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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
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.
Sally Kane, “E-Discovery Defined,” About.com Guide.
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).
E-Discovery in U.S. Litigation ■ ■ ■
briefing schedules, much bigger briefs, far greater reliance on
The discovery process in complex commercial litigation, such as
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
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