This is part two of our three-part series on the legal obligation to preserve digital evidence for discovery in the arbitration context. Part one outlined the inherent tension between arbitration, with its emphasis on efficient dispute resolution, and litigation, which has developed ever-more comprehensive and far-reaching (some might say excessively burdensome) rules for evidence preservation in the pursuit of procedural fairness and full disclosure. This article reviews the e-discovery frameworks and protocols being developed by various arbitral administrative bodies and looks at the outcomes of representative cases in which arbitration parties claimed that their opponents improperly failed to preserve digital evidence. Part three, which will appear next month, will offer some concrete suggestions on how to navigate the intersection between arbitration and e-discovery obligations.
Let’s begin with the arbitral bodies that have promulgated rules for electronic preservation and disclosure. The Document Disclosure Protocol of the International Institute for Conflict Prevention and Resolution, arguably the most direct rule governing arbitral e-discovery, recognizes that the “no stone left unturned” philosophy underpinning the traditional approach to litigation discovery should not be allowed to invade the arbitral hall. To that end, the Protocol permits back-up tape requests only “if the requesting party can demonstrate a reasonable likelihood that files were deliberately destroyed or altered by a party in anticipation of litigation or arbitration and outside of that party’s document retention policies operated in good faith.” This steep threshold stands in stark contrast to the typical litigation-oriented e-discovery spoliation standard, which deems the destruction of electronic files, even innocently or as part of and pursuant to a routine document destruction policy, as the basis for spoliation sanctions, including the imposition of adverse inferences.