This is the third and final installment of our series on the legal obligation to preserve digital evidence for discovery in the arbitration context. Part one outlined the inherent tension between arbitration and litigation with respect to the rules for evidence retention. Part two provided a summary of how arbitral bodies have shaped (or attempted to shape) the e-discovery landscape in arbitration.
This article will offer some practical document retention guidance for parties in, or who anticipate being in, arbitration. Of course, our guidance should be considered general. Since laws on the subject vary from jurisdiction to jurisdiction and from arbitral body to arbitral body, and since no two factual situations are identical, nothing in this article should be considered a substitute for consultation with competent counsel who has taken the time to learn your unique situation. That being said, here are three guideposts that should help in reducing risk in this uncertain field.