Without belaboring the obvious, e-discovery has changed litigation forever. Virtually all information is electronic, and consequently e-discovery now impacts every suit and trial. However few judges and lawyers are trained to understand modern information technology (IT). As a result they rely on IT professionals to help them understand e-discovery issues and specific electronically stored information (ESI).
The State Bar of Texas, the American Bar Association and a myriad of other continuing legal education providers offer regular training to help judges and lawyers better understand e-discovery and how to manage ESI.
E-neutrals also can help. These are individuals, neutral to the litigation, who can help guide the litigants and the courts through the complexities of ESI to try to minimize costly motion practice and at the same time allow parties to better control the e-discovery process.
How did the term "e-neutral" evolve? A few years ago my friend Allison Skinner found that using a mediation conference for e-discovery disputes helped litigants reduce costs and get more control over the process. She is of counsel at Sirote & Permutt in Birmingham where she is a full-time neutral, and an adjunct professor of e-discovery at the University of Alabama School of Law in Tuscaloosa and Faulkner University's Thomas Goode Jones School of Law in Montgomery, Ala.
The e-mediation process she created generally devotes the mediation conference solely to managing ESI. The e-mediator is involved with the parties early in the case—before discovery has gotten under way. The parties submit e-mediation statements that include details about the technical skills of those who will attend the e-mediation, including who will provide technical support for the ESI. Often this person is the chief information officer, chief technology officer or IT director.
TRAINING FOR E-NEUTRALS
In the spring of 2011, she and I founded the American College of e-Neutrals. Here are our goals:
The American College of e-Neutrals (ACESIN) is a non-profit organization dedicated to the education, training, credentialing, and use of e-Neutrals. The term "e-Neutrals" includes all third party referees—mediators, arbitrators, masters, judges, liaisons, and magistrates—committed to resolving disputes arising from electronically stored information (ESI). ACESIN Fellows are the country's first group of e-Neutrals specially trained to conduct "e-Mediations" and other extrajudicial forums. An e-Neutral who is a Fellow of ACESIN has met the highest standards of knowledge, training and experience in both dispute resolution and e-discovery as determined by ACESIN's Advisory Board. An ACESIN Fellow stands ready to assist litigants and the courts in resolving e-discovery disputes in an efficient and effective manner through the use of e-Mediations or court appointments.
Since ACESIN's founding, she and I have trained mediators and special masters around the United States with two-day training programs in Dallas, St. Louis, Chicago and Atlanta. Further training is scheduled.
Another feature of e-mediation is caucusing with experts. People who are skilled in IT rarely have studied law, so they generally do not understand discovery as well as trial lawyers and general counsel. So, each side to an e-mediation can have confidential caucuses with the IT representative who knows all about the ESI, the general counsel, the trial lawyer and the e-mediator.
During these private caucuses a mediation e-discovery plan can be devised so that there is a well-managed road map for discovery of ESI. Hopefully the plan will minimize motion practice, which can make discovery less expensive and at the same time not force the judge to try to understand the IT and ESI issues for the parties, in addition to the unique facts of the case.
Special masters also can be useful. In state and federal courts, the use of a special master can help judges and parties with specific issues such as ESI. I have been appointed a special master in federal and state courts regarding e-discovery and IT matters for more than 20 years.
Special masters can be technical IT experts about ESI who are not lawyers, or they can be lawyers with specialized technical expertise about ESI. Lawyers who are trained about ESI can better assist judges as special masters, since they are conversant with the rules of evidence and procedure. Special masters in ESI disputes may conduct hearings and issue orders regarding ESI which may be appealed directly to the judge.