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E-discovery: 4 elements of an effective arbitration agreement addressing duty to preserve

A well-drafted agreement can fill the gap when there are no rules for e-discovery preservation

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.

2. A presumption against preserving metadata and inaccessible data. E-discovery geometrically increases the burden of a litigation hold because the preserving party, in the absence of a safe harbor, may have to retain not only the content of active user files but also the metadata associated with each unique copy of potentially responsive files and the archival or backup copies of such files and, in some cases, even forensically recoverable data. In most cases, few of these sources that fall within the scope of the litigation hold ever actually yield any additional material evidence, although they greatly exacerbate the cost of e-discovery. An arbitration agreement that limits preservation to the user-created content of active files, or at least directs that the arbitrator should require broader preservation only in exceptional cases, could substantially reduce the preservation burden.

3. Prompt resolution of any dispute regarding the scope of preservation. Of course, even with the benefit of a clear notice trigger and a prospective agreement limiting preservation to active user-created file content, the parties still may disagree about the scope of preservation. Because the preservation notice may precede the filing of a formal arbitration demand, the agreement should provide for expedited appointment of an arbitrator to consider the dispute and issue an award. The American Arbitration Association’s Optional Rules for Emergency Measures of Protection provide a useful model.


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Matthew Prewitt

Matthew Prewitt is a partner in the Chicago office of Schiff Hardin, where he concentrates in complex litigation and also co-chairs the firm's Trade Secrets Client Services...

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