Electronic Discovery in International Arbitration: Where Neither the IBA Rules nor U.S. Litigation Principles Are Enough
Frank, Jonathan L., Bédard, Julie, Dispute Resolution Journal
Will the tide of "e-discovery" swamp international arbitration? This is an important developing issue in international arbitration and deserves considerably more attention than it has received thus far. Without compromising its effectiveness, international arbitration must recognize that business information is no longer stored principally on paper, in filing cabinets or warehouses.
Electronically-stored information (ESI) is located on computer networks and hardware drives, removable disks and back-up tapes. The transformation in the means of information storage is galvanized by the everincreasing speed and storage capacity of computers, which are roughly 10,000 times faster than 20 years ago and in the last decade have enjoyed approximately a 100-fold increase in storage capacity. This trend is not likely to stop in the foreseeable future.
For the better part of a decade, in which there were no specific rules dealing with e-discovery, U.S. courts devised ad-hoc mechanisms to manage the production of ESI and allocate its costs, by applying general principles that have traditionally informed document discovery in federal courts.1 Eventually, the issue of e-discovery induced reform. In December 2006, the U.S. Supreme Court amended the Federal Rules of Civil Procedure (Federal Rules or FRCP) to include rules that specifically address e-discovery.2 Many state court systems have since adopted their own e-discovery rules.3
By contrast, in the international arbitration arena, interest in the topic of e-discovery is more recent.4 This article summarizes some of the lessons learned from e-discovery in U.S. litigation, which might prove useful in international arbitration. It further discusses whether guidelines are needed to help international arbitrators and practitioners address e-discovery issues, particularly the scope of required production. Finally, this article offers suggestions for further discussion as to how to make discovery of ESI in arbitration fair and efficient. First, however, it looks at the differences between electronic documents and paper documents, because their differences bear on discovery.
I. Differences Between Electronic and Paper Discovery
The Sedona Conference, a U.S. non-profit law and policy think-tank based in Sedona, Ariz., identified six ways in which electronic documents differ significantly from paper documents for purposes of discovery in U.S. litigation.5
1. Electronic data is difficult to dispose of. When a computer file is deleted, its index in the directory is eliminated, but the information remains stored on the hard drive. Thus, the data continues to exist until the particular block on which it is stored is written over with other data. Furthermore, even if overwritten, the data may be recovered at least to some degree.
2. Electronic data can be continuously edited. Data also can be changed automatically without human intervention through automatic back-up systems or web sites that are continuously fed information from external sources. Simply opening or moving a file can change its modification time, thus raising issues as to when a document was created or exactly what changes were last made.
3. Electronic documents contain hidden data, called "metadata," which is not visible when the document is printed. Metadata indicates, among other things, when a file was created, when it was last modified or accessed, and who created it. Metadata can be expensive to retrieve. In addition, deciphering it can be subjective and contextual.
Metadata has been sought in document requests in U.S. litigation, although its production is by no means certain in any given case.
4. Appropriate hardware and software is necessary to access electronic information. Files created on one operating system may not be readable on a different operating system. Obsolescence is a problem. For example, the hardware on which data was created and stored years ago may no longer be readily available because it has become obsolete, or the data may not be understood because few people are familiar with the obsolete technology. …