By Peter S. Vogel Allison O. Skinner is an attorney and full-time mediator at Sirote & Permutt and has written two outstanding articles about resolving eDiscovery disputes as a Mediator to develop a “Mediated Discovery Plan.” What a great way to help parties take advantage of the mediation process to reduce the out of control costs of eDiscovery and at the same time reach an amicable plan to deal with eDiscovery. Allison has setup a great model that will surely be widely adopted. Allison’s Strategy In a great article entitled “The Role of the Mediation for ESI (Electronically Stored Information) Disputes” Allison describes a straight-forward roadmap of how mediation can resolve eDiscovery disputes. She lists a number of benefits: self-direct workable solutions, define scope parameters, determine relevancy, create timelines for production or “e-depositions,” propose confidential compromises, 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 court, avoid court-imposed sanctions, and allocate costs. “How to Prepare an E-Mediation Statement for Resolving E-Discovery Disputes” will help all lawyers who want to resolve eDiscovery disputes using the mediation process, and allowing Judges to not have to split the baby on ESI which they may not even understand. eMediation Will Work if the Mediators Understand ESI Disputes Allison’s great idea is destine to change ESI disputes, but only if the Mediators understand eDiscovery. To be successful with eMediation the Mediator must be able to communicate clearly and simply with the IT folks who manage the ESI, and at the same time Mediator can help educate the lawyers about what makes sense in their case. Before Judges appoint Mediators (and lawyers who volunteer names of Mediators) a determination should be made if the proposed Mediator has sufficient the IT technical skills and eDiscovery experience to make eMediation a successful effort. Stay tuned for Allison’s plan to revolutionize eDiscovery!!! Technorati Tags: ADR, law, mediation, e-discovery Peter S. Vogel is a trial partner at Gardere Wynne Sewell LLP where he is Chair of the Electronic Discovery Group and Co-Chair of the Technology Industry Team. Before practicing law he worked as a computer programmer, received a Masters in Computer Science, and taught graduate courses in information systems. For 12 years he served as the founding Chair of the Texas Supreme Court on Judicial Information Technology which is responsible for helping automate the Texas court system and putting Internet on the desktops of all 3,200 judges. Peter has taught courses on the Law of eCommerce at the SMU Dedman School of Law since 2000. Many of Peter’s topics are discussed on his blog www.vogelitlawblog.com.

Page Perry’s Investment Fraud Lawyer Blog featured last week an interesting and thoughtful post about securities arbitration. A federal judge in Atlanta recently dismissed a class action lawsuit brought against SunTrust for fraud in the sale of auction rate securities. The case was not dismissed on the merits of investors’ claims against SunTrust, but based on technical legal requirements about what it takes to plead a claim. Those requirements are strict in securities fraud cases that get filed in federal court, especially class actions, but they do not apply to cases that get filed in arbitration. Auction rate securities are fixed-income investments in which interest or dividends are set by periodic auctions. Typically, such securities were widely marketed as conservative cash equivalents, but the broker-dealers who sold them did not disclose that their liquidity was contingent upon the success of auctions that were in turn dependent upon the financial support of the brokerages and investment banks that ran the auctions. When the auctions for these securities froze in February 2008, thousands of investors were left holding over $300 billion in illiquid securities. Many investors were eventually able to cash out due to regulatory settlements and redemptions, while others have sold their securities at a deep discount on the secondary market. “But many investors are still unable to get access to their money,” says attorney Craig T. Jones, who represents a number of investors in auction rate securities case, “and even those who have obtained partial liquidity through regulatory settlements or secondary market sales have valid legal claims for their losses.” Jones’ firm, Page Perry LLC of Atlanta, has been filing individual arbitrations of behalf of most investors, including those who were defrauded into buying auction rate securities without full disclosure of the risks. Read more here.

Last week I had the honor to guest-post at Peter Vogel‘s impressive Internet, Information Technology, & e-Discovery Blog. As some readers may know, Mr. Vogel is a frequent guest-blogger here at Disputing. Check out my guest blog! E-Discovery and the Enron E-mail Dataset Research By Victoria VanBuren, October 21, 2009. The U.S. Supreme Court granting of certiorari to former Enron CEO Jeffrey Skilling dominated the news headlines last week. Interestingly, the Federal Energy Commission (FERC), during its investigation into Enron’s involvement in the energy crisis of 2000-01, made available to the public a large database, called the “Enron Corpus.” This dataset consists of about half a million e-mail communications from former Enron senior executives and energy traders. Enron E-mail Dataset Research Because of its size and public status, the Enron Corpus is a rare and valuable tool for experimenting on text classification methods. After FERC posted it to the web, this dataset has been the subject of research by computer science departments of several universities, including the Massachusetts Institute of Technology and Stanford University. The summer of 2009, the team at TREC Legal Track, an organization co-sponsored by the U.S. Department of Defense, started conducting research on the Enron Corpus with the purpose of improving large-scale search techniques. Our Research – Bayesian Text Classifier The spring of 2009, computer science students at Texas State University David Villarreal, Thomas McMillen, Andrew Minnick, and I, under the supervision of computer forensic expert Wilbon Davis utilized the Enron Corpus to train a Bayes-based algorithm to classify the Enron e-mails into relevant and irrelevant to a given legal issue. This type of algorithm is commonly used by e-mail spam filters. The Results The team hoped that this mathematical approach would achieve better accuracy levels than the ~ 20% found using Boolean keyword searching, a method employed by many lawyers. Surprisingly, the Bayesian filter found e-mails to be known relevant at averages ranging between 43% and 66%. And as expected, the irrelevant accuracy results were even higher, averages ranging between 44% and 77%. Texas State University published the Technical Report last week and it can be downloaded for free here. Technorati Tags: law, e-discovery

The ADR Prof Blog had recently an interesting series of posts about ADR and Bankruptcy. The posts relate to a conference hosted by the Hugh L. Carey Center for Dispute Resolution at St. John’s University School of Law titled “ADR Meets Bankruptcy: Cross-Purposes or Cross-Pollination.” Good stuff…Check them out: ADR Meets Bankruptcy -Part 1 (Oct. 9, 2009) ADR Meets Bankruptcy, Part 2 – Designing Dispute Systems (Oct. 13, 2009) ADR Meets Bankruptcy, Part 3 – Enforcing Arbitration Agreements (Oct. 14, 2009) ADR Meets Bankruptcy – Final Thoughts (Oct. 19, 2009) Technorati Tags: arbitration, ADR, law, mediation