Katie's Corner #042808

So what went on in the past week’s worth of electronic data discovery news?

EDD Update featured couple of whitepapers, a couple of webinars, some acquisitions and integrations... not a bad week, overall. Things are moving along in the EDD universe.

Sean Doherty contributed a link to this Legal Times article, “Discover New E-Worlds,” which I found very provocative. The article, by C.R. Ragan and Robert Copple, addresses the problem that European lawyers are getting a little irritated at American inefficiency when it comes to arbitration.

Ragan and Copple are members of The International Institute for Conflict Prevention & Resolution, where they are both members of the panels of neutrals and serve on the e-discovery committee. Ragan is partner in California’s Redgrave Daley Ragan & Wagner; Robert F. Copple is a partner in Copple & Associates in Arizona.

E-discovery is now, according to Ragan and Copple, “firmly established” as part of the American litigation process -- for better or for worse: Ragan and Copple write that “Discovery costs have long been a bane of U.S. litigation.”  The costs have been enough to drive more than a few parties to settle out of court.

But what happens the costly and time-consuming elements of e-discovery migrate to arbitration?  Arbitration is intended to streamline the process, to be cheap and faster than court.  Enter the 1999 International Bar Association’s Rules on the Taking of Evidence in International Commercial Arbitration.  It can be understood to imply that, in providing evidence for arbitration, e-discovery is entirely appropriate.

It hasn’t become a big problem (yet), but as Ragan and Copple note, it looks as though e-discovery is primed to become a large part of international arbitration.

International arbitrators have a history of preferring documentary evidence over oral testimony--and documentary evidence is swiftly becoming practically a synonym for electronic documents.  International arbitrators are also, more so than their American counterparts, responsible for establishing the facts of  a case themselves.  It appears that the presence of e-discovery in international arbitration is not a question of if, but of how soon.

But there is certainly a place for documentary evidence in arbitrations.  So how does one allow for EDD while also maintaining the benefits of arbitration?

Ragan and Copple describe a draft protocol created by The International Institute for Conflict Prevention & Resolution, noting that “zealous advocacy ‘must be tempered by an appreciation for the need for speed and efficiency.’ "

They also provide more specific guidelines, suggesting ways for parties to work out e-discovery protocols in advance:

* One option is to limit evidence entirely to hard copies -- a bit Luddite.
* The second is to agree on quite limited parameters for admittable documents -- those created within a certain date range, etc.
* The third, vaguely-defined option is for “Broader, but still limited e-discovery.”
* The fourth option is for both parties to abide by the scope of the Federal Rules of Civil Procedure.

The suggestions are general in scope.  But they feel like a good starting point for an e-discovery discussion between parties -- and laying things out clearly can only be helpful, especially in a realm that promises to grow so much more complicated.