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4 Ways eDiscovery Technology Can Prove Useful in Arbitrations

4 Ways eDiscovery Technology Can Prove Useful in Arbitrations

Jeffrey Wolff
Jul 27, 2021 4:11:44 PM

Imagine that you have a long-term employee who is now asserting a very fact-specific claim of employment discrimination. You’d like to arbitrate this matter privately rather than expending the time and money associated with litigation, but you don’t want to give up your right to full factual discovery. Is there a way to get the best of both worlds, keeping the speed and affordability of arbitration while still enjoying the robust exchange of discovery as in litigation? 

Yes—by using eDiscovery technology to preserve, search, review, and redact electronically stored information (ESI) so that you can quickly and efficiently focus on the details that matter without wasting time or money on irrelevant facts. 

This blog post will give a quick introduction to arbitration, focusing on how it differs from litigation. We’ll then take a quick look at the advantages and disadvantages of arbitration before discussing how discovery works in arbitration. Finally, we’ll explore four ways that eDiscovery technology can help to keep arbitration fast and affordable while still giving the parties all of the information they need. 

Contents: 

What’s the difference between arbitration and litigation?
The advantages and disadvantages of arbitration
How discovery works in arbitration
Four ways to use eDiscovery technology in arbitration
1. Preserving information and managing legal holds
2. Organizing data and searching for relevant information
3. Conducting technology-assisted reviews
4. Redacting privileged or sensitive information
Using eDiscovery technology to maximize the benefits of arbitration 

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What’s the difference between arbitration and litigation? 

Arbitration and litigation are both means of engaging a neutral third party to resolve disputes. Litigation relies on the court system, with a judge or jury deciding case outcomes. Arbitration, by contrast, aims to achieve resolution faster and in a less expensive manner than litigation by avoiding the court system in favor of arbitrators (or panels of arbitrators) to decide cases. Litigation and arbitration are similar in the structure of their hearings and the decision-making authority of a third party, but they have many differences. For example: 

  • Arbitration is a mutual choice that both parties must agree to, whereas one party can unilaterally decide to pursue litigation, dragging the other party to court against its will.
  • The rules of arbitration depend largely on what the parties have agreed to, while the rules of litigation are inflexible and rarely open to interpretation—even by judges.
  • Arbitration is generally quick, with decisions reached in a matter of months; by contrast, litigation can persist for years.
  • Arbitration gives the parties significant control over scheduling, while dates for litigation are determined by the court.
  • Arbitrations are private and often occur secretly; litigation is typically a matter of public record, with open court proceedings. 

 

The advantages and disadvantages of arbitration 

What one party sees as an advantage may be a disadvantage to another, but generally speaking, arbitration is less expensive, faster, and more efficient than litigation. Parties may also have more control over where their dispute is heard and who their arbitrator is. This is particularly useful in complex commercial litigation, where judges and juries cannot be expected to have deep industry-specific knowledge. To compensate for that lack of background, parties must spend valuable court time educating decision-makers, sometimes to no avail. Arbitrators, on the other hand, “frequently have experience with the industry the parties are in or the issues that are the basis for the legal dispute,” leading to more informed outcomes. 

Of course, there are also disadvantages to arbitration. In most circumstances, arbitration awards are not appealable. Nor do arbitration awards establish any kind of precedent that parties can later rely on, as court cases do. Additionally, one of the reasons that arbitration is generally less expensive than litigation is the limited role that fact discovery plays in arbitration—which can limit how much the parties learn about their opponent’s case. 

How discovery works in arbitration 

One of the major advantages of litigation is the degree to which parties can learn about the other side’s claims or defenses during the course of discovery. Because arbitrators strive to reduce costs and delays, discovery has traditionally been more limited in arbitration. Still, in recent years eDiscovery “has … become a routine issue in all commercial arbitrations,” with parties expecting an ample exchange of documents. 

To expedite the process of discovery, JAMS—formerly known as Judicial Arbitration and Mediation Services—has established a protocol for discovery, as has the American Arbitration Association (AAA) in Rule 22 of its Commercial Arbitration Rules, which governs the “Pre-Hearing Exchange and Production of Information.” These rules emphasize the need for parties to engage in discovery without falling prey to the expenses and delays that discovery disputes so often cause in litigation. 

Four ways to use eDiscovery technology in arbitration 

Fortunately, today’s eDiscovery technology is fast, efficient, and affordable—which makes it the perfect solution for time- and cost-conscious arbitration participants. Here are four ways to use eDiscovery technology in arbitration. 

1. Preserving information and managing legal holds 

You can’t engage in discovery—in any venue—if you don’t first preserve potentially relevant information. In litigation, the loss of discoverable information is known as spoliation, and it is subject to severe penalties, up to and including directed judgment or dismissal of a party’s claims. In arbitration, the penalties for loss of information are largely up to the arbitration authority or the individual arbitrator and may include equitable remedies. 

Conscientious parties avoid any hint of spoliation by implementing and managing legal holds to protect their information from inadvertent or intentional modification or deletion. With legal hold technology, parties can rapidly place custodians’ electronic data on hold, circulate custodian questionnaires, send hold reminders, and remove holds when a resolution is reached in the underlying matter. 

2. Organizing data and searching for relevant information 

With data volumes skyrocketing, parties need fast, efficient ways to sort through the morass of potentially relevant data that they’ve preserved. Two related tactics fall under this umbrella. First, eDiscovery technology offers powerful search capabilities that automatically eliminate duplicate and “junk” information while helping parties zero in on important facts using keywords and metadata. Additionally, organizational tactics like concept clustering or email threading keep related information together for easier review. Research has shown that when information is presented in conceptual clusters, lawyers can review that information as much as 20 percent faster, saving both time and money. 

3. Conducting technology-assisted review 

As parties identify important emails, documents, and other data types, they send that information along to specialized teams of review attorneys for in-depth analysis. This is where eDiscovery technology truly shines, as technology-assisted review (TAR) can eliminate weeks or months of painstaking manual review. With TAR, the technology “watches” as a human reviewer begins coding documents and uses natural language processing, a form of artificial intelligence, to discern which words and phrases are indicative of relevance, privilege, or other tags. The technology then sifts through the corpus of remaining documents and floats those that it expects to be important to the top of the pile for human review, dramatically limiting the time required for review and ensuring that no key documents are missed. 

4. Redacting privileged or sensitive information 

Before producing information to an opponent, a party must ensure that any privileged or otherwise sensitive information is fully removed through a process called redaction. Manually identifying sensitive information is slow and tedious work that is prone to errors, but again eDiscovery technology has streamlined this process. A process known as auto-classification can quickly identify potentially sensitive information, while redaction technology ensures that protected information is eliminated entirely—not just covered up—from both source documents and metadata. 

Final thoughts: Using eDiscovery technology to maximize the benefits of arbitration 

eDiscovery technology can keep you on budget and on time. You don’t have to lose out on its benefits just because you choose to arbitrate a matter. From the start of a potential matter, Legal Hold ensures that you preserve the right information and manage legal holds effortlessly. Once you’ve locked down relevant data, eDiscovery platforms like ZyLAB ONE help you search, review, and analyze that information, using the power of artificial intelligence and natural language processing to hone in on critical facts quickly. Plus, ZyLAB ONE includes an auto-redaction capability that classifies, redacts, and codes sensitive information automatically. Contact us today to learn more.