12 July, 2012
This session covered the key differences in the conduct of international arbitration proceedings and those of civil litigation, and the ways in which e-discovery tools designed for the civil litigation process can nonetheless support the objectives of international arbitration, with a focus on those of a cross-border nature with complex language aspects.
Arbitration is Not Litigation
There are differences between the e-discovery/e-disclosure rules even amongst the Common Law jurisdictions. The United States Federal Rules of Civil Procedure have the broadest scope of discovery. Disclosure obligations in England & Wales are narrower than the US, but still require the disclosure of documents harmful to your case. The rules of International Arbitration, on the other hand, often require a more “narrow and focused” production of documents which are “materially relevant” to the case presented to the arbitral tribunal. Some practitioners have even commented that a discussion of e-discovery in international arbitration is harmful to the underlying objectives of pursuing arbitration as a means of dispute resolution in the first place.
Technology is a Means to an End
E-discovery software, and indeed some of the recent “behind the firewall” hardware products, on their own do nothing. It is a question of application. While the objectives of arbitration may be very different, the tools developed for the civil litigation process can be turned to those different objectives. While arbitration practitioners may seek to avoid a process where lawyers simply conduct their litigation practice in an arbitration context, the confidential nature of arbitration proceedings precludes much written precedent, and the IBA rules are of necessity broad in terms of dealing with electronic records. It seems useful to learn from the work done on the civil litigation side of the house in terms of what can and cannot be preserved, deemed “readily accessible,” what is a reasonable request for document production and in what format, and indeed using de-duplication, filtering, conceptual analysis and indeed other techniques to identify what is “materially relevant” in order to be “narrow and focused”
Aligning Expectations
However, as was noted, technology is only as good as its configuration. Even if we accept e-discovery tools have utility in meeting arbitration objectives, there are still challenges which present themselves. Many e-discovery tools were developed primarily in the US market, where there are two key assumptions which don’t necessarily follow in pursuing matters in Asia, one legal, the other technological. The legal assumption is that data is mobile, and can be moved to data centre-based review platforms. The second is that data is in simple character sets such as the single-byte character sets used to display English. These two issues are mutually exacerbating; a tool may handle Asian language sets well, but not be mobile enough to meet the needs of an onshore review.
Key Takeaway Points from the Session
A key concept in the session was that “e-discovery” itself may have become an unhelpful term, due to its connotations with civil litigation, and in particular US based civil litigation. The tools available lend themselves well to other objectives, such as the conduct of real-time onshore interview, and the creation of narrow and focused document sets. This does mean it is increasingly incumbent on external counsel to understand these technologies, and likely in the future, general counsel too. On the flip side, companies providing “e-discovery” services need to move beyond feature-sales to understanding client objectives.
For further information, please contact:
Andrew Dale, Partner, Orrick
