Originally from:

AAA Handbook on Arbitration Practice - Second Edition

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CHAPTER 26

E-DISCOVERY ISSUES: WHAT PARTIES AND
THEIR COUNSEL NEED TO KNOW IN
ANTICIPATION OF AND DURING ARBITRATION

Steven C. Bennett

I. Introduction

E-discovery has become a fixture in modern civil litigation. Almost
inevitably, e-discovery will also increasingly affect arbitration. Because
of the unique goals and processes of arbitration, rules for e-discovery
must be adapted to meet the needs of parties in arbitration. The AAA and
other arbitration-sponsoring organizations have begun to develop ediscovery
processes appropriate for arbitration. This article discusses
them and suggests drafting techniques and litigation strategies that could
control the use of e-discovery in arbitration.

This article discusses the growing focus on the use, management,
and discoverability of electronically stored information (ESI1) in
litigation, and its potential use as evidence in arbitration. Court
cases involving e-discovery frequently arise. There is also a mountain
of literature on the subject. These developments are due to such
factors as:

• the explosive growth in computer power and storage capacity;
• the widespread use of computers to prepare documents of all
kinds;
• the increasing replacement of “snail mail” and faxes with e-mail
and attachments;
• the use of digital voice mail, instant messaging and texting; and
• the ability to distribute e-mail widely to multiple computer
users.

These developments have also made it inevitable that ESI would
play a role in arbitration, particularly when the case is large and complex.
Recognizing these developments, some arbitration organizations have
developed guidance to help parties, counsel, and arbitrators deal with
requests for ESI prior to the hearing – i.e., during “discovery.” This
article discusses available guidance from arbitration sponsoring
organizations and suggests some key considerations with an eye on ESI,
along with strategies for dealing with ESI after arbitration begins. We
start with the duty to preserve ESI for potential use in arbitration.