbit holes" naturally designed for disaster; lurking dangers to lawyers and clients that many will realize only when it is too late for remediation. According to Suzan Wortzman, co-founder of a Canadian e-discovery law firm, lawyers can proceed in a way that is fatal to their case by negligently collecting either too much or not enough records. In the case of under collecting, courts will sanction those who fail in their obligation to properly supervise collection or establish effective safeguards for document protection. If too many records are collected, the expense of document examination can be astronomical to the client. And if the court is of the opinion that the demand for documents was excessive, a portion of these costs can be transferred to the requesting party. Thus lawyers need to educate their clients about the advantages of bringing in third-party vendors to handle ESI collection.

It is clear that more discussion between the parties in the early states of a lawsuit is necessary, particularly when it comes to agreeing on an ESI discovery plan containing a timeline for document delivery. An estimated fewer than 10 percent of the parties in litigation put such a plan in writing, while the majority of others expose themselves to charges of spoliation. This can snowball into a breach of the standard of care required by the representing lawyer.

Canada's Ontario Chief Justice Warren Winkler was quoted as saying that proportionality and discovery plans are the key to improving the e-discovery area, which is already plagued with high costs. He points out, "If the legal profession fails to adapt to the digital age in a proactive and constructive manner, there is a very real risk that lawyers will become irrelevant to dispute resolution." What a concept! The chief justice went on to warn that, "Parties will have no alternative but to turn to other approaches to resolve their disputes if lawyers are unable or unwilling to embrace the behavioral change necessary to contain the cost and delay of litigation by managing electronic information effectively and efficiently." The obvious solution is applying the mediation process to e-discovery disputes at the earliest stage possible.

With discovery now comprised of emails, texting, social media postings, and other forms of ESI documentation, one e-discovery expert has cautioned lawyers that they can not only be hurt by what they don't know, but may be hurt more by what they know - but aren't disclosing. This is because the development of case law is keeping pace with the rapidly growing technology. For example, simple equipment such as copy and fax machines, BlackBerrys, and desktop computers (including servers) present a problem because they contain hard drive memories that need to be erased before the machines are turned in (if leased) or sold.

As I have cautioned in past columns, parties on both sides of the table must be transparent with their respective counsel because failure to do so can result in costly sanctions, both monetarily (amounting to millions of dollars) and case management-wise (e.g., adverse inferences and even dismissal). On the preventive front, make sure that clients establish clear policies for employee use of company-owned computers (identification, trapping, and blocking of information to the outside world) because there can be as much, if not more, damage coming from inside misuse of equipment than that caused by outside hackers.

More and more we hear that the best protection is to simply instruct employees to refrain, where possible, from writing down sensitive information. This means face to face communication when possible, and avoiding the use of emails and voicemails, etc. With the luxury of increasingly sophisticated technology, we have become lazy, resorting to the electronic crutches that can come back to bite us in the rear when we least expect it.

I believe that the competent and successful e-discovery counsel will need to spend the necessary time in advance to educate, prepare, and instruct the client in the ESI process so that the client can become an active and effective partner with the lawyer. The mediation collaborative approach, when engaged in by both parties to a dispute, would best serve each side in fulfilling ESI obligations and goals.

Simply looking at e-discovery as a way to avoid hauling document boxes to the courthouse misses the point. Every litigant and lawyer is required to preserve electronic information, collect it, review it for relevance, and then produce all non-privileged ESI requested by the other side. And this obligation is not restricted to any particular area of litigation such as commercial, corporate, or class action, etc. Beware that family, employment, patent, trust, and all other categories of cases (civil and criminal) are also "fair game" for ESI consideration.