February/March 2010 / Features
Keep the E-Discovery Virus Out of International Arbitration
The U.S. litigation system has long been marred by obstructive and expensive discovery tactics, the author argues, and now in the era of electronically stored information things have become worse. “The monumental complexity and cost of e-discovery,” he says, “make concerns about discovery during the paper-based era seem quaint by comparison.”
Meanwhile, he says, arbitration has proven to be an effective alternative for international business disputes, because it’s cheaper and faster and leaves the parties in a better position to repair or maintain their relationship. He views current attempts to address e-discovery in U.S. courts as ineffective and warns against adopting those protocols for the international arbitration forums.
This matter is being debated by academics and others in the international arbitration field and draft protocols have been published. The author perceives “momentum toward an American-style embrace of ESI” in these efforts, which he says are misguided because they rely on misplaced faith in more and better search and retrieval technology. In fact, he says, these protocols invite a battle over the scope of discovery that is inconsistent with the goals of international arbitration. He suggests instead that parties define and limit the scope of potential discovery issues at the time the contract is drawn up as part of the arbitration agreement itself.