What's the best way to resolve eDiscovery disputes efficiently?
Discovery of electronic evidence is a complex fabric woven from information technology, data science, machine learning software and the law. It often involves hundreds of thousands of digital files in multiple formats, and the challenges of linking content to metadata. Litigants must exchange data seamlessly (including lists of privileged material) and ensure that all parties can make use of the data provided by searching, sorting, annotating and ultimately presenting it in a hearing.
Comprehensive court rules dealing with eDiscovery matters are generally few and far between, and whenever rules of practice fail to keep up with reality, disputes arise more readily. There are more issues involved with electronic evidence than ever before, including greater data volumes, data types and formats, improved tools and methods to collect, process, analyze and review data, a mixed bag of discovery rules across jurisdictions that frequently cause confusion and a general lack of expertise amongst counsel that might help resolve disputes expeditiously without external assistance.
In the absence of practical guidance, there is no easy way for parties to resolve their differences without resorting to costly motions. Often these motions must be scheduled far into the future, slamming the brakes on opportunities for early settlement or trial. Transparency, reasonableness and above all cooperation are supposed to prevail with electronic evidence. Unfortunately, the nature of these disputes is itself growing more complicated.
Resolving discovery differences
There is no single or best way to resolve discovery disputes. Three options are as follows:
We always encourage our clients to negotiate a proportionate and realistic discovery plan through informed and transparent discussions with the parties. Not only is this method required by the rules, it is also consistent with attempts to resolve all client disputes as efficiently as possible. Issues which are difficult to resolve by negotiation are often complex and need the assistance of specialized eDiscovery counsel or technical experts. In some cases, counsel or the parties cannot agree on what they consider tactical issues. Resolutions may not be fair or proportionate if parties are not sufficiently knowledgeable or if one party is more sophisticated on eDiscovery issues than the other.
The process contemplated by all court rules is to bring a motion to resolve discovery disputes and, in some cases, to establish a discovery plan. Litigators are comfortable with the motion process and filing fees are minimal. However, in many jurisdictions, the time frame to schedule a discovery motion/application can be 6 to 8 months or more into the future. This delay adds to the parties' dispute costs, and the ultimate resolution of the matter is pushed out even further. In addition, counsel may not be sufficiently experienced in eDiscovery, and this can be compounded if the Master or judge is not well versed in electronic evidence, leading to unexpected results.
A New Option - Heuristica Alternative Dispute Resolution (ADR)
With ADR, the parties have a range of options including assisted negotiations with a third-party neutral advisor, mediation, arbitration, med-arb, or a combination. Appointments can be fast tracked with convenient virtual proceedings. The process is private and confidential. Parties may have difficulty agreeing on a process; however, our experienced senior counsel can assist in developing a fair and transparent process. Where a speedy resolution of discovery disputes is required to move matters forward, the benefits of a fast private resolution outweigh the costs of ADR.
Contact us to see how our Discovery ADR Service can assist you.