Joint Sessions and the Use of E-Neutrals in ESI Disputes

Since 2011, the American Bar Association (ABA) has celebrated “ABA Mediation Week.” The ABA events bolster efforts of many other national, state, and local organizations, including the Association for Conflict Resolution (ACR), which have traditionally celebrated conflict resolution during October. According to the ABA, Mediation Week celebrates strides made in institutionalizing mediation as one of several dispute resolution processes. For many years, Florida has led the field of alternative dispute resolution which has grown in acceptance, especially as litigation has become more costly and lengthy with electronic discovery. There is certainly wide recognition that the majority of cases are resolved outside of the traditional adversarial process. Litigants, their attorneys and the judges they appear before routinely embrace multiple paths to settling lawsuits out of court, including mediation. The theme for this year’s ABA Mediation Week was: Mediation: Successes, Challenges, Trends and the Next Generation: Looking to the past, present and future. I am pleased to have been featured in the Dispute Resolution Section's Just Resolutions eNews on the subject of ESI Mediation. You can read my article entitled, "Joint Sessions and the Use of E-Neutrals in ESI Disputes" here-- http://www.americanbar.org/content/dam/aba/uncategorized/dispute_resolution/just-resolutions/kolin_joint_sessions.authcheckdam.pdf

Join me in NYC for the Masters Conference

Please join me this month as I've been invited to speak about streamlining electronic discovery at the Masters Conference for Legal Professionals on Tuesday, July 21, in New York City. Having chaired the recent effort to amend Florida Civil Procedure Rules to include e-discovery and previously taught for the state’s Advanced Judicial College, I'll join other industry experts in taking attendees through the life cycle of a complex case. We'll be focusing on fixing problem areas for a more cost-effective approach in a panel discussion titled “How to Streamline E-Discovery,” which runs from  11 am to noon. All eight of the conference’s sessions will take place at New York’s famed Harvard Club. The conference will concentrate on e-discovery, data protection, records management and related topics. “Whether you’re dealing with e-discovery in a new, socially networked world, find your company expanding globally and thus facing international discovery issues, or planning for the future of e-discovery in your firm or company, you know there’s a divide between what is in practice today and where your firm needs to be in the near future,” according to conference organizers. “Legal professionals must develop strategies for spanning this e-discovery divide before it expands further across traditional borders, whether physical or technical.” My emphasis will be on avoiding discovery disputes in the courts through the use of E-Neutrals, Mediated Case Management and Special Masters in culling the universe of information available to parties, in order to let them focus back on the merits of the claims and defenses. For more information about our panel at the Masters Conference, please visit-- http://themastersconference.com/agenda/how-streamline-ediscovery and for the full agenda in New York, see-- http://themastersconference.com/events/new-york-city

E-Neutral Services at UWWM

Just a moment of personal privilege-- I'm pleased to announce moving my dispute resolution practice to Upchurch Watson White & Max, a nationally leading mediation firm known for facilitating reasonable agreements to resolve complex civil litigation. As a UWWM neutral panelist in Florida in exclusive practice in Alternative Dispute Resolution, I'll continue to offer my wide-ranging experience in ESI disputes, including serving as an Arbitrator, E-Neutral and Special Master. Please see our E-Discovery Services-- http://www.uww-adr.com/services/e-discovery-services. In this role, I'll keep writing and speaking on implementing innovative methods of ADR, such as Early Neutral Evaluation of lawsuits. You can also get the latest trends on my more frequently updated and officially ABA listed "Blawg" at www.abajournal.com/blawg/Orlando_Mediator 
For more information on my new firm and scheduling:
http://www.uww-adr.com/biography/lawrence-h-kolin
(800) 863-1462

ABA #MediationWeek 2014 Features E-Neutral

This year’s American Bar Association Mediation Week theme is “Stories Mediators Tell—From Rookie to Veteran, Exploring the Spectrum of Mediation.” As part of the program, the ABA Section of Dispute Resolution published its October Enews featuring a recent article I authored encouraging use of skilled mediators or E-Neutrals in order to get back to the merits of a case. Now that E-Discovery rules have been used in federal courts for years and more recently in the majority of state courts, disputes over electronically stored information (ESI) are more commonly being addressed in state court litigation. E-neutrals are knowledgeable dispute resolvers who routinely mediate cases involving electronic evidence can help shape discovery plans, allocate costs, suggest technological solutions and create efficiencies in this emerging area. Mediation can feature private caucuses with retained experts or information technology liaisons that may help conduct discovery proportionally, minimizing motion practice, and avoiding sanctions and unpredictable judicial outcomes. Cooperation under this alternative dispute resolution rubric may also encompass settling procedures to be followed when discovering privileged information that has been inadvertently produced in the course of discovery, including clawbacks or agreed confidentiality orders. For more information, see my article here-- http://www.americanbar.org/content/dam/aba/events/dispute_resolution/Newsletter%20articles/Kolin.authcheckdam.pdf and the entire Just Resolutions Newsletter here-- http://www.americanbar.org/groups/dispute_resolution/JustResolutions/November-e-news111121111.html?cq_ck=1413403137831 a

ENE in E-Discovery Heavy Cases?

Mediation and arbitration have been out-of-court dispute resolution options available to Florida litigants for a quarter century. Early Neutral Evaluation or ENE is relatively new and has perhaps not caught on because of lack of court rules and some misconceptions about the process. Early Neutral Evaluation was developed in the United States District Court for the Northern District of California to reduce the expense of litigation for civil litigants. ENE is a hybrid of mediation and arbitration with a goal of helping litigants gain a better understanding of their case. Simply put, a third-party neutral examines the positions of the parties and gives an evaluation of the case. ENE is designed to avoid unrealistic expectations about the probable outcome of a case. ENE ensures time and money are not wasted on litigation and provides a reality check for attorneys and clients. A court-appointed neutral with expertise in ESI can host an informal meeting of clients and counsel once the parties request ENE. Sessions generally include and introduction and opening remarks by evaluator, followed by presentations of claims and defenses by counsel. The neutral evaluator then identifies common ground and probes possible stipulations. Upon clarifying key disputed issues, the evaluator can ask if the parties wish to explore settlement before the evaluation is presented and otherwise conduct settlement negotiations if the parties agree to do so. If not, the evaluator explains their assessment of the case, including what may be awarded at trial, what the settlement range of the case should be, and the strengths and weaknesses of each party’s case. The neutral case evaluator has no power to impose settlement and may not force a party to accept any proposed terms. Though formal discovery, disclosure and motion practice rights of the litigants are fully preserved, a skilled neutral evaluator with experience in ESI can assist with streamlining case management early, including E-discovery. The confidential evaluation is non-binding and is not shared with the trial court. If no settlement is reached, the case remains in litigation, but likely with the litigants better informed as to the risks, amount of work still necessary to conclude the case and a monetary estimate of the cost of continuing toward trial. I will be working with other full-time neutrals in Florida to explore establishment of a pilot program here. See California rules here-- cand.uscourts.gov/adrlocrules

Join me in Orlando at OCBA's Bench Bar Conference!

Tomorrow, April 11, 2014, I will be speaking on a few panels at the Orange County Bar Association's Bench Bar Conference at the Loews Royal Pacific Hotel at Universal Studios Orlando Resort. I am particularly excited about joining the Hon. David Baker, U.S. Magistrate Judge for the Middle District of Florida, on Advanced E-Discovery. We will be reviewing some of the proposed amendments to the Federal Rules of Civil Procedure, including 37(e) and 26(b)(1). Our CLE is actually occurring the same time that the federal civil rules advisory committee is meeting in Portland. Concerns about  proportionality moving factors to Rule 26(b)(1) were raised last fall at the Duke conference-- that it will shift the burden of proving proportionality to the party seeking discovery, that it will provide a new basis for refusing to provide discovery, and that it will increase litigation costs. None of these predicted outcomes is intended and the proposed committee note has been revised to address them. The note explains that the change does not place a burden of proving proportionality on the party seeking discovery and explains how courts should apply the proportionality factors. The note also states that the change does not support boilerplate refusals to provide discovery on the ground that it is not proportional, but should instead prompt a dialogue among the parties and, if necessary, the court. The Duke subcommittee was convinced that the proportionality considerations — which already govern discovery and parties’ conduct in discovery — should not and will not increase the costs of litigation. To the contrary, they maintain more proportional discovery will decrease the cost of resolving disputes in federal court without sacrificing fairness. See OCBA seminar agenda here-- http://www.orangecountybar.org/content/uploads/PDFs/Bench%20Bar%20Content%20by%20Session.pdf See advisory committee report here-- http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Civil/CV2014-04.pdf

Settling ESI disputes with Mediators

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.