Scott A. Bailey

Discovery disputes related to technology and electronically stored information (ESI) are often thought only to affect extensive, complex litigation matters. However, with the exponential growth of technology and the complexity of our inter-connected world, judges and attorneys are finding that a Court-Appointed Neutral can help the Court and the parties resolve the difficult technology-related discovery issues common in many matters.

Therefore, judges are increasingly appointing experienced people to act as a Court Neutral or Special Master to help address the technical issues related to ESI, digital forensics, and related legal disputes. Because each matter presents unique difficulties, a Court-Appointed Neutral can assist the Court in effectively resolving the challenges that often bog a matter down.

Scott is a qualified Court-Appointed Neutral (or Special Master) who offers extensive experience in digital forensics, eDiscovery, cybersecurity, technology, and software-specific expertise. When Scott is brought in early in the discovery process, he can often help resolve issues preemptively, reducing the burden on the Court and decreasing expenses for the parties. Scott can also provide technical assistance to the Court and parties when problems arise late in a case to help bring a final resolution.

Using a Neutral During Discovery

Early Involvement of Scott as Court-Appointed Neutral can assist the parties with the Federal Rule 26(f) “meet and confer” conference and the development of an ESI framework to ensure that the ESI process is effective and efficient, reducing unnecessary delays and costs. When Scott is appointed as a Court Neutral, he can:
  • Assist with drafting eDiscovery orders and plans.
  • Facilitate meet & confer sessions to resolve discovery issues.
  • Resolve issues regarding custodians of potentially relevant ESI.
  • Assist with developing forensically sound preservation protocols or alternate preservation methods due to difficulties with certain types of technologies or data locations.
  • Aid in developing an effective protocol to address privilege reviews.
  • Address issues related to data privacy and associated requirements for data such as Personally Identifiable Information (PII), Personal Healthcare Information (PHI), Payment Card Industry (PCI) data, financial data, or other sensitive and confidential data.
  • Assist with developing search protocols, including the search criteria, terms, assisted review, etc.
  • Resolve ESI production issues, including load file and metadata specifications and data delivery standards.

Additional Benefits of a Neutral

As a facilitator, a Court-Appointed Neutral has the opportunity to assist the parties in resolving disputes related to the scope of ESI, digital forensic work, technology issues, and the overall methodologies utilized. Some of the unique challenges a eDiscovery Neutral or Technology Neutral can help resolve include:
  • Monitoring compliance related to eDiscovery orders and plans.
  • Verifying a party’s technical compliance with specific discovery requests.
  • Finding consensus with issues involving a request for production or interrogatories.
  • Assisting with the technical issues involving potential destruction or obfuscation of ESI or the use of data wiping utilities.
  • Reviewing evidence and providing insight regarding potential alteration of original electronic devices, ESI, or forensic images and the associated ramifications.
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