Electronic Disclosure in International Arbitration
About the Book:
International arbitration faces the challenge of the exponential increase in the volume of electronically stored information. While there has been a convergence in the accepted scope of disclosure in international arbitration (chiefly reflected in the IBA Rules on Evidence) there is widespread concern about the potential burdens of disclosure of electronic documents, with regard to the litigation experience. Arbitrators are rapidly having to come to terms with these issues in an arbitration context, in order to meet the needs and expectations of the parties. A number of arbitration institutions are currently considering rule changes or protocols to address the disclosure of electronic documents. This publication analyses the procedural, practical and technical issues and addresses the appropriate approach to electronic disclosure in international arbitration, including those lessons and principles that can usefully be adapted from the litigation experience. Contributors include leading arbitrators, arbitration counsel, in-house counsel and IT experts, including leading experts in the field of electronic data management.
PDF of Title Page and T.O.C.
Chapter 1
Introduction: Electronic Disclosure In International Arbitration: A Changing Paradigm
David J. Howell
Chapter 2
A Civil Law Perspective: “Forget E-Discovery!”
Michael E. Schneider
Chapter 3
E-Disclosure In International Arbitration
Stephen R. Jagusch
Chapter 4
Production Of Electronically Stored Information In Arbitration: Sufficiency Of The Iba Rules?
John M. Barkett
Chapter 5
The New Reality Of Electronic Document Production In International Arbitration: A Catalyst For Convergence
Richard D. Hill
Chapter 6
Litigation Lessons: The Federal Rules Of Civil Procedure, The Sedona Principles And Part 31 Of The English Civil Procedure Rules
Judge Ronald J. Hedges
Chapter 7
A U.S. Perspective:Convergence Of Standards For Information Exchange In International Arbitration And American Civil Discovery
Tom Barnett
Chapter 8
Electronic Disclosure In International Arbitration: The Issues
Lawrence W. Newman
David J. Howell
Tom Barnett
Judge Ronald J. Hedges
Stephen R. Jagusch
Michael E. Schneider
Panel Discussion
Chapter 9
An In-House Counsel’s Guide To E-Disclosure
Laura M. Kibbe
Chapter 10
E-Discovery Playbook: How E-Discovery Can Be A Proactive Tool For Winning
Ashley B. Watson
Chapter 11
E-Discovery’s Greatest Challenges Management Of Diverse Resources & Discovery Burden Estimating
James M. Wright
Chapter 12
The In-House Counsel Experience
Tom Sikora
David J. Howell
Laura M. Kibbe
Liane Komagome
James M. Wright
Steve Pate
Chapter 13
Flat World Electronic Discovery: A Cyber-Tower Of Babel?
Stephen D. Whetstone
Chapter 14
Avoiding The Electronic Disclosure Money Pit: Strategies For Maximizing Cost Savings And Winning Cases
Jerry F. Barbanel And Thomas W. Avery
Chapter 15
It Tools And Techniques
Mark Yacano
David J. Howell
Ashley B. Watson
Thomas W. Avery
Jerry F. Barbanel
Stephen D. Whetstone
Jonathan Sachs
Chapter 16
E-Discovery And Technology: The Future
Skip Walter
Chapter 17
Whither E-Disclosure In International Arbitration?
Chuck Ragan
David J. Howell
Henri C. Alvarez
John M. Barkett
C. Mark Baker
Stephen R. Jagusch
Michael E. Schneider
Tom Sikora
Skip Walter
Panel Discussion
APPENDICES
Appendix 1
IBA Rules on the Taking of Evidence in International
Commercial Arbitration
Appendix 2
Sedona Principles for Electronic Document Production,
Second Edition
Appendix 3
CPR Draft Protocol on Pre-Hearing Disclosure of Documents
and Information in Arbitration
Appendix 4
ICDR Guidelines for Arbitrators Concerning Exchanges of Information
Appendix 5
Practice Direction to Part 31 of the English Civil Procedure Rules
Appendix 6
Amendments to Rules 16 and 26 of the U.S. Federal Rules of Civil Procedure
Appendix 7
Managing Disclosure of Electronic Information: A Pocket Guide for Judges
About the Editor:
DAVID J. HOWELL is Co-Chair of the Global International Arbitration practice of Fulbright & Jaworski and acts as counsel and advocate in complex international arbitrations of commercial, investment and construction disputes. He has practiced in London, Dubai and Singapore and is a Fellow of the UK, Singapore and Hong Kong Institutes of Arbitrators.
About the Contributors:
MICHAEL SCHNEIDER is a distinguished International Arbitrator and is a Partner in the Geneva based international law firm Lalive. He is a Vice-Chair of the ICC Arbitration Commission and the Leader of its Forum on Arbitration and New Fields. He was a member of the ICC Working Parties on the revision of the ICC Arbitration Rules, on Construction Arbitration and on the ICC Pre-Arbitral Referee Procedure. He is also a member of the Executive Committee of the Swiss Arbitration Association (ASA) .
STEPHEN JAGUSCH is a Partner at Allen & Overy LLP specializing in commercial and investment treaty arbitration. Mr. Jagusch has acted as adviser and advocate in dozens of ad hoc and institutional international arbitrations conducted in many countries across the world and also frequently sits as an arbitrator.
JUDGE RONALD J. HEDGES is Counsel at Nixon Peabody LLC and served as a United States Magistrate Judge in the United States District Court for the District of New Jersey from 1986 to 2007. He is a member of the Advisory Board of The Sedona Conference as well as various Sedona Working Groups. Mr. Hedges is also on the Advisory Boards of the Georgetown University Law Center E-Discovery and Corporate Counsel Institutes.
TOM BARNETT of Alix & Partners was formerly Special Counsel at Sullivan & Cromwell LLP and is one of the pre-eminent thought leaders on the development of E-Discovery best practices. He was a co-author of the Sedona Conference Principles on Electronic Document Production. He also serves on the Advisory Board of the Georgetown University Advanced E-Discovery Institute.
JOHN M. BARKETT is a Partner in the Miami office of Shook, Hardy & Bacon L.L.P and acts as arbitrator in complex commercial and environmental disputes. He has published various articles on e-discovery, including "E-Discovery For Arbitrators". He teaches "E-Discovery" at the University of Miami Law School.
RICHARD HILL is a Partner in the International Arbitration practice of Fulbright & Jaworski, based in Hong Kong, and is a co-editor of the "The Leading Arbitrators Guide to International Arbitration".
ASHLEY B. WATSON is General Counsel of Attenex and is a recognized industry expert on corporate e-discovery deployments. Prior to joining Attenex she served as senior litigation counsel in BellSouth's Complex Litigation Group where she acted as lead counsel on the company's most significant litigation and developed BellSouth's process for preserving documents and handling electronic discovery.
LAURA M. KIBBE is a Consultant with Thomson and was until recently Senior Corporate Counsel at Pfizer Inc. and Managing Director of Pfizer's Discovery Response Team, with responsibility for the strategy and resources to meet discovery issues, and a core team member on Pfizer's records retention initiative.
JAMES M. WRIGHT of PFI Consulting was formerly responsible for E-Discovery protocols at Halliburton and has 20 years experience in the engineering and construction industry. He acts as a Special Master in E-Discovery disputes.
SKIP WALTER was the Founding CEO and Chief Technology Officer of Attenex Corporation and was formerly Vice President of Engineering for Aldus (now Adobe) Corporation known for the PageMaker desktop publishing software.
JERRY F. BARBANEL is an Executive Vice President of Aon Consulting's Financial Advisory and Litigation Consulting Services practice. He serves on the electronic discovery working groups of the Sedona Conference and is an advisory board member of Societas Advocatorum, an anti-corruption organization.
THOMAS W. AVERY is the Head of Operations for Aon's Electronic Discovery group and has more than 20 years of experience in high-tech investigations and law enforcement.
STEPHEN D. WHETSTONE is Vice President of Stratify, Inc., a leading electronic discovery service provider, and was formerly a Litigation Partner at Testa Hurwitz & Thibeault and a former litigator at Skadden where he specialized in securities, patent and e-discovery matters.
LAWRENCE W. NEWMAN is a Partner in the Litigation Department of the New York office of Baker & McKenzie. He is the author and co-author of several works on international litigation and arbitration.
TOM SIKORA is Senior Counsel at El Paso Corporation with responsibility for international, commercial and investment arbitration. He also directs El Paso's E-Discovery practice. In addition, he Co-Heads El Paso’s Enterprise Content Management Project tasked with selecting and implementing a corporate document management system.
LIANE KOMAGOME is Discovery Compliance Counsel in the Houston Texas office of Hewlett-Packard Company, and is active in the field of electronic discovery.
STEVE PATE is a Partner in the Houston office of Fulbright & Jaworski LLP and Chair of the firm's Insurance Litigation Practice Group. He is also Chair of the Federation of Defense and Corporate Counsel e-discovery panel.
MARK YACANO is a Partner and manages the Discovery Solutions Practice at the national law firm of Wright Robinson Osthimer & Tatum.
JONATHAN SACHS is an Ontrack Discovery legal consultant for Kroll Ontrack in New York City. In this position, Mr. Sachs is responsible for consulting and advising corporations, law firms and government agencies on various electronic evidence and discovery issues.
CHUCK RAGAN is a Founding Partner of Redgrave Daley Ragan & Wagner LLP in San Francisoco, a national technology law firm providing innovative legal strategies for the digital age. He has been a member of The Sedona Conference® Working Group on Electronic Document Retention and Production since 2002. He is a Senior Editor of The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production.
HENRI C. ALVAREZ is a Partner and Co-Chair of the International Law Practice Group at Fasken Martineau in Vancouver. Henri has over 20 years of experience in the field of international commercial arbitration and dispute resolution. He has acted as both an arbitrator and as counsel in international and domestic commercial arbitrations involving investments, trade, franchising, licensing, distributorship, construction, forestry, oil and gas, energy, banking, corporate and general commercial disputes.
C. MARK BAKER is a Partner at Fulbright & Jaworski in Houston and he is a Co-Head of the firm’s International Department and of the firm's Arbitration and ADR Practice Group. He is a member of the Court of the London Court of International Arbitration (LCIA) and Vice-Chair of the Arbitration Committee of the International Bar Association (IBA).
Praise for Electronic Disclosure in International Arbitration
"Most, if not all, practitioners have already come across e-disclosure in one form or another. The reality is that it will become an increasing feature of all of our practices, as counsel and arbitrators. This text will help practitioners to move towards the effective, efficient management of e-disclosure, in a way that avoids it contributing to increasing the time and cost of arbitration still further."
David Brynmor Thomas, Partner, International Arbitration Group, Herbert Smith LLP"This most interesting book provides not only practical insights on a still emerging subject, but also thought-provoking intellectual discourse- a rare and pleasing combination."
Asian Dispute Review
About the Editor:
DAVID J. HOWELL is Co-Chair of the Global International Arbitration practice of Fulbright & Jaworski and acts as counsel and advocate in complex international arbitrations of commercial, investment and construction disputes. He has practiced in London, Dubai and Singapore and is a Fellow of the UK, Singapore and Hong Kong Institutes of Arbitrators.
About the Contributors:
MICHAEL SCHNEIDER is a distinguished International Arbitrator and is a Partner in the Geneva based international law firm Lalive. He is a Vice-Chair of the ICC Arbitration Commission and the Leader of its Forum on Arbitration and New Fields. He was a member of the ICC Working Parties on the revision of the ICC Arbitration Rules, on Construction Arbitration and on the ICC Pre-Arbitral Referee Procedure. He is also a member of the Executive Committee of the Swiss Arbitration Association (ASA) .
STEPHEN JAGUSCH is a Partner at Allen & Overy LLP specializing in commercial and investment treaty arbitration. Mr. Jagusch has acted as adviser and advocate in dozens of ad hoc and institutional international arbitrations conducted in many countries across the world and also frequently sits as an arbitrator.
JUDGE RONALD J. HEDGES is Counsel at Nixon Peabody LLC and served as a United States Magistrate Judge in the United States District Court for the District of New Jersey from 1986 to 2007. He is a member of the Advisory Board of The Sedona Conference as well as various Sedona Working Groups. Mr. Hedges is also on the Advisory Boards of the Georgetown University Law Center E-Discovery and Corporate Counsel Institutes.
TOM BARNETT of Alix & Partners was formerly Special Counsel at Sullivan & Cromwell LLP and is one of the pre-eminent thought leaders on the development of E-Discovery best practices. He was a co-author of the Sedona Conference Principles on Electronic Document Production. He also serves on the Advisory Board of the Georgetown University Advanced E-Discovery Institute.
JOHN M. BARKETT is a Partner in the Miami office of Shook, Hardy & Bacon L.L.P and acts as arbitrator in complex commercial and environmental disputes. He has published various articles on e-discovery, including "E-Discovery For Arbitrators". He teaches "E-Discovery" at the University of Miami Law School.
RICHARD HILL is a Partner in the International Arbitration practice of Fulbright & Jaworski, based in Hong Kong, and is a co-editor of the "The Leading Arbitrators Guide to International Arbitration".
ASHLEY B. WATSON is General Counsel of Attenex and is a recognized industry expert on corporate e-discovery deployments. Prior to joining Attenex she served as senior litigation counsel in BellSouth's Complex Litigation Group where she acted as lead counsel on the company's most significant litigation and developed BellSouth's process for preserving documents and handling electronic discovery.
LAURA M. KIBBE is a Consultant with Thomson and was until recently Senior Corporate Counsel at Pfizer Inc. and Managing Director of Pfizer's Discovery Response Team, with responsibility for the strategy and resources to meet discovery issues, and a core team member on Pfizer's records retention initiative.
JAMES M. WRIGHT of PFI Consulting was formerly responsible for E-Discovery protocols at Halliburton and has 20 years experience in the engineering and construction industry. He acts as a Special Master in E-Discovery disputes.
SKIP WALTER was the Founding CEO and Chief Technology Officer of Attenex Corporation and was formerly Vice President of Engineering for Aldus (now Adobe) Corporation known for the PageMaker desktop publishing software.
JERRY F. BARBANEL is an Executive Vice President of Aon Consulting's Financial Advisory and Litigation Consulting Services practice. He serves on the electronic discovery working groups of the Sedona Conference and is an advisory board member of Societas Advocatorum, an anti-corruption organization.
THOMAS W. AVERY is the Head of Operations for Aon's Electronic Discovery group and has more than 20 years of experience in high-tech investigations and law enforcement.
STEPHEN D. WHETSTONE is Vice President of Stratify, Inc., a leading electronic discovery service provider, and was formerly a Litigation Partner at Testa Hurwitz & Thibeault and a former litigator at Skadden where he specialized in securities, patent and e-discovery matters.
LAWRENCE W. NEWMAN is a Partner in the Litigation Department of the New York office of Baker & McKenzie. He is the author and co-author of several works on international litigation and arbitration.
TOM SIKORA is Senior Counsel at El Paso Corporation with responsibility for international, commercial and investment arbitration. He also directs El Paso's E-Discovery practice. In addition, he Co-Heads El Paso’s Enterprise Content Management Project tasked with selecting and implementing a corporate document management system.
LIANE KOMAGOME is Discovery Compliance Counsel in the Houston Texas office of Hewlett-Packard Company, and is active in the field of electronic discovery.
STEVE PATE is a Partner in the Houston office of Fulbright & Jaworski LLP and Chair of the firm's Insurance Litigation Practice Group. He is also Chair of the Federation of Defense and Corporate Counsel e-discovery panel.
MARK YACANO is a Partner and manages the Discovery Solutions Practice at the national law firm of Wright Robinson Osthimer & Tatum.
JONATHAN SACHS is an Ontrack Discovery legal consultant for Kroll Ontrack in New York City. In this position, Mr. Sachs is responsible for consulting and advising corporations, law firms and government agencies on various electronic evidence and discovery issues.
CHUCK RAGAN is a Founding Partner of Redgrave Daley Ragan & Wagner LLP in San Francisoco, a national technology law firm providing innovative legal strategies for the digital age. He has been a member of The Sedona Conference® Working Group on Electronic Document Retention and Production since 2002. He is a Senior Editor of The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production.
HENRI C. ALVAREZ is a Partner and Co-Chair of the International Law Practice Group at Fasken Martineau in Vancouver. Henri has over 20 years of experience in the field of international commercial arbitration and dispute resolution. He has acted as both an arbitrator and as counsel in international and domestic commercial arbitrations involving investments, trade, franchising, licensing, distributorship, construction, forestry, oil and gas, energy, banking, corporate and general commercial disputes.
C. MARK BAKER is a Partner at Fulbright & Jaworski in Houston and he is a Co-Head of the firm’s International Department and of the firm's Arbitration and ADR Practice Group. He is a member of the Court of the London Court of International Arbitration (LCIA) and Vice-Chair of the Arbitration Committee of the International Bar Association (IBA).
Praise for Electronic Disclosure in International Arbitration
"Most, if not all, practitioners have already come across e-disclosure in one form or another. The reality is that it will become an increasing feature of all of our practices, as counsel and arbitrators. This text will help practitioners to move towards the effective, efficient management of e-disclosure, in a way that avoids it contributing to increasing the time and cost of arbitration still further."
David Brynmor Thomas, Partner, International Arbitration Group, Herbert Smith LLP"This most interesting book provides not only practical insights on a still emerging subject, but also thought-provoking intellectual discourse- a rare and pleasing combination."
Asian Dispute Review
PDF of Title Page and T.O.C.
Chapter 1
Introduction: Electronic Disclosure In International Arbitration: A Changing Paradigm
David J. Howell
Chapter 2
A Civil Law Perspective: “Forget E-Discovery!”
Michael E. Schneider
Chapter 3
E-Disclosure In International Arbitration
Stephen R. Jagusch
Chapter 4
Production Of Electronically Stored Information In Arbitration: Sufficiency Of The Iba Rules?
John M. Barkett
Chapter 5
The New Reality Of Electronic Document Production In International Arbitration: A Catalyst For Convergence
Richard D. Hill
Chapter 6
Litigation Lessons: The Federal Rules Of Civil Procedure, The Sedona Principles And Part 31 Of The English Civil Procedure Rules
Judge Ronald J. Hedges
Chapter 7
A U.S. Perspective:Convergence Of Standards For Information Exchange In International Arbitration And American Civil Discovery
Tom Barnett
Chapter 8
Electronic Disclosure In International Arbitration: The Issues
Lawrence W. Newman
David J. Howell
Tom Barnett
Judge Ronald J. Hedges
Stephen R. Jagusch
Michael E. Schneider
Panel Discussion
Chapter 9
An In-House Counsel’s Guide To E-Disclosure
Laura M. Kibbe
Chapter 10
E-Discovery Playbook: How E-Discovery Can Be A Proactive Tool For Winning
Ashley B. Watson
Chapter 11
E-Discovery’s Greatest Challenges Management Of Diverse Resources & Discovery Burden Estimating
James M. Wright
Chapter 12
The In-House Counsel Experience
Tom Sikora
David J. Howell
Laura M. Kibbe
Liane Komagome
James M. Wright
Steve Pate
Chapter 13
Flat World Electronic Discovery: A Cyber-Tower Of Babel?
Stephen D. Whetstone
Chapter 14
Avoiding The Electronic Disclosure Money Pit: Strategies For Maximizing Cost Savings And Winning Cases
Jerry F. Barbanel And Thomas W. Avery
Chapter 15
It Tools And Techniques
Mark Yacano
David J. Howell
Ashley B. Watson
Thomas W. Avery
Jerry F. Barbanel
Stephen D. Whetstone
Jonathan Sachs
Chapter 16
E-Discovery And Technology: The Future
Skip Walter
Chapter 17
Whither E-Disclosure In International Arbitration?
Chuck Ragan
David J. Howell
Henri C. Alvarez
John M. Barkett
C. Mark Baker
Stephen R. Jagusch
Michael E. Schneider
Tom Sikora
Skip Walter
Panel Discussion
APPENDICES
Appendix 1
IBA Rules on the Taking of Evidence in International
Commercial Arbitration
Appendix 2
Sedona Principles for Electronic Document Production,
Second Edition
Appendix 3
CPR Draft Protocol on Pre-Hearing Disclosure of Documents
and Information in Arbitration
Appendix 4
ICDR Guidelines for Arbitrators Concerning Exchanges of Information
Appendix 5
Practice Direction to Part 31 of the English Civil Procedure Rules
Appendix 6
Amendments to Rules 16 and 26 of the U.S. Federal Rules of Civil Procedure
Appendix 7
Managing Disclosure of Electronic Information: A Pocket Guide for Judges