E-discovery in foreign and non-judicial contexts, part four: International Arbitration Rules tend to restrict scope of e-discovery
October 9, 2013
The International Bar Association’s Arbitration Committed created a number of guides to arbitration in 40 different countries. These guides provide an overview of arbitration in each of these jurisdictions, and add to the rules promulgated by the IBA itself. For example, in the Rules on Taking of Evidence in International Arbitration, a request for production includes a specificity requirement much like civil jurisdiction discovery rules.
IBA Rules Art. 3.3(a)(ii): ‘A Request to Produce shall contain: (a) (…) (ii) a description in sufficient detail (including subject matter) of a narrow and specific requested category of Documents that are reasonably believed to exist; in the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner;’
In addition to the specificity requirement, there are a number of other restricting factors on e-discovery. The documents must be material to the case and the requesting party must make a statement as to their lack of availability of a specific document.
In addition, there are a number of reasons that arbitrators can exclude evidence altogether, including a lack of sufficient relevance or materiality, unreasonable burden to produce the requested evidence, and compelling considerations of fairness and equality.
Specific to e-Discovery there are a number of provisions. The term “document” can refer a “program or data of any kind”. As expected there are limitations on the party requesting ESI, and requests are evaluated based on who has custody of the documents versus the cost of producing those documents. Further, multiple copies of “essentially identical” documents do not have to be produced unless the Arbitral Tribunal requires it.
Unlike many e-discovery rules in the U.S., the default method of production is the form that is “most convenient and economical” to the producing party, so long as the format is reasonably usable by the recipients.
Much like the civil jurisdictions discussed earlier, these arbitration rules require more specificity for particular documents, but require less particular requirements once documents are produced, such as limiting keywords and the number of potential custodians. [back end minimization versus front end minimization]
In the next post I will continue to discuss the application of e-discovery rules in arbitration under the International Chamber of Commerce.