With regards to electronic disclosure in arbitration, panelist should be mindful of exercising the full panoply of penalties in enforcing good faith compliance with electronic discovery procedures. The actions panelists take should accord with the party’s actions, and whether they amount to negligence, gross negligence, or withholding/bad faith.
In alignment with the gamut of actions, there are a range of penalties available to an arbitration panel, including (in increasing order of severity):
1. Granting a party’s request for further discovery or motion to compel production;
2. Granting a party’s request for shifting the cost of discovery or the cost of making the motion to compel;
3. Imposing fines in an amount appropriate to the violating party’s behavior and the impact of the behavior upon the arbitration and its search for the true facts;
4. Grant a party’s motion to preclude the testimony or a witness or the introduction of testimony regarding a particular issue;
5. Dismissal of the claims or defenses.
At a recent conference, we took an informal survey of senior e-discovery thought leaders. A clear consensus emerged, agreeing that an arbitration panel armed with electronic discovery expertise would be a panel that could more effectively guide the arbitration process to conclusion. Accordingly, parties who agree to arbitrate their dispute should consider making arrangements for the inclusion of an e-discovery expert as part of the panel, or for consultation by the panel with an e-discovery expert. In so doing, the parties or the panel should select someone who is familiar with global legal e-discovery issues, is well-versed in technology systems, and understands the interplay of privacy concerns with electronic disclosure.
** This is the third part in a three-part series which comprise an abridged version of the article “Defining E-Discovery in Arbitration,” written by Daniel Garrie and published in the Los Angeles Daily Journal.