What are the Advantages of Mediation of ESI Disputes?
One thing is certain in litigation, and that is that disputes will be resolved. Either the parties may discuss and resolve aspects of their dispute, or the dispute may be presented to a court for a judicially-imposed resolution. If the parties desire to reach an agreement that they control, but are unable to do so, mediation may avoid the costs and risks of litigating that aspect of the dispute. Mediation may be rapid, cost-effective, and assist the parties in having a voice in the way in which their lawsuit should proceed. As Judge Peck recently wrote in William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Company, when the parties were unable to reach an agreement, the parties “left the Court in the uncomfortable position of having to craft a keyword search methodology for the parties….” The court ruled on the dispute, and noted that it “acknowledges that this result is less than perfect….”
How do the Parties Go About Mediation of ESI Disputes?
The first step is that the parties agree to contact a mediator. They will then enter into a mediation agreement and conduct one or more mediation sessions. Frequently, the mediator will request that the parties provide information to either the mediator, or to each other, prior to the mediation. If the parties reach an agreement, it will be reflected in a signed document. That agreement may represent the parties’ Rule 26(f) conference of the parties report to the court under Fed.R.Civ.P. 16.
How Long Does Mediation Take?
The length of mediation is dependent on the schedules of the parties and the mediator, and the complexity of the technical issues presented.
What Types of Issues May Be Mediated?
Any issue relating to electronically stored information may be mediated. For example, courts are divided on the question of how chain email must be listed on a “Vaughn index” or “privilege log.” An agreement may avoid issues of inadvertent waiver of the privilege. Courts have frequently concluded that counsel may not be qualified to design unilateral keyword searches and that parties should discuss and test the terms to be searched. Mediation may help the parties reach agreement where one party feels that only a few terms are needed and the other proposes multiple search terms. The Federal Rules of Civil Procedure do not impose milestone deadlines for certain motions that arise out of ESI, such as spoliation motions. Discussion of milestone dates may avoid costs and waiver arguments in the future. Similarly, issues related to phased discovery, preservation, and form of production may be well-suited to mediation.
When are Consultative Services Useful?
Some law firms are developing e-discovery divisions and some large corporations are retaining e-discovery counsel. There may be instances where mediation is not possible and unilateral decision-making is the only available option. Consultation may help in designing a defensible preservation protocol, preparing for a a Rule 26(f) conference of the parties, engaging in the conference process, retaining ESI vendors, and preparing for privilege review and the assertion of privilege in connection with production of ESI to an adverse party. ESI presents unique issues, such as how to properly assert that electronic information is not reasonably accessible because of undue burden or cost or assert privilege in connection with email chains, threads, or strands. Mr. Berman, a member of the Maryland and District of Columbia bars, provides consultative services.