Why Use a Hammer When You Can Use a Swiss Army Knife?: Considerations for Arbitration

In our first post in this series, we discussed how eDiscovery technology and workflows are being applied to several different use cases today. According to eDiscovery Today’s 2023 State of the Industry Report, seven use cases are being applied by at least 40% of 410 survey respondents.

One of those use cases is arbitration, for which eDiscovery is used by over half (50.5%) of respondents – yet the use of eDiscovery for arbitration is not often discussed in blogs and articles. In this post, we’ll discuss the arbitration process, how eDiscovery technology and workflows are applied to it and what you need to know to effectively conduct eDiscovery to support arbitration.

How Arbitration is Conducted

Arbitration is a legal solution for alternative dispute resolution (ADR) in which the parties in a dispute agree to use the services of a neutral party to assist them in reaching agreement and avoiding litigation. Arbitration is designed to resolve disputes promptly and discreetly. This method of dispute resolution not only ensures privacy, but it also can minimize high eDiscovery costs that are often associated with litigation cases involving large  volumes of electronically stored information (ESI).

Arbitration is more flexible than litigation, allowing arbitrators to set aside formalities that would usually constrain a court of law. This flexibility gives arbitrators the leeway needed to consider both parties’ positions fairly, quickly and without a lot of traditional discovery – features that  are recognized as benefits of arbitration agreements since they was first used in dispute resolution contexts. Additionally, even non-legal professionals can sometimes serve as arbitrators, as long as they have specific knowledge or expertise related to the issue at hand.

Nonetheless, there are several reputable arbitration forums that provide a standardized approach to conducting arbitration. The three used most in the U.S. are:

• American Arbitration Association (AAA): A not-for-profit organization focused on the field of alternative dispute resolution founded in 1926.
• JAMS: JAMS was originally founded in 1979 as Judicial Arbitration and Mediation Services, Inc., but now is simply known as “JAMS”.
• International Institute for Conflict Prevention & Resolution (CPR): An independent nonprofit organization that helps prevent and resolve legal conflict more effectively and efficiently that was founded in 1977.

The Scope of Discovery for Each Arbitration Forum

Each arbitration forum provides rules and procedures for handling discovery as follows:

• AAA: Rule R-22(b) of the Commercial Arbitration Rules and Mediation Procedures states that the arbitrator may, on application of a party or in the arbitrator’s own discretion, require the production of documents: 1) On which a party intends to rely, and 2) Which are relevant and material to the outcome of disputed issues if sought in a document request.
• JAMS: The Arbitration Discovery Protocols sets the expectation that document requests should be limited to documents that are directly relevant to significant issues in the case or to the case’s outcome.
• CPR: The Protocol on Disclosure of Documents & Presentation of Witnesses in Commercial Arbitration provides four alternative “modes” of document disclosure that parties can agree to, ranging from very limited disclosure (Mode A) to increasingly expanded limitations on the number of custodians and a set time frame (Modes B and C) to removal of custodian and set time frame restrictions altogether (Mode D).

Applying eDiscovery Technology to Arbitration

Because arbitration time frames are typically more compressed (compared to litigation timeframes), the ability to apply eDiscovery technology to manage ESI in arbitration is even more important. Here are three uses of eDiscovery technology in arbitration:

1. Data Culling: Quickly identifying data that is not relevant is even more important in arbitration. This involves testing of search terms to ensure they’re not too broad before committing to review, using concept clustering to quickly identify clusters of non-relevant documents, and email threading to limit email review to unique emails within the thread.
2. Machine Learning: Conducting review using a Technology Assisted Review (TAR) approach using Continuous Active Learning (CAL) helps quickly push likely relevant documents to the front of the queue, enabling review teams to stop reviewing when the algorithm isn’t delivering many relevant documents.
3. Auto-Classification: Manually identifying and redacting privileged or sensitive information is slow and tedious work. Using a combination of searching (including RegEx searches for pattern matching of personal data such as SSNs and credit card numbers) and machine learning can enable auto-classification of potentially privileged and sensitive information within the collection to which redactions can then be automatically applied, expediting the redaction process.

Conclusion

Arbitration may be the one of the least discussed use cases for eDiscovery technology and workflows, but it’s still important to have a plan for applying eDiscovery to disputes in arbitration. While the management of arbitrations is typically more flexible than it is for litigation, there are standard arbitration forums with specific rules and guidelines by which discovery should be performed. It’s important to understand those rules and be prepared to fully apply eDiscovery technology capabilities to streamline the workflows associated with the aggressive timelines typically associated with arbitrations. Be prepared!

For more regarding Cimplifi eDiscovery, litigation, and investigations services, click here.

In case you missed the other blogs in this series, Why Use a Hammer When You Can Use a Swiss Army Knife?: Use Cases for eDiscovery Today,  you can find them here:

Why Use a Hammer When You Can Use a Swiss Army Knife?: Use Cases for eDiscovery Today

Why Use a Hammer When You Can Use a Swiss Army Knife?: Considerations for Arbitration

Why Use a Hammer When You Can Use a Swiss Army Knife?: Considerations for Investigations

Why Use a Hammer When You Can Use a Swiss Army Knife?: Considerations for Incident Response

Why Use a Hammer When You Can Use a Swiss Army Knife?: Considerations for Privacy Requests

Why Use a Hammer When You Can Use a Swiss Army Knife?: Considerations for Government Information Requests

Why Use a Hammer When You Can Use a Swiss Army Knife?: Considerations for HSR Second
Requests

Why Use a Hammer When You Can Use a Swiss Army Knife?: Considerations for Information Governance

Why Use a Hammer When You Can Use a Swiss Army Knife?: Considerations for Litigation

To learn more about Cimplifi or to speak to an expert about our expertise across the EDRM, you can visit our website or reach out here.