By: Richard P. Byrne, Esq.
As issues concerning Electronically Stored Information (“ESI”) and E-Discovery are becoming more prevalent and increasingly complex, litigants are beginning to hear phrases such as “E-Mediation” or “ESI Mediation.” Mediating E-Discovery issues allows litigants to control what is being requested, what is being produced, and how it is being produced. Costs can be controlled, confidentiality can be maintained and adverse results – such as sanctions – can be avoided. Even in the absence of sanctions, a failure to adequately address ESI issues at the start of litigation can impact proceedings down the line – causing delay and undue expense.
Setting aside the finer points, the reality is that most attorneys are not IT technicians and are not comfortable with the technology. As a result, they tend to act defensively, perhaps out of fear and lack of knowledge. The Mediator in an E-Mediation can provide not only the traditional foundation of maintaining the parties’ balance and promoting their dialogue, but can also act as a translator relative to the technology, identifying fair and practical resolutions on an issue-by-issue basis. In short, identifying relevant ESI and working out the technical methods for its production can and should be a cooperative and self-determinative undertaking.
This is where the development of an E-Discovery Plan can be most productive – both in the short run, initially, and further down the line as well. To start, one must bear in mind that the development of an E-Discovery Plan in an E-Mediation is an issue-based exercise. It is not geared toward achieving a bottom line resolution as in a traditional Mediation session.
The scope of the issues to be addressed, however, can and should be wide-ranging, including the following: Relevancy; Preservation; Sources of ESI; Identification of Custodians; Obtaining ESI from Non-Parties; Accessibility of Information; Search Terms To Be Employed; System Capability; De-Duplication; Parent-Child Relationship (i.e., documents and their attachments); Privileged Documents/Privilege Logs; Inadvertent Productions/Claw Backs; Timing and Formats of Production; Costs of Production (and Allocation of Costs); and Compliance/Enforcement.
Obviously, many of these issues put the parties’ IT personnel into the spotlight. They can and should be active participants in the development of an E-Discovery Plan. E-Mediation provides a forum in which the parties’ IT representatives and experts can communicate in a confidential setting, with a neutral present to act as a referee and guide the discussion. Lawyers, of course, are generally not inclined to have their client representatives speak to each other on this level – but who best to address the issues in order to avoid conflict down the line? In that vein, an E-Discovery Plan should also include the means and mechanisms to address future disputes which might arise without the parties having to resort to judicial intervention. In this fashion, as issues develop in the context of E-Discovery, the parties already have an established vehicle in place to present, address and resolve their disputes in a prompt and efficient fashion.
Indeed, if the parties are successful in developing such an E-Discovery Plan and working through a successful ESI exchange, including the clearance of any hurdles met along the way, the stage may well be set for a Mediation on the merits to bring the matter to a complete conclusion.
Richard P. Byrne, Esq., is a member of NAM’s (National Arbitration and Mediation) Hearing Officer Panel and is available to arbitrate and mediate cases throughout the United States. In 2018, for the fourth year in a row, he was voted one of the Top 3 Mediators in the country by National Law Journal Reader Rankings Survey and for the second year in a row, he was named a National Law Journal 2017 Alternative Dispute Resolution Champion, as part of a select group of only 37 nationwide. Further, for the fourth straight year, he was voted a Top Ten Mediator in New York State by the 2017 New York Law Journal Reader Rankings Survey.
For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at email@example.com or direct dial telephone at 516-941-3228.