Redefining the discovery terrain: The need for Mediation in E-Discovery
by Daniel B. Garrie, the Senior Managing Partner at Law & Forensics LLC. He focuses on e-discovery, digital forensics, cyber security and warfare, data privacy, and predictive coding, and works with law firms, governments, companies, and non-profits around the globe
See Part 1 for an introduction on the place of mediation in e-discovery disputes, and Part 2 for a discussion of the practicalities of conducting an e-mediation.
Discovery mediation is an emerging field of the law and will certainly change and evolve in the months and years to come. However, the following practitioner points should be a valuable resource to counsel when weighing the benefits of discovery mediation.
Discovery mediation should focus on the issues of discovery and not the substantive issues underlying the dispute.
Discovery mediation is unique in that the mediator is not concerned with the outcome of the underlying dispute but rather on resolving the discovery issues. Counsel must be mindful to refrain from litigating the facts of the case and stay focused on resolving the discovery disputes. Often discovery is best resolved via cooperation rather than litigation, and in discovery mediation, the best path to success is certainly by attempting to facilitate cooperation and open dialog between the parties. The discovery mediator is there to aid parties in removing discovery obstacles, as discovery should not be the focus of the court’s time or the client’s money.
Make sure your mediator is adept at the law and technology, with real-world experience around keyword search and the use of predictive coding tools.
As mediation is focused strictly on the discovery issues and the technical systems of both parties, it is critical that the mediator know the right questions to ask and is able to understand whether the answers given make sense. The private sector has effectively created a breed of lawyer/technologist who possesses expertise in information management systems as well as the tools to act as a discovery mediator. The benefit of this lawyer-technologist hybrid is his/her ability to effectively determine e-discovery scope and keyword searches within the context of the legal issues in dispute.
Accordingly, your mediator must have expertise in both the law and technology. For example, a mediator who understands the fiscal repercussions of technical discovery demands can translate technical jargon into hard numbers so that attorneys are able to see the real-world time and cost ramifications of their requests. This may result in counsel reconsidering a document request or a dispute at issue. The question we want attorneys asking is: Does the cost of discovery outweigh the value? When this is taken into consideration, a previously rejected discovery method may look more palatable to both parties. Another time- and cost-benefit of a technologically adept mediator is that neither party has to hire experts, nor must either attorney become an expert on the client’s or opposing party’s specific computer systems. Taking the adversarial element of litigation out of discovery serves all parties and the court by streamlining the discovery process.
Push for a cooperative mediation experience and leave adversarial strategy at the door.
It is equally critical that the mediator listens to the parties’ concerns and questions with an open mind and that those parties are willing to cooperate with and listen to each other. The mediator can translate the technical underpinnings of each party’s systems into actionable discovery efforts that both parties can comprehend. The 7th Circuit has begun a program where discovery mediation is routinely encouraged, leading the way for other programs around the country, but there is no need to wait for a program to start in your jurisdiction. Mediation, programmatic or not, must be mutually agreed upon by the parties. After that, it is just a few short settlement hours away from moving on to the real issues of the case.
Courts do not want the substantive issues of the case tainted with discovery disputes and may act sua sponte to limit or compel discovery to best protect the merits of the case. See Walker v. White, 1:06CV350, 2007 WL 812113 (W.D.N.C. Mar. 14, 2007), and see Long v. Fairbank Farms Reconstruction Corp., 1:09-CV-592-GZS, 2011 WL 5386599 (D. Me. Oct. 25, 2011). It should be much preferred that parties resolve their discovery issues on their own terms and without interference by the court, which may or may not understand the technical significance of the issues. Trying to get a strategic advantage through discovery will undoubtedly prolong the process, certainly will not advance your case, and will potentially subject you to the court’s unpredictable orders on discovery.
While some may view traditional mediation as a soft form of adjudication best left for family disputes and small matters, the format of discovery mediation is suited for even the largest of commercial disputes. By combining confidentiality with an opportunity to separate the technical aspects of discovery from the real issues of the case, both parties benefit, saving significant time and money. As court dockets and budgets continue to tighten, counsel would be wise to consider the benefits of discovery mediation for their cases.