We know the scheme is not perfect, not least from the feedback we received in our survey. More on that here. But that being said, the DPS does provide clear guidance on how parties are expected to act regarding document searching and disclosure in disputes.
Some of the feedback we received in our DPS survey was regarding the lack of ‘stick’ by courts when a party did not comply adequately with what was expected. And it looks like the same issues are being seen here too. It’s clear that the tribunal was not happy with the defendant making little effort to narrow the scope, but that being said, what’s the deterrent for future similar behaviours? One party has clearly made more of an effort, but does that give them any advantage in the eyes of the tribunal?
I also wanted to comment on the use of tech in DPS too. Generally, we see technology having an important role in arbitration, just as it does in litigation, supported by the courts and DPS. eDiscovery platforms and partners can identify privilege material fairly simply and it’s important to remember that technology is there to ringfence that material efficiently.
From our survey, and from our own experience too, engaging an eDiscovery partner early on can really help. The key is to collect the data and then ensure it is processed and searchable early on. Once this is done then the eDiscovery partner can help run test searches so that it can be accurately reported how ‘wide’ the opposing side’s request actually is.
Parties to arbitration proceedings should also be careful to comply with any specific provisions as to procedure/approach for document production which are contained in previous procedural orders (as was the case here with the Tribunal's requirement that the parties cooperate and instruction to suggest narrower formulations of document requests).