Electronic Discovery in International Arbitration (Revisited) - Chapter 18 - AAA/ICDR Handbook on International Arbitration Practice

CHAPTER 18
ELECTRONIC DISCOVERY IN INTERNATIONAL
ARBITRATION (REVISITED)1
Jonathan L. Frank and Julie Bédard∗
I. Introduction
Almost three years ago, we wrote an article on “e-discovery” in
international arbitration that asked two key questions about the discovery
of electronically-stored information (“ESI”): (i) would the tide of ediscovery
swamp international arbitration and (ii) should arbitral
institutions or organizations prepare rules or guidelines on the exchange
of ESI for discovery purposes?2 The wave of e-discovery is still forming
in international arbitration, but it has received significant attention from
the international arbitration community.
Following up on our earlier publication, this chapter summarizes
recent lessons learned from e-discovery in U.S. litigation, which might
prove useful in international arbitration. It then discusses recent
guidelines enacted by various arbitral bodies with a view to taking
control over the process of e-discovery in international arbitration.

Table of Contents:

TABLE OF CONTENTS

Introduction
By Alan Redfern

PART I: Issues in International Arbitration Practice and Procedure

    Chapter 1.
Confidentiality in Arbitration: A Valid Assumption? A Proposed Solution!
        By Claude R. Thomas and Annie M. K. Finn

Chapter 2
10 Tips for Beginning Practitioners from an ICDR Case Manager
By Carmen Casado

    Chapter 3.
Paying Attention to "Culture" in International Commercial Arbitration
        By William K. Slate II

    Chapter 4.
        A Fair and Efficient International Arbitration Process
        By John Fellas

    Chapter 5
    Civil and Common Law: Contrast and Synthesis in International Arbitration
        By Urs Martin Laeuchli

PART II: International Arbitration Forum Selection

Chapter 6.
International Arbitral Jurisdiction: When Taking Control Goes Out of Control
By Philip D. O'Neill Jr.

    Chapter 7.
Selecting an Arbitral Institution to Administer International Arbitration: Are National or Regional Centers a Viable Option?
By John B. Tieder, Jr.

    Chapter 8
        Saving Time and Money in Cross-Border Commercial Disputes
        By Walter G. Gans

    Chapter 9
        Reconsidering a Court of International Arbitration
        By Conrad K. Harper

PART III: International Arbitration Procedure

    Chapter 10.
        Interim and Emergency Relief in Arbitration Proceedings
        By Ira M. Schwartz

    Chapter 11.
Starting an International Commercial Arbitration: Using a Preliminary Hearing Letter
        By Carol Chave

    Chapter 12.
    The Chess Clock: A Time-Management Technique for Complex Cases
        By Mark E. Appel

    Chapter 13.
        Managing an International Arbitration: A Practice Perspective
        By Claude R. Thomson and Annie M. K. Finn

    Chapter 14
    Navigating Muddy Waters: Anti-Foreign Suit Injunctions in Aid of Compelling Arbitration
        By Chris Karagheuzoff and Eric Epstein

    Chapter 15
Arbitrator Discretion: Should it be Restricted by Party Stipulation of Governing Procedural Rules?
        By James J. Sentner, Jr.

PART IV: Discovery and Evidence in International Arbitration

    Chapter 16.
        Managing Discovery in International Arbitration
        By Bernardo M. Cremades


    Chapter 17.
Presenting, Taking and Evaluating Evidence in International Arbitration
        By Karl-Heinz Böckstiegel

    Chapter 18.
        Electronic Discovery in International Arbitration (Revisited)
        By Jonathan L. Frank and Julie Bédard

    Chapter 19.
Written Witness Statements: A Practical Bridge of the Cultural Divide
        By John A. Wolf and Kelly M. Preteroti

    Chapter 20.
        Cross-Examination in International Arbitration
        By Mark A. Cymrot

Chapter 21
The ICDR Guidelines for Information Exchanges in International Arbitration: An Important Addition to the Arbitral Toolkit
By John Beechey

PART V: Ethics in International Arbitration Practice

    Chapter 22
Comparing Arbitrator Standards of Conduct in International Commercial, Trade and Investment Disputes
        By Omar E. García-Bolívar

    Chapter 23
        Negotiating in Good Faith
        By David I. Bristow and R. Brendan Bissell

    Chapter 24
Dealing with Arbitrator "Issue Conflicts" in International Arbitration
        By Judith Levine

    Chapter 25
        Arbitrator's Disclosure Standards: The Uncertainty Continues
        By Claudia T. Salomon, Juan M. Alcalá and Camilo Cardozo

PART VI: Damages, Review and Enforcement of International Arbitration Awards

    Chapter 26
        Costs in International Commercial Arbitration
        By Murray L. Smith

    Chapter 27
        Interpreting the New York Convention: A U.S. Perspective
        By Tong Wang

    Chapter 28
Sovereign Immunity and the Enforcement of Arbitral Awards Against State Entities: Recent Trends in Practice
        By A.F.M. Maniruzzaman

    Chapter 29
In International Arbitration, Disclosure Rules at the Place of Enforcement Matter Too
    By Peter L. Michaelson

    Chapter 30
    Enforcing Foreign Arbitration Awards
    By Elisabeth M. Senger-Weiss

Author Detail:

Jonathan L. Frank and Julie Bédard are respectively partner and counsel at
Skadden, Arps, Slate, Meagher & Flom. Mr. Frank was a member of the American
Arbitration Association Task Force on Documentary and Electronic Discovery. The
views expressed are those of the authors alone and should not be attributed to the authors’
firm or its clients. The authors are grateful to associates Colm McInerney and Patrick
Rideout for their assistance. The authors welcome e-mail responses to this commentary.
They can be reached at the following e-mail addresses: jofrank@skadden.com and
jbedard@skadden.com.