E-Discovery Challenges Can Be Overcome Through Mediation

According to a recent article in Law Technology News by William Hamilton, Executive Director of University of Florida's E-Discovery Project, United States Magistrate Judge John Facciola of the District of Columbia-- with whom I've had the honor of serving together with as a panelist at last year's Innovate conference-- presented on coming changes at last week's Fall 2014 Distinguished Lecture. Judge Facciola opined that E-Discovery cooperation is designed to address the problem of asymmetrical attorney competence. Transparency, he said, is consistent with advocacy and competency. Failures often occur when less sophisticated practitioners make incorrect representations to the court and opposing counsel. A lack of transparency can be cover for incomplete preparation and research about the case and the relevant ESI. According to the article, Judge Facciola also said discovery disputes are a cry for help. As such, a new mode of case management that aggressively intercedes early in the case can address electronic discovery challenges. With aggressive case management, failure may be averted according to the judge. Similarly, 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 a 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. As the wise judge said, “Litigation is about something—and it is not the back up tapes." The judge, who is retiring soon, emphasized that extraordinary costs of ESI litigation are driving small companies and the middle class out of the system, “I did not become a judge to be a hall monitor in a playground where only the rich can play.” The article appears here-- http://bit.ly/1rqJL9b and the full UF presentation is available here-- http://www.law.ufl.edu/academics/institutes/icair