The American Bar Association’s (“ABA”) Dispute Resolution Section and FINRA conducted a Webinar on February 3rd, titled “Utilizing Mediation to Navigate the Perils of Electronic Discovery in Arbitration.” The program featured a heavy emphasis on the FINRA Discovery Guide.
The 75-minute event covered e-discovery in general and, in particular, the Guide and how mediation can be used to resolve e-discovery disputes arising in the arbitration process. The Webinar, complete with a PowerPoint and links to support materials, was introduced by Ken Andrichik, FINRA-ODR Senior Counsel and Director of Mediation, and moderated by Steven P. Gomberg, of Lynch, Stern, Thompson, LLP. The first presenter, retired judge Hon. Nan R. Nolan, a neutral with JAMS, covered E-discovery: Then and Now, beginning with the legal community’s response to the 2006 amendments to the Federal Rules of Civil Procedure. This led to formation of the Sedona Conference and, later, the Seventh Circuit’s Electronic Discovery Pilot Program. She closed by evaluating where things stand today: “We’re doing great after nine years for such a drastic change to the legal system.”
Customers’ Bar Views
Steven B. Caruso, the resident partner in the New York office of Maddox Hargett & Caruso, P.C., was up next, covering FINRA and E-discovery. Notice to Members 11-17, he said, reminds parties that they have a duty under the Customer Code of Arbitration Procedure to cooperate in the discovery process and to voluntarily turn over documents listed on the Document Production Lists, or requested by other parties. He stated that there are four predicates involved: 1) the predispute arbitration agreement; 2) the Submission Agreement signed by the parties, which reflects, among other things, the parties’ agreement to be bound by the Code; 3) the “great disparity” in document retention and production obligations of customers and the industry; and 4) Customer Code Rule 12505, which requires that parties cooperate on document and other information exchanges. Mr. Caruso closed by reviewing common discovery disputes arbitrators may face, typically: form of production; whether documents are in “reasonably usable” format; and burden versus usability.
Jennifer R. Relien, Vice President & Associate General Counsel at the AIG Advisor Group, Inc., addressed Broker-Dealer E-Discovery. She first reviewed the many broker-dealer record-keeping requirements imposed by the SEC and FINRA, followed by pre-discovery risk assessment steps such as: evaluation of resources from a technology, human capital and financial perspective; production challenges; litigation hold/document preservation notices; and mitigating the risk of spoliation. She closed by reviewing the many e-discovery challenges presented in “The New Age of Social Media.”
Allison Skinner, a mediator, owner of Skinner Neutral Services LLC, and an Adjunct Professor at the University of Alabama School of Law, closed the Webinar by addressing the title topic: using mediation – including e-mediation – to resolve e-discovery disputes. Mediation, she said, offers self-directed, workable solutions and can be used to: define scope parameters, including reference to the Discovery Guide; determine relevancy; create timelines for production or “e-depositions;” propose confidential compromises for search methodologies and preservation; create efficiencies with a mutual discovery plan; set guidelines for asserting violations of the plan; create boundaries for preservation; avoid spoliation pitfalls; manage protection of privileged information; maintain credibility with the tribunal; avoid imposition of sanctions, and allocate costs.
(ed: *Kudos to the ABA and FINRA for educating constituents – especially arbitrators – on the e-discovery process and using mediation in a very new way. **A video of the Webinar is available on YouTube here. ***The concept of using e-mediation to resolve e-discovery disputes is both novel and interesting.)
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