edisclosure myth or reality? » Arbitration

Todd v Guidance Software – Arbitrator ordered backup data to be produced

Wed, 18 Feb 2009 17:40:39 +0000

In arbitration, inaccessible data is data to be discovered and produced as shown in the Cassondra Todd v Guidance Software case. There’re several reports on this case which you can search via google. This report (also tweeted) gives a best guess of the timeline of the events, which I find handy to scan, read and make my own analysis.

What are your views on the arbitrator’s order for disclosure of data residing on backup tapes?

A Conference for ‘up & coming’ arbitration practitioners – Establishing Your Case in International Arbitration

Wed, 17 Sep 2008 09:33:28 +0000

No E-Documentation or edisclosure mentioned on this ICC UK / CIArb joint conference.
Perhaps the ICC UK and CIArb do not wish to remind those wishing to refresh their knowledge of evidence and legal submissions on the ‘growing issue as a result of the electronic exchanges of documents between parties’. Surely the ‘growing issue…’ as highlighted by the Juris Conference organisers on Electronic Evidence and Disclosure in International Arbitration are issues and challenges that young practitioners will no doubt encounter.
The ICC UK/CIArb states: A conference designed especially for ‘up & coming’ arbitration practitioners and those wishing to refresh their knowledge of evidence and legal submissions
Topics to be covered include:

Issues and Challenges Facing Young Practitioners
Establishing Your Case: Key Issues to Consider
Documentary Evidence
Document production, IBA Rules, common law and civil law approaches, and best practice
Expert Evidence: Tribunal or party appointed, number and qualities, witness conferencing, guidance and systems
Legal Submissions: Oral, written, simultaneous or sequential?
Fact Evidence: Witness selection, preparation, hearings, cross-examination

Alert! The International Journal of Arbitration, Mediation and Dispute Management

Fri, 25 Jul 2008 19:51:47 +0000

I am rather pleased to announce that the Chartered Institute of Arbitrators (CIArb) will publish my condensed dissertation, titled : Electronic Discovery/Disclosure: From Litigation to International Commercial Arbitration in The International Journal of Arbitration, Mediation and Dispute Management, Sweet & Maxwell, Volume 74 Number 4 November 2008.

When I started on my research back in October 2007, ediscovery/edisclosure was not a term recognised in the IT corporate environment in London. I know this for a fact as my colleague and friends said ‘what is that?’ when I told them my subject matter for my dissertation.

I came across ediscovery only because I was looking for a topic for my dissertation. As I was involved in a Document Management implementation project (with many challenges!) last year, I decided to explore various IT and legal issues related to document management. So, I too have no clue what is ediscovery until I started my research. The research subsequently led me to start this blog and also opened up a vast area of ‘unknown or ‘mysteries’ to explore further. So far, I have met several interesting folks from various fields.

Right now, I am looking for ways to pursue a PhD and will welcome any suggestions as to where to get funding and/or sponsors. I am told three years full time will costs a ‘lot’ of £££££. It will be worth more than £££££ as I know what I want to research will be stuff worth writing about.

For my IT friends and those in the IT corporate world and also the IT community in general, ediscovery/edisclosure may still be a mystery or simply another ‘e-something-fad’ and if you think you can avoid or rebel, think again and share your views here. Even the storage people (or IT storage stewards) have shared their views, read what was reported in Users rebel against e-Discovery liabilities by Beth Pariseau, June 19th, 2008

Improving Procedures for Discovery and Documentary Evidence

Thu, 24 Jan 2008 22:09:52 +0000

improving-procedures-for-discovery.htm, Andrew Rogers, Source: BOOK: ICCA Congress series no. 7 (1996), pp. 131 – 144

Electronic Discovery In Arbitration: Privilege Issues and Spoliation of Evidence

Thu, 24 Jan 2008 22:03:19 +0000

Warshauer, Irene C “Electronic Discovery In Arbitration: Privilege Issues and Spoliation of Evidence“. Dispute Resolution Journal. Nov 2006-Jan 2007. FindArticles.com. 09 Nov. 2007.

Evidence Disclosure in Chinese International Arbitration

Thu, 10 Jan 2008 16:17:50 +0000

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.’

a critically important and evolving field in international arbitration

Wed, 09 Jan 2008 18:23:50 +0000

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’.

WHERE NEITHER THE IBA RULES NOR U.S. LITIGATION PRINCIPLES ARE ENOUGH

Wed, 09 Jan 2008 18:07:35 +0000

…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.