Electronically stored information ("ESI") has connected businesses in ways that were not previously possible. ESI has also become a major source of evidence in all forms of commercial disputes. Arbitration generally limits discovery in order to promote its underlying goal as a cost-effective alternative to litigation. Nonetheless, parties often request documents from each other in disputes and the prevalence of ESI makes it inevitable that these documents will continue to impact the nature of international arbitrations.
The major international arbitral institutions such as the International Chamber of Commerce ("ICC"), the International Centre for Dispute Resolution ("ICDR"), and the London Court of International Arbitration ("LCIA") have created guidelines attempting to prevent electronic document productions from transforming international arbitrations into something more akin to litigation in jurisdictions like the United States. Here are a few issues worth considering before choosing E-disclosure in your arbitration: Consider E-disclosure Early in the Dispute
Unlike discovery in jurisdictions like the United States, international arbitration disclosure is neither automatic nor presumed. Thus, the process of document production in international arbitration can be far more tailored to the specific needs of the particular dispute. Discussing any e-disclosure issues prior to the proceedings with the arbitral tribunal will encourage a more efficient and transparent e-disclosure process. Parties may decide to forego e-disclosure entirely, or adopt rules to govern the production of documents. Furthermore, the preservation of ESI can be burdensome--addressing the scope of parties' duties to preserve ESI at any early scheduling conference will only serve to reduce costs.
Consider the Importance of Metadata
Unlike paper documents, all of the information contained in electronic documents are not readily apparent on the face of the document. The 2016 ICC Report defines metadata as "embedded data about the data and its properties." ICC Report, Section 3.3. For example, when the document was created, who created it, when it was modified and so on. Metadata may be crucial in certain scenarios such as contesting the authenticity of a particular document. However, producing native documents with full metadata can be very expensive and incredibly burdensome. Thus, parties and their arbitrators should decide if the cost and burden of producing metadata outweighs its benefits in their particular case.
If you have any questions concerning electronic disclosures in international arbitrations, please reach out to the experienced international dispute attorneys at FITCH to discuss these issues.