Using Technology and e-Disclosure

Introduction

E-disclosure – or the production of electronically stored information (ESI)^[2] – is increasingly prevalent in international arbitration. More and more information is being transmitted and stored in electronic and technological form: contracts are exchanged and executed via email; key communications are sent via text message, Slack or Microsoft Teams; and hearings and high-stakes negotiations take place exclusively on Zoom. This has led arbitration practitioners to seek, and tribunals to order, substantial amounts of e-disclosure. The availability and prevalence of e-disclosure in international arbitration has been both confirmed and perhaps encouraged by the International Bar Association’s Rules on the Taking of Evidence in International Arbitration (the IBA Rules), which, starting in 2010, have made express reference to the production of ‘documents maintained in electronic form’.^[3]

E-disclosure and the production of ESI present both opportunities and challenges for international arbitration practitioners.

In terms of opportunities, production of ESI can encourage a more thorough search for and examination of relevant evidence in a case; can be more efficiently searched and managed using available technologies; and often has a reduced ecological impact compared with the mountains of paper documents used in years past.

In terms of challenges, ESI is generally found in significantly greater quantities than paper documents and is likely to exist in duplicate forms across multiple locations. It is more easily manipulated and modified from its original form by technology and can be very burdensome and costly to produce. As the rising costs of international arbitration continue to be a ‘hot topic’, the techniques that underpin e-disclosure will, and should, be increasingly scrutinised.

An additional challenge present in international arbitration arises from cultural differences in the evidentiary traditions of practitioners and tribunal members: those from the United States and the United Kingdom, where e-disclosure practices are more developed, may tend to engage more frequently in complex and extensive production of ESI, whereas those from the civil law, inquisitorial tradition may do so on a more limited scale. This can at times lead to disagreements and disequilibrium about the scope of production of ESI and the steps counsel must take to locate and produce responsive ESI.

As information becomes increasingly electronic, producing some amount of ESI is inevitable in most international arbitrations. The focus of this chapter is threefold:

• to summarise the current state of play in international arbitration on production of ESI;
• to identify potentially useful practices from jurisdictions where e-disclosure is particularly developed; and
• to identify and analyse helpful technological tools and strategies that international arbitration practitioners can use to produce ESI efficiently and effectively.

Current state of play on production of ESI

Unlike domestic courts, which are largely constrained by established evidentiary and procedural rules, international arbitral tribunals have wide discretion over the production of documents in international arbitration. For instance, under the UNCITRAL Rules,^[4] ‘[a]t any time during the arbitral proceedings the arbitral tribunal may require the parties to produce documents, exhibits or other evidence within such a period of time as the arbitral tribunal shall determine’.^[5] The ICSID Convention^[6] likewise provides that ‘[e]xcept as the parties otherwise agree, the Tribunal may, if it deems it necessary at any stage of the proceedings, (a) call upon the parties to produce documents or other evidence’.^[7] The 2021 ICC Rules^[8] provide that ‘[a]t any time during the proceedings, the arbitral tribunal may summon any party to provide additional evidence’.^[9]

As with document production generally, tribunals largely have wide discretion over the use of technology and broad-based e-disclosure during arbitral proceedings, and there has historically been limited guidance on production of ESI. This reflects a key difference between document production in arbitration, which typically occurs after the parties have submitted their first round of pleadings, rather than at the outset of the case, as with US discovery. Therefore, by the time document production occurs in arbitration, parties have already submitted their primary evidence to the tribunal, and should, in principle, be less reliant on document production for material in support of their primary case than a party in a US-style litigation. This, along with other cultural factors, has historically resulted in a smaller document universe at issue in international arbitration than in US-style litigation, and consequently less need for the efficiency gains and other benefits that technology can bring to the document production process.^[10]

More recently, the availability of technology and the proliferation of ESI has, in practice, led to significant increases in the volume of documents at issue in international arbitrations. As international arbitration counsel become more familiar with technological tools used in e-disclosure, those tools often become a normalised part of the document production process, which can contribute to ‘mission creep’ during document production. However, given the different function that document production serves in international arbitration, and other procedural differences between the practice of international arbitration and US-style litigation, it is important to keep in mind the specific function of document production in the case at hand when determining whether and how to utilise e-disclosure tools. Equally, other factors must be taken into account, such as the actual timescale in which document production must occur (where there remains an ongoing duty throughout the arbitration), the scope of the potential document universe at issue, and any relevant budgetary or counsel capacity constraints.

General arbitral practice has neglected a full debate and engagement with the topic of e-disclosure.^[11] However, the increasing relevance of ESI to any form of document production has led arbitral institutions to begin issuing some limited guidance about best practices for e-disclosure, including reasonable limits on its scope and the application of technological tools.

Leading arbitral institutions that have commented on the subject of e-disclosure and the concurrent increase in the volume of documents note that ‘the advent of electronic documents should not lead to any expansion of the traditional and prevailing approach to document production’^[12] in international arbitration. These institutions, and the relevant commentary, encourages arbitration practitioners to always adopt efficient procedures that safeguard against the more costly and burdensome e-disclosure practices that have been adopted in jurisdictions such as the United States.^[13]

Increasingly, updated institutional rules, particularly those applicable to commercial arbitrations, have sought to address this as well. For example, the ICDR Procedures (as amended in 2021)^[14] include in their notable features that they ‘[a]llow tribunal[s] to manage the scope of document and electronic document requests and to manage, limit, or avoid U.S. litigation-style discovery practices’.^[15] The Commentary to the 2020 IBA Rules similarly notes: ‘Expansive American—or English—style discovery is generally inappropriate in international arbitration.’^[16]

Although e-discovery and the increased availability of more advanced review platforms can certainly lead to more efficiencies in arbitration, particularly during the document production phase, this should still be considered through the lens of arbitration and should not be seen as an invitation for more wide-ranging requests for electronic documents. Requests for electronic documents should remain limited in scope and tailored to the circumstances of the case.^[17]

For their part, the Rules on the Efficient Conduct of Proceedings in International Arbitration (the Prague Rules) seek to achieve this balance by setting out guidelines for the use of ESI and e-disclosure while taking an overall stance against document production. Pursuant to Article 4.2 of the Prague Rules, ‘[g]enerally, the arbitral tribunal and the parties are encouraged to avoid any form of document production, including e-disclosure’. Nevertheless, in cases where document production is necessary, Article 4.5 provides that a party may request ‘a specific document which: a. is relevant and material to the outcome of the case; b. is not in the public domain; and c. is in the possession of another party or within its power or control’. Under Article 4.7 of the Prague Rules, documents produced ‘shall be submitted or produced in photocopies and/or electronically’.

Under the IBA Rules, the relationship between the admissibility and assessment of evidence and e-disclosure can be seen particularly in the application of Article 9 of the IBA Rules to document production requests for ESI. Article 9 sets out various objections that a party may raise in response to a document production request, including:

• lack of relevance to the case or materiality to its outcome (Article 9(2)(a));
• legal impediment or privilege (Article 9(2)(b));
• unreasonable burden (Article 9(2)(c)); and
• considerations of procedural economy, proportionality, fairness or equality (Article 9(2)(g)).

If a party has the technology and e-disclosure tools (as discussed further below) potentially available to it, the relative salience of these objections may shift.^[18] For instance, if a document production request is directed at ESI and contains targeted search terms, time frames or custodians, there may be a greater likelihood of the request identifying material that is relevant and material to the outcome of the case.^[19]

As discussed further below, another benefit of deploying e-discovery technology is a potentially significant reduction in attorney review time, which also means reduced costs associated with the e-discovery phase and potentially a reduced overall burden on the producing party. At the same time, running searches on documents that are within your client’s possession, custody or control requires collecting that ESI from the relevant custodians, processing and uploading the ESI to an e-discovery platform and potentially hosting it for several months or even years, all of which can be costly. While it is increasingly standard for states and corporates alike to keep most, if not all, contemporary records electronically, this is not always a given, and even so, particular challenges can arise when a dispute involves events that occurred prior to the switch to electronic records.

Moreover, because the volume of ESI is typically greater than for hard copy documents, the document universe for these searches may be in the tens, if not hundreds, of thousands of documents. Accordingly, although e-disclosure can certainly improve the efficiency of document production, it also has the potential to dramatically increase the financial burden on both the producing party (when identifying documents for production) and the requesting party (when subsequently reviewing the produced documents).^[20]

This tension between e-disclosure and burden may also arise with documents that are legally privileged. Larger volumes of ESI can make it more difficult to review and accurately identify legally privileged documents, particularly because privileged content can sometimes be found in metadata^[21] or in comment bubbles or tracked changes, which are not always immediately visible on a document review platform.^[22] In addition, although review platforms offer various methods of applying partial or full-page redactions to ESI, the act of applying redactions is not without cost, as attorneys will often need to review all or a subset of redactions to ensure that they are being applied correctly, a process that can be both costly and time-consuming. Thus, the presence of ESI and the availability of e-disclosure may well encourage requesting parties to cast a wider net for documents than they otherwise would, increasing the burden on producing parties and accordingly warranting an objection under the IBA Rules. The relative benefits and drawbacks of e-discovery is thus something that parties and tribunals should both keep in mind when crafting and ruling on document production requests.

Overall, the aim of guidance offered by arbitral institutions is to avoid allowing e-disclosure to alter the key principles that make arbitration potentially attractive to businesses, namely, to provide more efficient and cost-effective means to resolve disputes.

E-disclosure practices from other jurisdictions

Although e-disclosure practice is relatively new to international arbitration, it is well developed in other jurisdictions – the United States and the United Kingdom, in particular, have developed numerous strategies for limiting the scope of production and ensuring equality of arms when e-disclosure is involved. Some of these practices address challenges that are unique to a discovery phase that takes place at the outset of a case before the parties have had a chance to narrow the issues in dispute, which, as noted above, would be less relevant to document production that takes place after the first round of pleadings in international arbitration. Others, however, address issues common to e-disclosure in the contexts of both domestic litigation and arbitration.

The scope of e-disclosure in the United States and the United Kingdom is generally far broader than that in international arbitrations. Nevertheless, both jurisdictions consider two factors in their proportionality analysis that are not expressly contemplated by the IBA Rules: namely, that e-disclosure be proportionate to (1) the overall importance of the case as a whole (including the amount in dispute) and (2) the financial resources of the producing party. The US Federal Rules of Civil Procedure, for example, require that any production of ESI be proportionate to, inter alia, ‘the importance of the issues at stake in the action’ and ‘the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery out-weighs its likely benefit’.^[23] The UK’s Practice Direction 57AD likewise permits broad-based e-disclosure only in ‘an exceptional case’^[24] and considers, inter alia, ‘the importance of the case, including any non-monetary relief sought’ and ‘the financial position of each party’ when determining whether such discovery is appropriate.^[25]

To encourage efficiency and reduce later disputes, both the United States and the United Kingdom also require that counsel meet and confer at the outset of the case regarding how ESI will be produced. Similarly, both jurisdictions encourage parties to present to one another carefully crafted search terms to limit the review burden on the producing party. US courts have ordered parties to agree on search terms for production of ESI.^[26] The United Kingdom likewise encourages parties to consider limiting e-disclosure to only ‘documents responsive to specific keyword searches, or other automated searches’.^[27] Although, for the reasons stated above, keyword searches may be less appropriate for document production in international arbitration in which documents must generally be both relevant to the case and material to its outcome, requesting parties may wish to include specific search terms in their document production as part of their description of the document or class of document being sought in a particular request. This step, which is expressly anticipated by the IBA Rules, can help to proactively reduce the producing party’s overall burden and thus can be a useful tool for mitigating the risk of an objection on grounds of undue burden.^[28]

Both jurisdictions also encourage the use of technology to lessen review burdens. The Sedona Principles,^[29] which are frequently cited by US federal courts, identify ‘the potential use of search technology and other methods of reducing the volume of ESI to be preserved or produced’ as a key topic to be discussed during pre-disclosure meetings.^[30] The United Kingdom, likewise, requires parties to discuss how to reduce the cost and burden of e-disclosure, including whether to use technology-assisted review (TAR)^[31] or coding strategies to reduce duplication.^[32] UK courts may also order parties to use software or analytical tools, de-duplication software^[33] or data sampling to reduce the burden of review.^[34] The suitability of these tools to document production in international arbitration is discussed further below.

Meet and confers about e-disclosure in the United States also involve discussions about the types of documents that counsel are obliged to identify, preserve and produce during a case.^[35] This could be particularly relevant to international arbitration, in which there is often variance in the domestic legal ethics requirements for counsel concerning e-disclosure, as this can produce disequilibrium concerning whether and to what extent counsel will feel obligated to produce ESI beyond emails (e.g., whether text messages or chat logs in applications such as Slack, Skype or Microsoft Teams must be preserved and produced).^[36]

Finally, the United States has devised several solutions for the increased risk of inadvertent disclosure of privileged information associated with e-disclosure addressed above.

First, US practitioners often agree at the outset that production of ESI made without an intent to waive privilege can be clawed back at the request of the producing party, thereby largely precluding the receiving party from claiming waiver because of inadvertent production of privileged information in e-disclosure.^[37] A claw-back agreement could also be used as a ‘sword’ in international arbitration against any party claiming undue burden under Article 9(2)(c) of the IBA Rules in respect of producing ESI that may contain privileged information.

Second, US practitioners also often use search terms or metadata to locate hidden privileged information within documents, and to auto-populate privilege logs for voluminous ESI populations.^[38] These tools are discussed further below.

In sum, although many aspects of e-disclosure in the United States and the United Kingdom are inapplicable to document production in international arbitration, practices such as more detailed proportionality analyses, initial meet-and-confers, robust claw-back agreements, and the use of technological solutions to reduce burden on the parties might be useful tools for arbitrations in which there are large volumes of ESI.

Technological solutions and strategies

As noted above, technological tools, such as review platforms and TAR, are often considered a way to lessen the burden of e-disclosure. As e-disclosure becomes an increasingly common feature of international arbitration, and as ESI continues to be generated in larger and larger quantities by clients,^[39] it is important for counsel to familiarise themselves with such tools, to conduct their reviews efficiently while still maintaining high standards.

E-disclosure market solutions are all generally similar in offering.^[40] A product, or database,^[41] hosts the data set provided by a party, including documents received from a client or productions received from opposing parties. After the data is ingested into the platform, the data processing phase begins and document metadata (such as date, custodian and file type) are extracted to the extent it is available and mapped onto applicable fields to facilitate searching.^[42]

At this stage more powerful tools such as de-duplication^[43] and email threading,^[44] can be applied, and the database begins to take shape. If documents are collected and processed in their native form,^[45] attachments can then be extracted^[46] and relationships between documents can be established.^[47] Thereafter, practitioners generally have access to a fully searchable database and are able to search for files using keywords or extracted metadata fields, such as the date. Counsel can then also create their own coding forms that deal with particular themes relevant to a case, as well as responsiveness and privilege or confidentiality issues, thereby creating an organisational structure within the database.

This section discusses considerations for making the decision to initiate a platform, some of the general pros and cons associated with these platforms, and finally the reliability of analytical tools that can be leveraged.

Initiating a technology solution

At the outset of an arbitration, it can be useful to set up a document review platform. Even if ESI volumes are not significant at this stage, loading available ESI onto a review platform allows practitioners to target the relevant documents more efficiently during initial fact development for the first round of submissions.^[48] It also ensures that the platform is set up and organised in advance of receiving additional volumes of ESI from a client during the initial submissions, and well in advance of any discovery phase where a party is required to produce ESI or may be in receipt of a production from opposing counsel that would most efficiently be reviewed on a platform.^[49] In assessing whether to deploy a document review platform, it will also be necessary to have some understanding of the client’s data, including how they store and access that data, what applications they use and their backup and archiving policies.^[50]

As soon as documents come into counsel’s possession, or even as early as once discussions have taken place with the client regarding the types and volumes of documents expected, the decision-making process on review platform vendors and databases can begin (if in-house solutions are not available).^[51] The choice of which platform to introduce is an important strategic consideration in any e-disclosure process and is quite case-specific. A checklist of considerations for selecting a platform – including the format and volume of data, the complexity of the review required and the client’s ability to pay review-related costs – is included at the end of this chapter.

Successful use of a review platform can depend on the client’s and practitioners’ understanding of how to use the platform and the e-disclosure process generally. It is vital that counsel and the support team attend training sessions and for them to spend time familiarising themselves with the review functionalities available, as well as the process by which data is collected, processed and ingested into the platform. By having a better understanding of these processes, counsel can better instruct their clients on collection, facilitating a more focused document set that captures the most relevant information for the case. By familiarising themselves with the platform technology early on, they ensure they are deploying the most effective search and analytical tools it has to offer, and that they are making the necessary requests of their e-discovery project management team. Familiarity with the discovery process, ESI and the technology used to navigate it will ensure counsel teams are reducing costs and establishing more efficient collection and review workflows.

The technology for document analysis has substantially increased in recent years. An example of this is TAR. TAR is becoming more common where discovery is becoming more voluminous due to the quantities of ESI being collected. TAR is:

[a] process for Prioritizing or Coding a Collection of Documents using a computerized system that harnesses human judgments of one or more Subject Matter Expert(s) on a smaller set of Documents and then extrapolates those judgments to the remaining Document Collection.^[52]

There are two general types of TAR, the first of which is traditionally referred to as TAR 1.0 or predictive coding, where counsel review a sample (or ‘seed’) set of documents for responsiveness determinations, and those determinations are then fed back into a computer algorithm. Using that responsiveness coding, the algorithm then makes responsiveness determinations on additional documents, which are then again reviewed by counsel in an iterative process until the system is accurately predicting responsive documents.^[53] TAR 2.0, or continuous active learning, requires no seed set of documents, but rather integrates the review team’s coding of documents on a continuous basis, and then feeds them what it predicts are responsive documents based on their coding.^[54]

In addition to discussing this with their client, counsel that do opt to use TAR to assist in the document production phase may wish to consider engaging with the opposing party on a proposal to use TAR prior to undertaking the disclosure process, particularly if the parties reasonably anticipate large document universes being involved on both sides. This may involve a procedural conference to agree on a protocol addressing issues such as how the technology would be set up to review documents, how the party would verify the accuracy of the search process, and when a party can stop the review process. Otherwise, and depending on the applicable law, a party unilaterally adopting TAR without engaging with the other party at the outset, may risk being ordered to redo the review manually if the lack of transparency means that other party cannot be confident that the review is accurate and comprehensive.^[55] As a general practice point, counsel throughout any document production process should keep records of the steps taken, in particular with ESI, to have a defensible record should they be challenged about the quantity and quality of the production.

Pros and cons

As discussed above, most international arbitrations involve some form of ESI and, therefore, may benefit from the use of a document review platform to store and manage this data. Operations such as applying keyword searches and date limiters during the processing phase can assist counsel with understanding and culling the initial data set before it is moved onto a review database, which ultimately reduces platform hosting costs and ensures that the document set on the platform is as relevant as possible.^[56]

Once the data set is online, arbitrations that involve large volumes of ESI, complex document sets^[57] or significant time constraints might benefit from additional technology solutions such as TAR,^[58] or communications mapping to identify potentially responsive documents. Where data sets are particularly large, tools such as TAR can allow counsel to prioritise the review of documents that are most likely to be responsive to ensure a more efficient and targeted review.

The benefit of standard tools available within any e-discovery platform is that they can minimise recurring obstacles that arise with paper-only review or with saving ESI onto local drives. For example, de-duplication tools available on most review platforms can quickly eliminate duplicate documents that counsel might otherwise spend substantial time reviewing and re-reviewing. Review platforms also provide opportunities for greater collaboration and communication between teams, as reviewers can generally make responsiveness and privilege determinations and provide comments about documents directly within the review platform itself, which other team members can later consult as needed. Tools such as email threading and other analytics that help demonstrate patterns in the document set can be further utilised to increase efficiencies and save costs.^[59]

However, there are some drawbacks with this technology. First, these tools are only as good as their users. Historically, counsel have had a distrust of relying on technology in lieu of manual processes, and it can be difficult to convince counsel teams to embrace new technological solutions, particularly in disputes where time is often of the essence and they are unfamiliar with its benefits. If counsel teams do not take the time to learn and master these technological tools, they may become more of a hindrance and financial burden than a help during the course of an arbitration.

As noted above, the fact that these tools facilitate the collection, processing and review of electronic documents can also be a double-edged sword. Because ESI is easier to store and back up, it tends to be more voluminous than paper documents, and is often hosted in multiple locations within a company’s data storage system, across multiple custodians, and even across multiple jurisdictions. Although the tools discussed above can facilitate a review of a commensurately larger universe of documents, this can come at a high cost in vendor fees, which can vary depending on the size of the data set. These fees can become unpredictable when counsel is grappling with a large and diffuse ESI data set, and they must be closely managed to avoid unpleasant surprises. The costs associated with such e-disclosure techniques are likely to be scrutinised further as scrutiny of costs becomes increasingly prevalent in international arbitration.

Nevertheless, counsel should avoid short-term thinking about the costs of e-disclosure solutions. Although initial ingestion and processing costs for ESI in review platforms can seem high, and the amount of time needed to set up platforms and train TAR processes may seem daunting, they may ultimately pale in comparison to the costs attributable to attorney review time.^[60] One study has shown that in large-volume cases, review-related activities accounted for 73 per cent of the total cost of e-disclosure,^[61] whereas 19 per cent was associated with processing and only 8 per cent with collection.^[62] Taking advantage of culling tools offered by review platforms such as de-duplication and email threading, as well as more advanced TAR software, allows counsel to hone in on the relevant documents more quickly, significantly reducing the size of the data to be reviewed and, therefore, the amount of time and money that needs to spent on review.^[63]

Accuracy and predictability

Practitioners are often concerned that analytical tools such as TAR will introduce substantial error into a review process, requiring much attorney time to remedy. This fear is largely misplaced. There is strong evidence to support the position that employing analytical tools such as TAR ‘yield[s] higher recall and/or precision than an exhaustive manual review process’ and with much lower effort, debunking the notion that manual review of large sets of data is the only way to ensure accurate results.^[64] Studies have found that TAR software outperforms human review in accurately identifying responsive documents, which ultimately reduces the number of documents an attorney must then review to only a fraction of what is in the collection, leading to obvious benefits in saving costs and time as well as more accuracy in the human side of review as well.^[65] These are some of the reasons that, as noted above, UK and US practice encourages the application of TAR.^[66]

Of course, these tools are not 100 per cent accurate. Rigorous quality control by counsel is important when using tools such as TAR to ensure accuracy in document production. Best practice would be to have sample sets of documents coded by TAR systems reviewed by senior members of the team who are most familiar with the issues in the case and the nuances of the document production requests. Counsel should also check both responsive and non-responsive documents coded by software throughout the course of the iterative review phase and should provide feedback to the vendor when there are significant and recurring errors. Interfacing with TAR in this way can reduce the burden (and inaccuracy) of counsel reviewing large volumes of ESI themselves, while ensuring that counsel have strategic input and the last word on any document production.

Further, when deciding whether to use TAR, counsel should be aware of its more general limitations. Because the current technology relies on text to learn what documents might be responsive, TAR does not work on non-textual documents such as images or audiovisual material. It will also not work if a legible electronic version of a document cannot be generated, or on a population of documents that are in multiple languages. Further, for TAR to train itself, it needs to have a substantial population of responsive documents to learn from. If a population of documents does not contain enough responsive documents (i.e., ‘low-richness’ populations), then TAR may be able to learn what is not responsive but may not be able to identify what is responsive.^[67]

Database checklist

The following checklist^[68] of questions can assist in determining the need for a database and which solution to choose.

Sources and format of ESI

• Where are the documents currently located?
• Who or what are the potential sources (the custodians) of the data?
• Is the ESI collected in its original native documentation (i.e., the format used by the application that created the document)?^[69]
• Are there hard-copy^[70] documents that are physically stored, or that have been previously scanned into a new electronic document?
• Is there ESI that requires certain software to view it, or that contains other complexities such as non-searchable text, uncommon file formats?
• Does the ESI extend to communications across social media and mobile communications (e.g., WhatsApp, LinkedIn, Facebook)?
• Are foreign language documents anticipated?^[71]

Collection

• Does the client have an in-house litigation specialist who is familiar with preservation practices and managing forensic data collection?^[72]
• Will the provider^[73] need to assist with the collection process, either remotely or on-site?
• What are the potential locations of ESI (i.e., is the data domestic or abroad?) and are there any data protection laws that need to be taken into consideration for the jurisdiction you are collecting from?
• What is the volume of ESI that is expected to be collected, reviewed and produced?^[74]

Case analysis and platform capabilities

• How can early case assessment tools assist prior to the promotion to a review database?
• What types of keywords or date ranges might be required to limit the scope of review?
• What kinds of analytical tools are anticipated; for example, will optical character recognition and de-duplication suffice, or will more advanced features, such as email threading and TAR, be required?
• Do the procedural rules of the case require that documents be produced in a certain format or any other specifications regarding production?
• Do the procedural rules set out any requirements about the processing of data and parties and tribunals obligations to protect this data?
• Is there a preference for a server or cloud-based platform?^[75]

Project management and contract attorney needs

• Does your firm have in-house e-disclosure specialists that can assist with questions from the team regarding crafting searches, for example, and who are equipped to address any potential issues that arise with the document set?
• Is the preference to have the e-disclosure provider staff a project manager who can be available to assist with any questions from the team?^[76]
• Is counsel experienced with the e-disclosure platform, or will they require significant training?
• Are there enough resources available to conduct a document review, or will you need to engage with third-party contract attorneys?^[77]
• If you are using contract attorneys what are the protocols in place to protect data?

Clients

• Do they have an existing relationship or reduced rates with a particular provider?
• Do they have an in-house platform they already use?
• What is expected to be the general level of participation by the client during the e-disclosure phase?
• Are there any particularly sensitive documents that may require additional restrictions within the database?

Costs

• What is the value of the case?
• What is the budget for the e-disclosure phase?
• Does that budget include anticipated translation costs?
• Is there hard-copy documentation?
• Have costs for unitisation and objective coding been factored in?^[78]

Notes