Michael D. Berman, Esq.
Mr. Berman has litigated cases at the State and federal levels, in both trial and appellate courts. Realizing the value of mediation to reach settlements in litigation, he also recognized the advantages of applying alternative dispute resolution to the potentially complex issues presented by “electronically stored information,” or “ESI.”
Mr. Berman brings a unique perspective to the mediation of disputes involving ESI. He has been involved in complex civil litigation, is an adjunct professor at the University of Maryland and Baltimore Schools of Law, where he teaches a semester-long ESI workshop, has written and co-authored significant articles on ESI, and has given presentations and moderated national and local ESI programs.
Changes to the Federal Rules of Civil Procedure, as well as similar State rules, have demonstrated the need to manage, preserve, process, and produce ESI prior to and during lawsuits. They have also emphasized the importance of a “conference of the parties” to develop a discovery plan and a proposed schedule for litigation. The Sedona Conference issued a “Cooperation Proclamation,” and many courts have published decisions endorsing cooperation as a way of resolving ESI issues and avoiding imposition of sanctions. Over two dozen States have imposed a requirement of technological competence on attorneys. This new paradigm requires that litigants confer and discuss— in an effort to reach agreements—the preservation, processing, production, and use of ESI in, discovery, depositions, and trials.
As noted by Judge Peck in William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Company, “the best solution in the entire area of electronic discovery is cooperation among counsel.” Similarly in Mancia v. Mayflower Textile Services Co., the court ordered the parties to confer about discovery and wrote that: “It is apparent that the process outlined above requires that counsel cooperate and communicate, and I note that had these steps been taken by counsel at the start of discovery, most, if not all, of the disputes could have been resolved without involving the court.”
Nevertheless, one respected commentator has described discussions to resolve ESI disputes as a “process in which two lawyers who do not trust each other discuss matters that neither understands.” The widespread use of the computer, with data storage now available in terabytes and petabytes, has complicated the problem.
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.”
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, 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. Mr. Berman provides consultative services, in addition to mediation services.
Mr. Berman has published widely on the issue of ESI, and has spoken at national and local ESI programs. He is active in the Maryland State Bar Association, has formerly chaired the Federal Court Liaison Committee and the Litigation Section Council, and assisted in drafting the United States District Court of the District of Maryland’s Suggested Protocol for Discovery of Electronically Stored Information, as well as chairing the Maryland bar association committee to propose revisions to the suggested Discovery Guidelines.
A graduate of the University of Wisconsin and the University of Maryland, Mr. Berman is admitted to practice law in Maryland, the District of Columbia, the United States District Court for the District of Maryland, the United States Court of Appeals for the Fourth Circuit, and the United States Supreme Court. He is qualified as a mediator under Rule 17-106 of the Maryland Rules of Procedure.