A recent article addressing International Arbitration contains some helpful practice pointers as to producing and storing Electronically Stored Information (“ESI”). It is imperative to manage the risks associated with ESI in arbitration. Key construction documents are no longer found only in filing cabinets. Instead, project records may be among thousands of electronic documents housed on hard drives, remotely located servers, back-up tapes and the like. If a dispute arises on a construction project, producing and exchanging of ESI can run into the tens of thousands of dollars. ESI issues therefore should be considered when drafting construction contracts or at least as soon as a dispute arises on a construction project.
Negotiation of an arbitration clause in a commercial contract is often routine and a last-minute affair. The authors recommend by including these seven parameters in the arbitration provision, later disputes regarding preservation and production of ESI can be greatly reduced:
1. Confining disclosure requirements to a specified number of custodians (perhaps with leave to request disclosure of additional custodians from the arbitrator upon showing of good cause);
2. Limiting or prohibiting disclosure from third parties (including affiliates, wholly-owned subsidiaries, etc.);
3. Narrowing the relevant time period;
4. Disclosing from specified accessible active data sources only;
5. Limiting the form of production to native format;
6. Specifying whether it is necessary to produce privilege and confidentiality logs; and
7. Limiting the pool of eligible arbitrators to those who are knowledgeable about disclosure of ESI.
Including these seven parameters in an arbitration clause, particularly on large projects, is recommended to avoid costly disputes involving ESI downstream if a dispute develops.
Gilbert & Diana, The Seven Point System: Managing The Risks And Costs Of Preserving And Producing Electronically Stored Information In International Arbitration, International Arbitration Perspectives (Winter 2011).