Through the appointment of a special master, parties can efficiently resolve disputes relating to electronic evidence. Rule 53 of the Federal Rules of Civil Procedure provides that with consent of the parties a court may appoint a master either to address an exceptional condition or pretrial matters that an available judge cannot effectively and timely address. Many state court rules contain similar provisions. A special master can assist parties in exploring cost-saving alternatives to resolve disputes when parties cannot agree to a resolution.
For matters of complex litigation, e-neutrals can be a valuable resource when the disputing parties jointly agree to retain a computer forensics neutral to facilitate efficient communication and resolution. A computer forensic neutral can then evaluate electronic evidence and issue a formal report, allowing the parties to rapidly resolve disputed factual issues and eliminating the uncertainty and expense associated with a battle of experts. Although not having the same judicial authority as a special master, an e-neutral works with the parties to establish ESI protocols, mediate eDiscovery disputes and facilitate issues relating to confidential and privileged materials. An e-neutral also can facilitate the review and production of materials on a single hosting platform, potentially reducing costs by half.
The Seventh Circuit eDiscovery Pilot Program has formalized a role that Elijah has been fulfilling for years—the eDiscovery Liaison. The Pilot Program dictates that in the event of disputes over ESI, the parties to the litigation each designate an eDiscovery Liaison for the purpose of meeting, conferring and attending court hearings regarding electronic discovery issues. An eDiscovery Liaison should be prepared to:
- Participate in the eDiscovery dispute resolution process
- Gain the knowledge with regard to the party’s eDiscovery efforts
- Obtain reasonable access to those familiar with the party’s electronic systems and capabilities so they can explain and answer questions regarding them
- Be knowledgeable about the technical aspects of eDiscovery including electronic document storage, organization format issues, retrieval