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Managing Exchanges of Electronically Stored Information (ESI) in Construction Arbitration - Chapter 29 - AAA Handbook on Construction Arbitration and ADR - Third Edition

Author(s): 
John E. Bulman
R. Thomas Dunn
Page Count: 
16 pages
Published: 
March, 2016
Author Detail: 

John E. Bulman and R. Thomas Dunn are Partners at Pierce Atwood, LLP, Providence, R.I. Both are active members of construction industry and bar organizations including the ABA Forum on Construction, Construction Litigation Committee, and Associated General Contractors. Tom Dunn serves on the Steering Committee for Division 1 of the ABA Forum on Construction Law which focuses on Litigation and Dispute Resolution. In addition, John Bulman is an arbitrator and an International Mediation Institute-certified mediator. He has served on the American Arbitration Association Board of Directors, its Executive Committee, its Rules committee, and is on the AAA’s roster of neutrals for commercial and construction cases, as well as the large, complex case panel. Mr. Bulman is also a Fellow in the American College of Construction Lawyers and College of Commercial Arbitrators. The authors concentrate their law practice in New England and their neutral practice nationally.

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Description: 
 
It is generally agreed that the primary matter that has derailed arbitration from its foundational promise of a “just, speedy and economical” dispute resolution process has been the adoption of extensive discovery and related motion practice. There seems to be a slowly increasing recognition that discovery in arbitration should be limited for very good reasons. However, the ubiquity of electronically stored information (ESI), which has been characterized as “a nightmare and a morass,”1 presents arbitrators, counsel and the parties with a significant challenge: how to make sure that discovery of relevant ESI does not threaten the economics and efficiency of the arbitration process.
 
I. The Proliferation of ESI
 
Potentially relevant ESI proliferates rapidly. It begins by being produced on computer workstations or other electronic communications device (e.g., a smart phone, or voice over-internet-protocol (VOIP) telephone). ESI can be quickly sent to a host of other devices inside and outside the company (the “cloud”), where it is also stored, and possibly amended, and then further distributed through the practice of forwarding electronic communications with and without attachments to employees, vendors, customers, clients, suppliers, contractors, professional consultants. Much of ESI is made up of one-line e-mails acknowledging receipt with a brief “thanks.” ESI can also be uploaded onto the Internet, or be transmitted via a listserv, both of which significantly expand the potential pool of recipients and responders.