For years, many proponents of arbitration have considered the cost and delays of discovery of electronically stored information (ESI) inconsistent with core principles of arbitration such as efficiency and cost-effectiveness. That view led many arbitral bodies and arbitrators to step only cautiously and slowly into the e-discovery realm. It was not uncommon to go through substantial arbitrations without participating in anything remotely resembling either a federal e-discovery conference with opposing counsel or a prearbitration conference where the arbitration panel engaged the parties in meaningful and technically sound discussions about e-discovery.
More often than not, arbitrators were relatively untrained in e-discovery and questioned their own authority to issue orders limiting or granting e-discovery or sanctioning its abuse.
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