E-Discovery in Arbitration: Lessons From the Trenches

Description

The 2006 amendments to the Federal Rules of Civil Procedure made e-discovery a permanent fixture in U.S. litigation. Since then, attorneys have struggled with whether and how electronic discovery fits into the arbitration process, and there are no specific rules to offer guidance.

Arbitration was initially touted as a somewhat informal dispute resolution method that was faster and less costly than litigation. The process has lost its efficiency in recent years, however, as counsel and litigants have attempted to introduce e-discovery practices into arbitration.

E-discovery issues common to litigation, including spoliation and privilege issues, are also concerns in arbitration. The arbitrator has the discretion to determine how these issues will be addressed.

Listen as our panel of attorneys with experience in arbitration identifies unique issues confronting arbitrators and arbitration counsel in dealing with electronically stored information (ESI). The panel will offer best practices for counsel making e-discovery requests during the arbitration process and for arbitrators considering e-discovery requests.

Outline

1. E-discovery trends in arbitration
   1. Domestic arbitration
   2. International arbitration
2. Common e-discovery issues raised in arbitration
   1. Production of documents
   2. Time and cost burdens
   3. Privilege waiver and “claw-back” agreements
   4. Spoliation
   5. Consequences for failing to comply
3. Best practices for arbitration counsel
   1. E-discovery considerations when drafting the agreement
   2. Tailor request to specifically relevant information
   3. Examine the accessibility of electronic data
   4. Temper zealous advocacy with desire for efficiency 
4. Best practices for arbitrators
   1. Determine early whether to allow e-discovery and what the scope will be
   2. Evaluate costs in deciding discovery issues
   3. Set early discovery deadline and reevaluate scope of e-discovery after that deadline
   4. Become educated on ESI to make intelligent rulings on discovery
   5. Consider appropriate sanctions for spoliation
   6. Consider appointing ESI expert to assist

Benefits

The panel will review these and other key questions:

• How should the parties to an arbitration proceeding address e-discovery in their arbitration agreement?
• How are concerns about spoliation, attorney–client privilege waiver, and work–product privilege waivers being addressed in arbitration?
• What are some best practices for arbitrators who are evaluating and deciding issues regarding the scope of e-discovery?

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