What Types of Issues May Be Mediated?
Any issue relating to electronically stored information may be mediated. For example, courts are divided on the question of how chain email must be listed on a “Vaughn index” or “privilege log.” An agreement may avoid issues of inadvertent waiver of the privilege. Courts have frequently concluded that counsel may not be qualified to design unilateral keyword searches and that parties should discuss and test the terms to be searched. Mediation may help the parties reach agreement where one party feels that only a few terms are needed and the other proposes multiple search terms. The Federal Rules of Civil Procedure do not impose milestone deadlines for certain motions that arise out of ESI, such as spoliation motions. Discussion of milestone dates may avoid costs and waiver arguments in the future. Similarly, issues related to phased discovery, preservation, and form of production may be well-suited to mediation.
