As litigators are aware, the cost of discovery is a significant component of the cost of litigation, a fact the U.S. Supreme Court noted in 2007 in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 559 (2007), when it stated that “the threat of discovery expense will push cost-conscious defendants to settle even anemic cases . . . .” Given the rapid expansion of the volume of electronic data in our society, it is no surprise that both the discovery of electronically stored information, or “e-discovery,” and disputes relating to e-discovery can further exacerbate the burdensome cost of litigation. When resolving e-discovery disputes, the parties must weigh the relevance, proportionality, cost, and accessibility of information. At least one court has commented that weighing these factors and working out the practical, technical method of producing the relevant electronic records “is a cooperative undertaking, not part of the adversarial give and take.” In re: Seroquel Prods. Liab. Litig., 244 F.R.D. 650, 660 (M.D. Fla. 2007). Given the number of complex factors that must be balanced and the substantial risk to the parties arising from an adverse e-discovery ruling, more parties are turning to mediation to resolve e-discovery disputes. Mediation can provide a forum for litigants to explore potential alternatives to cost-effectively exchange information relevant to the underlying litigated dispute. By mediating e-discovery issues, litigants can limit the time and cost associated with seeking judicial intervention, control the cost of electronic discovery, maintain confidentiality, and avoid potential adverse results, such as sanctions.
In the e-discovery arena, mediation can be used either to create a mediated e-discovery plan or to resolve underlying disputes regarding electronically stored information. A skilled mediator who is knowledgeable about e-discovery can facilitate the negotiation and resolution of complicated e-discovery issues without judicial intervention. Further, by eliminating acrimonious discovery battles, mediating e-discovery disputes can also improve the prospect of settlement of the underlying litigation.
Who Should Participate? The success of any mediation depends upon the participation of those persons whose input or consent is needed to reach an agreement. This is certainly true of mediations of e-discovery disputes. In addition to the decision makers for the respective parties and litigation counsel, e-discovery mediations should include IT personnel or other technical consultants who have knowledge of the parties’ electronically stored information systems. The participation of IT personnel and/or IT consultants who are familiar with the litigants’ electronic systems and capabilities is key to successful e-discovery mediation.
Preparation for e-Discovery Mediation. Electronic information can take many forms, including active data, inactive data, metadata, deleted data, ghost data, legacy data, archived data, and back-up data. In advance of e-discovery mediation, it is imperative that counsel becomes familiar with the type of information stored and how it is stored, preserved, retrieved, and produced, as well as the cost of producing it. In addition, counsel should become familiar with the inventory of storage devices used by the client, the location and ownership of those devices, the client’s retention policies, and any automatic deletion procedures that may need suspending. Counsel should also become familiar with the client’s data mapping and systems mapping.
Mediation Statement. The parties should prepare a confidential mediation statement and deliver it to the mediator well in advance of the mediation. The mediation statement should include the following:
- the identity of the persons who will attend the mediation, including all IT representatives and whether the IT representatives are employees of the litigant or hired consultants, and if the IT representative is a hired consultant, the scope and nature of the consultant’s engagement with the litigant;
- a candid discussion of potential issues identified by counsel, including potential spoliation issues, cost concerns, timing issues, and specific privilege concerns;
- a candid assessment of the technological capacity of both the litigant and counsel’s law firm together with any proposed solutions to obvious deficiencies in their respective capacities;
- a disclosure of whether any depositions of corporate representatives have been taken regarding electronically stored information, and if any such depositions have been taken that elicited testimony regarding electronically stored information that would help the mediator understand the electronic landscape, a notation of any relevant testimony and copies of relevant portions of the deposition transcripts; and
- if the specific purpose of the e-discovery mediation is to resolve disputes arising from discovery requests already propounded in the litigation, a summary of the specific disputes and copies of the discovery requests, responses and objections, motions to compel, relevant scheduling orders, and related documents.
Issues to be Addressed Through Mediation. Although the issues to be addressed through e-discovery mediation will vary with the procedural posture of the litigation and the specifics of the dispute at hand, the issues likely to be addressed through e-discovery mediation include:
- the scope of reasonably accessible electronic data to be preserved and reviewed;
- the search parameters to be used to locate electronic data;
- the method of review to be employed;
- the data format for preservation and production;
- the time and manner of production;
- the procedures for handling inadvertently produced privileged information;
- the potential need for protective orders;
- the methodologies to evaluate compliance with any e-discovery plan or mediated e-discovery agreement; and
- the mechanism and protocol to enforce any mediated e-discovery plan or mediated e-discovery agreement.
The outcome of e-discovery mediation, e.g., an agreed e-discovery plan or an agreement resolving objections to propounded discovery requests, should be reduced to writing and signed by all parties and counsel according to the appropriate rules governing mediation in the jurisdiction of the litigation.
E-discovery mediation can provide litigants with a confidential venue to efficiently manage the discovery of electronically stored information. Mediation can help parties control e-discovery costs, maintain confidentiality, and avoid potential adverse results, such as the imposition of sanctions. Although mediation will not eliminate all e-discovery disputes, it is a tool to reduce or eliminate e-discovery motion practice that should not be overlooked.