Mediation in E-Discovery
By Steven C. Bennett
Commentators have increasingly remarked on the possibility for use of "Alternative Dispute Resolution" (ADR) as a means to resolve discovery disputes, especially those in the growing field of "electronic discovery" (e-discovery) in litigation. The volume of "electronically stored information" (ESI) and ever-changing communications, storage and other applications technologies present a great challenge for courts, which may not have the resources and expertise to tackle the project management issues that often arise in e-discovery.
Cooperation and transparency are essential elements of modern e-discovery practice. Because the parties best know their own needs and capabilities, negotiation, rather than motion practice and judicial supervision, has become a key to efficient litigation. Yet, counsel sometimes shirk their responsibility to gain an understanding of their clients' capabilities, and may assert overbroad demands and objections to discovery. Where parties do not confront their issues in good faith, and early in the discovery process, a case can become tied up in motion practice, sideshow requests for sanctions, and "do over" inefficiencies.
Under federal rules, a "special master" may be appointed to supervise all or a portion of the e-discovery process. Typically, the master's appointment terms are negotiated between the parties, and "so ordered" by the court. The master's fees are generally paid by the parties. Due to expense, masters are not routinely used. Most courts rely on magistrate judges to supervise more complicated discovery projects in federal litigation. Several districts have adopted mediation programs, which could be adapted to the e-discovery context. In many cases, a judge may perform "triage" to determine what particular issues, or what forms of discovery, may best contribute to efficient resolution of the case.
In New York's state courts, judges may appoint special "discovery referees" to oversee complicated or contentious cases. The courts also may draw upon retired judges as "judicial hearing officers." Several of the Commercial Division courts have developed programs for more organized referral of cases, where judges spot problems brewing in the discovery process. With such resources, a neutral may help set a "tone" of civility in the discovery process, which can facilitate resolution of problems, without the need for motion practice. Courts might also benefit from access to technology professionals, assigned to the court, to help judges address e-discovery issues.
In many cases, organized discussion of e-discovery problems can produce negotiated solutions. A neutral need not resolve all e-discovery disputes in a single session. The process may proceed in "steps," toward resolution of significant issues. Where problems remain, moreover, the process of review by a referee provides increased clarity of understanding, such that resolution by the court may be made more efficient.
The 2012 report on commercial litigation in New York courts recommended, among other things, development of a cadre of qualified referees and other resources to assist in management of the discovery process. Not all these efforts necessarily require additional resources from the courts. One particular suggestion is that judges focus early on discovery efforts that may help to settle a case. Many of the best practices of the Commercial Division judges could be extended to litigation in other areas.
Steven C. Bennett is a partner at Park Jensen Bennett LLP, in New York City. The views expressed are solely those of the author, and should not be attributed to the author's firm, or its clients.