Originally from Alternatives to the High Cost of Litigation

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Discovery disputes relating to electronically-stored information, referred to in this article as ESI, continue to bedevil the courts. The disputes increasingly are arising in domestic commercial and some international arbitrations. This two-part article discusses specific types of E-discovery disputes practitioners encounter or can expect to encounter. 

In preparation for an October 2008, presentation, at the College of Commercial Arbitrators’ annual meeting in San Francisco, the authors conducted an informal survey of some of the College’s Fellows. The College is an international professional association of commercial arbitrators that promotes ethical best practices, and has published a “Guide to Best Practices in Commercial Arbitration” (JurisNet 2006; see www.thecca.net). The survey’s goal was to identify the types of ESI discovery disputes that the Fellows see in cases where they have served as an arbitrator.

A number of the CCA Fellows responded that they have been blissfully free of such disputes in their cases to date, and hope to remain so for the foreseeable future.