E-Discovery Neutrals – Four Questions

by Hon. Richard A. Levie (Ret.)

As electronic discovery issues permeate all kinds and sizes of litigation and arbitration, there are a minimum of four questions counsel should, and judicial officers might, consider in determining whether use of an e-discovery neutral is necessary and appropriate.

For context here, the term “e-discovery neutral” includes use of the neutral in a mediation or adjudicative function, or in a combination of both.  The e-discovery neutral may act as a mediator facilitating discussion, an adjudicator deciding disputed issues or first as a mediator and, if unsuccessful at resolution, then as an adjudicator.  If the neutral is operating in an adjudicative capacity, use of Federal Rule of Civil Procedure 53 (or a state analogue) and denomination as a special master probably are required.  The particular role for any dispute is highly individualized, but the underlying questions are the same.

Question # 1 – Do I need an e-discovery neutral?  Here are some issues to consider in determining your need.

• The size and complexity of the case;
• The number of documents and/or anticipated electronically stored information (ESI) disputes;
• The amount of monetary relief sought;
• Time-sensitivity;
• The benefit to parties in having the ability to pick the neutral and the opportunity to tailor the neutral’s experience to the particular case;
• Whether easy and timely access to the neutral is important; and
• The anticipated cost of hiring a discovery neutral compared with the overall costs, importance and value of the case.

Question # 2 – How do I find an e-discovery neutral?

• The three most obvious categories of individuals qualified to serve are retired judicial officers, lawyers experienced in ESI matters and individuals whose business is ESI, such as vendors and expert witnesses.
• Likely the single best source is asking colleagues for recommendations.
• Some court systems, such as the U.S. District Court for the Western District of Pennsylvania, have created panels of e-discovery special masters based upon that court’s evaluation of an applicant’s qualifications and experience in litigation, ESI and mediation.  This information is available to judges and lawyers.
• There also are national organizations for special masters, such as the Academy of Court-Appointed Masters, which is a group of lawyers, retired judicial officers and ESI experts, not affiliated with any particular ADR provider, who have served as special masters in state and federal courts.
• Working with a national or local ADR providers

To learn more about the rest of the questions and answers about e-discovery neutrals, please read the full article from Law.com by clicking here.