Mediation of Electronic Discovery Disputes in the
United States District Court for the Western District of Pennsylvania
The expense and delay that can be caused by electronic discovery issues are well-recognized. Having available a mediator, skilled in electronic discovery, can sometimes assist the parties in resolving such discovery disputes. As a supplement to this District’s Electronic Discovery Special Master Program (“EDSM Program”), and as an alternative to the appointment of a Special Master, the Court’s E-Discovery Special Master Sub-Committee has established a mediation program to help resolve disputes involving electronic discovery (“ED-Mediation”). ED-Mediation is not intended as a substitute for meaningful cooperation and dialogue between the parties prior to submission of any electronic discovery dispute. However, an independent mediator may be able to bridge the remaining gap of disagreement between the parties by providing additional electronic discovery expertise and experience to help them fashion their own resolution to the dispute at issue. If successful, ED-Mediation can reduce the time the Court must devote to electronic discovery disputes and facilitate the expeditious and economical resolution of those disputes, consistent with the goal of Rule 1 of the Federal Rules of Civil Procedure and this Court’s Mission Statement.
2. The ED-Mediation Panel
A. The panel of mediators (“ED-Mediation panel”) will be initially comprised of those members of the EDSM Program who are also approved as neutrals in the Court’s Alternate Dispute Resolution (ADR) program. Members of the EDSM Program not approved as neutrals may seek certification as an ED-Mediator by demonstrating to the Court such good cause as to justify their addition.
B. All future additions to the ED-Mediation panel must complete such training, and demonstrate such electronic discovery expertise, as deemed appropriate by the Court.
C. While members of the panel will initially come from the list of court approved Electronic Discovery Special Masters, ED-Mediators will not be considered to serve as a Special Master in cases in which they have been appointed as an ED-Mediator unless all parties consent.
3. Submission of Electronic Discovery Dispute under the ED-Mediation Program
A. An electronic discovery dispute may be submitted to ED-Mediation either by motion to the Court or by agreement of all parties to the discovery dispute (which may be less than all parties to the action). Judges also may order that parties submit a discovery dispute to ED-Mediation.
B. Prior to the submission of any electronic discovery dispute, the parties are encouraged to avoid the time and expense of motion practice by attempting resolution on their own. In any event, the parties should conduct a meaningful meet and confer conference before submitting any dispute to ED-Mediation.
C. Upon referral by the court, or by agreement of the parties, counsel shall consult this District’s ED-Mediation panel and select the individual all parties to the dispute agree upon to serve as the ED-Mediator. In making this selection, counsel should be particularly mindful of the availability of their prospective ED-Mediator to resolve the dispute expeditiously so as to not disrupt the deadlines of any previously entered case management order.
D. ED-Mediators are expected to run conflicts checks and represent to the parties the results of same and disclose all potential party relationships. Notice of any conflicts, their waiver, or the lack thereof, should be memorialized in the form of a mediation agreement, which the Court encourages the parties to execute. Among the other items this agreement should contain is a clear cost division of the ED-Mediator’s compensation.
E. Prior to the start of any ED-Mediation, parties and counsel are expected to familiarize themselves with the following:
1. This court’s Checklist for Rule 26(f) Meet and Confer Regarding Electronically Stored Information;
2. This court’s Guidelines for the Discovery of Electronically Stored Information; and,
3. Any relevant materials referenced or provided by the ED-Mediator. It is also recommended that parties and counsel consult The Sedona Conference and their relevant publications on electronic discovery production and cooperation (https://thesedonaconference.org/publications#ediscovery) prior to the start of any ED-Mediation.
4. ED-Mediation Format
A. There is no prescribed format for the conduct of an ED-Mediation. The determination of same shall be left to the discretion of the ED-Mediator.
B. Unless otherwise agreed to by the parties, the ED-Mediation should be held at the offices of the ED-Mediator.
C. It is recommended that the ED-Mediation be conducted in person. However, to foster the participation of counsel and parties from outside of the District, this is not a requirement.
D. The ED-Mediator has the discretion to schedule and conduct such additional sessions relative to the instant electronic discovery dispute as deemed appropriate.
Except as otherwise provided by law, all statements made during the ED-Mediation, as well as all communications between the ED-Mediator and parties, shall be confidential and should not be disclosed in any motions, filings or other documents on the public record. The ED-Mediator must agree to be bound by the terms of any protective order in effect in the case.
6. Communications with the Court:
While the fact that the parties have agreed to mediate under the ED-Mediation program can be disclosed to the Court, neither the ED-Mediator, nor the parties, should communicate with the Court about the substance of the ED-Mediation unless all parties thereto agree or as otherwise provided by law.
7. Tracking the Effectiveness of the Program To Measure the Effectiveness of the Program:
ED-Mediators may be required to complete such form or provide such other information deemed appropriate by the Court’s E-Discovery Special Master Sub-Committee, working in conjunction with the Court’s Case Management/ADR Committee.