HCBA Lawyer Magazine Vol. 28, No. 5 | Page 52

meDiating e-DiscoverY Disputes: the neXt meDiation frontier
Mediation & Arbitration Section
Chairs: Kari Metzger - Metzger Law Group P.A. & Robert Scanlan - Hyde Park Mediation Group
A
s litigators are aware,
the cost of discovery
is a significant
component of the
cost of litigation. 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 help resolve
complicated e-discovery issues
without judicial intervention.
And by eliminating acrimonious
discovery battles, mediating
e-discovery disputes can also
improve the prospect of settling
the underlying litigation.
The success of any mediation
depends on the participation of
those persons whose input or
consent is needed to reach an
agreement. In addition to litigation
50
counsel and the
be produced,
the decision-
the cost of
makers for the
producing
respective parties,
it, the client’s
e-discovery
retention
mediations should
policies, and
also include IT
any automatic
personnel or
deletion
other technical
procedures
consultants who
that may need
know about
suspending.
mediating e-discovery
the parties’
The mediation
electronically
statement
issues can help control
stored
should include
discovery costs and
information
information
systems. The
about the
avoid potential adverse
participation of
identity of
results, including
IT personnel or
the persons
IT consultants
who will attend
discovery sanctions.
who are familiar
the mediation,
with the litigants’
including all IT
electronic systems
representatives.
and capabilities is key to successful
The mediation statement should
e-discovery mediation.
also include a candid discussion
In preparing for an e-discovery
of potential issues identified by
mediation, counsel should
counsel, including potential
familiarize themselves with the
spoliation issues, cost concerns,
client’s data mapping and system
timing issues, and specific privilege
mapping, the inventory of storage
concerns, as well as a candid
devices used by the client, the
assessment of the technological
location and ownership of those
capacity of both the litigant and
devices, types of information
counsel’s law firm, together with
stored, how the information is
any proposed solutions to obvious
stored, how it can be preserved,
how it can be retrieved, how it can
Continued on page 51
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