This is an interesting essay about how e-discovery is threatening the benefits of arbitration that made it so popular back in the day.

So what is really happening?

  • Privacy is threatened
  • e-discovery is driving up costs and time to settle disputes

How did e-discovery become a part of the process?  The Federal Arbitration Act did not specify discovery rules and usage for the process until the 2000 Uniform Arbitration was passed.  This act offers guidelines on limited discovery in order to contain costs and time that are in-line with the spirit of arbitration.

Still, arbitrators are reluctant to place strong limits on the process and thus a move to mediation is underway.  Is it time to strengthen the rules for discovery in Arbitration?  Thomas Aldrich’s article discusses several institutes that are taking a closer look at the issue and offering guidelines for e-discovery in arbitration.

As with most things in the legal field this will take time and many drafts before it becomes a reality.  In the meantime, companies will work to make the process of e-discovery easier and more affordable and attorneys and their clients will still feel the pinch of the time, effort and cost related to discovery.

My advise is to take the big picture view. Begin instituting policy that not only keeps in mind litigation holds but arbitration processes.  This will help you be true to the spirit of Ben Franklin’s wisdom, “prepare for the worst and be pleasantly surprised when it doesn’t happen.”