The Chartered Institute of Arbitrator’s “Protocol for E-Disclosure in International Arbitration” (“CIArb Protocol”) was released in October 2008.41 The CIArb Protocol is the first “stand alone” document to deal with the disclosure of “electronically stored information” (“ESI”) in international arbitration.
What “tips” can be drawn from the CIArb Protocol?
Tip 1: Don’t panic! E-disclosure is not that different
Generally, the CIArb Protocol reflects the fact that “e-disclosure” is not that different to “standard” disclosure. Indeed, most of the basic concepts set out in the IBA “Rules on the Taking of Evidence in International Commercial Arbitration”42 (“IBA Rules”) are also contained in the CIArb Protocol. The key requirements for document requests contained in the CIArb Protocol mirror the IBA Rules, necessitating a description of the document or of a “narrow and specific requested category of documents,” and a justification of how those documents are “relevant and material to the outcome of the case.”43 Both the CIArb Protocol and the IBA Rules also provide that when considering disclosure requests, tribunals should balance the potential probative value of evidence with the likely burden of asking the party to collect that evidence.44 Moreover, as with “standard” disclosure, the legal background of the counsel, clients and the tribunal will inevitably influence the scope and mechanisms adopted in a particular case, whether the CIArb Protocol is applied or otherwise.
Tip 2: Cooperation with the other side is key
The CIArb Protocol highlights the importance of cooperation between the parties at an early stage of the proceedings. Article 1 provides:
In any arbitration in which issues relating to e-disclosure are likely to arise the parties should confer at the earliest opportunity regarding the preservation and disclosure of electronically stored documents and seek to agree the scope and methods of production.45
Early cooperation is critical to dealing with the matters set out below.
Tip 3: Think about the sources of ESI
Most businesses now store huge quantities of ESI on many different storage devices. A company might have, for instance, potentially relevant ESI stored on computers’ hard-drives, local servers, network servers, back-up tapes or servers or individualstorage devices (even iPods!). ESI from all of these sources might need to be accessed to search for responsive documents.
However, not all sources of potentially responsive ESI need to be searched: that would, in most cases, be too burdensome on the parties. Article 7 of the CIArb Protocol creates a rebuttable presumption that “reasonably accessible” ESI should be the “primary source” for disclosure (“namely, active data, near-line data or offline data on disks”).46 In the absence of “particular justification,” it will not normally be appropriate to “order the restoration of back-up tapes; erased, damaged or fragmented data; archived data or data routinely deleted in the normal course of business operations.”47 A party requesting disclosure of such electronic documents must “demonstrate that the relevance and materiality outweigh the costs and burdens of retrieving and producing the same.”48
Tip 4: Use electronic searches
One core difference between “standard” disclosure and e-disclosure is the quantity and variety of sources of ESI. The CIArb Protocol foresees expressly that parties can satisfy their obligation to review potentially relevant ESI by “the use of agreed search terms,”49 avoiding the need for a manual review of each individual source of ESI.
The CIArb Protocol does not indicate which party should draft the search terms. As a practical issue, this should be agreed between the parties early on. If the producing party drafts the search terms, the agreed procedural timetable should allow the requesting party to review and comment on the search terms used.
Tip 5: Agree how ESI will be produced
ESI can be produced in a variety of ways, both in its “native” electronic format (i.e., the format in which the information is ordinarily maintained) or in another format. The CIArb Protocol provides that ESI should be produced either in native format or in a “reasonably useable form.”50 As a practical matter, the question of whether a format is “reasonably useable” may depend on the technical capacities of each of the parties. Again, the intention of the CIArb Protocol is that such matters should be discussed and agreed upon between the parties and the tribunal early on.51
Another issue that is specific to ESI is the question of “metadata,” or “data about data” (e.g., information regarding changes made to a document, or the date that it was created and/or last accessed). The CIArb Protocol establishes a rebuttable presumption that metadata need not be produced, requiring the requesting party to demonstrate that “the relevance and materiality of the requested metadata outweigh the costs and burdens of producing the same,” unless it can be shown that “the documents will otherwise be produced in a form that includes the requested metadata.”52
E-disclosure does not change many fundamental legal concepts: it is predominantly a change to the practical implementation of those concepts and the CIArb reflects this. Whether the CIArb Protocol is ultimately influential in and of itself, or instead acts as a stepping stone towards more detailed guidelines on e-disclosure, remains to be seen.