Edmund J. Sikorski, Jr., J.D. 

Mediating e-Discovery Disputes

 

By David Steinfeld, Esq. and Edmund J. Sikorski, Jr., J.D.

April, 2013

 

 

Discovery of Electronically Stored Information (ESI) is the newest and developing area of practice in civil litigation. E-discovery began in complex commercial disputes, but is now appearing in a multitude of cases and will continue to develop and permeate all manner of civil cases.

 

Mediation is a useful and efficient method to deal with e-discovery issues. It can afford the parties control over the process and reduce their costs. In any mediation, the Worst Alternative to a Negotiated Agreement (WANTNA) is one where a Judge "splits the baby". This may have a greater impact in e-discovery because it can propel a case on a course that the parties did not intend or desire. In e-discovery mediation, the parties take control over the outcome of the process, what is being requested, how it is produced, and when.

 

The Commitee comment to Florida's new and amended Rule 1.280 provides, "The parties should consider conferring with one another at the earliest practical opportunity to discuss the reasonable scope of preservation and production of electronically stored information. These issues may also be addressed by means of a Rule 1.200 or Rule 1.201 case management conference.” This guidance strongly suggests that parties would be wise to consider mediation in the early stages of the e-discovery process in appropraite cases to avoid unnecessary litigation and use of limited judicial resources.

 

Unlike ordinary mediation that is geared toward resolving the entire dispute, e-discovery mediation is limited to a singular issue within the dispute that must be resolved before a case can advance to a final mediation or trial. E-discovery mediation is a cost-effective mechanism to manage the situation. The parties' good faith attempts to resolve the issue may even shield them from the imposition of sanctions.

 

Some of the advantages of e-discovery mediation are:

 

• Identification and remedying of miscommunications and misunderstandings

• Designing workable solutions for issues of ESI sources, presentation, and form of production

• Definition of parameters and confidentiality issues

• Determinations of relevancy

• Development of timelines and sequences for production 

• Avoidance of spoliation

• Allocation of costs

 

The goal of e-discovery mediation is for parties to conclude with an agreed e-discovery plan over which they have and will maintain control. This control, in turn, results in a product that reduces costs and allows for the efficient adjudication of any civil dispute.

 

From a practitioner’s perspective, e-discovery mediation, just like e-discovery itself, may not be necessary or appropriate in every case, however, the costs of e-discovery and ESI experts, whether borne by a plaintiff or defendant, can be substantial and can even rise to the level of precluding a party from having the merits of its claim reached. Thus, where appropriate, e-discovery mediation can be an extremely beneficial mechanism for all the parties to a dispute and can form the foundation necessary for parties to begin the process of working together to ultimately resolve their dispute in a manner and form that is acceptable to them.