Chapter Ten: eDiscovery - CCA Guide to Best Practices in Commercial Arbitration - Fourth Edition
A. J. Krouse, New Orleans, Louisiana
Louise A. LaMothe, Santa Barbara, California
Nancy F. Lesser, Washington, DC
Barbara A. Reeves, Los Angeles, California Susan H. Nycum, Portola Valley, California
Deborah Rothman, Los Angeles, California
Irene C. Warshauer, New York, New York
John H. Wilkinson, New York, New York
Arbitrators’ goals in managing eDiscovery are to (1) ensure an efficient and fundamentally fair hearing and (2) provide creative solutions that best ensure efficiency and economy, proportionality, and fairness in the production of relevant ESI.
Most business documents and information now are created and stored electronically. The existence and proliferation of such ESI poses a variety of unique discovery issues with which arbitrators must be familiar in order to efficiently and effectively manage the prehearing process and ensure a fundamentally fair hearing. Indeed, during the past decade, the proper management of eDiscovery—the commonly used phrase for the discovery of ESI—has become a frequent topic for discussion among commentators, arbitral institutions, and the arbitration community as a whole. As with traditional discovery, the arbitrator’s general role in the management of eDiscovery is to (1) ensure retention and preservation of data; (2) establish, with as much party agreement as possible, the narrowest reasonable scope of discovery required to satisfy the parties’ legitimate needs; and (3) implement procedures that establish the manner and format in which ESI will be produced.
II. OVERVIEW OF DIFFERENCES BETWEEN THE SEARCH AND RETRIEVAL OF ESI AND TRADITIONAL PAPER FILES
Arbitrators should understand the principal differences between the manner in which ESI and traditional business documents are stored and retrieved.
Unlike paper documents, which normally are stored in physical files, ESI can be stored in many ways and in many forms. The information itself might be located in a variety of storage media, such as personal computers, smartphones, company servers, clouds, social media, and so forth. It also can be stored in differing formats, some of which might not be human readable. Moreover, because such information can be stored in so many different media and in such different formats, there are diverse information technologies (ITs) that can or must be used to search for, locate, retrieve, and present the information in a human-readable form.