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.
A typical mediation workflow is broken into four major phases: (1) Pre-Mediation; (2) Opening Statements; (3) Caucus; and (4) Memorialization. Each phase requires significant communication between all parties and the mediator in order to make the most of the mediation.
The Pre-Mediation phase is an information-gathering period during which the mediator informs the involved parties what information will be needed prior to meeting. This type of information may include: the scope of the expected collection (e.g., 425 desktop computers, 57 mobile devices, and 2 servers); the physical locations of electronically stored information (“ESI”) (e.g., locally, on a remote cloud server, and on backup tapes in a storage facility); any discovery disputes (e.g., one party does not want to produce metadata); and any particular desired search methodology (e.g., predictive coding).
At the initial meeting, the mediator and each party will give an opening statement. From the mediator, this will include a discussion of the mediation’s confidentiality, the mediator’s neutrality, and the voluntary participation of the parties. The mediator can also discuss other relevant information such as: how he or she expects to proceed with the mediation, a reminder about the focus of the mediation, and an imploration that both parties come to the mediation with a real desire to resolve the discovery issues. Following the mediator’s opening statement, each party will give an opening statement regarding their discovery issues and concerns, as well as proposed solutions.
Following the opening statements, the mediator proceeds to discuss the discovery issues with the parties. This caucusing can be joint or private, depending on the requests of the parties and/or the wishes of the mediator. Private caucusing often occurs when there is an information disparity between the parties, such as a party that does not grasp the ramifications of their discovery requests or the complexity of their technology systems. It is the job of the mediator to educate each party about the reality of their demands, a conversation that is sometimes best conducted in private. Like any other mediation, a key component of success is the trust established between the mediator and the parties. Whether it is joint or private, the caucus period can take place over the course of several meetings, whose length depends on the complexity of the disputes.
The final stage of mediation is the memorialization of the resolution. This is a key document whose drafting can take as much time as did all the negotiations leading up to the document’s creation – we are talking about lawyers, after all! Patience and thoroughness are critical at this stage, as the entire trial or settlement can depend on information uncovered during discovery. The product of the memorialization is a document that lawyers can pass on to their clients and to the judge, in order to satisfy them that the technological issues were handled efficiently and properly. This maintains the integrity of the underlying case that brought the parties to court in the first place.
In next week’s installment, I will discuss concepts and methodologies for practitioners to keep in mind during an e-mediation, and close with a few thoughts on the usefulness of mediation in the modern court.