Turner Padget Insights

Mediation is key to efficient, cost-effective e-discovery

Posted On Feb 06, 2018

Nearly everything we do leaves a trail of data, and the abundance of electronic evidence has transformed the way legal disputes are handled from beginning through resolution.

Think of all the different ways we communicate with others – either directly, with text messages or emails, or passively, where social media posts may be viewed by friends or connections. Before electronic evidence became the norm, printed documents relevant to a case were placed in a file, boxed and stored along with countless others to be turned over to opposing counsel, who had to sort through it all by hand. Now, the realm of discoverable digital data has grown exponentially, making the ability to search efficiently even more important. The Radicati Group, a technology market research firm, estimated that 269 billion emails were sent per day in 2017. That’s a lot of data.

Each piece of data helps tell a story, and that data can be used as evidence in a lawsuit. Preservation, retrieval, review, and production of electronic data can dramatically affect the expense of litigation, and controlling those costs through careful management of the discovery process is the key benefit of employing a mediator to assist with discovery.

Preserving potential evidence

The discovery process in litigation allows evidence to be requested, collected and reviewed by lawyers on both sides, and electronic discovery – also known as e-discovery – begins with the preservation of this digital data. South Carolina businesses should know that the rules of e-discovery are largely the same in for electronic data as they are for paper – one side requests data and the other side produces data relevant to the case. Businesses have a duty to preserve electronic data after becoming aware that a case or controversy is arising.

A mediator who specializes in e-discovery can help parties in a dispute find efficient ways to identify relevant information to save with a confidential, negotiated agreement, rather than by a court order. Through mediation, the parties can maintain control of the process and decide for themselves what the scope of electronic discovery should be; what limitations they want to place on the e-discovery process; how the data will be exchanged and in what format; and the timing of that production.  

Collecting the data

After preserving the data, the second phase of e-discovery is data collection, which is often the most challenging. Copying everything is rarely practical. Technology-assisted review tools use software to search and sort through documents. A "machine learning" process takes information entered by people and applies that logic to much larger data sets. As computers mine the data, artificial intelligence determines what's relevant and what's not.

The process can be complicated and expensive, and here again, a mediator can offer value. In 2015, the Federal Rules of Civil Procedure were amended to require cooperation and consultation among lawyers in e-discovery matters. Mediated negotiations between the requesting party and the producing party can narrow what electronic evidence is collected and ensure that the data production is proportional to the issues in the case.

Proportionality is considered in determining the difficulty of gathering the data in relation to the size of the case. The parties likely will want to avoid spending $100,000 on electronic discovery if the case is only worth $75,000. A mediator can assist the parties to determine what really is important to their cases and how to avoid needless expense.

Producing the data

After the collection of electronic evidence, the next phase of e-discovery is production. The parties will need to develop and agree on formats for the data and what media will be used to transfer and store the electronic evidence. There are a number of platforms that allow the loading of electronic data in native formats for storage and analysis, and a mediator can work with the parties, IT staff and consultants to find an agreeable solution. Mediators also can help the parties develop timetables for discovery.

In all phases of e-discovery, mediation has advantages. Chief among them is that the negotiations are driven by the parties, rather than the court. Mediated discovery allows the parties to:

• Develop and agree on their own solutions to e-discovery problems
• Consult and come to agreements on the process for sifting through data to eliminate the irrelevant and make it more likely they will find a higher percentage of relevant data
• Decide for themselves what e-discovery is proportional
• Develop a mutually-agreed upon discovery plan from beginning to end
• Communicate confidentially and informally and make proposals without court intervention
• Agree on how data will be produced
• Identify early on who the important players are and which custodians are more likely to possess important information
• Self-determine how to identify and protect confidential or proprietary information
• Get the parties involved and participating in the discovery process with an eye toward efficiency and reducing the burden on their businesses
• Avoid potential sanctions or expensive and time consuming motion practice over discovery issues
• Reach a written and binding agreement on a Mediated Discovery Plan

 

Mediated negotiations are confidential, and nothing discussed during the mediation process is admissible in court. Developing a mediated electronic discovery plan also can earn favor in the eyes of the judge by lessening the burden on the court.

Using mediation for e-discovery can help make litigation more efficient, less expensive and faster in getting to the heart of the matter. It also allows the parties to have control of the direction of the pretrial process, which is important if your business is facing litigation.