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 electronically stored information.
Most business documents and information now are created and stored electronically. The existence and proliferation of such electronically stored information (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’ needs; and (3) implement procedures that establish the manner and format in which ESI will be produced.