Arbitral institutions have traditionally published procedural rules and guidelines that include provisions concerning the production of documentary evidence.
As the volume of electronic data grows exponentially, it has been estimated that some 90 percent of corporate records are no longer printed. These records are commonly referred to as electronically stored information (ESI).
Recently, leading arbitral institutions have amended their rules, or have issued guidelines or protocols, to deal with the growing volume of ESI. In doing so, the focus is clearly on the emerging challenges of managing large volumes of potentially relevant data while ensuring fair and efficient conduct of arbitration proceedings.
This article explores key themes common to the following recently published rules and guidelines and protocols:
- International Centre for Dispute Resolution (ICDR) Guidelines for Arbitrators Concerning Exchanges of Information (May 2008)1 (ICDR Guidelines)
- Chartered Institute of Arbitrators (CIArb) Protocol for E-disclosure in Arbitration (October 2008)2 (CIArb Protocol)
- International Institute for Conflict Prevention & Resolution (CPR) Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration (December 2008)3 (CPR Protocol)
- International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration (revised - May 2010)4 (Revised IBA Rules)
FUNDAMENTAL OBJECTIVES: EFFICIENCY, ECONOMY, PROPORTIONALITY AND FAIRNESS
In the context of ESI, there is a real risk that extensive “e-discovery” type procedures can become disproportionate and uneconomical if not kept within defined limits. The summary below demonstrates that the principal objective adopted by each arbitral institution is to ensure that the arbitration procedures relating to ESI are conducted efficiently and economically, while ensuring fairness and proportionality.
The Revised IBA Rules:
- Are intended to provide an efficient, economical and fair process for the taking of evidence in international arbitrations, particularly those between parties from different legal traditions (Preamble).
- State that parties are expected to act in good faith and are entitled to reasonable advance notice of the evidence on which the other parties rely (Preamble).
- Forbid the arbitral tribunal from ordering production of ESI where it involves an unreasonable burden, or where there are compelling considerations of procedural economy, proportionality, fairness or equality of the parties (Article 9.2).
The CPR Protocol:
- Seeks to address concerns that arbitration proceedings, particularly in disputes involving parties from different nations, lack predictability and are becoming more complex, costly and time-consuming, by making recommendations for reasonable limitations to be placed on disclosure and witness testimony (Introduction).
- Refers to a “Philosophy Underlying Document Disclosure,” which is the general principle that arbitration be expeditious, cost-effective and fundamentally fair, and which states that disclosure should be granted only as to items that are relevant and material and for which a party has a substantial, demonstrable need in order to present its position (Section 1(a)).
- Requires the arbitral tribunal to consider the costs and burdens associated with disclosure of ESI (which can be reduced when requests are for reasonably specific and accessible ESI) and to balance the likely value of documents requested against the costs and burdens involved in production (Section 1(d)(1) and 1(e)(2)).
- Provides for parties to select one of four modes of disclosure of ESI (Section 1(d)(2) and Schedule 2). At the “minimal” end of the spectrum, “Mode A” is limited to copies of ESI relied upon by each party, presented in printed or other reasonably usable form, whereas at the “extensive” end of the spectrum, “Mode D” includes all relevant, non-privileged documents, subject only to requirements that the requests be reasonable, not be duplicative of other requests and not cause an undue burden.
The CIArb Protocol:
- Is intended for use in cases where the time and cost for disclosing ESI may be an issue; it seeks to achieve early consideration of disclosure of ESI where necessary and appropriate for the avoidance of unnecessary cost and delay (Purpose).
- Can be adopted as a supplement to the agreed- upon arbitration rules, the applicable arbitral law and any agreed-upon rules of evidence, e.g., the IBA Rules (Purpose and Article 3(iv)).
- Requires the arbitral tribunal to consider the appropriate scope and extent of disclosure of ESI under the agreed arbitration rules, applicable arbitral law, agreed-upon rules of evidence and any specific agreements between the parties (Article 5).
- Requires that, in making any order or direction for e-disclosure, the arbitral tribunal should consider reasonableness and proportionality, fairness and equality, and the opportunity for all parties to present their cases. This examination includes balancing considerations of the value and nature of the dispute, and the likely relevance and materiality of requested documents, against the cost and burden of producing the ESI (Article 6).
The ICDR Guidelines:
- Seek to implement a commitment that international commercial arbitration provides a simpler, less expensive and more expeditious form of dispute resolution than that available from national courts (Introduction).
- Expressly recognise that procedural devices allowing one party access to information in the possession of the other, without full consideration of the differences between arbitration and litigation, contribute to complexity, expense and delay (Introduction).
- Require the arbitral tribunal to manage the exchange of information with a view toward maintaining efficiency and economy and avoiding unnecessary delay and expense, while balancing the goals of equality of treatment, avoiding surprise and affording parties the opportunity to present claims and defences fairly (paragraph 1a).
In contrast to the publications of other arbitral institutions, the ICDR Guidelines are short and concise, and they do not prescribe any detailed procedures for disclosure requests and production of ESI such as those referred to below. Instead, the ICDR Guidelines explicitly encourage arbitrators to be receptive to “creative solutions” for achieving exchanges of information in ways that avoid costs and delay (paragraph 6a).
EARLY CONSIDERATION AND CONSULTATION ON PRODUCTION OF ESI
A critical feature of e-discovery rules and practice directions published by courts in common law countries (including the United States, England, Singapore and Australia) is the early “meet and confer” process. This has been adopted in the arbitration context, as summarised below.
The CIArb Protocol prescribes in detail the need for the arbitral tribunal and the parties to confer, at the earliest opportunity, regarding the preservation and disclosure of ESI, to agree to the scope and methods of production (Article 1) and to consider:
- At the earliest opportunity, whether e-disclosure issues may arise (Article 2)
- The types of computer and storage systems, media, data retention policies and practices that will berequired for preservation (Articles 3(ii) and (iii))
- The available tools and techniques that can reduce the burden and cost of production, including limiting the scope and extent of e-disclosure to particular date ranges or custodians and agreeing to set search terms, software tools and data sampling (Article 3(vi))
- Special arrangements with regard to privacy and privilege issues (Article 3(vii))
- Whether any party and/or the arbitral tribunal may benefit from professional guidance on IT issues relating to disclosure of ESI (Article 3(viii)). Further provision for technical guidance on e-disclosure is made in Article 13.
The Revised IBA Rules require the arbitral tribunal and the parties:
- To consult at the earliest appropriate time on an efficient, economical and fair process for the taking of evidence (Article 2.1)
- To address the requirements, procedure and format applicable to the production of ESI and the promotion of efficiency, economy and conservation of resources
Under the CPR Protocol:
- Parties selecting Modes B, C or D agree to meet and confer, prior to an initial scheduling conference with the arbitral tribunal, concerning the specific modalities and timetable for disclosure of ESI (Schedule 2)
- Issues regarding preservation of documents (Section 1(a)) or other issues or disagreements regarding disclosure (Section 1(e)(1)) should be identified and resolved as early as possible, preferably at an early scheduling conference
NARROW, SPECIFIC AND JUSTIFIABLE REQUESTS FOR ESI
Article 3 of the Revised IBA Rules (which is also adopted in Article 4 of the CIArb Protocol), retains the well-established formula that a request for production (both paper and ESI) must:
- Include a description of a specific document, or a narrow and specific category of documents that are reasonably believed to exist;
- State the reasons why the documents are assumed to be in the possession, custody or control of the other party and not of the requesting party; and
- State how the requested documents are relevant and material to the outcome of the case.
The Revised IBA Rules require a requesting party (on its own or by order of the arbitral tribunal) to identify specific files, search terms, individuals or other means of searching for ESI in an efficient and economical manner (Article 3(a)(ii)). There is also a provision, which seems most appropriate in relation to ESI, that a party may request that documents already in its possession, custody or control be produced by the other party, but it must state the reasons why it would be unreasonably burdensome for the requesting party to produce such documents (Article 3(c)(i)).
The CIArb Protocol states that:
- The primary source of ESI should be reasonably accessible data: namely, active data, near-line data or offline data on disks (Article 7)
- The restoration of back-up tapes, erased, damaged or fragmented data, archived data or data routinely deleted in the normal course of business operations will not be ordered unless the requesting party can demonstrate that the relevance and materiality outweigh the costs and burdens of retrieval and production (Article 7)
- A party requesting disclosure of metadata must demonstrate that its relevance and materiality outweigh the costs and burdens of production (unless the format of production of ESI includes metadata)
The CPR Protocol (Section 1(d)(1) and Schedule 2):
- Recognises that ESI found in the active or archived files of key witnesses, or in shared drives, is more readily accessible and less burdensome to produce when sought pursuant to reasonably specific requests
- States that 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
- States that requests for back-up tapes or fragmented or deleted files should only be granted in cases where there is a reasonable likelihood of deliberate destruction or alteration in anticipation of litigation or arbitration that took place outside of that party’s normal document-retention policies (this may be expanded by agreement under “Mode C” to instances of special need or relevance)
TIMING AND FORMAT OF PRODUCTION
The CPR Protocol:
- Provides for disclosure in a “reasonably usable form” (Schedule 2)
- Requires a reasonable and expeditious timetable for disclosure (Section 1(e)(1))
The Revised IBA Rules (Article 12(b)) provide that, unless otherwise agreed or directed, ESI shall be submitted or produced in the form most convenient or economical to the producing party that is reasonably usable by the recipients.
The CIArb Protocol:
- Provides for production of ESI in the format in which the information is ordinarily maintained, or in a reasonably usable form (Article 8)
- Requires the arbitral tribunal, in cases of disagreement, to decide whether production of ESI should be in native or another format (Article 8)
- Requires a clear and efficient procedure for production requests and disclosure of ESI (Article 11)
- Requires advance notice of the electronic tools and processes intended to be used for disclosure of ESI (Article 12)
Where extraordinary circumstances justify production of information, and the costs and burdens of disclosure are likely to be substantial, the CPR Protocol (Section 1(e)(2)) provides for the arbitral tribunal to order the disclosure on the condition that the requesting party pays the reasonable costs incurred by the producing party.
In its assignment of the costs of the arbitration, the Revised IBA Rules (Article 9.7) permit the arbitral tribunal to take into account the failure of any party to conduct itself in good faith in the taking of evidence.
The CIArb Protocol (Article 10) requires the arbitral tribunal to consider the appropriate allocation of costs in making an order or direction for e-disclosure.
SANCTIONS FOR FAILURE TO DISCLOSE ESI
Where a party fails to produce evidence that was properly requested, or was ordered to be produced, and fails to provide a satisfactory explanation for the failure to produce, the Revised IBA Rules (Article 9.5) permit the arbitral tribunal to draw an adverse inference against that party.
Where a party fails to produce evidence that was properly requested, or was ordered to be produced, or otherwise fails to comply with the CIArb Protocol after its use has been agreed to or ordered, the CIArb Protocol (Article 14) permits the arbitral tribunal to draw such inferences as it considers appropriate when ruling on the substance of the dispute or deciding on any award of costs or other relief.
Disclosure of ESI is becoming increasingly important in international arbitrations. Practitioners and arbitrators now have at their disposal various rules, guidelines and protocols to refer to when seeking to implement regimes for e-disclosure that are consistent with the objectives of efficiency, economy, fairness and proportionality.
On another note, with appropriate technical guidance, e-disclosure has the potential to be used in a positive and proactive manner to reduce the volume of paper and open up possibilities for the strategic use of technology, such as data analytics, e-bundles, electronic presentation of evidence and e-briefs, which may serve to make the process of arbitration more streamlined and cost-effective, rather than more burdensome and costly.