E-Discovery Neutrals – Four Questions

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As electronic discovery issues permeate all kinds and sizes of litigation and arbitration, there are a minimum of four questions counsel should, and judicial officers might, consider in determining whether use of an e-discovery neutral is necessary and appropriate.

For context here, the term “e-discovery neutral” includes use of the neutral in a mediation or adjudicative function, or in a combination of both. The e-discovery neutral may act as a mediator facilitating discussion, an adjudicator deciding disputed issues or first as a mediator and, if unsuccessful at resolution, then as an adjudicator. If the neutral is operating in an adjudicative capacity, use of Federal Rule of Civil Procedure 53 (or a state analogue) and denomination as a special master probably are required. The particular role for any dispute is highly individualized, but the underlying questions are the same.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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