eDiscovery and Arbitration

In recent years, with lawyers and their clients calling for alternate methods of dispute resolution, the discovery of electronic documents has become more difficult to manage.  In fact, this dilemma is due to the expansive nature of technology and related software and hardware platforms.  As such, it has increased the costs and burdens of litigation.

What is Arbitration?

Arbitration came about as an alternative method to resolve litigation. It exists as a way to provide a way for the parties to resolve their disputes before trial. An arbitrator is granted the authority to ask for electronic data to be presented in a case. Although, arbitration is cost effective, however, flaws exist regarding the scope of electronically-stored information that may be discovered during litigation. Due to the large amount of electronically stored information, arbitral institutions like the International Institute for Conflict Prevention and Resolution (“IICPR”) have proposed guidelines for discovery.

What do the protocols entail?

The IICPR’s guidelines include four modes to narrow focus and regulate costs. First, “Mode A” provides the narrowest scope. For example, it does not allow for any prehearing disclosures. Second, “Mode B” requires that both sides yield electronic documents that are maintained in limited numbers. None of the documents can come from forensic methods (e.g., backup servers). Third, “Mode C” requires the parties to allow for forensically-obtained documents to be used over a longer period. Lastly, “Mode D” allows any electronic information relevant to the parties to be presented. Of course, the limitations of privilege and confidentiality (e.g., attorney-client privilege) are still applicable. Other protocols also exist in order to assign guidelines to arbitration. For example, the Protocol for E-Disclosure in Arbitration allows for party deliberation as soon as possible regarding the preservation or disclosure of electronic documents. The International Centre for Dispute Resolution has also provided guidelines for the information exchanged between arbitrators to remain within narrow focus. These guidelines also maintain cost effectiveness.

How is arbitration effective during eDiscovery?

It is important that arbitration agreements are drafted carefully. This way, unwanted complications may be avoided. The parties are required to preserve evidence, including, but not limited to, electronic information. This will allow the parties to prepare for litigation and clearly define the issues. In the context of electronic information, the parties must be aware of and preserve metadata, which in essence, is the data about data (e.g., the file’s author or creation date). It is also important that discovery disputes be resolved as early as possible. This can be done by consulting the American Arbitration Association’s Optional Rules for Emergency Measures of Protection. Once the arbitrator renders his/her decision, then the parties should actively seek to enforce the decision. Any noncompliance with the arbitrator’s decision may lead to sanctions. Also, arbitration carries the risk of unfavorable results due to its unpredictable nature.  When dealing with eDiscovery, arbitrators must narrow the scope of information in order to review the relevant evidence.

At our firm, we assist clients with legal issues related to electronic discovery and arbitration. You may contact us to set up an initial consultation.