E-Discovery in Arbitration: Lessons From the Trenches

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?