PPT for Fla. Bar YLD Division Seminar on ADR

1. WHAT’S NEW IN ADR
Presented by Arthur
Garcia, Jr.
of Upchurch Watson
White & Max

2. ESI AND MEDIATION THE USE OF THE
NEUTRAL
2

3. WHAT IS ESI, AND WHERE IS IT
HIDING?
1. ESI means electronically stored information.
2. If you have a smart phone, you have ESI in your pocket or purse.
3. Most information today is stored electronically, and little is ever
really gone forever. The challenge is retrieval and production in a
cost effective fashion.
4. ESI takes many forms; letters, contracts, architectural design,
plans, general documents, memos, emails and their attachments,
text messages and all the metadata that goes along with these
items.
3

4. IS METADATA INCLUDED IN ESI,
AND WHAT IS METADATA?
Web pages often include
metadata in the form of meta
tags. Description and keywords
meta tags are commonly used to
describe the Web page's content.
Most search engines use this
data when adding pages to their
search index.
4

5. WHY SHOULD WE
CARE ABOUT ESI?
1. ESI is becoming a major part of
discovery and therefore discovery
disputes and abuse.
2. ESI discovery in addition to
creating a proliferation of
disputes between parties has also
resulted in spiraling discovery
costs.
3. It is no longer sufficient to print
out documents and send them in
response to a discovery request.
Parties want the actual electronic
format of documents and images
including the metadata that is
associated with the items to be
produced.
4. Parties want everything related to
a topic and not what is just easily5

6. STATE AND FEDERAL COURTS HAVE
AMENDED CIVIL PROCEDURE RULES
SPECIFICALLY RELATING TO ESIThe 2010 Florida Handbook on Civil Discovery Practice devoted 17 pages to ESI. That
grew to 47 pages in 2016.
Committee notes say the Florida Rules of Civil Procedure encourage cooperation and
transparency during meetings between counsel early in a case to try and agree on the
scope of preservation and discovery and methods of production. (Rule 1.280
committee note).
Both state and federal procedural rules have been amended to better address ESI
discovery and sanctions for failure to preserve.
Amendments to state and federal rules are partially based on the Sedona Conference
and its Sedona Principles and Cooperation Proclamation. The cornerstones of the
proclamation are cooperation and proportionality.
6

7. DUTY TO
PRESERVE AND
SPECIAL
CONSIDERATIONS
INVOLVING ESI
Florida law is unique and unsettled
when it comes to evidence
preservation and what constitutes
spoliation and the sanctions that can
be imposed.
In general, a duty to preserve can
arise from many sources; court
orders, subpoenas, government
regulations, statutes, contracts,
discovery requests, and the common
law.
7

8. LEAGUE OF WOMEN VOTERS OF
FLORIDA V. DETZNER, 172 SO.3D
363 (FLA. 2015)
2012
Florida Supreme Court amends
the rules of civil procedure
addressing ESI.
2015
Federal Rules amended, also
addressing preservation of
evidence.
8

9. DUTY TO PRESERVE AND SPECIAL
CONSIDERATIONS INVOLVING ESI
(CONT.)
The retrieval, collection and production of ESI can be complex,
expensive and its failure can lead to negative consequences for
both counsel and client.
A printout of information and emails may not be sufficient or
the equivalent to data in its original electronic format.
Removal of internal metadata from a document which might
include information as to who created the document, its
creation date, last date accessed, when modified, with whom it
has been shared and other pertinent information can constitute
an alteration of the original, and arguably constitute spoliation
resulting in sanctions
9

10. ADR AND ITS ROLE IN THE
DISCOVERY OF ESI
When
Dealing
with ESI,
Numerous
Issues
Can Arise
The scope of the evidence to be preserved
The manner of preservation
The method of production
Preservation of privileged, proprietary trade secrets and
confidential information
Procedures when irrelevant or privileged information has been
inadvertently disclosed
10

11. ENGAGING A
NEUTRAL EARLY
MAY BE THE
ONLY WAY
Florida Handbook on Civil
Discovery practice specifically
contemplates the use and
assistance of neutrals in ESI
discovery as a way of limiting
costs without assistance.
“It may be appropriate for the
parties to retain third party
neutral experts in some cases
with unusual or complex
technical issues or other e-
discovery challenges such as
search of large disorganized
collections of ESI.”
11

12. HANDBOOK SETS FORTH TEN
PRACTICAL STEPS FOR HANDLING
ELECTRONIC EVIDENCE
Plan to secure relevant ESI
Plan to secure the foundation
needed to admit ESI
Request admissions of ESI
authenticity
When in doubt, preserve
Use summaries and charts
rather than voluminous
printouts when presenting ESI
to the trier of fact
Check public sources and
social media
Use competent witnesses to
obtain publically available
evidence
Curb client’s self-help efforts
Advise the client of the duty
to preserve
Cooperate with opposing
counsel
12

13. ADVANTAGES OF ENGAGING A
NEUTRAL
IN ESI DISCOVERY
Control of information
and cost in a confidential
setting.
Avoidance of sanctions
for destruction, spoliation
and failure to make
complete and proper
disclosure and production
13

14. ISSUES THAT CAN BE RESOLVED
1. Key words to use in searching ESI
2. Preparation of privilege logs
3. Preservation issues and methods
4. Forms of production
5. Narrowing of issues for court involvement and
determination
14

15. WHAT THE NEUTRAL CAN SEEK TO
ACCOMPLISH
Identify fair and practical
methods
of identifying relevant ESI
Methods of production
Timing of production
Protection of confidential and
proprietary information
Search terms
Helping parties retain self-
determination
Creation of an e-discovery plan
Identify the need for
specialized tech support to be
a part of the process
Cost allocation and timing
Development of a mechanism
to address future ESI discovery
disputes
15

16. WHEN SHOULD ESI
MEDIATION BE
USED?
ESI neutrals are best
used early in the
litigation to help
develop an ESI
discovery plan
Once the planning process is
initiated, the parties can
reconvene with the neutral’s
assistance to evaluate and modify
the plan and discuss whether the
parties need to involve IT experts.
Once an ESI discovery plan is
agreed to by the parties they can
ask the court to incorporate it into
a case management plan with court
oversight to adherence.
Mediation seeks to:
• Facilitate
communication
between the
parties
• Promote party
created solutions
• Help identify and
clarify issues
16

17. A TECH SAVVY MEDIATOR CAN:
Provide an educational function
Provide needs assessment. Not of case merits but rather gaps in tech
knowledge, timetables and expert involvement
Facilitate discussions, as opposed to evaluating the matter, in a
cooperative and courteous manner
Encourage involving parties technical support persons to address
what’s possible and finding creative solutions
17

18. HE/SHE ALSO CAN:
Narrow contested issues including:
•Evidence preservation
•Search techniques
•Privilege protection
•Clawback procedures if confidential, privileged or
proprietary information is inadvertently disclosed
•Satisfy “meet and confer” requirements before
seeking court intervention
18

19. INITIAL PHONE
CONFERENCES
CAN SAVE MONEY
AND TIME
A telephonic conference can set an
initial agenda for an in-person
meeting and should include issues
of:
• ESI preservation
• Scope of needed discovery;
proportionality and cost should be
key considerations.
• Production issues and assessment
of counsel’s tech knowledge about
client’s systems
• Deadlines
19

20. FOLLOWING A TELEPHONIC
MEETING THE PARTIES SHOULD
BE READY FOR THE ‘MEET AND
CONFER’ PART OF THE PROCESS
The parties should be
encouraged to bring their
respective IT and e-
discovery experts.
20

21. THE E-MEDIATOR’S AGENDA
SHOULD INCLUDE:
1. Exploration of the parties’
information systems and
capabilities
2. What is reasonably accessible
3. The scope of ESI to be reviewed
and preserved
4. Identification of relevant and
discoverable ESI
5. Search parameters and review
methods
6. ESI to be produced and ESI to
be withheld from production
7. Formats for preservation and
production
8. Time and manner of production
9. Use of phased e-discovery
10.Procedures for inadvertent
disclosure
11.Need for protective orders
12.Compliance and enforcement
21

22. HYBRID MEDIATION
AND ARBITRATION
TWO APPROACHES
22

23. HYBRID PROCESSES
ARB-MED
The process begins as an
arbitration. An award is
rendered by the arbitrator, but it
is not shared. With parties’
agreement, the arbitrator then
mediates the same matter. If an
agreement cannot be reached,
the arbitrator’s award is unsealed
and shared.
MED-ARB
The mediator first tries to assist
the parties in a self-determined
resolution as a mediator and if
that fails changes roles to
arbitrator/decision maker.
23

24. MEAC OPINIONS HAVE ADDRESSED
THE DUAL ROLE IN AN ARB-MED OR
MED-ARB PROCESS
MEAC does not address questions directed solely to arbitration
however they do address issues of overlapping mediation and
arbitration.
MEAC opinion 2015-003 involved a matter first mediated and at the
request of the parties asked the mediator to arbitrate the matter
when it did not settle in mediation. The majority of the committee
held that the parties were exercising their right of self-determination
in deciding whether to have the prior mediator act as an arbitrator in
the same case.
Florida Mediator Ethics Rules do not prohibit a mediator serving as an
arbitrator in a case he or she previously mediated.
24

25. MEAC OPINIONS (CONT.)
A mediator who will later arbitrate the same matter must ensure the
parties:
1. Are exercising self-determination in their decision
2. Are voluntary agreeing to the selected mediator as arbitrator
3. Are advised of other methods of available ADR
4. Understand the implications of the change in roles
25

26. MEAC OPINIONS
(CONT.)
A mediator who will later arbitrate
the same matter must ensure the
parties:
1. Are exercising self-determination
in their decision
2. Are voluntary agreeing to the
selected mediator as arbitrator
3. Are advised of other methods of
available ADR
4. Understand the implications of
the change in roles
26

27. MEAC OPINIONS (CONT.)
When the mediator changes roles from mediator/facilitator to
arbitrator/decision maker, the participants must be made aware
when making the decision that there can be possible conflicts
of interest as well as a loss of confidentiality.
If the parties wish for the mediator to change roles, it is best to
obtain the participants agreement in a writing setting forth the
above.
Failure to fully explain the possible conflicts, loss of
confidentiality and impartiality to the parties in advance of the
mediator’s change in roles could be the basis for vacating a
binding arbitration award. F.S. 44.104 (10)(b)
27

28. MEAC OPINIONS (CONT.)
Once the mediator’s role changes from facilitator to
decision maker, it is a one-way evolution, and the
arbitrator cannot return to the role of mediator.
While MEAC does not prohibit MED-ARB, MEAC
opinion 2015-03 contains the following warning:
“In summary, while it is not expressly prohibited for a
mediator to serve as an arbitrator in the scenario described,
The MEAC believes that doing so is inherently laden with
hazards and suggests great caution for any mediator that
accepts this change in role.”
28

29. ARB-MED
• It is not permissible to serve as
a general magistrate and
mediator for the same case
• MEAC opinions 2015-003 and
2009-002 make clear that
service as an arbitrator and
then a mediator in the same or
related case constitutes a non-
waivable conflict of interest.
29

30. ELDERCARE MEDIATION Keeping families
together
30

31. I know what’s
best for mom.
No, you
don’t; she
needs to be
in a nursing
home.
I am
providing all
the care, so I
should be the
decision
maker.
But I help with
financial support
so I have a say in
the matter.Hey kids, don’t I
have a say?”
31

32. MEDIATION AS A WAY OF
PRESERVING DIGNITY AND
AVOIDING PAIN
Often important decisions affecting aging parents are made
under the pressure of emergency situations and stress levels
are at their highest and the aging parent is least able to be
involved in decision making.
Mediation before incompetency encourages:
•Consensus building within the family setting
•Fostering the preservation of relationships with family and
friends
•Possibly assuring the retention of maximum independence and
autonomous control over basic life decisions by the aging
parent
•Preservation of dignity between family members and the aging 32

33. WHO CAN AND SHOULD
PARTICIPATE
IN THE MEDIATION?
33

34. WHAT ISSUES CAN BE
CONSIDERED AT THE MEDIATION
CONFERENCE?
Parental living
arrangements
Health and
personal care
needs
Driving ability
Home care and
upkeep
Financial
needs
Nursing care
facilities and
ALFs
Trust and
estate issues
Guardianships
and powers of
attorney
34

35. WHAT IS THE ROLE OF THE
MEDIATOR IN THESE
ISSUES?
A neutral serving as a
facilitator of
communication and
understanding.
Helps the parties reach a consensus on elder
care needs
Helps mend hurt feelings between family
members laboring under the stress of
caring for an aging parent
Involves the aging parents in the
process in an effort to maintain
their dignity and self
determination
Help family members evaluate
options and keep the aging
parent’s best interests at the
forefront
Provides an
opportunity for
future meetings
and modifications
as needed
35

36. WHAT THE
MEDIATOR DOES
NOT DO
Make decisions for the family
Provide therapy or counseling
(although the process can have
a therapeutic affect)
Provide legal advice
36

37. ARBITRATION IN NURSING
HOME AND ALF NEGLECT
AND ABUSE CASES
A sampling
of recent
opinions
37

38. AGREEMENTS WITH LIMITATIONS
ON DAMAGES HELD VOID DESPITE
SEVERABILITY CLAUSE
Novosett, v. ARC Villages IL, LLC, ___ So. 3d ___, 41 Fla. L.
Weekly D652 (Fla. 5th DCA March 11, 2016)
The appellate court held that an arbitration agreement between
a nursing home and a deceased resident was void as against
public policy because the agreement placed a cap on
noneconomic damages and a prohibition on punitive
damages. The agreement was not salvaged by its severability
clause because “the offending clauses [went] to the essence of
the agreement.” The court certified to the Florida Supreme
Court the question involved in this case as one of great public
importance.
38

39. AGREEMENTS WITH LIMITATIONS ON
DAMAGES HELD VOID DESPITE
SEVERABILITY CLAUSE (CONT.)
Reinshagen v. WRYP ALF, LLC, ___ So. 3d ___, 41 Fla. L. Weekly D1047
(Fla. 5th DCA April 29, 2016):
The appellate court reversed an order compelling arbitration of an
action by the personal representative of the deceased resident of an
adult living facility for negligence and violation of statutory rights
under Chapter 429, Florida Statutes. The arbitration agreement was
void as against public policy because it placed a cap on noneconomic
damages and precluded punitive damages. The agreement was not
salvaged by a severability clause because the offending provisions
went to the financial heart of the agreement. The court certified to
the Florida Supreme Court as a question of great public importance
whether the provisions of the arbitration agreement imposing a cap
on noneconomic damages and precluding punitive damages were
severable. 39

40. AGREEMENTS SIGNED BY
PERSONS
LACKING AUTHORITY ARE VOID
Blankfeld v. Richmond Health Care, Inc. 2005 WL
1226070 (Fla. 4th DCA 2005)
Background: Patient's estate sued nursing home claiming, inter
alia, negligent care of patient. Nursing home moved to compel
arbitration based on agreement in admission documents. The
Circuit Court, Seventeenth Judicial Circuit, Broward County,
Miette K. Burnstein, J., granted motion to compel arbitration.
Estate appealed.
Holdings: The District Court of Appeal, en banc, held that:
(1) arbitration clause was void as contrary to public policy, and
(2) health care proxy lacked authority to agree to arbitration 40

41. AGREEMENTS SIGNED BY
PERSONS
LACKING AUTHORITY ARE VOID
(CONT.)Carrington Place of St. Pete LLC v. Milo 2009 WL 763607 (Fla.
2d DCA 3/25/2009)
Where a power of attorney did not unambiguously grant the
person who signed the admission documents the authority to
enter into an arbitration agreement, the nursing home was not
entitled to compel arbitration of the claim against it. The power
of attorney specifically granted authority only with regard to the
patient’s property interests. The language of the power of
attorney is not specifically set out in the opinion. Compare
Sovereign Healthcare of Tampa LLC v. Estate of Huerta, 2009
WL 1424011 (Fla. 2d DCA 5/22/2009) (finding language in
power of attorney sufficient to grant authority to agree to
arbitration; opinion does not set out the language but notes
broad language granting authority with respect to
hospitalization).
41

42. AGREEMENTS SIGNED BY
PERSONS
LACKING AUTHORITY ARE VOID
(CONT.)Palm Garden of Healthcare Holdings, LLC v. Haydu, ___ So. 3d
___, 42 Fla. L. Weekly D215 (Fla. 5th DCA January 20, 2017)
The trial court denied a motion to compel arbitration of a claim
for nursing home neglect. Conflicting evidence existed whether
the individual who signed the admission agreement on behalf
of the resident was authorized to do so. Although the trial
court focused on the absence of a power of attorney, rather
than the existence of an agency relationship between [the
resident] and [the signatory],” the appellate court affirmed
because of sufficient record evidence to “support the trial
court’s express finding. . . that no binding arbitration
agreement exist[ed].” 42

43. ARBITRATOR HAD THE AUTHORITY TO
SEVER PROVISIONS IN ARBITRATION
AGREEMENT DEEMED AGAINST PUBLIC
POLICYManorcare Health Services v. Stiehl, 2009 WL 2568264 (Fla. 2d
DCA 8/21/2009)
Where the arbitration agreement contained provisions that
limited the plaintiff’s remedies and were contrary to public
policy, those provisions could be severed by the arbitrator. The
issue of whether they are contrary to public policy may be
determined by the arbitrator. Although the agreement contains
a nonseverability clause, “language contained within the
nonseverability clause anticipates that certain provisions of the
Agreement may be deemed invalid and severed, in which case
the parties would have the option of either proceeding with
arbitration or withdrawing from the Agreement.” The court
notes contrary rulings by other courts (next slide). 43

44. ARBITRATOR HAD THE AUTHORITY TO
SEVER PROVISIONS IN ARBITRATION
AGREEMENT DEEMED AGAINST PUBLIC
POLICY (CONT.)Manorcare Health Services v. Stiehl, 2009 WL 2568264 (Fla. 2d
DCA 8/21/2009)
“We recognize that courts have, on public policy grounds,
invalidated arbitration agreements found to defeat the remedial
purpose of a statute on which the suit is based. See, e.g.,
Powertel, Inc. v. Bexley, 743 So.2d 570 (Fla. 1st DCA 1999); see
also Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054,
1059 (11th Cir.1998). Additionally, courts in this state have
specifically found arbitration agreements containing remedial
limitations similar to those presented here to render an
agreement to arbitrate void and unenforceable. See Blankfeld v.
Richmond Health Care, Inc., 902 So.2d 296 (Fla. 4th DCA),
review denied, 917 So.2d 195 (Fla.2005); Lacey v. Healthcare &
Ret. Corp. of Am., 918 So.2d 333 (Fla. 4th DCA 2005).” 44

45. AMBIGUOUS ARBITRATION
AGREEMENT
REQUIRED EVIDENTIARY HEARING
TO DETERMINE INTENT OF THE
DOCUMENTSanta Rosa Inv., Inc. v. Wilson, No. 1D14–3935, 2015 WL 4925217
(Fla. 1st DCA Aug. 19, 2015)
A nursing home patient had given her brother a durable power of
attorney which authorized him, among other things, to pursue
actions for “liquidated or liquidated” damages. The brother signed a
nursing home arbitration agreement. The nursing home argued that
the phrase was obviously a typo and that it should be interpreted to
say “liquidated or unliquidated.” The trial court held that the power of
attorney clearly authorized the brother to pursue only actions for
liquidated damages and refused to compel arbitration.
The First DCA reversed and held that the trial court was required to
hold an evidentiary hearing to determine the intent of the ambiguous
document. The court should consider parol evidence as well as the
document as a whole.
45

46. 46