EDiscovery has entered a new phase. In addition to huge matters involving large corporations and institutions, today even modestly sized disputes include eDiscovery components. Despite repeated attempts at reform, cost control and efficiency in eDiscovery remain elusive. Cooperative approaches to eDiscovery planning may hold the key to lower-cost, higher-quality eDiscovery processes. 1See Steven C. Bennett, How Can Courts Encourage Cooperation in Discovery?, NYSBAJ (May 2010). Systems to foster cooperation could include use of mediators, in various forms. This article outlines potential uses for mediation as part of the eDiscovery process.
Value of Mediation
The discovery process assumes that parties and counsel will proceed in good faith, including good faith efforts at negotiated solutions to discovery problems. The good faith obligation applies in both directions. Overbroad discovery requests, followed by refusal to recognize priorities in discovery, may fail the good faith standard for requesting parties.
Similarly, halfhearted efforts at preservation, search and production fail the good faith test for responding parties. Judges, often referencing The Sedona Conference® Cooperation Proclamation, 2See The Sedona Conference® Cooperation Proclamation, 10 Sedona Conf. J. 331 (2009). have suggested a need for “transparency” in the eDiscovery process, aimed at party-agreed protocols for the conduct of eDiscovery. 3See Hon. David J. Waxse, Cooperation—What Is It And Why Do It?, 18 Richmond J. L. & Tech. 8 (2012) (despite Sedona Cooperation Proclamation and “numerous [judicial] opinions,” it appears that “cooperation is not being used enough”). Yet, resistance to cooperation remains an endemic problem. 4See Hon. Paul W. Grimm & Heather Leigh Williams, “The [Judicial] Beatings Will Continue Until Morale Improves”: The Prisoner’s Dilemma Of Cooperative Discovery And Proposals For Improved Morale, 43 U. Balt. L.F. 107 (2013) (noting that, although cooperation may be in best interest of parties and their counsel to cooperate, “prisoner’s dilemma” of cooperation means that they “largely fail to do so”).
What is It?
Mediation offers an informal, flexible process that is responsive to the needs of the parties and circumstances of the dispute. Mediation can work at virtually any stage of a dispute.
Mediation, at its core, is a form of facilitated dialogue and negotiation, which can improve understanding between parties. 5See Patricia Kutza, New San Francisco Forum Promotes eDiscovery Mediation, www.law.com (Oct. 23, 2013) (mediators can “primarily work on getting the dialogue going”) (quotation omitted) A mediator often fosters dialogue by asking questions, permitting parties to consider alternative views of a problem. 6See Allison Skinner, The Evolving Role Of eDiscovery Neutrals, www.law.com (Dec. 16, 2013) (interview of Hon. Richard Levie) (mediator can facilitate negotiation by asking “many questions” of counsel and clients; discussing alternative ways to resolve issues, and establishing procedures to “focus on more significant aspects of the problem”). A mediator can also help set the tone for party discussions, and participation in mediation generally shows good faith on each side. Experience with mediated eDiscovery discussions, moreover, may educate parties on cooperative processes for resolving further disputes.
Confidentiality.
Particularly valuable, in fostering cooperative dialogue, is the confidentiality protection that typically attends mediation. 7See Peter Vogel, Use eMediation To Save Time And Money, www.law.com (Sept. 2, 2013) (“discussion[s] between the mediator and parties are confidential and as a result the private caucuses with the mediator gives each party the opportunity to discuss eDiscovery candidly”). Private discussions between the mediator and individual parties which explore issues and alternative solutions need not, absent agreement, be shared with non-parties.
The parties, moreover, can (in joint sessions) share ideas for potential solutions without the risk that tentative offers of solutions will later become evidence in some proceeding. Open discussions between IT specialists may be particularly valuable. 8See Allison Skinner & Peter Vogel, E-Mediation Can Simplify eDiscovery Disputes, www.law.com (Sept. 23, 2013) (suggesting that, during confidential discussions, IT specialists “may disclose e-evidence information without fear that they will later be deposed on the e-mediation issues”). Typically, the mediator need not report to the court, and the parties need not worry about “making a record” (which, in conventional proceedings, often takes the form of inflammatory communications that can stifle any urge to cooperate).
Mediator’s Role.
In its ideal form, mediation in eDiscovery would commence at the outset of every case, and aim at formulation (and implementation) of a discovery plan. 9See Terry Ahearn & Wendy Axelrod, eDiscovery: Cooperation and Proportionality, The Past, Present And Future, www.insidecounsel.com (Sept. 24, 2013) (suggesting desirability of “jointly submitted document production or ESI protocol,” which will “clearly define [party] mutual discovery obligations” and “frame the issues upfront”). Yet mediation can also assist in circumstances where parties and counsel cannot immediately formulate a comprehensive plan. A mediator may identify gaps in knowledge that if corrected, could lead to enhanced cooperation and creative solutions. 10See David Cohen & Claire Covington, eDiscovery: Liaisons Are Key To Discovery Success, www.insidecounsel.com (Aug. 7, 2012) (subject matter experts are necessary “given that most lawyers and judges have little training in the technical issues surrounding ESI”). A mediator may also offer the parties assistance in preparing forms (such as “clawback” agreements and confidentiality stipulations) that can improve efficiency both in discovery and in the process of formulating search protocols. 11See Daniel B. Garrie & Edwin A. Machuca, eDiscovery Mediation And The Art Of Keyword Search, 13 Cardozo J. Conflict Resol. 467, 474 (2012) (neutral may assist where parties have failed to “secur[e] legal counsel with the requisite technological acumen”); Daniel B. Garrie & Siddartha Rao, Using Technology Experts For Electronic Discovery, 38 Litig. 13 (2012) (mediator can “expedite” agreement on search terms, and avoid potential that parties might later “complain” about terms used).
Even where comprehensive discovery planning seems impossible, a mediator may help “screen” issues for decision by a court (or special master). A court might, for example, refer specific matters for “meet and confer” discussion, with the assistance of a mediator. 12Civil procedure rules generally require such consultation between parties. See Fed. R. Civ. P. 16(f) (sanctions available for party or counsel who “does not participate in good faith” in pretrial conference, or is “substantially unprepared to participate”); 26(c)(1) (requiring party moving for protective order to certify “good faith” effort to confer “in an effort to resolve the dispute without court action”); 26(f) (counsel and unrepresented parties responsible for “attempting in good faith to agree on the proposed discovery plan”); 37(a) (requiring party moving to compel to certify “good faith” effort to confer “in an effort to obtain [disclosure] without court action.”). Such a process could help sharpen issues for presentation to the court (or a special master). 13See Allison O. Skinner, Alternative Dispute Resolution Expands Into Pre-Trial Practice: An Introduction To The Role Of E-Neutrals, 13 Cardozo J. of Conflict Resol. 113, 127 (2011) (“Using an e-mediator on an ‘issue-by-issue’ basis allows the parties to negotiate informally and to use the services of an e-mediator as needed. A level of efficiency is created when the parties, who otherwise have worked well together, have access to an e-mediator who is familiar with the pre-trial activities to address specific issues.”).
Forms of Mediation
The term “mediation” encompasses a broad array of processes, and a broad array of techniques. Mediation, as a set of tools, may serve a variety of goals, and adapt to a variety of circumstances. 14See Simeon H. Baum, Mediation And Discovery, in Daniel B. Garrie & Yoav M. Griver (eds.), Dispute Resolution And eDiscovery §3.1 at 51 (2012) (unique features of mediation include “freedom and creativity that infuses” the process).
Ignorance of best practices in eDiscovery remains a problem for the legal profession. Technology savvy mediators can provide an education function for counsel and parties, even without becoming deeply involved in a matter. 15See Daniel B. Garrie & Salvatore Scibetta, We Need Mediation In eDiscovery, www.law360.com (June 5, 2013) (mediator serves as “listener and translator;” who may help “translate the technical underpinnings of each party’s systems into actionable discovery efforts that both parties can comprehend”). A court, for example, might establish a “hot-line” system staffed with trained court personnel or volunteer mediators (with eDiscovery experience) available to answer basic questions about the court’s rules and expectations, and about available eDiscovery technology.
Determining Readiness to Cooperate.
A system of assessment (not of the merits of the dispute, or even of the relative positions of the parties regarding eDiscovery matters), aimed at determining whether the parties are well-prepared to cooperate in the case, and what kinds of resources would best serve the needs of the parties, might be offered as a form of “triage.” Such a system might require interviews, or could (conceivably) be conducted through written questionnaires (perhaps via an on-line system). The system might also focus on helping parties identify reasonable timetables for discovery processes and help identify cases with specific forms of eDiscovery related case management problems.
A mediator’s role in a Rule 26(f) conference might consist of helping schedule the conference, and ensuring a professional tone to the discussion.
Keeping the Focus, Civilly.
In the discovery context, merely ensuring that parties communicate about essential issues, and do so in a courteous manner, can aid the process. Thus, a mediator’s role in a Rule 26(f) conference might consist of helping schedule the conference, and ensuring a professional tone to the discussion. A mediator might also encourage parties to bring together their technical personnel, to address creative solutions to eDiscovery problems in a case.
A mediator may also aid parties by bringing an agenda for discussion to the process. At the outset of a case, many basic issues (preservation of evidence, search techniques and privilege protection, to name a few) constitute essential elements for negotiation. A mediator might insist on discussion of all essential topics, with the aim of creating (if possible) a comprehensive eDiscovery plan for the case.
Litigants are generally required to certify, before bringing discovery related motions, that they have conferred in good faith regarding the motion. A mediator might help confirm that parties truly have met their obligations to confer in good faith, before seeking court assistance. On more complicated cases, a more regular system of referral to mediation might be required.
The concept of “mediation” is also broad enough to include evaluation of disputes. The neutral evaluation process generally involves each side presenting a summary of its position, with the neutral offering an evaluation of the strengths and weaknesses of each party’s case. Such an evaluation may lead to resolution of the conflict or may simply assist with case planning (helping the parties understand the nature of the issues, for example). 16See Daniel B. Garrie, Redefining The Discovery Terrain: The Need For Mediation In eDiscovery, Part II, www.lawandforensics.com (Nov. 28, 2013) (mediator may help “educate each party” about the “reality” of their demands).
Limits of Mediation
Mediation cannot solve all problems associated with modern eDiscovery practice. Most obviously, a mediator lacks the power to compel agreement. Mediators must operate through persuasion.
A mediator also typically cannot compel parties to share information and cannot compel testimony in support of dispute resolution.
Although general mediation skills are essential, mediation of eDiscovery disputes may require specific technical education and experience. Lack of familiarity with technology issues could hinder the mediation process, and increase cost. Thus, some form of mediator qualification may be essential.
Creating an eDiscovery Mediation System
A court-sponsored program of eDiscovery mediation should do more than simply remind parties of the option to use mediation. Ideally, court-sponsored mediation should be available from the outset in every case with a significant eDiscovery component. A court might develop its own staff of eDiscovery neutrals, or create a roster of qualified mediators.
Courts might offer attorneys eDiscovery training programs and certification in exchange for some form of voluntary service as a mediator. 17See Daniel B. Garrie, Redefining The Discovery Terrain: The Need For Mediation In eDiscovery, Part I, www.lawandforensics.com (Nov. 14, 2013) (suggesting that each court could “be host to a small group of discovery mediators” whose role would be to “advise on the legal and technical implications of a discovery protocol”).
Significantly, unlike special masters, which require specific judicial appointments, 18Shira A. Scheindlin, Special Masters And E-Discovery: The Intersection Of Two Recent Revisions To The Federal Rules Of Civil Procedure, 30 CARDOZO L. REV. 347 (2008) a cadre of eDiscovery mediators could exist as a permanent court resource, offering a more flexible, lower-cost alternative to special master appointments. Although limited, experience with the Seventh Circuit eDiscovery pilot program, 19See Seventh Circuit Electronic Discovery Pilot Program, Interim Report On Phase Three, www.discoverypilotprogram (2013). and a somewhat similar program in the Western District of Pennsylvania, 20See Electronic Discovery Special Masters, www.pawd.uscourts.gov. suggests that development of a neutrals program for resolution of eDiscovery disputes may prove effective in other courts.
Conclusion
Given the increasing volume and complexity of eDiscovery, efforts to foster cooperative planning and dispute resolution are essential. Lawyers already know how to mediate. Expansion of existing court-connected mediation programs appears feasible, and necessary.
