ICC Arbitration Commission Report on Managing E-Document Production

There is no automatic duty to disclose documents, or right to request or obtain document production, in international arbitration, and the advent of electronic documents should not lead to any expansion of the traditional and prevailing approach to document production. Thus, requests for the production of electronic documents, like requests for the production of paper documents—to the extent they are deemed necessary and appropriate in any given arbitration—should remain limited, tailored to the specific circumstances of the case and subject to the general document production principles of specificity, relevance, materiality and proportionality.
Without endorsing any particular practice or scope of document production, this Report and the accompanying Appendices identify several techniques that arbitrators and parties may wish to consider using in order to manage, in a fair and efficient manner, any issues that may arise when production of electronic documents is permitted or required and, importantly, to ensure that international arbitration does not fall prey to the inefficiencies of electronic document production that have plagued litigation in certain national court jurisdictions like the United States.

Contents

1. Introduction 2
2. Executive summary 3
3. Existing international arbitration rules 4
A. ICC Rules 4
B. IBA Rules of Evidence 4
C. General principles 5
4. Characteristics of electronic documents 5
A. Increased volume of material 5
B. Dispersal 6
C. Durability and fragility 6
D. Use of hardware and software 7
E. Metadata 7
F. Electronic search and review tools and techniques 8
5. Techniques for managing production of electronic
documents, if any 8
A. Electronic document production in context 8
B. Scope of production 9
(i) Timing, number and focus of requests 10
(ii) Specificity of requests 10
(iii) Accessibility of sources 10
(iv) Metadata 11
(v) Use of electronic tools and search methods 11
C. IT expertise 12
D. Cost shifting 12
E. Form of production 12
F. Privilege 13
G. Preservation of and failure to produce electronic documents 14
6. Conclusion 14
Appendix I – A Primer on Electronic Documents 15
A. “Active” electronic documents 15
B. “Inactive” electronic documents 17
C. Metadata 18
Appendix II – A Glossary of Electronic Document Terms 19