ESI, E-Discovery Plans and the Mediator –
Facing the Future of Electronic Discovery
s issues concerning Electronically Stored Information (“ESI”) and
E-Discovery are becoming more prevalent and increasingly complex,
litigants are beginning to hear phrases such as “E-Mediation” or “ESI Mediation.”
Mediating E-Discovery issues allows litigants to control what is being requested, what
is being produced, and how it is being produced. Costs can be controlled, confidentiality can be maintained and adverse results – such as sanctions – can be avoided. Even
in the absence of sanctions, a failure to adequately address ESI issues at the start of
litigation can impact proceedings down the line – causing delay and undue expense.
By: Richard P. Byrne, Esq.
Setting aside the finer points, the reality is
that most attorneys are not IT technicians
and are not comfortable with the technology. As a result, they tend to act defensively,
perhaps out of fear and lack of knowledge.
The Mediator in an E-Mediation can provide
not only the traditional foundation of maintaining the parties’ balance and promoting
their dialogue, but can also act as a translator relative to the technology, identifying fair
and practical resolutions on an issue-by-is-sue basis. In short, identifying relevant ESI
and working out the technical methods for
its production can and should be a cooperative and self-determinative undertaking.
This is where the development of an
E-Discovery Plan can be most productive – both in the short run, initially, and
further down the line as well. To start, one
must bear in mind that the development of
an E-Discovery Plan in an E-Mediation is
an issue-based exercise. It is not geared
toward achieving a bottom line resolution as in a traditional Mediation session.
The scope of the issues to be addressed,
however, can and should be wide-ranging,
including the following: Relevancy; Preser-
vation; Sources of ESI; Identification of Cus-
todians; Obtaining ESI from Non-Parties;
Accessibility of Information; Search
Terms To Be Employed; System
Capability; De-Duplication; Parent-Child
Relationship (i.e., documents and their at-
tachments); Privileged Documents/Privi-
lege Logs; Inadvertent Productions/Claw
Backs; Timing and Formats of Produc-
tion; Costs of Production (and Allocation
of Costs); and Compliance/Enforcement.
Obviously, many of these issues put the
parties’ IT personnel into the spotlight.
They can and should be active participants
in the development of an E-Discovery Plan.
E-Mediation provides a forum in which the
parties’ IT representatives and experts can
communicate in a confidential setting, with
a neutral present to act as a referee and
guide the discussion. Lawyers, of course,
are generally not inclined to have their client
representatives speak to each other on this
level – but who best to address the issues
in order to avoid conflict down the line?
In that vein, an E-Discovery Plan should
also include the means and mechanisms
to address future disputes which might
arise without the parties having to resort to
judicial intervention. In this fashion, as is-
sues develop in the context of E-Discovery,
Indeed, if the parties are successful in
developing such an E-Discovery
Plan and working through a suc-
cessful ESI exchange, including the
clearance of any hurdles met along
the way, the stage may well be set for
a Mediation on the merits to bring
the matter to a complete conclusion.
Richard P. Byrne, Esq., is a member of
NAM’s (National Arbitration and Mediation) Hearing Officer Panel and is available to arbitrate and mediate cases in
the NY Metro area and throughout the
United States. For the second year in a
row, he was voted one of the Top 3 Mediators in the country by The National
Law Journal Annual Reader Rankings
Survey (2016, 2015), and was also
named a National Law Journal 2016
Alternative Dispute Resolution Champion, as part of a select group of only
48 nationwide. Additionally, Mr. Byrne
was voted a Top Ten Mediator in New
York State by the 2016 New York Law
Journal Reader Rankings Survey for the
third year in a row. He is Co-Managing
Partner of L’Abbate, Balkan, Colavita
& Contini, LLP., in Garden City, N.Y.
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