Electronic Discovery in International Arbitration (Revisited) - Part 1 - Chapter 2 - ICDR Awards and Commentaries

Author(s):

Julie Bédard

Page Count:

28 pages

Media Description:

1 PDF Download from "ICDR Awards and Commentaries"

Published:

September, 2012

Jurisdictions:

International

Practice Areas:

ICDR,

Electronic Documents,

Evidence

Author Detail:

Julie Bédard is a Partner in Skadden's International Litigation and Arbitration Group. She advises multinationals and companies with international operations on their dispute resolution needs. She has served as counsel in U.S. commercial litigation and international arbitration proceedings held under the auspices of the International Chamber of Commerce, the American Arbitration Association, the International Centre for Dispute Resolution and the International Centre for Settlement of Investment Disputes. She also acts as arbitrator in commercial disputes. Ms. Bédard is fluent in French, Spanish and Romanian and understands Portuguese and Italian. She has been selected for inclusion in The Best Lawyers in America (2012), Global Arbitration Review's "45 under 45" (2011), Chambers Global: The World's Leading Lawyers for Business (2011), Chambers USA: America's Leading Lawyers for Business (2009-2011), Chambers Latin America (2011), Global Arbitration Review's International Who's Who of Commercial Arbitration (2011) and Euromoney's Guide to the World's Leading Commercial Arbitration Experts (2011).

Jonathan L. Frank is a Partner in the New York office of Skadden, Arps, Slate, Meagher & Flom. Mr. Frank joined the Litigation Group at Skadden in 1999 after years as an executive assistant district attorney in Brooklyn, N.Y., during which he successfully tried numerous highprofile murder cases, receiving national recognition for his work. Mr. Frank's practice is focused on complex commercial litigations and international arbitrations. Most recently, Mr. Frank successfully represented Anglo Irish Bank in its international arbitration against Peninsula Real Estate Fund I, GP stemming from a real estate development partnership the Bank funded. Among other cases that he has tried while at Skadden, Mr. Frank was a member of the trial team that won a defendant's verdict on all claims in favor of DaimlerChrysler AG and against Tracinda Corporation. The trial in the U.S. District Court of Delaware involved securities fraud claims of more than $1 billion, making it the largest securities case ever tried in federal court. The National Law Journal awarded the defense team the "2005 Top Defense Win of the Year."

In all, Mr. Frank has conducted more than 30 jury trials, briefed and argued more than 30 appeals, and directly supervised dozens more of each. He has been profiled in the New York Law Journal for his skills and persuasiveness, both as a trial lawyer and as an appellate advocate. He has written and been invited to speak on a wide range of topics, including at the International Chamber of Commerce 27 Annual Colloquium, in Paris, France in November 2010.

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Description:

Originally from ICDR Awards and Commentaries

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This article takes the pulse of electronic discovery rule-making in international arbitration. It discusses recent lessons learned from U.S. litigation and reviews guidelines enacted by various arbitral institutions to assist parties and arbitrators to manage the electronic discovery process.

Over three years ago, we wrote an article on "e-discovery" in international arbitration that asked two key questions about the discovery of electronically-stored information ("ESI"): (i) would the tide of ediscovery swamp international arbitration and (ii) should arbitral institutions or organizations prepare rules or guidelines on the exchange of ESI for discovery purposes?2 The wave of e-discovery is still forming in international arbitration, but it has received significant attention from the international arbitration community.

Following up on our earlier publication, this article summarizes recent lessons learned from e-discovery in U.S. litigation, which might prove useful in international arbitration. It then discusses recent guidelines enacted by various arbitral bodies with a view to taking control over the process of e-discovery in international arbitration.

Table of Contents:

I E-Discovery Abuse and Spoliation of Evidence in US Litigation
II Institutional Arbitration Guidelines on E-Discovery
A The ICDR Guidelines
B The CIArb Protocol for E-Disclosure in Arbitration
C CPR Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration
D Report of the ICC Commission on Arbitration Task Force on the Production of Electronic Documents in Arbitration
E The IBA Rules
III Reflecting on the Recent Guidelines
A Data Retention
B Narrowly Tailored Requests for Production Relating to Specific Categories of Documents
C Privilege Issues
D Production
E The Accessibility of the Requested Data
F Optionality
G Metadata
H Spoliation
IV Conclusion