Originally from Electronic Disclosure in International Arbitration

Just as the stone age was marked by our clever use of crude tools, the electronic age is marked by our crude use of clever ones. We live in an electronic reality where we cannot carry on business, or in some cases even conduct professional and private relationships, if we do not operate electronically.

Electronically stored information (ESI) – and its often ignored subcategory of metadata – can be comprised of hundreds, thousands or millions of documents and related pieces of information which may be stored in numerous locations and on devices no bigger than one's fingernail. The ever increasing use of electronic media and the reducing size and cost of electronic storage devices (itself a disincentive to delete or discard information) has led to the proliferation of sources of large amounts of ESI and metadata. Such information may be relevant to – perhaps determinative of – one or more of the issues in dispute in legal proceedings.

Prudent counsel will be aware of the potential relevance of ESI in any dispute, and hence alert to the need, in appropriate cases, to ensure its timely capture and analysis. ESI may also be necessary in order to defeat the opposition's case, and it may be requested as part of a disclosure process.

None of this is to say, however, that ESI should present a particular or excessive burden in international arbitration cases, as litigators on both sides of the Atlantic would have us believe. Many common law litigators glance towards international arbitration and hastily remark that it is wholly unprepared for the onslaught of e-disclosure. They are wrong to do so. Those who lend voice to these concerns have, for the most part, failed to understand the different approach taken to disclosure in contemporary international arbitration.