In December 2008, the International Institute for Conflict Prevention and Resolution issued its “Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration.” It is intended to operate in conjunction with its domestic and international non-administered arbitration rules. The institute articulates the general principle of e-discovery as follows:

In making rulings on disclosure, the tribunal should bear in mind the high cost and burdens associated with compliance with requests for the disclosure of electronic information. … E-mail and other electronically created documents found in the active or archived files of key witnesses or in shared drives used in connection with the matter at issue are more readily accessible and less burdensome to produce when sought pursuant to reasonably specific requests. Production of electronic materials from a wide range of users or custodians tends to be costly and burdensome and should be granted only upon a showing of extraordinary need. Requests for back-up tapes, or fragmented or deleted files should only be granted if the requesting party can demonstrate a reasonable likelihood that files were deliberately destroyed or altered by a party in anticipation of litigation or arbitration and outside of that party's document-retention policies operated in good faith.

The term “extraordinary need” is not defined in the institute's protocol.

The protocol does address various “modes” of electronic disclosure, ranging from minimal to extensive, and directs the parties to meet and confer as to an agreed “mode” prior to the first scheduling conference, and to take up the matter with the panel at that conference.

In August 2008, the International Chamber of Commerce‘s International Chamber of Commerce’s Task Force on Production of Electronic Documents in Arbitration began its work. It was tasked to study the effects of e-discovery in international arbitration and to make recommendations on the subject of production of electronically stored information in such proceedings. A recently issued draft report suggests addressing e-discovery in arbitration as early as possible. Among other questions, the report suggests parties ask whether there will be e-discovery, how electronic documents will be preserved, where they will be pursued and what procedures parties will follow in requesting and responding to discovery requests. In addition, parties should determine in what form the documents will be produced and whether any privilege and waiver agreements will apply during the process.

The draft report identifies techniques for managing ESI production, including limiting the scope and source of production, excluding metadata or data embedded in documents, restricting dates, using specific search terms and data sampling, and disclosing and inspecting electronic sources. In addition, it suggests using independent electronic document experts. It also suggests shifting costs, so that discovery is shared more equally by the parties.

via E-Discovery Threatens to ‘Litigize’ Arbitration.