Hon. Ira Warshawsky Authors "ADR = Alternative Discovery Resolution" for the NYLJ

Publication Source: New York Law Journal

On a dark and stormy morning in Lenox Massachusetts, the attendees at the New York State Bar Association’s spring meeting of the Commercial and Federal Litigation Section were greeted by an all-star panel discussing 'Alternative Discovery Resolution.' Though the panel's topic spoke to resolving 'normal' discovery problems, it quickly segued into e-discovery resolution as well.

The panelists discussed various resolutions of the discovery problems they had faced, in both federal and state courts, but one issue and the resolution thereof seemed clear.

Using alternative dispute resolution, which we called alternative discovery resolution, for discovery disputes, especially those involving ESI, requires the services of a third party. The most convenient way, and the most economical for the parties, is for the court to assign a court-attorney referee to handle it (a freebie).

The problem:

1. Lack of funds in judicial budgets to provide such individuals, and

2. Lack of sufficiently trained individuals to shoulder such tasks.

New York's judicial budget, constantly under strain for well over a decade, had been able to maintain itself until actual layoffs were imposed in 2011 (not merely the loss of jobs vacated by employee departure due to natural attrition or by early retirement due to incentive packages). Without going into any greater detail, there isn't a lot of money lying around to create special discovery referees and, more importantly, e-discovery referees. So where do the parties and the court turn?

The answer has to be where more and more parties are turning in recent years: a mediator. The use of a mediator to assist in thorny discovery problems, whether the role of the mediator be facilitative or evaluative, will be an essential component of civil litigation in years to come. The court may appoint the mediator from a panel or the parties may choose a mediator on their own. The use of a mediator, not just in the traditional sense to which we have become accustomed, but to assist in settling discovery disputes, will also become a significant part of controlling the costs of litigation.

If a discovery disagreement comes about early on in the process, the court would most likely welcome the parties resolving their issues by the use of a mediator without court interference. However, if the matter has dragged on for three, four, five or even six years (yes, I had one of those!), the Court is unlikely to have the patience to give the parties additional time to mediate the issues. The Court, most likely, will appoint a Special Discovery Referee or Special Master (the same thing) and empower that person to hear and determine the issues. But what if e-discovery problems predominate?

Let us assume the parties have Met and Conferred pursuant to Commercial Division Rules (a big assumption) and they are still unable to resolve their differences in the discovery or e-discovery area. Their next logical step should be the mediator or e-mediator. Better that you make this determination sooner than later before the Court compels you to do otherwise and appoints the aforementioned special master to hear these issues.

Some of you may have heard of mediators resolving or facilitating the resolution of discovery issues. Far fewer may have heard of this new 'animal' known as the e-mediator.

With the onset of the acceptance of TAR (technology assisted review, sometimes called predictive coding) as a tool in the e-discovery process, the need for a referee (a person with a striped shirt) with at least bare-bones knowledge of the process, will become more prevalent. By placing this problem within the mediation setting, it will assure confidentiality for all concerned.

It also may result in greater cooperation and a resultant reduction in cost.

Discovery is supposed to proceed in good faith on both sides, which regretfully is not always the reality.

If everyone followed the Sedona Conference Cooperation Proclamation, which notes the need for 'transparency' in the e-discovery process, we would all be better off. Regretfully, they don't.

Mediation, in those cases where non-cooperation or a 'standoff' is the current stance, may not solve all the problems of the parties, but could at least kick-start it. If counsel comes to the mediation with an IT person (as he/she should be at our E-discovery Meet and Confer), the likelihood of a solution to the problem is dramatically increased. However, an IT person is not necessarily an e-discovery guru.

Just as a mediator may ask the questions that the attorneys don't want to ask in the average mediation situation, the mediator could do the same in an e-discovery/discovery situation.

The mediator could propose alternative solutions to the problems and [because of the mediation code of silence], parties can make e-discovery suggestions of solutions without risk that their offers later become evidence in some proceeding.

An example of some of the benefits of e-mediation are spelled out by Allison Skinner in The Role of Mediation for ESI Disputes, 70 Ala.Law 425 (2009). Ms. Skinner has not only written extensively in this area but is now putting together training programs for e-mediators nationally.

• Self-directed workable solutions
• defining scope parameters
• determining relevancy
• determining the reasonable accessibility of ESI
• creating timeliness for production and/or E-depositions
• proposing confidential compromises
• creating efficiencies with a mutual discovery plan
• setting guidelines for asserting violations of the discovery plan
• creating boundaries for preservation
• avoiding spoliation pitfalls
• defining proportionality
• determining forms of production
• identifying custodians/key players
• managing protection of privileged information
• maintaining credibility with the court
• encouraging client participation and buy-in
• avoiding court imposed sanctions and cost allocation

If necessary, the parties can then enter into what might be called an 'E-Mediation Statement' and the outcome of the mediation is memorialized in a plan which Ms. Skinner calls a Mediated E-Discovery Plan or an 'MEP.'