Shaping E-Discovery within Arbitration

JAMS Atlanta neutral Al Pearson recently wrote an article for the American Lawyer Media publication, The Fulton County Daily Report in which he identified how parties can take pre-emptive steps to control electronically stored information (ESI) discovery within the arbitration process.

The pre-emptive steps cover a wide range of factors including: the need to periodically review a client’s arbitration clauses due to frequent changes in technology and law related to e-discovery; the importance of a client maintaining an accurate inventory of all equipment or devices on which ESI might be stored; making sure a client understands their own document retention policy and program for scrubbing metadata embedded in electronically generated documents; and, the importance of a client having a set procedure for preserving ESI if litigation is anticipated.

Mr. Pearson goes into detail on all of the above items in his piece.  He also points out how, before the proceeding begins, the lawyers for the parties should carefully examine the arbitration clause that will govern the arbitration since parties are not constrained by the rigidity of litigation (e.g., rules of evidence, complex jury instructions and jury verdict forms).  Mr. Pearson writes: “By choosing arbitration, the parties to a transaction have the opportunity to shape the procedural framework that will govern the resolution of a dispute.”  He continues, “The parties are free to resolve procedural ambiguities or inadequacies in the arbitration clause as they see fit.”

The ability for parties to shape the procedures of arbitration is an opportunity that should be taken advantage of as it can often lead to cost efficiencies.  JAMS has worked to become a thought leader in this area by drafting its own Optional Expedited Arbitration Procedures. The Procedures include limitations on depositions and document discovery requests and Rule 16.2(c) specifically limits e-discovery.

Controlling e-discovery within arbitration is a challenge, but Mr. Pearson reminds us that lawyers can work with their clients to reduce the overall negative impact it can have on the process.  At JAMS, we’re doing our part as well to provide attorneys with tools they can implement to control an arbitration before it begins.