Can E-Discovery Mediators Help Reduce Chaos?

Proportionality and Production 0 October 28, 2016 192 Aaron Taylor

compliance-keep-calmThere is probably little objection to the statement that conflicts in discovery processes and production between opposing counsel cause serious headaches for all involved…attorneys, clients and courts all can be frustrated by the time and effort consumed with disagreement on what or how much data should be produced, by whom, when and how.  Arguments ensue and chaos results.  But one state and some progressive judges are attempting to address and – who knows – possibly alleviate some of the chaos.

As noted in a recent Daily Business Review article and reviewed by Doug Austin at CloudNine, Palm Beach (FL) Circuit Judge Lisa Small mandated a standing order for creation and implementation of a meet-and-confer obligation among litigants to resolve discovery conflicts, and now is recommending that the position be created for a special magistrate to mediate the huge ESI issues that accompany large litigations.  Accompanied by Magistrate Sarah Willis and Circuit judges Meenu Sasser, Daliah Weiss and Jessica Ticktin, Judge Small pushed the mediator concept would address the complex and time-consuming ESI issues prevalent in more and more cases.  One eye-catching statement from Judge Sasser succinctly called out the present and future state of ESI discovery:

“Every single case is an e-discovery case now,” Sasser said. “That’s how we live our lives. Everyone is communicating through Facebook, emails, texts.”

It seems likely that this idea can gain traction and spread through more states and court systems, as the logjam is not going away, and will only get worse if not addressed.  Although the mediator plan put forward by the judges is intended to assist with the courts’ calendar management at this point, there are definitely positive implications for attorneys, their clients, and even e-discovery vendors.  When a mediator is allowed to come in and address conflicts during discovery, attorneys for both sides are able to move forward with at least somewhat clearer consciences that their opinions and efforts to add or remove data have received proper attention and fair resolution.  Clients should definitely be relieved to see costs reduced with fewer billing hours dedicated to lawyer arguments and counter-arguments.  And, at least to this practitioner’s way of thinking, vendors and counsel are free to focus on what I believe are among the very important task of going forward with analytics and review with a clear path to production.

Rather than making discovery collection and production decisions too quickly that no-one is really happy with, due to cost and time pressures, skilled mediators may offer a sophisticated and more satisfying way to show progress; rather than making decisions just to show progress, resolution can be more balanced and tuned to the actual litigation issue.  Florida has again started a ball rolling, with their recent addition of required CLE technical training and now by addressing ESI stalemate issues…good on them.  Whether this becomes a “movement” remains to be seen; I cannot predict, but would like very much for attorneys and judges to weigh in with their informed opinions.


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