Expanding Your ADR Practice: What is an “E-Neutral?”
e-Neutral – a person who serves as an extra-judicial referee to resolve disputes involving electronically stored information. Synonyms: special master, e-mediator, discovery liaison, discovery referee, magistrate or judge.
In December 2006, the Federal Rules of Civil Procedure were amended to include the discovery of “electronically stored information,” or “ESI.” The amendments created a $1.2 billion industry in the legal field commonly referred to as “e-discovery.” We are awash in ESI, with more than 107 trillion e-mails (yes, with a “T”) and 2.3 trillion text messages sent in 2010 alone. This area of law will only continue to grow. E-discovery can be burdensome and expensive, and it is subject to sanctions when the parties do not manage it effectively. The burdens and costs give rise to new discovery disputes, which place additional stress on strained judicial resources. Because of the complexities, burdens and costs of e-discovery, courts and litigants are demanding two things: cooperation and help.
Cooperation and help. These words cry out for the use of e-neutrals who are trained and experienced in ADR – particularly mediators – and in e-discovery. If e-discovery is a revolution in the law, as it has been called, then it is time to send in the cavalry. Some courts have already implemented specific measures to address e-discovery. Among them are the U.S. Court of Appeals for the Seventh Circuit, the U.S. District Court of Western District of Pennsylvania, and the U.S. District Court for the Southern District of New York. These programs have been created in an effort to promote judicial economy and reason. Georgia and other states are watching closely to assess whether similar programs would help manage the dockets of their state and federal courts, which can grind to a halt with just one complex case involving high-stakes ESI issues.
These pilot programs focus on the use of special masters and other ADR techniques. Mediators with both technological and legal savvy are in demand. These “e-neutrals” serve as third-party referees trained in both ADR and electronic discovery. E-neutrals may serve as e-mediators or special masters depending on whether the parties need the proverbial carrot or stick to resolve pre-trial disputes.
Training mediators to address disputes in this developing area of the law is helpful to courts that need docket relief from the barrage of motions that are a hallmark of e-discovery disputes. Such training – “Putting the ‘E’ in Neutral” – is being offered to mediators in the metro-Atlanta area May 11-12, 2012. Registration is open exclusively to neutrals registered with GODR through March 18, 2012. Registered neutrals will also receive a $250 discount from the registration fee.
“Putting the ‘E’ in Neutral” is taught by Professor Allison Skinner, who teaches e-discovery at the University of Alabama School of Law, and Professor Peter Vogel, who teaches at the SMU/Dedman School of Law. Trainees will not only learn how to break impasse on specific e-discovery issues, but also will learn how to adjudicate an issue under current case law. The course has been approved for 13 CE credits with the GODR and for 13 CLE credits with the State Bar of Georgia (including 3 Professionalism credits and and 1 Ethics credit).
Want to expand your ADR practice in this emerging area of law? Come participate in the “Putting the ‘E’ in Neutral” training presented by the American College of e-Neutrals on May 11-12, 2012, at One Mediation’s Buckhead office. Registration is open by completing the training registration form at www.acesin.com and an invoice will be sent to you. Contact Jennifer Keaton at firstname.lastname@example.org for a copy of the two-day seminar’s agenda.
 See http://royal.pingdom.com/2011/01/12/internet-2010-in-numbers/ (offering a variety of statistics on internet use) and http://www.zdnet.com/blog/itfacts/23-trillion-text-messages-sent-by-2010/12176.
 See Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008)(imposing a default judgment in the amount of over $8 million as a result of spoiled e-mail evidence).
 See Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (U.S.D.C. Md. 2008); Scheindlin, S. and Redgrave, J., Special Masters & E-Discovery: The Intersection of Two Recent Revisions to the Federal Rules of Civil Procedure, 30 CARDOZO LAW REVIEW 2 (2008) and Scheindlin, S., We Need Help: The Increasing Use of Special Masters in Federal Courts, 58 DEPAUL LAW REVIEW 479 (2009) and The Sedona Conference®, Cooperation Proclamation (2008).