Data is contagious and any attempt to categorise or organise ‘data’ may please someone and/or upset someone somewhere from the legal to IT to the end user. All things digital makes life interesting and/or complicated and I can safely say ediscovery/edisclosure is no different. So I will just say ‘all things e-‘ for ediscovery/edisclosure related stuff from protocols, guidelines, standards, process, models, framework etc. With ‘all things e-‘ coming from the various bodies and institutions, the following list is just a starting point for further add-ons.

~Guidelines ~
The International Center for Dispute Resolution (ICDR) published ‘Guidelines For Arbitrators Concerning Exchanges of Information’ available in pdf. An extract from the Guidelines “The purpose of these guidelines is to make it clear to arbitrators that they have the authority, the responsibility and, in certain jurisdictions, the mandatory duty to manage arbitration proceedings so as to achieve the goal of providing a simpler, less expensive, and more expeditious process. Unless the parties agree otherwise in writing, these guidelines will become effective in all international cases administered by the ICDR commenced after May 31, 2008, and may be adopted at the discretion of the tribunal in pending cases. They will be reflected in amendments incorporated into the next revision of the International Arbitration Rules. They may be adopted in arbitration clauses or by agreement at any time in any other arbitration administered by the AAA.”

The Chartered Institute of Arbitrators (CIArb) published ‘Protocol for E-disclosure in Arbitration’ again available in pdf. The protocols covered every possible steps including “The Tribunal may, after discussion with the parties, obtain technical guidance on e-disclosure issues” (Paragraph 5 (13). Seems that there are ‘e-disclosure issues’ that are not covered by the Protocol. Well it is a Protocol and not a detailed list of e-disclosure issues. So I’m rather surprised to read in Paragraph 7, which states “The primary source of disclosure of electronic documents should be reasonably accessible data; namely, active data, near-line data or offline data on disks”. This categorising of data can be confusing especially as nowadays other expressions are also used to denote the ‘state’ of the data e.g. data-in-motion, data-at-rest, data-in-use. The state and storage of the data should not be confused when stating the ‘primary source of disclosure…’ .What happens if the active data is stored in ‘archives’ and with changes in technology, these ‘archives’ will be reasonably accessible? This is already taking shape in MoReq2.
The Protocol strives to be comprehensive and cautious with the declaration that “The Protocol is for use in those cases (not all) in which potentially disclosable documents are in electronic form and in which the time and cost for giving disclosure may be an issue”.

The following are some ‘nuts and bolts’ from various UK/European industry bodies.

~Standards~

On the BSI website the BS 10008 Legal admissibility and evidential weight of information stored electronically is available to purchase. I reported on this here.

Under the auspices of The Document Lifecycle Management (DLM) Forum and its Model Requirements for the Management of Electronic Records (MoReq) Working Group, MoReq2 is now out. For further details check out at The AIIM. MoReq2 is also driven at the EU level and may become a pan-European standard (although it’s a model/framework with standard for testing the model).
Stock, an EU co-funded project, is a framework for European electronic ID interoperability. According to the blurbs published on the website, Stock aims at implementing an EU wide interoperable system for recognition of eID and authentication that will enable businesses, citizens and government employees to use their national electronic identities in any Member State.

I came across a ARMA Baltimore, 2007 which gives a list of standards etc.

To be continued…

In the litigation arena, I have found that there are many more blogs on various aspects of ediscovery coming from the US and still hardly any blogs from elsewhere. Worldwide searching/linking is still lopsided when it comes to online knowledge and information distribution. Perhaps the very concept of knowledge or data or information divides the technology ‘haves and haves not’. For a survey of the ‘haves’ check out what others have compiled at Guide to E-Discovery Resources on the Web.

In my conclusion I stated ‘Whether the benchmarks set by the Sedona Principles will further be incorporated into IBA Rules or modified by the various international organisations such as the ICC, LCIA, IBA, UNCITRAL and the American Arbitration Association, to meet the expectations of the international businesses will be an event worth earmarking.‘.

With the lopsided information world and even with search engines allowing me to specify whatever I want to seach, I have to say there is so far no such event worth earmarking. Instead, these organisations have gone their own separate ways and with others (e.g. CIArb) joining in the bandwagon to come up with protocols/standards/models etc. So…expect more to come.

It’s nearly a year since I wrote my conclusion and this year I have attended most of the momentous ediscovery/edisclosure events hosted in the UK. One notable observation in all the events I’ve attended is that the international arbitration arena is also lopsided in that the participants are invited by the organisers’ arrangement/selection of the topics/themes. Hence the participants are driven by the (commercially driven) organisers’ goals instead of a truly opening forum for a wider participation by the end users or people/businesses who are the primary ‘stick’ when it comes to ediscovery/edisclosure related matters. Personally, I find the ‘carrot & stick’ (this idiom or expression conveys the way I feel about these seminars/events) approach rather limiting especially in areas whereby technology, law and other social sciences are involved i.e. like in ediscovery/edisclosure. Heh! I’m not blaming the organisers, in fact without them the ‘ediscovery’ industry will be less exciting (as I will have less to compare and contrast!).

I’m sure in due course there will be open forum(s) on ediscovery/edisclosure whereby there will be protocols/guidelines/procedures/standards etc designed/developed with participation from the wider businesses/communities rather than a select few or lone individual. I guess with the nature of the international arbitration arena whereby not a lot of cases are widely publicised, the ‘one size fits all’ stuff for edisclosure will remain elusive and challenging.