A recent article by Daily Journal staff writer laura Ernde quoted Thomas J. Stipanowich, professor at Pepperdine University School of law and academic director of the Straus Institute for Dispute Resolution as saying, "Although arbitration was set up as an alternative to the expensive and time-consuming process of going to court, lawyers have started bringing the same litigation tactics to the arbitration process, creating higher cost and delay."
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Discovery disputes relating to electronically- stored information, referred to in this article as ESI, continue to bedevil the courts. The disputes increasingly are arising in domestic commercial and some international arbitrations. This two-part article discusses specific types of E-discovery disputes practitioners encounter or can expect to encounter.
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"When it no longer seems like quite such a fresh wound emotionally, then mediation gives people a forum in which they can gracefully turn the corner," Kichaven says.
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Typically, parties in litigation enjoy broad discovery rights that, to clients’ occasional dismay, trump manageability of costs. Left unchecked, this emphasis on access to theoretically relevant documents could wreak disastrous pretrial economic results for litigants when superimposed on massive amounts of electronically stored information (“ESI”). In fact, in cases in which less than $500,000 or so is at stake, predicted litigation outcome might be replaced by anticipated attorneys’ fees and ESI discovery and production costs in assessing the pros and cons of settlement.
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It’s a recession. Your income is down. You are thinking of borrowing from your pension funds to pay for your child’s college tuition, but the value of the equity in your pension is well below your retirement goal.
Just then, a policeman pulls up slowly along side your car and looks at you. Although you have done nothing wrong, you are inexplicably very nervous about getting a moving violation and having to pay more for car insurance. When he passes you by, you silently say to yourself, “He must already have his quota or he would have found a reason to give me a ticket.”
You arrive at the dentist for your annual teeth cleaning. The dental hygienist tells you that it would be wise to schedule a second cleaning in four months because your plaque build up is substantial. You immediately feel she is simply trying to generate more income from you; and you let her know she is not going to double her income off cleaning your teeth - “Try that line on someone else’s teeth.”
When you get home you tell your spouse about your stressful encounters with the policeman who slowed down and stared at you and the dental hygienist who wanted to make extra money by seeing you every four months instead of once a year.
It doesn’t occur to you to mention you were feeling very anxious about how you’re going to fund your son’s education. Instead, you got “relief” by splitting off that anxiety about finances from yourself and projecting it into the minds of the policeman and the dental hygienist - each of whom were probably just doing their job, not looking for extra money.
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