GUEST-POST | The Role of e-Mediation in Resolving ESI Disputes in Federal Court | Interview with Allison Skinner

by Peter S. Vogel

My friend, Allison Skinner, who co-founded the American College of e-Neutrals with me, attended an interesting panel presented by the E-Discovery Series in the Western District of Pennsylvania on September 6, 2012 entitled “The Role of e-Mediation in Resolving ESI Disputes in Federal Court.” The U.S. District Court for the Western District of Pennsylvania was the first District to create an E-Discovery Special Master Panel last year. Both Allison and I are members of the panel. To become a panelist, an attorney must submit an application, and upon acceptance, attend a four hour orientation program. To date, almost a dozen appointments have been made.

The panel last month included Judges Joy Flowers Conti, Nora Barry Fischer, and Mark R. Hornak, and also Rick Lettieri (a Fellow of ACESIN) and Allison. Rich Ogrodowski moderated. I interviewed Allison about the program. Here are the highlights of the interview:

Peter: What was the focus of the panel discussion?

Allison: The focus was e-mediation and the use of e-neutrals. The first question was “what is e-mediation and how long does it take?” Judge Conti explained that e-mediation uses a mediator to resolve e-discovery disputes in a facilitative manner. Judge Fischer added that the e-mediator may also take an evaluative approach. Judge Conti continued to explain that the process can take one hour or much longer. I added that I am aware of an e-mediation whose process took eight months. It really depends on the issues. I suggest to attorneys that they approach e-mediation as an issue-based process instead of a time-based process like attorneys use for settlement mediation. With incremental discovery, this makes sense. Of course, the e-mediator can be engaged at the outset of the litigation to help the parties develop a discovery plan.

Peter: Can the judges appoint an e-mediator?

Allison: This question was raised by the panel and the answer is yes. Interestingly, in this district under the e-discovery special master program, the court encourages the special master use mediative skills to resolve issues and with consent the special master can engage in ex parte communications. The panel continued discussing that the parties need to be aware of which “hat” the e-neutral was playing, and if the e-neutral “switched hats” it would require prior consent of the parties. This has not been a problem in this district. However, I pointed out that for strategic reasons, parties may be cautioned going back and forth, especially if witnesses, such as expert witnesses, are participating in the process. Specifically, the parties may want to avail themselves of the confidential veil provided by a mediator where a special master is required to take sworn testimony under Rule 53.

Peter: If the Court appoints an e-neutral who pays?

Allison: The panel talked about cost. Judge Hornak said it best when he said using an e-neutral was a good “return on investment.” What did he mean? He meant, yes, using an e-neutral creates an additional cost in the case, but it is called pre-trial for a reason because the goal is to get to trial. This means the parties have to get through discovery and being able to focus on what is relevant for discovery reduce motion practice and preserves judicial economy. Spending $5,000 for an e-neutral is a good investment to avoid a $500,000 discovery expedition. Another interesting aspect about costs is cost allocation. Judge Conti succinctly described that she has had the parties split the cost or charge the party who had the resources or discovery. We further discussed the Court purview to reserve the right to reallocate costs at the close of the discovery depending on the behavior of the parties.

Peter: Did you discuss other types of e-neutrals besides special masters and e-mediators?

Allison: For me, this was the most exciting part of the discussion. In preparing for this panel, a dialogue was started about using court “facilitators” for e-discovery. The facilitator, in this context, is a hybrid between a special master carrying the proverbial stick and the e-mediator carrying the proverbial carrot. The purpose is to improve the value of the meet and confer. We know now that most meet and confers are ineffective, but yet, meet and confers are the critical procedural mechanism to appropriately addressing ESI. To protect the neutrality of the e-neutral, I think the facilitator would need some type of court sanctioned checklist to discuss with the parties. Then the facilitator could certify to the court that the parties met and conferred in good faith on the enumerated ESI issues. This would definitely make the discovery conference more effective, which, in the long run, should reduce discovery disputes down the road. One role of ACESIN is to help jurisdictions develop programs for using e-neutrals that work in that particular jurisdiction. ACESIN looks forward to following this development and offering its resources to evaluate this concept of an e-neutral.

Peter: What was the conclusion of the panel?

Allison: The conclusion of the panel was e-mediation is a viable tool for resolving e-discovery disputes, and the judges on the panel acknowledged its value as a way to assist attorneys and their clients as they learn to handle ESI.

Peter: The use of e-neutrals, whether special masters or e-mediators or even the evolving use of a facilitator continues to grow across the country. Allison and I both enjoy teaching the only training program in the country designed for e-neutrals through the American College of e-Neutrals. [Please contact askinner@acesin.com to request training in your area.]

Peter S. Vogel is a trial partner at Gardere Wynne Sewell LLP where he is Chair of the Electronic Discovery Group and Co-Chair of the Technology Industry Team. Before practicing law he worked as a computer programmer, received a Masters in Computer Science, and taught graduate courses in information systems. For 12 years he served as the founding Chair of the Texas Supreme Court on Judicial Information Technology which is responsible for helping automate the Texas court system and putting Internet on the desktops of all 3,200 judges. Peter has taught courses on the Law of eCommerce at the SMU Dedman School of Law since 2000. Many of Peter’s topics are discussed on his blog www.vogelitlawblog.com.