‘How much new information is distributed in storage media?’, a study dedicated to estimating how much new information is generated each year.
Not sure whether the study is still ongoing as the study was posted around 2003.
Interesting to note that the UC Berkeley’s School of Information Management and Systems is the first school in the nation to explicitly address the growing need to manage information more effectively.
So far, no reported edisclosure cases perhaps edisclosure related disputes are settled before trial.
Also, I came across several blogs on ediscovery (US style) and Chris Dale’s edisclosure blog (UK style). For FRCP amendments, Ralph Losey’s ediscovery blog is particularly useful. Nice music, if you like the author’s choices.
I ‘think’ my blog is the ‘first’ (who says self advertising is not advertising?) to attempt to address edisclosure in arbitration.
Ah! I look forward to more sites and blogs on arbitration as edisclosure will require practitioners to collaborate with other professionals with relevant hybrid (IT, Law, Management) skills and sector specific experiences.
To what extent are the IBA Rules of Evidence and the IBA Guidelines on Conflicts of Interest still sufficient and or fulfil the needs of the parties in complex disputes in areas such as re-insurance, financial markets and banking? In these sectors, computer technologies are deployed extensively and the nature of business transactions are not only heavily regulated by a burgeoning patchwork of rules and laws but also tend to cross borders. Irrespective of whether litigation or arbitration best serve such disputes, it is an inescapable fact that the world is now digital and with it the attendant legal and digital challenges otherwise known as the ‘myriad of issues’.
Perhaps more importantly, can the international commercial arbitration regime escape or be totally immune from these ‘myriad of issues’ and continue to attract international businesses and play a dominant judicial role in the globalised, digital world of commerce with the fundamental concept of party autonomy and autonomy in arbitration procedure?
The ‘myriad of issues’ are the e-discovery issues raised by the Sedona Conference Working Group on Best Practices for Electronic Document & Production.
Techniques for Controlling Time and Costs in Arbitration
A Report from the ICC Commission on Arbitration
In the ICC Publication 843 -Techniques for Controlling Time and Costs in Arbitration, no specific mention on ‘electronic document production’ or ‘electronically stored information’, although ‘Úse of IT’ is discussed. The Redfern Schedule is mentioned for managing requests for document production.
Case management is also mentioned, however no specific mention on how to determine the scope of the document production, which in a document (paper-based & electronic) intensive dispute can be unmanageable even with the use of IT.
The article pointed out that ‘special emphasis needs to be placed on steps aimed at reducing the costs connected with the parties’ presentation of their cases and that such costs are often caused by unnecessarily long and complicated proceedings with unfocused requests for disclosure of documents …’.
What can we glimpse (& learn?) from the Chinese where Alternative Dispute Resolution has been the way of resolving disputes from the Confucian era to current digital era?
For a glimpse on Chinese international arbitration, check out the pdf article: Tipping the Scale to Bring a Balanced Approach: Evidence Disclosure in Chinese International Arbitration. By Bryant Yuan Fu Yang and Diane Chen Dai
Now this is what I consider really interesting…the article is also ‘meant as a guide for foreign investors and companies who seek to have an uncooperative opposing party or nonparty disclose evidence.’
It seems that the preferred term in arbitration practice is ‘disclosure’ rather than ‘discovery’.
Worth noting that in P.R.China, a civil law jurisdiction, the term ‘evidence disclosure’ is used in international arbitration.
The following paragraphs are extracted from:
Alan Redfern & Martin Hunter, LAW AND PRACTICE OF INTERNATIONAL COMMERCIAL ARBITRATION Chapter 6, SWEET&MAXWELL 4TH ED. 2004
6–71 In many common law countries it is usual in litigation in the national courts for there to be an automatic “discovery” of documents procedure, which generally means disclosing to each other the existence of all relevant documents, whether favourable or unfavourable, including internal notes and memoranda.
This is not the practice in international commercial arbitration, as will be seen below. Indeed, it is better to avoid the use of the term “discovery” because it is an ambiguous term. To a civil lawyer it means nothing; to a US lawyer it encompasses production of documents and depositions of potential witnesses and experts as well as inspection of the subject-matter of the dispute; to an English lawyer it refers only to production of documents.
There is no practice of automatic discovery in international commercial arbitration. The usual practice is to limit document production as much as possible to those documents that are strictly relevant to the issues in dispute and necessary for the proper resolution of those issues. There is no tradition or practice of the wholesale (or “warehouse”) production of documents. Furthermore, most arbitral tribunals apply the principle of “proportionality”— that is, they will limit the scope (and thus the expense) of document production to an extent that is reasonable in the context of the amount in dispute and the relative significance of the issues in respect of which document production has been requested.
6–72 It is sometimes argued that the position is different in international arbitrations that take place in the US, and that a party is entitled to wide-ranging production of documents. It is true that the Federal Arbitration Act and a number of state arbitration statutes grant broad discretionary powers to arbitral tribunals to require the production of documents, as well as the testimony of potential witnesses given on deposition.It is, however, a misconception that arbitrations taking place in the US are subject to the automatic and extensive discovery procedures available in court litigation in that country. The reality is that in the US there is generally no right to any discovery in international arbitrations and the extent to which discovery is permitted is entirely in the hands of the arbitral tribunal if the parties do not agree.The national courts will not interfere to expand any right of discovery ordered by the arbitral tribunal.
A Book on Electronic Evidence: Disclosure, Discovery & Admissibility
General Editor: Stephen Mason with specialist contributors
1st Edition 2007, LexisNexis Butterworths
A decent textbook of legal principles (mainly common law jurisdictions) and a fair selection of chapters/articles on digital evidence.
Electronic Evidence and Disclosure in International Arbitration
New York City 31 January 2008.
The jurisconferences seminar ‘recognizes the harsh reality of the problems presented by the creation and maintenance of electronic data in international business transactions and provides a forum for discussion by the leading experts in the electronic data field of how best to deal with the phenomena of electronic data in the context of disputes that are to be resolved in international arbitration’.
…electronic discovery is already happening also– to a limited extent–in international arbitration and neither the IBA Rules nor US litigation principles are enough.
According to a featured international article‘, ‘ELECTRONIC DISCOVERY IN INTERNATIONAL ARBITRATION: WHERE NEITHER THE IBA RULES NOR U.S. LITIGATION PRINCIPLES ARE ENOUGH ‘by Jonathan L. Frank, Julie Bédard, Dispute Resolution Journal, November, 2007-January, 2008 :
‘E-discovery will no doubt become an increasingly important aspect of international arbitration. Different legal cultures–all of which usefully nurture international arbitration–may approach discovery of ESI very differently. Although the IBA Rules provide useful guidance to arbitrators and litigants, it may be difficult to rely heavily on them since they were written before e-discovery became an issue. While U.S. case law deals with ediscovery, it does so primarily in the context of allocating costs and against a backdrop of broad discovery rights that are alien to international arbitration. Thus, the cases may not be all that helpful to arbitrators who must decide the scope of allowable e-discovery. Further analysis of e-discovery issues must be undertaken in order to uncover useful principles that arbitrators could apply. In this connection, we invite practitioners and arbitrators to discuss the issues identified in this article. In any event, practitioners should anticipate the necessity for compromise with respect to discovery procedures and look to their shared experience in assessing the risks and costs involved’.
Full article provided by Mr Ken Withers for my research is available in pdf.
The landmark case of Zubulake v UBS Warburg. Zubulake which highlights the issues with electronic discovery.
Articles and links available on the site krollontrack