The difficulties of having limited guidance on disclosure in arbitration are compounded by the confidentiality of and lack of precedent in arbitration – arbitrators are navigating these tricky issues in isolation.
Various novel approaches to disclosure in litigation are being developed in a number of jurisdictions. In the English courts, judges are actively involved in scoping disclosure at an early stage in proceedings. Parties are obliged to consider and discuss the extent of searches to be made and parties will exchange an Electronic Documents Questionnaire detailing the proposed electronic search terms and date ranges as well as highlighting any potential issues with accessing electronic documents. Early intervention means that any difficulties or disputes over disclosure are aired well before the disclosure exercise commences, with the intention to save time and costs associated with challenges, satellite litigation and demands for multiple repeat disclosure exercises where prior exercises are allegedly inadequate. The English court’s approach to disclosure is also heavily influenced by proportionality – the cost and burden of disclosure must be proportionate to the complexity and value of the dispute. Failure by parties (or indeed counsel) to engage in the process fully or responsibly will be sanctioned, including in costs.
Similarly useful e-disclosure court precedents are available in other jurisdictions. In Canada, some jurisdictions have adopted the Sedona Canada Principles Addressing Electronic Discovery which set out principles for the process of electronic discovery and, like the English approach, emphasize the importance of a proportionality. In Australia, court disclosure processes are increasingly being utilised in arbitration; where a large number of documents may need to be electronically exchanged, parties to arbitration will commonly agree a protocol for discovery of electronic documents, often based on the Federal Court of Australia’s electronic discovery protocol (this is currently being updated) or one of the state Supreme Court protocols.
The influence is not exclusively one-way; Australian litigation is also being influenced by arbitration. The Federal Court’s Commercial and Corporations Practice Note introduced in October 2016 suggests that parties consider using disclosure methods more common to arbitration such as the Redfern schedule and a “memorial”-style process for providing key documents and evidence.
It is important, however, that parties and arbitrators bear in mind that not all aspects of litigation disclosure protocols will be appropriate for arbitration. Arbitration has particular attributes that can present unique problems for the disclosure process. As an example, tribunals generally only have jurisdiction over the parties to the arbitration agreement and not third parties. Where data is held by third parties (such as in a distributed-host cloud system or by an internet service provider), a tribunal will generally not have the power to order disclosure against that third party. In this situation, a party to an arbitration will generally need to seek the assistance of the court, to obtain an order for non-party disclosure. Whether such remedies are available will depend on the procedural law and supervisory courts of the arbitration.
Another important development in litigation, is that many courts are actively embracing technology. “Predictive coding”, a search technology which can be used to identify electronic documents relevant to the dispute, has been in use in US litigation for some time and more recently has been approved for use in the English courts. In Pyrrho Investments Limited and another v MWB Property Limited and others  EWHC 256 (Ch), over 3.1 million electronic documents needed to be reviewed (prior to an automated process of de-duplication that number originally stood at 17.6 million). The judge stated that the cost benefits of technologyassisted review were significant and that, moreover, there was some evidence to suggest that this form of review was more accurate and consistent than a review carried out by humans.
As the volume of data increases, such technologies will become more crucial to reducing the time and cost burden of disclosure – thus, in addition to being the cause of the problem, new technologies might be part of the solution. Arbitrators, counsel and parties to arbitration must also continue to embrace new technology. Indeed, if technology-assisted review is in fact more accurate and efficient, foreseeably at some point it might be negligent not to do so.