This is the seventh and final column in a series addressing the challenges and opportunities of litigating in forums with few e-discovery rules or precedents. Read parts one, two, three, four, five and six. The previous columns have focused on litigation in the state trial courts. This final column turns to the topic of e-discovery in arbitration.

Many have written about the challenge of maintaining arbitration as a more efficient and less burdensome forum for dispute resolution in the era of e-discovery. In theory, the parties to a contract that includes an arbitration clause could, by prospective agreement, eliminate all the ills of e-discovery and create a framework for reasonably tailored discovery proportionate to the parties’ dispute. The reality of e-discovery in arbitration, however, is more complicated, as the numerous articles on this topic reflect. Part of the problem is that many arbitration agreements encompass a range of potential future disputes too broad for a one-size-fits-all approach to e-discovery. Another obstacle is the perception that one side may be gaming limitations on e-discovery to obtain an unfair advantage. However, the parties to an arbitration agreement do have the opportunity to address, prospectively and evenhandedly, at least one of the key drivers of e-discovery burden—the amorphous duty to preserve potentially relevant evidence.

A well-drafted arbitration agreement should include a separate arbitration clause that specifically addresses the duty to preserve evidence and provides both parties a reliable and binding process for early resolution of any disputes over the scope of the obligation. If drafted with care, an agreement defining a specific process for notice and expedited resolution by the arbitrator could do much to resolve the risk and uncertainty that too often forces litigants to implement overbroad and burdensome internal litigation holds.

An agreement to arbitrate the duty to preserve would include at least the following elements:

1. Delivery of a clearly defined notice as the sole trigger for preservation. Although the general standard for when a duty to preserve arises is easy to describe, its application in any particular case defies bright lines. Under an arbitration clause, the question of when the parties “reasonably anticipate litigation” may be further blurred by multi-step procedures for voluntary resolution before any party actually serves an arbitration demand. And, when the arbitration demand arrives, it may be too vague to identify clearly what issues the parties are litigating. An amorphous dispute with no mechanism for promptly clarifying what to preserve sets the stage for a potentially onerous litigation hold. This burden could be mitigated by including in the parties’ arbitration agreement a stipulation that, as between the parties, a duty to preserve evidence will arise only when the requesting party delivers a specific form of notice that identifies the categories of files to be preserved and the claims for which these files are relevant.