Thinking Outside the eDiscovery Box: How Technology Solves Data Problems Beyond Litigation

Jim Gill | Ipro Tech

Back in 2006, when Rule 34 of the Federal Rules of Civil Procedure (FRCP) was amended to create a new category of discoverable information – Electronically Stored Information or ESI – eDiscovery was legitimized, and eDiscovery software was created to move ESI through the litigation process.

Fast forward to 2020, and ESI has grown in both size and complexity – terabytes (or even petabytes) of data from multiple sources like social media, email, chat, the Internet of Things (IoT) – and the goal of collecting, processing, and analyzing data for litigation has proven even more challenging.

But focusing on this challenge creates tunnel vision and overshadows other ways this powerful eDiscovery technology can be used. Anytime an organization needs to quickly ingest, organize, analyze, and report on large datasets, eDiscovery software offers an immediate solution and can be applied in various ways. One example is how government agencies are finding eDiscovery software is the perfect tool for responding to Freedom of Information Act (FOIA) requests.

Another example of thinking outside the eDiscovery box comes from J.S. Held, a company providing services for commercial contractors, allowing them to better understand where issues arise in their construction projects. In a recent conversation with Tim Martin, Technical Project Manager at J.S. Held, he shared, “We use the Ipro eDiscovery solution internally to handle the large volume of data created and generated during a construction project. When we receive hard drives of files from clients, Ipro enables us to quickly search, tag, code, and sort those documents, allowing us to review them with a streamlined approach and within a quicker timeframe.”

Previously, the team at J.S. Held would load files from clients, which in some cases had over a million documents, onto a file server, then have to manually open each one of those files and move them into a folder to classify them by type. “But by using Ipro analytics, we can do that on ingestion. As soon as the documents come in, we gain a clear picture of the data, and it can be quickly coded and classified, enabling us to cut sorting and coding times down to measurable hours, as opposed to the days it would have taken with our old process.”

In the end, that’s what eDiscovery software does: ingests a large volume of data, giving the user deep insight into what’s there with the ability to easily track and report those findings. It has so many applications across multiple industries, like commercial construction. It doesn’t matter if that data is a part of litigation or not. And as enterprise data continues to grow exponentially, this insight becomes more and more vital. As Tim from J.S. Held puts it, “By finding that needle in the haystack sooner, we can quickly and accurately communicate any issues to clients, which they greatly appreciate.”

Defining A Win In Litigation

Drew York | Gray Reed & McGraw | October 31, 2019

Does a “win” in litigation require a final judgment in your favor? Not necessarily. Litigation “wins” are defined by the circumstances facing a party at the outset of litigation, and how those circumstances change as litigation progresses. Over the next few months we will dive deeper into this topic, and talk about issues such as:

  • Taking the emotion out of litigation: why being cool, calm and objective reduces the cost and strain of disputes;
  • Why it is important to have clear, comprehensive communication and buy-in between the client and attorney concerning the client’s goals in the litigation, and the game plan the attorney and client intend to follow during the case;
  • Good navigators: why constantly re-evaluating litigation is crucial to meeting your goals;
  • Why the distraction of litigation is a “hidden” additional costs to your company;
  • The benefits of resolving a dispute prior to litigation;
  • Mitigating the plaintiff’s damage recovery at trial can be just as good of a win;
  • Reputation matters: how your stance in litigation conveys a message to your vendors, competitors, and even your employees; and
  • The big picture: how will the outcome of this litigation affect my business relationships going forward?

Tilting the Scales in Your Favor

Do not necessarily assume that you must get a final judgment in your favor to “win” the outcome of a particular piece of litigation. There are many ways in which your company can win a dispute short of a judgment. Those that understand all of these interconnected avenues are best equipped to handle the “ups” and “downs” that come with protracted litigation.

Reminder: In Court (as in life) the Worst Thing You Can Do Is Not Show Up

Christopher G. Hill | Construction Law Musings | May 28, 2018

As long time (and possibly recent) readers of Construction Law Musings know, I am a Virginia Supreme Court Certified Mediator. In that capacity, I spend quite a bit of time sitting in general district court courtrooms in places like Goochland and Caroline Counties “court sitting” awaiting a referral from the judge of a case with parties ready and willing to take advantage of the mediation process.

As I sit there wearing my mediator “hat,” I see case after case be called for the first return date. Without fail, several cases are called where the defendant fails to appear after being served with process. There are even a case or two where the plaintiff (the party that picked the return date in the first place) fails to appear. In the first instance, where the defendant doesn’t appear, the judge almost inevitably enters a judgment for the amount sued for by the plaintiff. In the latter instance, the case is dismissed without prejudice to the plaintiff with a shake of the head by the judge at the wasted time and filing fee. This post focuses on the first case.

As I said previously, if the defendant fails to appear, the Court enters a judgment by default, taking everything the plaintiff says as true. This means that the defendant doesn’t get a chance to tell his or her story. The defendant is stuck with whatever the plaintiff says happened, whether the defendant would agree with the plaintiff or not. Even more damaging for the defendant that does not appear, that defendant doesn’t get notice that a judgment was entered, likely until the collection paperwork shows up at their home or place of business, and by that time it’s too late and a court won’t discuss the merits of the case, just whether the judgment was entered. Throw in the fact that failure to appear generally precludes settling or taking advantage of your friendly neighborhood mediator, and the situation looks even worse.

In other words, if you are served with papers, you should appear in court even if you agree at least in part that you’re liable for the damages. By appearing, you open up possibilities from mediation to trial to a payment plan. Failure to appear only results in one possible outcome, judgment. If you appear, your local construction (or other specialized) attorney can help you out. If you don’t, there is little or nothing he or she can do to help.

Strategy for Enforcement of Dispute Resolution Rights

Whitney Judson | Smith Currie | May 21, 2018

Arbitration and litigation each offer their own benefits and drawbacks to litigants looking to resolve a construction dispute. A careful analysis of these benefits and drawbacks may be helpful in determining whether to avoid or pursue either dispute resolution process. Arbitration is oftentimes regarded as the more economically feasible dispute resolution option and is therefore attractive to many construction dispute litigants. Although arbitration may prove to be less expensive than litigation in the long run, some litigants may prefer to file a case in court because the upfront filing fees in litigation are less expensive than the filing fees of arbitration.

Litigants may also prefer the decision makers of one process for dispute resolution over another. Arbitrators in a construction dispute oftentimes have a background in the construction industry, whereas a judge or jury may not. Strategy may dictate whether the preferable decision maker should have experience within the construction industry or be free of any construction industry knowledge and possible biases. The finality of decisions may also be a reason to strategically choose one dispute resolution process over another. Arbitration decisions are overturned only under very narrow and specific circumstances. The losing party in litigation however, has a right to appeal decisions to a higher court and has more options for recourse when the findings of the court are not supported by the evidence or the law.

Jurisdiction and the Enforcement of Agreements to Arbitrate

Construction contracts oftentimes contain arbitration clauses where the signatories agree to resolve certain disputes through arbitration proceedings. Parties may disagree, however, on whether any given dispute falls within the scope of the arbitration clause. They may further disagree as to whether a judge or an arbitrator should have the power to rule on this issue. When one of these disputes presents itself, at least one party may insist that the issue of jurisdiction be decided before any arbitration proceedings can begin. The first step in either enforcing or avoiding an arbitration agreement may therefore be answering the preliminary question of who should rightfully decide whether claims in dispute belong in litigation or arbitration.

The United States Supreme Court has held that, in general, courts have the sole power to decide whether claims fall within the scope of an arbitration agreement, unless the parties have clearly and unambiguously decided to submit such questions to an arbitrator. The rationale behind this general rule is that an arbitration cannot be forced upon any party who has not agreed to participate. Parties that have not agreed to arbitrate are entitled to resolve their disputes in court. If a party prefers to participate in arbitration and have arbitrators decide issues of jurisdiction, it is important to clearly and unambiguously express these preferences within the contract. Additionally, parties that contractually elect to be governed by the American Arbitration Association Rules have agreed to empower arbitrators to decide issues of jurisdiction. The AAA Rules state: “The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim.” Rule R-7, AAA Commercial Rules.

Incorporation and Waiver

Construction contracts, in particular, oftentimes incorporate other documents. For example, a subcontract may not contain any agreement to arbitrate, but it may incorporate a prime contract that contains an arbitration clause. The arbitration clause that is referenced or incorporated from the prime contract may be enforceable against the subcontractor, even if the parties to the subcontract have not signed an agreement to arbitrate. Enforceable incorporation language in a contract will work to the advantage of a party that prefers arbitration and seeks to enforce an arbitration agreement. While this is the general rule, a minority of courts have held that broad language of incorporation may not be sufficient to incorporate an arbitration agreement.

Even when an agreement to arbitrate exists, a party may avoid its enforcement by arguing that the opposing party has waived its right to arbitration. When one party behaves in a manner that is inconsistent with its known arbitration rights—especially when this inconsistent behavior causes prejudice to the opposing party—arbitration rights may be waived. Actions that are inconsistent with arbitration rights include, but are not limited to, filing motions in court, conducting discovery in court, delays in filing motions to compel or stay arbitration, or otherwise substantially invoking rights and powers in litigation prior to filing an arbitration demand.

Motions to Compel Arbitration

If litigation has been initiated by one party in court, a party opposing litigation and seeking to enforce its arbitration rights may choose to file a motion to compel arbitration. A motion to compel arbitration uses the litigation process to require a party to arbitrate claims in accordance with the arbitration agreement. A party that has not agreed to arbitrate, however, cannot be compelled to do so.

A motion to compel works as a shield to parties who wish to avoid litigation because if a motion to compel is granted, the parties must seek legal remedies through arbitration. A grant of a motion to compel can either be accompanied by a dismissal of the court case, or a stay of the court case. If the case is dismissed, the court’s decision is immediately appealable to a higher court, as it is a final decision on the merits. If any party chooses to appeal a final decision on the merits with respect to a motion to compel, both parties will then be required to invest additional time and expense in litigation in a higher court. This can be especially frustrating for a party wishing to pursue its rights to arbitration and avoid litigation.

If a motion to compel is granted and the case is stayed, the decision is not appealable, as it is not a final decision on the merits. Under these circumstances, the parties are required to take the dispute to arbitration, and the litigation of the case in court is effectively paused pending the outcome of arbitration. In terms of filing a motion to compel, a stay of the court case is the most desired outcome for a party seeking to enforce its arbitration rights. Such a party may even be more direct in its enforcement of arbitration rights by filing a motion to stay litigation pending arbitration.

Conclusion

Parties must balance the benefits and drawbacks of various options for dispute resolution. Despite an agreement to arbitrate, parties may initiate litigation in court based upon reasonable arguments of waiver, that a particular dispute falls outside the scope of any arbitration agreement, or that the arbitration agreement itself is unenforceable against a particular party. Parties who believe they have a legitimate right to arbitration however, are able to enforce their rights through motions to compel arbitration, motions to stay legal proceedings pending arbitration, and by ensuring that the contract designates that an arbitrator is to decide any issues of jurisdiction.

To Arbitrate or Not to Arbitrate? That is the Question

Garret Murai | California Construction Law Blog | April 25, 2016

It’s been the fodder of debate of philosophers, academics and the rest of us for ages:

  • Do we have free will or are our actions predetermined and the result of preceding events?
  • Are human beings fundamentally selfless or self preserving?
  • Coca-Cola or Pepsi?
  • iOs or android?

And for litigators and their clients, including us construction lawyers, arbitration or litigation? Or, in short, if a project goes sideways, in what forum will you resolve your dispute? It’s an important question the answer to which could mean the difference between winning or losing.

The other week I stumbled across an informative article on JD Supra written by David Taylor a construction lawyer with Bradley Arant Boult Cummings LLP in Nashville, Tennessee in which he discussed the pros and cons of arbitration and litigation with a focus on construction disputes entitled Arbitration vs. Litigation: The Great Debate.

According to Mr. Taylor:

Many of the “form” commercial construction contracts (e.g., AIA forms) contain “dispute resolution” clauses proposing binding arbitration as opposed to courtroom litigation. Most U.S. courts, faced with the number of cases flooding the legal system, regularly enforce arbitration clauses. However, the decision to arbitrate should not be taken lightly. There are pros and cons, and one size does not fit all.

Mr. Taylor ultimately sides in favor of arbitration pointing out that:

  • Courtroom litigation is expensive and time-consuming;
  • Court filings are public records;
  • Lawsuits can take years to get to trial; and
  • There is no way to guarantee what a judge or jury may do in a civil case.

Unlike litigation, he explains, arbitration is preferable because:

  • “Ideally, an arbitration is heard by a third-party neutral with experience and knowledge in the area of dispute”;
  • “[T]here is no crowded court docket” and “there are fewer and more restrictive grounds for appealing an arbitration award, so finality is the rule rather than the exception”;
  • “In most cases, the costs and expenses of arbitration are less than litigation;” and
  • “Unlike courtroom litigation, arbitration is private and confidential.”

All great points, and an article well worth reading if you’re considering whether to include that arbitration clause in your construction contract or deciding whether to opt for arbitration or litigation if your contract gives you that option.

As for me though, I’m not so sure. While arbitration has been heralded as better, faster and cheaper, I’m not sure it has delivered on that promise, except in my experience for smaller cases in which fast-track rules apply. That’s because:

  • For larger cases, I’ve found that arbitration is not necessarily faster or cheaper, in part, because you are paying the arbitrator for his time unlike a court judge.
  • As Mr. Taylor points out in his article there are more restrictive discovery rules in arbitration, but this also means that you may have more difficulty obtaining necessary evidence, which could mean more uncertainty, or worse, a less fair result.
  • Opportunities for parties to settle – either through mandatory court-ordered settlement conferences (which are not required in arbitration as they are in many courts) or through voluntary out-of-court mediation (which just doesn’t seem to happen as much in arbitration) – is less likely in arbitration.
  • As Mr. Taylor also points out there are more limited appeal rights in arbitration – and, I would also point out, generally looser standards of evidence and no trial by jury – which means that your fate is in the hands of an arbitrator (or, in some cases, arbitrators) rather than a jury of your peers and before an arbitrator who may feel less compelled to strictly follow the dictates of the law since there is less likelihood of a subsequent appeal.

So there you have it, the great arbitration versus litigation debate. And it’s a debate…

To finish reading this article