Originally from: AAA Handbook on Arbitration Practice

Preview Page

“Electronic documents are no less subject to disclosure than paper records.” So said the U.S. District Court for the Southern District of New York in Rowe Entertainment v. William Morris Agency.  Unlike paper records, which require most companies to rent storage space, electronic documents take up no additional space and the cost of storing them is negligible. Because there is little or no need to discard electronic files, a massive amount of electronic data, including email is now being retained. Much of the retained data is on backup tapes created for emergency uploading in case data is lost accidentally or otherwise.

Backup data is usually not easily searched. It tends to be stored on a daily or weekly basis, so it is not indexed by subject matter. The enormous amount of retained electronic data and the difficulty of searching it makes it very expensive and time-consuming to find documents sought to be produced for litigation or arbitration, and then review them to see if they can be withheld from production based on attorney-client and/or work-product protections. Using shortcuts to conduct a manual review of e-documents to meet discovery and hearing deadlines can lead to an inadvertent waiver of these protections. Spoliation of evidence may also occur through routine recycling of backup tapes, deletion of emails and changes in documents caused by automatic computer operations (metadata).2 This can give rise to requests for the imposition of sanctions.

Arbitrators must deal with these issues while still preserving the speedier results, limited discovery and cost effectiveness of arbitration. This article will discuss recent court decisions on the discovery of electronic records (e-discovery) to help guide arbitrators and advocates on (1) inadvertent waivers of the protections afforded by the attorney-client privilege and the work-product doctrine, and (2) spoliation of evidence. It does not address the extent of e-discovery that might be appropriate to any particular arbitration.