Today is “topics inspired by former judges” day! Earlier today, I covered the Commentary from The Sedona Conference® on Rule 502(d) orders, inspired by the Hon. Andrew Peck (ret.), who made me aware of it yesterday. I also found this article on eDiscovery for arbitration – a topic which is certainly not discussed enough here or elsewhere. And this article was authored by another notable former judge, who issued some very famous eDiscovery case rulings!
The article, published on Reuters, is titled The intersection of e-discovery and arbitration and it’s authored by the Hon. Shira Scheindlin (ret.). For those who may be relatively new to eDiscovery, Judge Scheindlin presided over several notable cases, including possibly the most famous case from an eDiscovery standpoint – Zubulake v. UBS Warburg – where she issued several important rulings related to the preservation and spoliation of ESI, which led to an adverse inference instruction against the defendant, as well as monetary sanctions.
Now serving as Of counsel at Stroock & Stroock & Lavan in New York City, Judge Scheindlin has arbitrated or mediated more than 60 complex civil cases since leaving the bench in 2016. As she notes, “e-discovery has now become a routine issue in all commercial arbitrations. Despite the fact that traditionally arbitrations did not allow the broad discovery permitted in civil litigation, over the years the parties now expect that in commercial arbitrations they will be entitled to document discovery, interrogatories, depositions, and even records from non-parties.”
eDiscovery for litigation is governed by the Federal Rules of Civil Procedure, of course. While eDiscovery for arbitration isn’t, Judge Scheindlin still quickly notes the importance that the arbitrator cover rules like Rule 26(f) (conference of the parties, aka the “meet and confer”), Rule 16 (scheduling) and Rule 37 (sanctions) at the initial conference. She also notes that, if the parties haven’t agreed on an ESI protocol, “the arbitrator should limit the number of custodians per side (typically no more than five) and the sources that will be searched (typically only active data as opposed to back up tapes or cloud storage).”
Judge Scheindlin proceeds to discuss other topics related to eDiscovery for arbitration, including procedures and guidelines that have been adopted by the International Institute for Conflict Prevention and Resolution (CPR), JAMS (formerly known as Judicial Arbitration and Mediation Services, Inc.), and the American Arbitration Association (AAA). It’s very useful information for parties considering the arbitration route in settling disputes and what they can expect from an eDiscovery standpoint.
Judge Scheindlin concludes the article by stating: “In my experience as an arbitrator, I have seen more disputes over ESI issues than I expected. Had the parties reviewed the guidance and rules summarized above, many of these disputes would not have arisen. If arbitrators and parties take them to heart, then arbitration will continue to be speedier and less expensive than litigation.” Sounds like you can put the arbitrator into the judge, but you can’t take the judge out of the arbitrator! 😉
So, what do you think? Does your organization have a process designed to support eDiscovery for arbitration? Please share any comments you might have or if you’d like to know more about a particular topic.
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