Redefining the Discovery Terrain: The Need For Mediation in E-Discovery (Part 1 of 3)

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

Lawyers readily use mediation as a tool for resolving disputed legal issues, but its value is often overlooked as a tool for resolving e-discovery disputes. With increasing frequency, lawyers become embroiled in disputes that revolve around discovery, which creates an unfortunate distraction from the core merits of the case. Lawyers who utilize mediation to resolve discovery disputes save substantial money and time for their clients and are better able to focus on the underlying dispute. While the scope of discovery varies among different types of cases, all parties disputing the production of digital information can benefit from mediation, which allows for the efficient resolution of the otherwise distracting and complicated issue of e-discovery. “The court has the power and the duty … to insist that the discovery process be conducted in an orderly and dignified atmosphere, free from intrusive and distracting side shows which only burden the search for truth.” Harlem River Consumers Co-op., Inc. v. Ass. Grocers of Harlem, Inc., 54 F.R.D. 551, 552 (S.D.N.Y. 1972).

As we all know and recognize, the last two decades have been a technological whirlwind, placing internet, email, and digital communications at the cornerstone of how business is done and how humans interact in our modern world. As technology rapidly evolves, so must the legal community, in order to meet the ever-growing needs of litigation involving the digital world.

This presents a peculiar problem for judges and litigators: How does the justice system balance long-standing rules with rapidly changing technology? In many courtrooms, the solution has come in the form of new local rules placing limits on the number of search terms a party can use, requiring production in native format, or limiting metadata. While all of these rules serve a purpose, they address the most minimal of problems without beginning to encompass the scope of the issue. Courts and legal bodies need to think much bigger when it comes to managing technology and litigation, and not be wary of bold steps.

The first bold step into managing technology and litigation should include a widespread division of labor. Much like the Federal Magistrate Act of 1968, which outlined the roles of federal magistrate judges in relieving overloaded dockets, a complete overhaul is necessary to ensure that judges are able to rely on experts in specific fields. The burden placed on magistrate judges to oversee e-discovery effectively forces them to become experts in technology, when most lawyers and judges do not have a background in technology. Nevertheless, in the current situation, they are forced to advocate one position or another. Instead of requiring all magistrate judges to become experts in all new technologies (search, predictive coding, cloud computing, etc. – new branches are always emerging), each court could be host to a small group of discovery mediators (sometimes referred to as “e-mediation” or “e-mediators”), whose role would be to advise on the legal and technical implications of a discovery protocol. Just as e-discovery mediation allows the parties to focus on the substantive issues, e-mediators allow magistrate judges to focus and rule on areas within their expertise.

In the next installment, I will discuss the practicalities involved in conducting an e-mediation, including a detailed discussion of each phase.