meDiating e-DiscoverY Disputes: the neXt meDiation frontier
Mediation & Arbitration Section
Continued from page 50
deficiencies in their respective
capacities. Additional relevant
information, such as whether
corporate representatives have been
d eposed on electronically stored
information, should be disclosed.
If the specific purpose of the
e-discovery mediation is to resolve
disputes arising from existing
discovery requests, the mediation
statement should address the
dispute in detail.
While the issues to be
addressed through e-discovery
mediation will vary with the
procedural posture of the
litigation and the specifics
of the dispute at hand, the issues
likely to be addressed through
e-discovery mediation include the:
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HCBA LAWYER
• scope of reasonably accessible
electronic data to be preserved
and reviewed;
• search parameters to be used
to locate electronic data;
• method of review to be employed;
• data format for preservation
and production;
• time and manner of production;
• procedures for handling
inadvertently produced
privileged information;
• potential need for
protective orders;
• methodologies to evaluate
compliance with any
e-discovery plan or mediated
e-discovery agreement; and
• mechanism and protocol
to enforce any mediated
e-discovery plan or mediated
e-discovery agreement.
The outcome of e-discovery
mediation should be reduced to
writing and signed by all parties
and counsel.
E-discovery mediation can
help parties control e-discovery
costs, maintain confidentiality,
and avoid potential adverse
results, such as the imposition
of sanctions. While mediation
will not eliminate all e-discovery
disputes, it is a tool to reduce
or eliminate
e-discovery
motion practice
that should not
be overlooked.
Author:
Kathleen
McLeroy -
Carlton Fields
51