Making E Discovery Work You International Arbitration Essay
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Making E-Discovery
Work for You in
International Arbitration
David N. Paris – dparis@srr.com
Tomoko Tatara – ttatara@srr.com
Electronic Discovery (also referred to as E-discovery) has become
As digital technology has evolved, computers and smart phones
an integral part of the discovery process in complex commercial
have become common tools for businesses and individuals.
disputes in U.S. Courts. Recently, it has also been gaining
More of the company information used and communicated in the
increased recognition by domestic and international arbitration
normal course of business, such as e-mails, financials and other
institutions, such as the American Arbitration Association (AAA), its
internal business documents, is now maintained electronically.
international arm, the International Centre for Dispute Resolutions
(ICDR), and other international arbitration institutions, such as
Table 1
The Proliferation of ESI
the Chartered Institute of Arbitrators (CIArb) and the International
Court of Arbitration of the International Chamber of Commerce
(ICC). In this article, the use of E-discovery in U.S. litigation
■ “90% of all documents generated today are electronic”
and its growing, but reluctant use in international arbitration are discussed. In addition, recommended suggestions for increasing
■ “The World sends over 60 billion e-mails daily”
the effectiveness and efficiency of E-discovery in international
■ “A single hard drive can store the equivalent of 40 million pages”
arbitrations are provided.
E-Discovery and Electronically Stored
Information (ESI) ■ ■ ■
What is E-discovery? E-discovery “is the obligation of parties to a lawsuit to exchange documents that exist only in electronic form (known as ESI).”1 Electronic documents that can be subject to e-discovery include “e-mails, voicemails, instant messages, e-calendars, audio files, data on handheld devices, animation, metadata, graphics, photographs, spreadsheets, websites, drawings, and other types of digital data.”2
Table 1 above presents several estimated measurements that illustrate the proliferation of electronic documents. For example, 90% of all documents generated today are electronic.3
Consequently, most of the information sought through discovery in commercial disputes is going to be electronic documents and data.
1
2
3
1
Sally Kane, “E-Discovery Defined,” About.com Guide.
Ibid.
It was also estimated that “More than 80% of documents and data now exists only in electronic format” (William H. Knull, III, “Recent Developments in International Arbitration,”
Mayer Brown LLP, May 2009, p. 11).
must be four percent. 3. It is impossible to lose more than –100 percent of your investment. Therefore, return distributions are cut off on the lower tail at –100 percent; if returns were truly normally distributed, you could lose much more. 4. To calculate an arithmetic return, you…