Internal Investigations Doing It Right and Keeping Your Company Out of the Headlines

Electronic Documents inInternational ArbitrationDaniel SchimmelKelley Drye & Warren LLP

UIA Congress October 31, 2014IntroductionDisclosure of electronic documents in the common law and civil law traditionElectronic documents in international arbitration 1#Structure of a Civil Action: Common Law (U.S.)2TrialComplaintAnswer or Motion to Dismiss(1st dismissal opportunity pre-trial)Discovery Fact ExpertMotion for Summary Judgment (2nd dismissal opportunity)Discovery (U.S.)DiscoveryPurpose of Discovery Establish the facts and develop a theory of the case Crystallize the testimony of witnesses at an early stage Undermine Credibility3#Discovery (U.S.) Discovery Standards are Very Liberal Produce all relevant documents and document that may lead to admissible evidence [D]iscovery accounts for as much as 90 percent of litigation costs when discovery is actively employed.Large organizations receive, on average, 250 to 300 million e-mails per month4#

Discovery (U.S.)C.Requests for Documents are Broad5

Discovery (U.S.)C.Requests for Documents are Broad6

Discovery (U.S.)Bill Gates7D.The Importance of credibility

Structure of a Civil Action: Civil Law (France)8Art. 145 Pre-action disclosureAssignationRfrMise en tatRapport du jugeAudienceExpertiseCriminal ActionProduction of Electronic Documents (International Arbitration)The IBA RulesA. Reflect a Compromise Between Civil Law and Common Law 9#2010 amendments to the IBA Rules[I]n the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner.10Production of Electronic Documents (IA)B.Document Disclosure in Practice:Depends on the legal tradition of arbitrators and the place of arbitrationInternational arbitral tribunals in the U.S. frequently order the production of significant amounts of electronic documentsArbitration organizations have developed rules to address the concerns of companies11Production of Electronic Documents (IA)ICDR International Dispute Resolution Procedures (Effective June 1, 2014)The parties shall exchange all documents upon which each intends to rely on a schedule set by the tribunal.In addition, the tribunal may, upon application, require a party to make available to another party documents in that partys possession not otherwise available to the party seeking the documents, that are reasonably believed to exist and to be relevant and material to the outcome of the case.12Arbitral tribunals are expected to exercise greater scrutiny with respect to e-documents.When documents to be exchanged are maintained in electronic form, the party in possession of such documents may make them available in the form (which may be paper copies) most convenient and economical for it, unless the tribunal determines, on application, that there is a compelling need for access to the documents in a different form. Requests for documents maintained in electronic form should be narrowly focused and structured to make searching for them as economical as possible.13ICDR Procedures (2014)The Tribunal may require and facilitate such discovery as it deems it appropriate in the circumstances, taking into account the needs of the parties and the desirability of making discovery expeditious and cost-effective.Initial pre-hearing conference scheduled promptly after the constitution of the Tribunal.CPR Protocol on Disclosure of Documents.14International Institute for Conflict Prevention and Resolution (Effective July 1, 2013)International Chamber of Commerce ICC Task Force Established in June 2008 at the suggestion of the U.S. National Committee of the ICC (USCIB)Approximately 80 members from 23 countriesPractitioners on both sides of the Atlantic have very different views about e-documents15International Chamber of Commerce Arbitration Rules (Effective January 1, 2012)Article 24 - Case Management Conference[T]he arbitral tribunal shall convene a case management conference to consult the parties on procedural measures that may be adopted pursuant to Article 22(2). Such measures may include one or more of the case management techniques described in Appendix IV.16Article 25.1 - Establishing the Facts of the CaseThe arbitral tribunal shall proceed within as short a time as possible to establish the facts of the case by all appropriate means.17International Chamber of Commerce Appendix IV - Case Management Techniques:Identifying cases to be decided solely on the basis of documentsRequest for production limited to documents that are relevant and material to the outcome of the caseUsing a Redfern ScheduleThese are well-known techniques in international arbitration18International Chamber of Commerce Document disclosure in international arbitration has undergone major changes because of e-documentsLegal fees depend in part on the scope of e-disclosureHaving a well drafted arbitration clause will have a significant impact on the costs and duration of an arbitration19ConclusionProduction of Documents(International Arbitration)DOCUMENTS REQUESTED IN RESPONDENTS REQUESTTO PRODUCE DOCUMENTSSPECIFIC FACTUAL ALLEGATIONS CLAIMANTS OBJECTIONSRESPONDENTS REPLY CONTENTIONS TRIBUNALS DECISION20The IBA RulesA.Reflect a Compromise Between Civil Law and Common LawRedfern Schedule

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