Originally from Dispute Resolution Journal

Will the tide of “e-discovery” swamp international arbitration? This is an important developing issue in international arbitration and deserves considerably more attention than it has received thus far. Without compromising its effectiveness, international arbitration must recognize that business information is no longer stored principally on paper, in filing cabinets or warehouses.

Electronically-stored information (ESI) is located on computer networks and hardware drives, removable disks and back-up tapes. The transformation in the means of information storage is galvanized by the ever-increasing speed and storage capacity of computers, which are roughly 10,000 times faster than 20 years ago and in the last decade have enjoyed approximately a 100-fold increase in storage capacity. This trend is not likely to stop in the foreseeable future.

For the better part of a decade, in which there were no specific rules dealing with e-discovery, U.S. courts devised ad-hoc mechanisms to manage the production of ESI and allocate its costs, by applying general principles that have traditionally informed document discovery in federal courts.1 Eventually, the issue of e-discovery induced reform. In December 2006, the U.S. Supreme Court amended the Federal Rules of Civil Procedure (Federal Rules or FRCP) to include rules that specifically address e-discovery.2 Many state court systems have since adopted their own e-discovery rules.3