The mission of the United States District Court for the Western District of Pennsylvania is to preserve and enhance the rule of law while providing an impartial and accessible forum for the just, timely and economical resolution of legal proceedings within the court’s jurisdiction, so as to protect individual rights and liberties, promote public trust and confidence in the judicial system, and to maintain judicial independence.
One critical challenge to achieving this mission is posed by the need to effectively address issues presented by the preservation, collection and production of relevant Electronically Stored Information (“ESI”) during the litigation process.
In 2006, the discovery rules in the Federal Rules of Civil Procedure were revised. Although the revised Rules provide guidance, issues and disputes related to the preservation, collection and production of ESI have continued to confront litigants and the Court, sometimes threatening to overshadow the substantive issues in dispute. Based on this experience, this Court determined that litigants in this District may benefit from the appointment of Electronic Discovery Special Masters (“EDSMs”) in appropriate cases, in order to assist in addressing ESI issues that may arise during the litigation.
Chaired at that time by Judge Joy Flowers Conti, the Court’s Alternate Dispute Resolution Implementation Committee (“ADR Committee”) was charged with developing criteria for assessing the qualifications of applicants seeking to be included on the Court’s approved EDSM list. A subcommittee, led by current ADR Committee chair Judge Nora Barry Fischer and including court personnel and local practitioners with electronic discovery experience, provided recommendations to the ADR Committee, ultimately resulting in approved application and selection criteria. The final set of criteria approved by the ADR Committee includes active bar admission; demonstrated litigation experience, particularly with electronic discovery; demonstrated training and experience with computers and technology; and mediation training and experience. Accordingly, on November 16, 2010, the Board of Judges approved the establishment of a list of qualified attorneys to serve in these roles. In 2015, the EDSM program will be supplemented by this Court’s creation of a mediation program to help parties resolve electronic discovery disputes, known as ED-Mediation, using a panel of mediators specifically skilled in electric discovery called ED-Mediators (“EDMs”).
In most instances, EDSMs and EDMs will both be expected to seek mediated resolutions of discovery issues or disputes between or among parties. In the event that an appointed EDSM is unsuccessful in achieving a mediated resolution, that EDSM will usually be expected to make findings of fact and/or conclusions of law to be presented to the Court in the form of a report and recommendation. The parties will then have the opportunity to file objections thereto, prior to a de novo review by the Court. Alternatively, should the parties request the appointment of an EDM, their focus will be solely to help the parties achieve a mediated resolution – without making any findings of fact and/or conclusions of law. If the EDM is unsuccessful, the parties and/or the Court will proceed with other methods of seeking a resolution of the issues in dispute, such as appointment of a separate EDSM at that stage or a ruling directly by the Court.
Having completed the review and acceptance of applicants to the program, the Court has now published its list of approved EDSMs on the Court website. Once ED-Mediation is implemented, that list of approved EDMs will be published as well. Upon request of the parties, or in the event that the Court otherwise determines that the appointment of an EDSM or EDM is appropriate, the parties and/or the Court can use the information and links provided on this site to select an EDSM or EDM from among the approved candidates. As to EDSMs, the Court will set forth the scope of the EDSM’s appointed duties, which may include by way of example, developing protocols for the preservation, retrieval or search of potentially relevant ESI; developing protective orders to address concerns regarding the protection of privileged or confidential information; monitoring discovery compliance; resolving discovery disputes; etc. As to EDMs, the Court may set a deadline for completion of the ED-Mediation process and the report of same back to the Court.