Now that we are more than a year into Florida's E-Discovery rules, disputes over electronically stored information are coming to a head. E-neutrals or
mediators specializing in complex cases involving electronic evidence can
shape discovery plans, allocate costs and suggest and create efficiencies. The mediation
process may focus the confidential conference solely on managing ESI, or the
neutral may broaden the
discussion, reminding parties of the merits and perhaps
dissuading them from merely using E-discovery as a sword or shield. Mediation is an
avenue that can present parties with significant cost-savings in ESI cases, if
performed early enough in the litigation.
For
example, though counsel are urged to reach a rational agreement on what must be
preserved, taking into account costs and burdens incurred by modifying or
suspending document retention systems can be difficult. Implementing even
narrowly tailored litigation holds to preserve crucial ESI can be difficult
without the assistance of an e-neutral during negotiations. Under the
safeguards of a confidential mediation, limited discovery from custodians or
other key persons with special knowledge of a company’s computer systems may be
particularly useful. Lawyers can then self-determine sources from which
relevant information is to be obtained, while the neutral facilitates agreement
on the time-frame at issue, search protocols, accessibility of stored information
or the cost and burden of restoring inaccessible information.
An
e-neutral or mediator can also facilitate the electronic discovery process by
helping parties to agree on the form in which they want information produced
and the extent to which metadata will be produced. Mediation can feature caucuses with
experts or IT liaisons that may help conduct discovery
proportionally,
minimizing motion practice, and avoiding unpredictable judicial outcomes on IT
and ESI. Cooperation under this rubric may also encompass settling procedures
to be followed when discovering privileged information that has been
inadvertently produced in the course of discovery, including clawback
agreements or agreed confidentiality orders. If the parties reach an agreement,
they may ask the court to include the agreement in their scheduling order.
