Making E Discovery Work You International Arbitration Essay

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Making E-Discovery
Work for You in
International Arbitration
David N. Paris – dparis@srr.com
Tomoko Tatara – ttatara@srr.com

Electronic Discovery (also referred to as E-discovery) has become

As digital technology has evolved, computers and smart phones

an integral part of the discovery process in complex commercial

have become common tools for businesses and individuals.

disputes in U.S. Courts. Recently, it has also been gaining

More of the company information used and communicated in the

increased recognition by domestic and international arbitration

normal course of business, such as e-mails, financials and other

institutions, such as the American Arbitration Association (AAA), its

internal business documents, is now maintained electronically.

international arm, the International Centre for Dispute Resolutions
(ICDR), and other international arbitration institutions, such as

Table 1
The Proliferation of ESI

the Chartered Institute of Arbitrators (CIArb) and the International
Court of Arbitration of the International Chamber of Commerce
(ICC). In this article, the use of E-discovery in U.S. litigation

■ “90% of all documents generated today are electronic”

and its growing, but reluctant use in international arbitration are discussed. In addition, recommended suggestions for increasing

■ “The World sends over 60 billion e-mails daily”

the effectiveness and efficiency of E-discovery in international

■ “A single hard drive can store the equivalent of 40 million pages”

arbitrations are provided.

E-Discovery and Electronically Stored
Information (ESI) ■ ■ ■
What is E-discovery? E-discovery “is the obligation of parties to a lawsuit to exchange documents that exist only in electronic form (known as ESI).”1 Electronic documents that can be subject to e-discovery include “e-mails, voicemails, instant messages, e-calendars, audio files, data on handheld devices, animation, metadata, graphics, photographs, spreadsheets, websites, drawings, and other types of digital data.”2

Sources: Sally Kane, “E-Discovery Explosion, E-Discovery Growth and Challenges,” About.com Guide.

Table 1 above presents several estimated measurements that illustrate the proliferation of electronic documents. For example, 90% of all documents generated today are electronic.3
Consequently, most of the information sought through discovery in commercial disputes is going to be electronic documents and data.

1
2
3

1

Sally Kane, “E-Discovery Defined,” About.com Guide.
Ibid.
It was also estimated that “More than 80% of documents and data now exists only in electronic format” (William H. Knull, III, “Recent Developments in International Arbitration,”
Mayer Brown LLP, May 2009, p. 11).

©2010

E-Discovery in U.S. Litigation ■ ■ ■

briefing schedules, much bigger briefs, far greater reliance on

The discovery process in complex commercial litigation, such as

the arbitration.”10

experts and their testimony, and more procedural challenges to

patent infringement suits in U.S. district courts, is often lengthy and can entail substantial disclosures by the parties involved.

And, since the majority of documents generated today are

These disclosures can include requests for and production of

electronic, then “if there is to be disclosure [in international

documents, interrogatory responses, answers to admissions and

arbitration proceedings], electronic disclosure is unavoidable.”11

deposition of fact witnesses. The Federal Rules of Civil Procedure

Not surprisingly, the “proliferation of electronically stored

were amended in December 2006 to reflect that “electronically

information [that] is a major cost driver in U.S. litigation…[is]

stored information” was discoverable.

becoming a major cost driver in international arbitration.”12 This

4

has caused many of the international arbitration institutions to
The proliferation of electronic documents has led to the

issue discovery guidelines that specifically address E-discovery

increased…