The business world has undergone a digital transformation, so it is probably not surprising to learn that 90% of all business information is electronically stored. Recent changes in Federal and State statutory schemes, the evolution of case material and the expansion of continuing education programs on the subject of E-discovery reflect this growing reality. Overlooked in the proliferation of commentary on retaining, finding, processing and producing electronically stored information (“ESI”) is the question of how to deal with such discovery in an arbitration setting.

Why are the problems and issues different in court and arbitration? To begin with, despite the pressure in some quarters to mirror litigation, most arbitrators are sensitive to the need to keep arbitration faster and cheaper than court. One important method of doing that is to suppress discovery, a material cause of runaway costs in litigation. While California law has always encouraged full discovery, and Federal Law only ameliorates it in certain specific ways (e.g. the number of interrogatories permitted), the rules of most arbitration tribunals either ignore specific references to discovery or permit very limited discovery (for example, JAMS Rule 17 (b) permits one deposition of an opposing party). Instead, the published arbitration rules generally combine a required voluntary exchange of documents and discretionary discovery to ensure that the parties have what they need to try their case.

While the Federal and State statutory framework for discovery has been modified to address electronic discovery (see, Fed. Rule of Civil Proc. 26 and Cal. Code Civ. Proc. Secs. 2031.010 et seq.), arbitration rules either give a token nod to the existence of ESI (See, JAMS Rule 17 [a]) or ignore it altogether. This leaves the entire issue in the hands of the parties and the Arbitrator. The task in arbitration is to balance the realistic discovery needs of the parties with a rational cost-suppression regime. T

via E-Discovery In Arbitration.

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