By Gene Commander
Gene Commander Inc
Today’s advancing use of technology in business and personal lives has made the preservation, collection, sampling, testing, searching, production and maintenance of electronically stored information overwhelming for many businesses and their legal teams when they become involved in complex commercial litigation and arbitration.
Amendments to the Federal Rules of Civil Procedure in 2006 effectively brought the discovery of ESI into the litigation process. Subsequent amendments to the FRCP, including those adopted in 2015, and similar amendments adopted by state supreme courts across the country, have allowed e-discovery to explode beyond the production of email and other common forms of electronic records that are routinely maintained by businesses pursuant to their formal document retention policies. On today’s ESI landscape, company cloud-based storage, cyber security and personal voice mail, text messages and social media are considered within the realm of e-discovery.
E-discovery has also emerged as a significant element of complex commercial and construction arbitration. Changes to the Commercial Arbitration Rules of the American Arbitration Association in 2013 and the AAA’s Construction Arbitration Rules in 2015 took formal steps to embrace the role of e-discovery in arbitration proceedings administered both privately and by the AAA when its arbitration rules are incorporated into the parties’ contractual dispute resolution procedures.
The proper scope and cost-sharing arrangements for e-discovery are often hotly contested when the parties are unable to agree on the extent to which the ESI under their custody and control is reasonably accessible and producible without undue burden, expense or delay.