70 The Alabama Lawyer 425 (2009). The Role of Mediation for ESI Disputes.

• Author: BY ALLISON O. SKINNER

The Alabama Lawyer

2009.

70 The Alabama Lawyer 425 (2009).

The Role of Mediation for ESI Disputes

The Role of Mediation for ESI DisputesBY ALLISON O. SKINNERPrior to and following the amendments to the Federal Rules of Civil Procedure regarding discovery of electronically stored information (ESI), e-discovery has been the frequent headline in courses, seminars and articles. Almost half of the states have already either adopted similar rules or are considering adopting them. Like it or not, e-discovery is here and here to stay. By now most litigators are familiar with the buzzwords: litigation hold, preservation, collection, processing, and archiving, to name a few. Litigators and their clients are also becoming familiar with all the different types of ESI, as well as the places where ESI can be found. Litigators are seeing the ESI request served in the most complex cases to the simple negligence case. The world of electronic discovery is exploding exponentially.

How does the introduction of e-discovery translate into the day-to-day management of a case? As with other legal disputes, one of the best tools for handling a case efficiently and without the risk of an unpredictable judge or jury is mediation.

Advantages

Mediation is no longer just for settlement purposes. The self-determination process can be critical in handling the uncontrollable, unlimited nature of ESI discovery. Mediating e-discovery allows for creative, mutual solutions among litigants that most likely will save the parties time and money in the long run. The information mediation process creates a forum for the parties to:

* self-direct workable solutions,

* define scope parameters, * determine relevancy, * create timelines for production or e-depositions, * propose confidential compromises, * create efficiencies with a mutual discovery plan, * set guidelines for asserting violations of the plan, * create boundaries for preservation, * avoid spoliation pitfalls, * manage protection of privileged information, * maintain credibility with the court, * avoid court-imposed sanctions, and * allocate costs.

Revised Federal Rules of Civil Procedure 26 and 34 allow for the discovery of electronically stored information that is "reasonably accessible." To comply with the Rules, the litigator must be prepared in the meet-and-confer meeting to talk...