By Richard K. Herrmann, Vincent J. Poppiti and Kevin F. Brady¹

Resolving electronic discovery disputes via mediation is fast becoming a trend. When parties face hundreds of thousands or millions of dollars in potential e-discovery costs, they often find the cost of discovery is greater than the amount of money at risk in the case.

Resolving discovery disputes between lawyers is difficult enough, but it becomes even more challenging when you have to negotiate issues like search terms, methodologies and tools in the context of an ever-changing technical landscape. Like many lawyers, we deal with these issues daily in our federal and state practices. Over time, we have found that forming alliances with skilled mediators and special masters to facilitate this mediation process is beneficial to reach cost-effective resolution. Typically, this is done remotely by desktop video teleconferencing. The process is called remote mediation and allows for efficient facilitation of e-discovery disputes for litigations throughout the country without the need to travel.

Remote mediation of electronic discovery disputes offers a practical alternative to judicial intervention. e-Discovery disputes vary from matter to matter but share common themes, such as the burden of discovery and the proportionality of discovery costs to the amount at question in the case. These issues often arise from over-broad discovery requests, a lack of precision in selecting search terms and the inclusion of more custodians than may be necessary.

Disputes over e-discovery can sometimes become as adversarial as the underlying litigation. However, legal teams need to be aware that a “win at all costs” approach to discovery can actually pose an unnecessary risk to their clients, and can ultimately detract from the core legal issues in the case. Judges have come a long way in their understanding of the intricacies of electronic information and the potential burdens and costs associated with providing it as evidence. When it comes to the details of discovery, few judges are willing to tolerate excessive posturing, unreasonable demands and intractable attitudes. We have found that, rather than creating barriers to the resolution of discovery issues, a cooperative approach is often in the best interest of both parties.

Cost Reduction

How can e-mediation reduce the cost of electronic discovery? Ideally, the e-mediation team will negotiate the scope and burden of discovery at the beginning of the litigation, and the e-discovery plan they agree on should be as complete and comprehensive as possible. If counsel believes it is too early to have a meaningful negotiation via mediation, at the very least they should schedule a meet and confer immediately upon exchange of the initial round of discovery requests and not later. In the event that negotiation is not successful at the meet and confer, we strongly recommend parties consider retaining a skilled e-discovery mediator at that time. It will likely save a great deal of money during the course of the litigation.

Don’t Book That Flight – Mediate Remotely

In-person negotiation can cost big money, especially when participants are geographically dispersed. There is now an easy way to effectively mediate e-discovery disputes remotely, permitting the mediator and counsel to participate in their offices rather than spending the money and time to fly from all parts of the country for a four-to-six-hour session.

The use of the well-recognized and easy-to-use desktop video teleconferencing service called GoToMeeting has proven very effective in the advancement of e-discovery mediation. The mediator can see all counsel and counsel can see each other. This is an important consideration, because with everyone visible, it is difficult for participants to engage in activities unrelated to the conference call (such as email) – everyone must focus and get the job done. Also, the mediator is able to reserve three or more separate meetings as necessary to facilitate resolution: one for the group as a whole and one for each party.

Recent improvements in remote conferencing technology mean that the connections are smooth and reliable, there is no time- and money-wasting downtime waiting for the mediator to complete a session with the opposing party and, of course, there is no need to travel. In many cases, remote mediation is simply a more effective way for both parties in litigation to avoid the risk of out-of-control discovery disputes and, ultimately, to save money and improve outcomes for their clients.

[1] Richard Herrmann ^[1], Vincent Poppiti ^[2] and Kevin Brady ^[3] are a team of attorneys at Mediation Remote ^[4] who employ these and other technologies to create effective and efficient means of mediating e-discovery disputes.