By Peter S. Vogel
The use of computers and the Internet has transformed business throughout the world. As a result, the proliferation of electronically stored information (ESI) continues to grow. The impact on general counsel is that every single suite has some ESI involved, and one cannot ignore the complexity that social media brings to ESI. This article will address how ESI-sensitive trained mediators and how special masters (e-neutrals) can help general counsel control e-discovery.
The term e-neutral identifies an individual, neutral to the litigation, who can help guide the litigants and the courts through the complexities of ESI to try to minimize costly motions and, at the same time, allow parties to better control the e-discovery process.
With the 1987 passage of the Alternative Dispute Resolution Act, Texas became the U.S. leader in requiring parties to include the mediation conference as part of every suit. In those early years, as mediation gained a foothold in Texas courts, attorneys saw the mediation conference as a way to resolve claims, settle disputes and move on.
A few years ago, Allison Skinner found that using the mediation conference for e-discovery disputes helped litigants reduce costs and get more control over the process. Skinner is with Sirote & Permutt and is a full-time neutral in Birmingham, Alabama. She is also an adjunct professor of e-discovery at the University of Alabama School of Law and a visiting professor at Faulkner University Thomas Goode Jones School of Law. Her alternative dispute resolution (ADR) successes led her to write a few articles about what she has coined "e-mediation."
Generally, the e-mediation process Skinner created devotes the mediation conference solely to manage ESI. The e-mediator is involved with the parties early in the case, before discovery gets under way. The parties submit e-mediation statements that include details about the technical skills of those who will attend the e-mediation, including who will provide technical support for the ESI. Often this person is the chief information officer, chief technology officer or information technology (IT) director.
People skilled in IT rarely have studied law, so they generally do not understand discovery as well as trial lawyers and general counsel. So, each side to an e-mediation can have confidential caucuses with the IT representative who knows about the ESI, the general counsel, the trial lawyer and the e-mediator. During these private caucuses a mediation e-discovery plan (MEP) can be devised so that there is a well-managed road map for discovery of ESI. Hopefully the MEP will minimize motion practice, which can make discovery less expensive and at the same time not force the judge to try to understand the IT and ESI issues for the parties in addition to the unique facts of the case.
In state and federal courts the use of a special master can help judges and parties alike with specific issues such as ESI. When appointing an ESI special master, a trial judge recently stated - after many hearings and frustration between the parties about ESI disputes - that a special master ESI would allow the "geeks to talk to the geeks."
Special masters can be technical IT experts about ESI who are not lawyers or lawyers with specialized technical expertise about ESI. Lawyers who are trained in ESI can better assist judges as special masters, since they are conversant with the rules of evidence and procedure. Special masters in ESI disputes may conduct hearings and issue orders regarding ESI, which may be appealed directly to the judge.
In the spring of 2011, Skinner and I founded the American College of e-Neutrals (ACESIN), a nonprofit organization dedicated to the education, training, credentialing and use of e-neutrals. The term "e-neutrals" includes all third-party referees - mediators, arbitrators, masters, judges, liaisons and magistrates - committed to resolving disputes arising from ESI. ACESIN fellows are the country's first group of e-neutrals specially trained to conduct "e-mediations" and other extrajudicial forums. An e-neutral who is an ACESIN fellow has met the highest standards of knowledge, training and experience in dispute resolution and e-discovery as determined by ACESIN's advisory board. An ACESIN fellow stands ready to assist litigants and the courts in resolving e-discovery disputes in an efficient and effective manner through the use of e-mediations or court appointments.
ACESIN provides training and resources for e-neutrals that we believe will assist lawyers, mediators and judges in better dealing with ESI.
Peter S. Vogel is a Trial Partner with the Dallas office of Gardere Wynne Sewell LLP where he is Chair of theElectronic Discovery Group and Chair of the Internet, eCommerce and Technology Industry Team. Before practicing law, he was a systems programmer on mainframes, received a master's degree in computer science and taught graduate courses in information systems and operations research. His blog covers contemporary technology topics. Peter can be reached at 214.999.4422 or firstname.lastname@example.org.
Gardere Wynne Sewell LLP, an AmLaw 200 firm founded in 1909 and one of the Southwest's largest full-service law firms, has offices in Austin, Dallas, Houston and Mexico City. Gardere provides legal services to private and public companies and individuals in areas of corporate, energy, environmental, financial services, government affairs, hospitality, intellectual property, labor and employment, litigation, real estate and tax.