Resolving discovery disputes – what’s the best way?
Discovery of electronic evidence is a complex fabric woven from information technology, data science, machine learning software and the law. It often involves millions 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.
Unfortunately, traditional disclosure rules were written with paper productions in mind. Even the rules in Nova Scotia and Ontario, which were amended to address the unique qualities of electronic evidence discovery, are showing their age (12 and 11 years old, respectively) and are sometimes ignored by counsel.
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 (see below). 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.
We will briefly examine the main sources of conflict and discuss three options for resolving them.
Why disputes are growing more common today
- Electronic evidence exists in every legal dispute, not just a sprinkling of the largest cases.
- There are more sources of electronically stored information (ESI) today than in the past, such as cloud services, the Internet of Things, social media, multimedia and the like.
- In any particular case there are much greater volumes, types and formats of ESI than before.
- Methods and tools used to collect, process, analyze and review ESI are much more powerful and sophisticated than before.
- The skills required to manage ESI are more advanced than before, and staff are better trained than before.
- The industry has attracted and incubated a confusingly wide range of service providers with different products, services, skill sets and pricing models.
- Some organizations, their counsel, judges and arbitrators are getting better informed about electronic evidence discovery than before and are thus more sophisticated in their demands.
- On the other hand, those who are not competent in electronic evidence discovery may be unfairly demanding or uncooperative if not downright intransigent. There is also a high risk of professional error.
- Discovery rules across jurisdictions are a mixed bag – some have specific (but aging) electronic-oriented rules, most have none, which turns practice into an anachronistic guessing game.
- There is very little guidance from case law, especially since courts are loath to get involved in document discovery. Many case conference pre-trial decisions are made by way of endorsements which are not published. The conduct of discovery is largely left to the parties.
Three ways parties can resolve their e-discovery differences
There is no single or best way to resolve discovery disputes. But parties have a range of options available, and it helps to understand clearly the benefits and costs associated with each option.
Negotiation
Advantages:
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.
Challenges:
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.
Motions/Applications
Advantages:
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 motions process and filing fees are minimal.
Challenges:
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.
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. The proceeding materials and outcomes are matters of public record, which may include information about your clients IT systems and costs of eDiscovery programs.
Heuristica Alternative Dispute Resolution (ADR)
Advantages:
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.
Challenges:
Parties may have difficulty agreeing on a process; however, our experienced counsel can assist in developing a fair and transparent process. While enforcement of a mediated settlement or arbitral award may require further court proceedings, this is not unlike enforcement when a party fails to comply with a court order. Where resolution of the 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.
