Resolving e-discovery disputes

E-discovery is risky and expensive enough already.

Notoriously, e-discovery can be and often is the most expensive aspect of civil litigation today. That’s because most cases never get to trial, and the discovery process is critical to a determination of a fair settlement. Production obligations in most jurisdictions are still very much based on assumptions derived from the 19th century, when a handful of papers constituted all the documentary evidence. Getting it wrong can seriously prejudice your client’s interests.

You may not be experienced enough to handle an e-discovery dispute effectively. 

It’s no insult to admit that like most lawyers you are just getting started with the e-discovery learning curve. Law school education has only recently included a small e-discovery component, even so, limited to a few schools. As an experienced litigator practising today you would not have been exposed to e-discovery either at law school, or at any time in your legal career, except perhaps if you were dragooned into a document review. The increasingly challenging world of metadata, cloud computing, data processing, analytics, and predictive coding is not exactly what you signed up for.

The best client outcomes occur when counsel cooperate, but that’s not easy.

Ever since the first Sedona Principles were published in 2004, it was recognized that co-operation among counsel was the best way to control e-discovery costs. Every rule, guideline and commentary on the subject repeats the mantra of co-operation. But how can you be expected to co-operate in an aggressively adversarial world? Co-operation requires trust, transparency and compromise. These values are in short supply when parties are at each other’s throats. Despite judicial sanctions and dicta, we don’t see opposing counsel singing e-discovery kumbaya any time soon.

Don’t dilute your substantive dispute with procedural wrangling.

The rules are in place to facilitate the efficient and cost-effective resolution of substantive disputes. Stop pushing paper and start winning!

How does mediation work?

I work with counsel by phone, web conference and email to negotiate a written agreement covering the e-discovery issue(s) in dispute.

Benefits

E-Discovery disputes can arise at any time after a proceeding is initiated. Parties can disagree about the scope or method of preservation and collection; privilege and redaction; production formats; review protocols, and costs among other things. An independent third party expert can cut through the confusion and make practical recommendations based on common sense, fairness and the experience of years in the field. Benefits are having available the expertise of Canada’s leading e-discovery lawyer; a confidential process that is quick and painless; and knowing that a reasonable consensus can be reached without partiality.

Method

I am not a certified mediator and do not belong to any established “chambers.” I am open to using the most effective method to resolve disputes, but lean most often to the “evaluative” method rather than facilitation or any other. This method is consistent with my observations here:

“The mediator who evaluates assumes that the participants want and need [him] to provide some guidance as to the appropriate grounds for settlement – based on law, industry practice or technology – and that [he] is qualified to give such guidance by virtue of [his] training, experience, and objectivity.”

[Riskin, Leonard L., Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed (July 1, 1996). Harvard Negotiation Law Review, Vol. 1, No. 7, 1997. Available at SSRN: https://ssrn.com/abstract=1506684.]

Process

If the parties wish to proceed, we sign a mediation agreement and pay 1/2 the fee. We jointly schedule a date for the filing of the mediation briefs. Within the planned timeframe, I respond with questions and comments on the briefs. Parties have another week to respond, and if necessary, a conference call is scheduled. Everything happens online and is transparent, and entirely without prejudice.

Jurisdiction

Rules of disclosure and production differ in each jurisdiction but the principles and best practices of e-discovery are universal. The parties may cite applicable rules and case law in their briefs. I am qualified to practice law only in Ontario, Canada, so my work as a mediator is to facilitate agreement on practical steps, not to advise on the law.