E-Discovery an Exception in Arbitration

The newly formed Dispute Resolution Section of the New York State Bar Association recently issued a report on "Arbitration Discovery in Domestic Commercial Cases." The report was approved unanimously by both the executive committee and the House of Delegates of the state bar. The report was created by a subcommittee of the arbitration committee, assisted by a larger task force of knowledgeable persons from the arbitration world.

The report addresses the vexing problem that has grown up in recent years for parties to disputes who have sought an alternative to court litigation, which has become very expensive and time-consuming due, in large part, to excessive discovery. Many have adopted arbitration as an alternative only to find that discovery in arbitration has become as burdensome, or nearly so, as it is in litigation.

The subcommittee has provided 10 precepts to help enable arbitrators effectively to control the discovery process. The precepts will help litigators and their clients, the parties in arbitration, to reap arbitration's benefits of flexibility, efficiency, cost-effectiveness and speed. As a byproduct of helping parties and arbitrators avoid the burden of excessive discovery, the precepts will also help them avoid another potential problem of arbitration, the uncertainty and unpredictability that can result from its flexibility.

Individualized Treatment: A principal premise of the work of the subcommittee was its recognition that a one-size-fits-all approach would not be appropriate. Thus, different types of arbitration pose different problems for arbitrators with respect to discovery and other matters. For example, the subcommittee recognized that domestic and international commercial arbitration require different treatment as to discovery. In furtherance of that recognition the subcommittee limited its work to precepts for domestic commercial arbitration.

Proactive Arbitrators: Another principle that is basic to the report is the need for skilled proactive arbitrators to fashion and manage the individualized treatment of discovery required for domestic commercial arbitrations. Such treatment is needed to make sure that enough discovery is provided to achieve a fair result, while avoiding excessive cost and time consumption from excessive discovery. To help arbitrators do their job effectively, among other things, the subcommittee has provided an appendix of factors to take into consideration in determining the proper scope of discovery for the case at hand. The arbitrator must start even before a case is begun by learning about the technology issues involved in the modern storage and production of electronic data.


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Source: law.com
By: Carroll Neesemann