The Brave New World of Mediation and e-Discovery

Many lawyers look upon discovery as an aspect of litigation that is tedious, lacking in excitement and frankly, without "sex appeal." Most mediators would prefer to handle cases that have more "meat on the bones" than they can find to be the case with discovery refereeing.

So-called e-discovery, the electronic aspects producing documentation (electronically stored information, otherwise known as "ESI") during the litigation process has been around for some time, during which an entire cottage industry has developed for the delivery of "enterprise-wide e-discovery, managed services and software projects with legal and IT departments in publicly held companies." (See, "The Metropolitan Corporate Counsel Inc.," May 3, 2010.) The goal has been to develop new ideas concerning cost and risk reduction in e-discovery.

The new cottage industry has sought to control and reduce excessive e-discovery costs so the process is more in line with the value of any given case. According to Mary Mack, corporate technology counsel at Fios Inc, this "involves keeping e-discovery costs in line with what is at stake in the case, either dollar amounts, the impact of the principles involved or other factors." (See "The Metropolitan Corporate Counsel Inc.," May 3, 2010) Mack notes that both arbitration and mediation can be new "cost control efforts" in the process of attempting to control costs in e-discovery disputes.

I have had the opportunity to discuss with various professional sources my intention to steer my mediation practice to the area of mediating e-discovery disputes. The response has been extremely encouraging. Most have indicated that many lawyers and judges still have not become educated in the complexities, benefits and dangers of this trend in discovery, and the cost in time, money and case management.

Attributing to mediator Allison Skinner of Alabama's Sirote & Permutt the "brilliant idea" of mediating e-discovery disputes, Peter S. Vogel (Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes, November 2009) notes that Skinner has designated various benefits of mediation in the ESI arena. These benefits are: Workable solutions that are self-directed, definition of scope of parameters, determination of relevancy, creation of timelines for production of "e-depositions," proposing confidential compromises, creation of mutually efficient e-discovery plans, establishing guidelines for asserting violations of the plan, creating boundaries for preservation of documents, avoiding spoliation pitfalls, managing protection of privileged information, maintaining credibility with courts, avoiding court-imposed sanctions, and allocating appropriate costs.

Mediating ESI disputes requires that the lawyers appreciate and the mediators understand e-discovery. This in turn demands that the mediator have the capability to communicate effectively with the information technology managers of ESI, the necessary outside consulting vendors, and be able to educate the judges and lawyers involved. Many states including California have adopted e-discovery provisions similar to Federal Rules of Civil Procedure amendments (e.g., Rules 16, 26, 30, 34, 37, and 45.). The California provisions can be found in Code of Civil Procedure Sections 2031, 2016, 1985 et seq., 1985.3-.6, California Rules of Court, Rules 3.724-3.728 (case management of discovery; meet and confer, statement, conference, and order).

Traditionally and historically, mediation has been recommended as a settlement tool to avoid unpredictable or adverse decisions by the trier of fact. Now we are turning to this alternative dispute resolution process to control the unwieldy and surprise-ridden characteristics of e-discovery. The "meet and confer" aspects of the rules that demand early attention also require that lawyers know at the outset of their case exactly what control their clients have over ESI, irrespective of the typical client reluctance to search for or divulge such information that is "reasonably accessible."

There are several aspects of the e-discovery process that make mediation attractive at this stage of the litigation. Willingness to participate makes the lawyers and parties look credible in the eyes of the court, and even if less than all e-discovery disputes can be resolved through mediation the court will appreciate the fact that not all the e-discovery problems have been "dumped" on it, but only those that require special attention. Because the various ESI settlement proposals can be made confidentially, there is no cause for concern regarding later disclosure to the court that might have a negative impact on the proposing party. Particularly suitable are issues such as specificity of the request for information, its importance and the format for the production, and description of the technical capabilities available (whether those of the lawyer or the outside vendor retained to assist with the production effort).

With respect to the mediated e-discovery agreement executed by the parties and their counsel following a successful mediation, Skinner suggests that issues such as the following could be agreed upon: The number of requests, data type involved, accessibility to that data, format of the production, parameters of the search to be conducted, method of production to be used, how the documents will be preserved, resolution of specific privilege issues, what waivers will be given, production timing, who bears the costs, and method of control to be exercised.

Skinner also considers the specifics of preparing for an e-mediation of e-discovery disputes. (www.imakenews.com/admirlaw/e_article001388992.cfm?x=bfst3C1,b71Q7hlj) She notes that the motivation is different than in the traditional mediation. The goal of traditional mediation is settlement of the case whereas in e-mediation the effort is to arrive at a "mediated discovery plan." Also, preparation for each type of mediation is different. While a traditional mediation is viewed as one based on time, the e-mediation should be based on issues.

Furthermore, the lawyers should be prepared to provide the following examples of information to the mediator before actual negotiations commence: Individuals available to participate in the e-mediation, all relevant or applicable discovery issues, positions that the clients take regarding those issues, confidential discussions with the mediator of each client's data mapping (tracing connection from communicator and methodology of communication), any existing spoliation pitfalls, any known concerns regarding cost or burdens, any relevant timing issues, and concerns regarding claim of privilege, compatibility and/or capability regarding production of electronic information, disclosure of inaccessibility of relevant electronic information, identification and retrieval of discoverable electronic information, format of electronic information, and confidential disclosure of each counsel's particular expertise as well as knowledge of the e-discovery process, plus the knowledge level regarding the client's specific technologies.

Finally, while e-mediations are typically conducted with all the lawyers present, there may be situations similar to the traditional mediation process when separate confidential caucuses will be necessary. Whether clients and IT personnel are to participate with the lawyers, be available in an adjoining room, or subject to call from another location is something that the lawyers should work out with the mediator. The confidentiality agreement that is prepared and executed needs to be tailored to the setup of the e-mediation to incorporate all these contingencies.

Conclusion of successful e-discovery mediation will result in a well-designed e-discovery plan. The advantages are efficiency, cost-saving, effective case management, judicial exoneration from needless detail, and opportunities for control over data production...and a relieved and hopefully appreciative judge.