Page 5 - E-Discovery

NYLJ.COM |
E-Discovery | MONDAY, OCTOBER 6, 2014 | S5

that provide guidance for the parties and relevance of the materials requested,
arbitrators with respect to the production The emphasis in both the IBA Rules and the CCA Guide appears to JAMS arbitrators will either deny such
of ESI. For example, the ICDR has new Arbi- requests or order disclosure on condi-
tration Rules (2014) which provide in Article be on ensuring that the parties’ requests for ESI are as narrow and tion that the requesting party advance
21 that “[w]hen documents to be exchanged speciic as possible, limited to relevant and material evidence, and the reasonable cost of production to the
are maintained in electronic form, the party other side, subject to the allocation of
in possession of such documents may make produced in a form that is most convenient and economical and costs in the inal award.
them available in the form (which may be usable by the recipients.
Thus the JAMS Guidelines require that

paper copies) most convenient and economi- the parties demonstrate “compelling need”
cal for it, unless the tribunal determines, on before certain types of e-discovery must be
application, that there is a compelling need produced, and allows denial of the requests with respect to the amount of e-discovery e-discovery. The Guidelines provide:
for access to the documents in a different or cost-shifting to the requesting party if they will provide to the opposing party. Mode (1) There shall be production of elec-
form. Requests for documents maintained in the Tribunal believes that the costs and A provides for the most limited exchange of tronic documents only from sources
electronic form should be narrowly focused burden of producing such e-discovery are electronic information, whereas Mode D pro- used in the ordinary course of business.
and structured to make searching for them disproportionate to the nature and gravity vides for a very broad exchange. One of the Absent a showing of compelling need,
as economical as possible. The tribunal may of the dispute. These Guidelines provide the potential drawbacks of this approach is that no such documents are required to be
direct testing or other means of focusing and arbitrators with a great deal of control over the parties can choose either at the time of produced from back-up servers, tapes
limiting any search.” Much like the IBA Rules the amount of e-discovery to be produced drafting the clause or after the dispute has or other media.
and the CCA Guide, the emphasis in the ICDR and hence enables the Tribunal to keep such arisen which Mode of the Protocol they will
Rules is on ensuring that the parties’ requests costs contained or shift the burden of costs use. Without knowing what the dispute will (2) Absent a showing of compelling need,
for ESI are as narrow and speciic as possible, onto the party who is being unreasonable in necessarily be about, it is dificult to imagine the production of electronic documents
limited to relevant and material evidence, and its requests for such information.
a party would want to limit itself to a narrow shall normally be made on the basis
of generally available technology in a
produced in a form that is most convenient The New York State Bar Association option such as Mode A. Once the dispute has searchable format that is usable by the
and economical and usable by the recipients.
has also issued detailed guidance for the arisen, it is dificult to imagine the parties party receiving the e-documents and con-
The International Institute for Conflict exchange of e-discovery—the “New York State agreeing on much, unless the arbitrator can venient and economical for the producing
Prevention and Resolution (CPR) has taken Bar Association Guidelines for the Arbitrator’s provide strong guidance to the parties.
party. Absent a showing of compelling
a unique approach that allows the parties to Conduct of the Pre-Hearing Phase of Interna- At JAMS, every international arbitration need, the parties need not produce meta-
choose what level of discovery they want in tional Arbitrations.” These Guidelines, much governed by the JAMS International Arbitra- data, with the exception of header ields
a given case, including e-discovery. Entitled like the JAMS Guidelines, offer very speciic tion Rules is subject to the JAMS Eficiency for email correspondence.
“Protocol on Disclosure of Documents and guidance to the parties and the arbitrators as Guidelines for the Pre-Hearing Phase of
Presentation of Witnesses in Commercial to how e-discovery should be handled, and International Arbitration (unless the par- (3) Where the costs and burdens of
Arbitration,” Schedule 2, which deals with provides that the requests for information in ties provide otherwise). One of the unique e-discovery are disproportionate to the
e-discovery, provides that the parties are electronic form must be “narrowly circum-
features of the JAMS Eficiency Guidelines is nature and gravity of the dispute or to
given four options or “modes” of disclosure
their clear guidance on the issue of managing
the amount in controversy, or to the
scribed in order to protect the
»
Page S12

COVER ALL

CohnReznick is an independent
member of Nexia International

YOUR BASES

IT TAKES PROVEN EXPERTISE TO MAXIMIZE

YOUR CLIENT’S CORPORATE VALUE.

CohnReznick Advisory Group provides specialized services in areas such as bankruptcy
and restructuring, forensics and litigation and transactional and valuation advisory.

With proven experience in complex situations, unsurpassed technical guidance and
results-driven strategies, we help your clients maximize value no matter their challenge.
Find out what CohnReznick thinks at CohnReznick.com/advisory.

Forward Thinking Creates Results.

Joe Torre
2014 National Baseball
Hall of Fame Inductee

cohnreznick.com/advisory