Settling ESI disputes with Mediators

Now that we are more than a year into Florida's E-Discovery rules, disputes over electronically stored information are coming to a head. E-neutrals or mediators specializing in complex cases involving electronic evidence can shape discovery plans, allocate costs and suggest and create efficiencies. The mediation process may focus the confidential conference solely on managing ESI, or the neutral may broaden the discussion, reminding parties of the merits and perhaps dissuading them from merely using E-discovery as a sword or shield. Mediation is an avenue that can present parties with significant cost-savings in ESI cases, if performed early enough in the litigation. For example, though counsel are urged to reach a rational agreement on what must be preserved, taking into account costs and burdens incurred by modifying or suspending document retention systems can be difficult. Implementing even narrowly tailored litigation holds to preserve crucial ESI can be difficult without the assistance of an e-neutral during negotiations. Under the safeguards of a confidential mediation, limited discovery from custodians or other key persons with special knowledge of a company’s computer systems may be particularly useful. Lawyers can then self-determine sources from which relevant information is to be obtained, while the neutral facilitates agreement on the time-frame at issue, search protocols, accessibility of stored information or the cost and burden of restoring inaccessible information. An e-neutral, mediator or special magistrate can also facilitate the electronic discovery process by helping parties to agree on the form in which they want information produced and the extent to which metadata will be produced. Mediation can feature caucuses with experts or IT liaisons that may help conduct discovery proportionally, minimizing motion practice, and avoiding unpredictable judicial outcomes on IT and ESI. Cooperation under this rubric may also encompass settling procedures to be followed when discovering privileged information that has been inadvertently produced in the course of discovery, including clawback agreements or agreed confidentiality orders. If the parties reach an agreement, they may ask the court to include the agreement in their scheduling order.

Superstorm Sandy Mediations Effective

A mediation program to assist New Jersey residents with unresolved insurance claims related to Superstorm Sandy has resulted in over three million dollars for claimants since the program was launched last spring, according to Governor Chris Christie’s administration. New Jersey’s Department of Banking and Insurance has received 764 requests for mediation and 521 mediations have occurred. Some 67 percent of those mediations resulted in a settlement with an average recovery of $16,015. The program handles cases in all of that state’s twenty-one counties. The mediation program allows property owners to submit homeowner, automobile, and commercial property claims to a mediator who will assist in settlement discussions, free of charge. Insurance carriers are paying the cost of the mediator. Policyholders who wish to bring legal representation to the mediation session may hire an attorney at their own expense. Disputed non-flood Sandy-related claims greater than $1,000 that do not include a reasonable suspicion of fraud and are based on policies in force at the time the storm made landfall are eligible for mediation. Residents with unresolved non-flood insurance claims related to Hurricane Sandy can have their cases mediated through the American Arbitration Association. Policyholders are using mediation to resolve claims quickly because New Jersey homeowners and businesses must first settle their insurance claims before they qualify for many federal grant programs. The state's Banking and Insurance Commissioner will reportedly keep the mediation program up and running for as long as residents need it. See more here- http://bit.ly/1cREsbK and http://www.state.nj.us/dobi/index.html

Orange County Commission Textgate Settlement

Following fines arising from a criminal investigation of Orange County's mayor and four commissioners for deleting text messages linked to a paid sick time vote, a civil suit was settled with Citizens for a Greater Orange County. That coalition fought for a referendum opposed by county officials and local tourism interests. In a circuit civil action, the group claimed open government violations when elected officials deleted phone text messages that were public records. During their regular meeting, commissioners were seen texting from this dais just before voting to block the issue from reaching the ballot. Mayor Jacobs and Commissioners Boyd, Brummer, Thompson and Martinez, each agreed to pay a $500 civil fine as a result of the criminal probe, with no admission of wrongdoing. The recent settlement disclosed in the civil case similarly avoids any admission of wrongdoing and was apparently made to avoid added litigation costs. The $90,000 deal reportedly covers the plaintiffs' lawyer, court and record request costs, while the county's outside legal bill in defending the civil case is over $150,000. Last year, Florida's legislature passed a law that prohibits cities from forcing businesses to offer paid sick time. See stories here-- http://bit.ly/1akOZ2n and http://bit.ly/1a465Uz

Christmas at Tiffany's? Not so much.

Arbitrators recently ordered Tiffany & Co. to pay Swatch Group some $449 million in compensation over a contractual dispute administered by the Netherlands Arbitration Institute. The award also required Tiffany to to pay interest, the Swiss watchmaker’s legal fees of $8.8 million, and two-thirds of the cost of arbitration. The penalty reportedly exceeds Tiffany's annual earnings last year. A three-member Dutch arbitration panel ruled in Swatch's favor with one dissenting opinion. The companies formed an alliance in 2007 to develop and distribute of Tiffany brand watches. Despite a twenty-year agreement under which Swatch would create a new company, Tiffany Watch Co. Ltd., to make and sell watches under the Tiffany brand, things ended badly in 2011. Swatch alleged breach of contract, claiming Tiffany was moving too slowly to launch and promote the products. Tiffany filed a counterclaim, blaming Swatch for not getting watches onto the shelves of other retailers. Tiffany's counterclaim was dismissed. See stories here-- http://on.wsj.com/1bRee8W and http://wapo.st/JHwbjQ