As more of our interactions and exchanges occur through email and online, the amount of electronically stored information (ESI) has the potential to fill multiple courtrooms. Navigating through all that information not only takes a long time, but also can become very costly. The following are some suggested steps for managing the ESI process to keep both time and cost down.
Counsel must begin preserving all potentially relevant evidence, including ESI, as soon as they learn of a lawsuit or arbitration, or else face the prospect of sanctions. From this point forward, in-house counsel should be concerned with the cost in both time and money of obtaining the relevant information, the protection of the confidentiality of important business information and trade secrets, and the cost of outside counsel’s involvement with such information. In most alternative dispute resolution (ADR) proceedings, ESI is indispensable in resolving the matter by agreement and/or decision.
- Mediation. During mediation, in-house counsel can help the mediator’s understand your case by providing, in advance, pertinent corporate reports and emails that explain the company’s position. Oftentimes in pre-mediations, the in-house counsel can attend to demonstrate an approach to the settlement as a business solution rather than a litigation solution. Counsel may also want to email the mediator the form of settlement agreement that the corporation generally uses. Since mediation in most states is confidential or subject to privilege, providing this information to the mediator confidentially may aid in the early resolution of an expensive claim.
- Initial scheduling conference in arbitration. In arbitration, arbitrators generally need less information than most jurors to make their decision. The arbitrator will address the form of ESI in the first scheduling conference on the conduct of the arbitration. Most ADR provider organizations have discovery protocols that provide for the voluntary exchange of all discovery. Arbitrators often use a laptop or an iPad during the scheduling conference and are fully prepared to receive pleadings, discovery and other materials electronically. In the initial scheduling conference, the arbitrator might suggest that the parties use IT experts to determine the relevant discovery and put that information in electronic files as a cost-effective approach to discovery. To protect confidential business information and trade secrets, protective orders are entered at the initial conference.
- Discovery disputes. Many discovery disputes that an arbitrator decides involve the admissibility of ESI and metadata. The cost of ESI discovery will initially be borne by the producing party. However, if the producing party is the loser at the arbitration, it may ultimately pay the costs of the other party’s production of e-discovery. Because of this potential fee shifting, all parties to the arbitration will have an interest in minimizing the costs of e-discovery.
- Metadata. Fights over metadata are frequent in arbitration when the company does not have a document retention policy addressing the regular destruction of metadata. In-house counsel can provide information on the retention policy and evidence of its regular enforcement. If the metadata does not exist, there is nothing over which to fight. If the metadata does exist, the arbitrator must decide whether it constitutes relevant evidence. Failure to consider relevant evidence is one of the few remaining grounds for vacating an arbitration award. If the metadata exists, your company might have to produce it, and the production of metadata is quite expensive. Helpful hint: Review and enforce your document retention policy to avoid fighting over the production of metadata and the cost of producing this expensive ESI.
- ESI and technology at the arbitration. Arbitration hearings are expensive with the arbitrator, parties, attorneys and witnesses all present. These hearings can be shortened by using video conferencing and Skype for witnesses and by producing exhibits in electronic format for all parties involved. A joint, sequentially numbered exhibit file in an electronic format is helpful to the arbitrator as well as the parties.
The impact of ESI and technology on ADR proceedings is profound. As in-house counsel prepares for mediation and/or arbitration, providing the relevant ESI to the mediator and/or arbitrator is invaluable. Using all forms of electronic evidence and technology can save the company time and money.