Originally from:

AAA Handbook on Arbitration Practice - Second Edition

Preview Page

CHAPTER 27

ELECTRONIC DISCOVERY IN ARBITRATION:
PRIVILEGE ISSUES AND SPOLIATION OF
EVIDENCE

Irene C. Warshauer

I. Introduction

“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 attorneyclient
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.