In Mediating E-Discovery Can Save Time and Money (jamsadr.com) (Nov. 10, 2023), the Hon. Gail A. Andler (ret.) and Daniel B. Garrie, Esq., wrote that “[o]ne approach” to remediating the costs of e-discovery “is using mediation to resolve some aspects of discovery disputes.” They report “a recent rise” in the application of mediation “to e-discovery disputes.”
One suggestion in the excellent and informative article is to retain an experienced e-discovery mediator “to assist on an ‘as needed’ basis from the outset.” As an example, Judge Andler and Mr. Garrie point to the development of an ESI Protocol. They add that: “There are many steps along the way, from formulating the search to doing a responsiveness review to the evaluation of the production by opposing counsel where an e-discovery mediatory can help on a selected issue.”
I agree and I have long recognized the advantages of using ADR, including mediation and arbitration, as well as special masters, in the e-discovery context. See Mediation of ESI Disputes – E-Discovery LLC (ediscoveryllc.com).
ADR has the potential to provide both parties with significant advantages:
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….”
Noting that ESI presents many issues, I wrote that:
All of this points to the need for mechanisms to resolve disputes before they ripen into judicially-resolved proceedings with costly motions for sanctions and “game (or career) ending” sanctions. Mediation has evolved as a valuable dispute-resolution mechanism and its principles may be just as applicable to disputes over ESI as they are to other types of conflict. Alternative dispute resolution may offer a solution that avoids costly problems by facilitating agreement. As noted in Mancia, if counsel had cooperated and communicated at the start of discovery, most, if not all, of the disputes could have been resolved among the parties.
Mediation may help address ESI issues ranging from defining proportionality limits on the scope of the duty to preserve, how to address known lapses regarding that duty, establishing phases for cost-effective e-discovery, production of metadata, when spoliation motions may or must be filed, limits on the attorney-client privilege regarding implementation of the duty to preserve, and how to prepare privilege logs for ESI. To give only one example of the role mediation may play, in In Re: Seroquel Products Liability Litigation, the court noted that “while key word searching is a recognized method to winnow documents from large repositories, use of this technique must be a cooperative and informed process. Rather than working with Plaintiffs from the outset to reach agreement on appropriate and comprehensive search terms and methods, AZ undertook the task in secret…. In this case, AZ never discussed with Plaintiffs which search terms to use as part of the search. There was no dialog to discuss the search terms, as required by Rules 26 and 34.” [emphasis added]. Mediation may facilitate that dialog and help parties design mutually-agreeable keyword searches. In fact, parties may consider whether it is appropriate to use mediation at the Rule 26(f) “meet and confer.”
Consultation may help in designing a defensible preservation protocol, preparing for a Rule 26(f) conference of the parties, engaging in the conference process, and preparing for privilege review and the assertion of privilege in connection with production of ESI to an adverse party, among many other issues. See “The Checklist Manifesto” and the Fed.R.Civ.P. 26(f) Conference. ESI presents unique issues, such as how to properly assert that electronic information is not reasonably accessible because of undue burden or cost.