E-Discovery Issues: What Parties and Their Counsel Need to Know in Anticipation of and During Arbitration - Chapter 26 - AAA Handbook on Arbitration Practice - Second Edition
Steven C. Bennett
Steven C. Bennett is a partner at Park Jensen Bennett LLP in New York City. He coteaches a course on e-discovery at Rutgers Law School. The views expressed are solely those of the author and should not be attributed to the author’s firm or its clients.
E-DISCOVERY ISSUES: WHAT PARTIES AND THEIR COUNSEL NEED TO KNOW IN ANTICIPATION OF AND DURING ARBITRATION
Steven C. Bennett
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.