In 1991, in my first speech about eDiscovery, I commented that every lawsuit had electronic evidence (eEvidence). A number of audience members informed me that I had no idea what I talking about. Fast forward more than 20 years, and it is an undeniable fact that every lawsuit has eEvidence. As a result, every trial lawyer is now required to understand eEvidence.
Not long before that 1991 speech, the Texas legislature enacted the Alternative Disputes Resolutions Act (1987) requiring trial lawyers to consider mediation to settle cases. The ADR Act was an attempt to get cases settled at the earliest point in time possible. Often an early adopter, I became a certified Mediator in 1990 and have mediated hundreds of cases — although originally in my areas of expertise, including computer software implementation disputes (often ERP projects), misappropriation of trade secrets, patent infringement, copyright infringement, and Internet eCommerce disputes. eMediation was not done in the 1990′s as far as I know.
How does eMediation work?
eMediation is directed to specifically resolve eEvidence issues. Using eMediation as early in the case as possible permits the eMediator to address eDiscovery matters when they first arise. Typically, lawyers for the litigants would agree to an eMediation early in order to speed up discovery, reduce costs and time in arguing about eEvidence to be produced in eDiscovery.
A best practice I recommend is for the client’s IT leader (either CIO (Chief Information Officer) or CTO (Chief Technology Officer)) meet with the General Counsel and outside counsel at the beginning of the lawsuit to help decide on the proper email custodians, identify what eEvidence exists, and determine what eEvidence should be protected and saved to avoid spoliation claims later. Lawyers must work with IT leaders to educate them about their role, since they are focused on technology, rather than eEvidence.
Under the ADR Act, discussion between the Mediator and parties are confidential and as a result the private caucuses with the Mediator gives each party the opportunity to discuss eDiscovery candidly.
To help the eMediator understand the issues, each party should prepare an eMediation Statement (as best described in Allison Skinner’s paper noted below), to provide to the eMediator. At the actual eMediation event, the general counsel, outside counsel, and IT leader should have a private confidential caucus with the eMediator to discuss search terms, databases to search, and the general eDiscovery plan of action. During these confidential discussions the IT leaders may disclose eEvidence information without fear that the IT leader will later be deposed on the eMediation issues. Assuming each side in the case can reach an accord and create what Allison calls a “Mediation eDiscovery Plan (MEP).”
Following the eMediation, the case can proceed under the MEP, and if there are problems with eDiscovery the parties can reconvene with the eMediator for follow-up eMediations, and update the MEP.
Clearly, using eMediation would reduce the necessity to have extensive and expensive motion practice, thereby reducing the complexity of eDiscovery claims, if any, that otherwise would be presented to Judge. Also, just like any Mediation, the parties have more control over eDiscovery and reduce the risk that a Judge may misunderstand an eDiscovery dispute and grant, or deny motions in error that can be costly and also time consuming.
Where did the notion of
eMediation come from?
I was introduced to eMediation in October 2009, when I received an email from Allison Skinner, a lawyer in Birmingham, Alabama, who found me on the Internet under while searching “eDiscovery and Special Master.” She asked me to help prepare a mediation agreement for 16 parties in an eDiscovery dispute.
It turns out that Allison was an expert on the subject, and had already had a number of eMediations. She had also published two papers on the subject: “The Role of the Mediation for ESI (Electronically Stored Information) Disputes,” and “How to Prepare an E-Mediation Statement for Resolving E-Discovery Disputes”
Prior to my conversation with Allison I was under the impression that Mediation could be used only to settle lawsuits. The notion of eMediation so captivated me that I posted a Guest Blog for Karl Bayer (a well-known full time Mediator and Arbitrator in Austin) entitled “Mediating eDiscovery Disputes – Allison Skinner’s Brilliant Idea.”
eMediation took off. In 2011, Allison and I co-founded the American College of eNeutrals, and we were invited to deliver speeches and webcasts on the subject. The primary function of the College has to been to provide training for Mediators and Special Masters regarding eDiscovery disputes, and provide a list of trained individuals to assist in eMediation and also serve as Special Masters throughout the U.S. In 2012, the Cardozo Journal of Conflict Resolution (Vol. 13, p. 113) published Allison’s article titled, “Alternative Dispute Resolution Expands Into Pre-trial Practice: An Introduction to the Role of E-Neutrals.”
Using eMediation will not eliminate eDiscovery disputes, but will most assuredly reduce the time, money, and energy of eDiscovery motion practice. eMediation offers parties a means to have control over their cases in what is still a most unique manner.