An arbitration panel containing, or consulting with, an electronic discovery expert possessing both legal and technological expertise will be ready to reasonably define the scope of electronic production, properly balance the cost of discovery against its prospective benefits, and save the parties time and money. Most importantly, an arbitration panel containing an electronic discovery expert will be able to fashion a discovery plan tailored to the parties’ information systems early in the litigation proceeding at the meet and confer stage that:
1. Defines the scope of discovery;
2. Defines the permissible set of accessible electronic data;
3. Defines the sources to be searched in the production;
4. Defines the manner in which parties will preserve electronically stored information;
5. Defines the format of data production;
6. Defines the procedures and protocols for electronic disclosure (e.g., the role of meta-data);
7. Addresses privilege issues (e.g., the scope of any claw-back provision governing inadvertently produced privileged documents); and
8. Defines party obligations and expectations.
It is imperative that an arbitration panel address such issues in detail early in an arbitration proceeding, preferably at the very first organizational meeting where the panel is assembled and sworn in as arbitrators. Only by clearly defining the obligations of the parties at the outset can costs be kept in check and the arbitration process permitted to proceed quickly and smoothly. If these issues are ignored in the meet and confer stage of arbitration, these issues will undoubtedly have to be revisited by the tribunal later in the dispute, after the parties already have begun incurring substantial costs due to unexpected electronic disclosure issues.
** This is the second 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.