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.
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.