ESI in ADR? It’s your call. Posted By Daniel Kaiser, Esq. on May 4, 2010
Recent blog posts have been popping up talking, with some alarm, about the rise of eDiscovery in ADR (Alternative Dispute Resolution). The idea seems to be that a once-friendly method for tabling business disputes is potentially being hamstrung by the encroachment of eDiscovery into the process. Granted, arbitration as an institution has developed or “matured” to such an extent that the old arguments for a faster, cheaper dispute resolution process often don’t ring true. But should the legal and business communities be alarmed?
With increasing frequency it’s becoming the reality that if you want to consider evidence at all, you’ll be considering electronic data. The argument goes that eDiscovery is today simply discovery… with an “e” appended to the front. This is easy to see when you look at the growing numbers of businesses of all sizes storing their records and communications primarily or exclusively as ESI (Electronically Stored Information). Think E-mail and spreadsheets. Enough said.
Without a doubt, ESI will be a growing presence in ADR. This is a natural and necessary progression in the history of arbitration (along with various other dispute resolution methods), and without this development arbitration would become somewhat archaic and ultimately hobbled.
Does this mean that the flexibility and speed associated with ADR is dead? No it does not. Party autonomy, the ability to affect the scope and dimensions of your dispute resolution agreement before you sign it, will remain a fundamental element of ADR. Such autonomy is only lost when you’re dealing with unbalanced parties–such as when Party A says to Party B “if you want to do business with me, you’ll sign this dispute resolution agreement.” These scenarios are common, but in such scenarios Party A has always had the power to call the shots–including the power to choose traditional litigation with everything that entails. Whenever two companies deal with each-other as equal Parties they maintain the ability to design a dispute resolution clause with an array of options. Some of those options should certainly be the extent to which ESI will be handled, and how it will be handled. This requires direct discussions between the Parties covering what is necessary or reasonable and in what circumstances.
An extremely common practice found in dispute resolution clauses is the rote adoption of the sets of rules developed by one or another of several dispute resolution or arbitration organizations. These include, among others, the American Arbitration Association, the Chartered Institute of Arbitrators, JARS, the International Chamber of Commerce, and the London Court of International Arbitration. Fortunately these institutions have been developing their own guidelines and protocols for addressing eDiscovery in the ADR context, and many of these protocols reflect an approach to eDiscovery that maintains greater constraints and streamlining than those found in traditional American civil litigation. As an example, take a look at the following clause entitled “Electronic Documents” taken from the ICDR (International Centre for Dispute Resolution) Guidelines for Arbitrators Concerning Exchanges of Information:
When documents to be exchanged are maintained in electronic form, the party in possession of such documents may make them available in the form (which may be paper copies) most convenient and economical for it, unless the Tribunal determines, on application and for good cause, that there is a compelling need for access to the documents in a different form. Requests for documents maintained in electronic form should be narrowly focused and structured to make searching for them as economical as possible. The Tribunal may direct testing or other means of focusing and limiting any search.[1]
[1] Taken from http://www.adr.org/si.asp?id=5288
Image Borrowed from: http://www.hobokenattorney.com/lawyer-attorney-1131734.html
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