ESI, E-DISCOVERY PLANS AND THE MEDIATOR - FACING THE FUTURE OF ELECTRONIC DISCOVERY
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.
By: Richard P. Byrne, Esq.
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 in the NY Metro area and throughout the United States. He was named one of the Top 3 Mediators in the U.S. by the 2015 Best of the National Law Journal Annual Reader Rankings Survey, and was voted a Top Ten Mediator in New York State by the New York Law Journal Reader Rankings Survey in 2014 and 2015. Mr. Byrne is Co-Managing Partner of L’Abbate, Balkan, Colavita & Contini, LLP.,in Garden City, N.Y.
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For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at firstname.lastname@example.org or direct dial telephone at 516-941-3228.